. F

SETH BALGOPAL DAS v.

THE STATE OF U.P. & ORS.

April 8, 1976

[A. N. RAY, C.J., M. H. BEG AND JAsWANT SINGH, JJ.}

U.P. (Ten1porary) Control of Rent and Eviction Act, 1947, S.3(2), rcquiren1ent of-Receipt of revision application by Additional District Mngisrrate, whether validated by practice in absence of rules or specific authorisation bv

Conmissioner. ·

The Rent Control and Eviction Officer, Dehradun. granted permission to the respondent landlady under s. 3 of the U.P. (Temporary) Control of Rent and Eviction Act, to file a suit for eviction of the appellant tenant, on the ground that the accommodation was required for her personal residence.

The tenant filed a revision application under s. 3 (2) of the Act, purporting to be made to the Commissioner, Meerut Division, but actually filed before the Additional Distrct fagistrate who rejected it as time barred. The appellant tenant's further ..l revision application, made under s. 7F of the Act, v,.ras rejected by the State \ Government, and then his petition under Article 226 was rejected by a Single Judge of the Allahabad High Court cin two grounds: Firstly that neither the' Act, nor the rules made thereunder had any provision enabling the Additional District Magistrate to receive the tenant's application under s. 3 (2); and secondly, that the time spent in obtaining the certified copy of the Distri..:t tagistrate's order could not be excluded under s. 12(2) of the Limitation Act, 1963. The appellant's special appeal was summarily rejected by a Division Bench of the High Court.

In appeal by special leave, the appellant contended before the Court that, as a pra.ctice had grown up in Dehradun, that the Additional District A-Iagistrate receives the revision applications made to the Commissioner, the requirements of s. 3(2) should l]e deemed to have been sufficiently complied with.

l)ismissing the appeal, the Court,

HELD : There is not even a rule on this subject made by the State Government.

A wrong practice cannot possibly modify what naturally follo-w'S from the language if s. 3 (2) of the Act, that the party must apply to the Commissioner directly and not through some other authority or official, For that pur!'ose, proof of at least specific authorisation by the Commissioner, after the introduction of s. 3(2), was required. [1094C; 1095A & Fl

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 222 of 1975.

Appeal by special leave from the judgment and order dated the 8th August, 1973 of the Allahabad High Court in Special Appeal No. 189 1 of 1972.

B. Sen, Mrs. Leila Seth, B. Mohan, Parveen Kumar and 0. P.

Khaitan for the appellant.

T. S. Krishnamoorthy Iyer and P. K. Pillai for Respondent No. 4

The Judgment of the Court was delivered by

BEG, J. The appellant, here, by special leave, is a tenant of premises in Dehradun in respect of which the landlord respondent No. 4 had sought permission, under Section 3 of the U.P. (Temporary) Control of Rent & Eviction Act III of 194 7 (hereinafter referred to as 'the

f I

Act'), to sue for his eviction.

The permission was granted by the Rent Control and Eviction Officer, Dehradun, as long ago as 11 August, 1969, and, there:j.fter, the suit for ejectment of the appellant was filed on 19th November, 1969.

Section 3, sub. sec. (I) of the Act had merely imposed a bar on suits in Civil Courts filed without the permission of the District Magistrate except on certain grounds which are given there. The plaintiffrespondent, one Mrs. Sheila Ka1ha wife of a retired army officer, was given permission to file her suit on the ground that she required the accommodation for personal residence. She is said to have been living at considerable expense to her at New Delhi due to inability to live in her own house at Dehradun as it has been occupied by the appellant.

The tenant had applied on 19th August, 1969, for a certified copy of the order of the Rent Control Officer granting the landlord permission to sue and got its copy on 25th August, 1969. Thereafter, the tenant filed a revision application under section 3(2) of the Act, purporting to be made to the Commissioner, Meerut D.iision, but actually filed on 16th September, 1969, before an Add1t10nal District Magistrate of Dehradun who had forwarded it on to the Commissioner.

The Revision Application was received in the Commissioner's Office on 24th September,

1969. It was rejected by the Commissioner on the ground that it was filed beyond the time prescribed by Section 3(2) of the Act which reads as follows:

"(2) Where any application has been made to the District Magistrate for permission to sue a tenant for eviction

from any accommodation and the District Magistrate, grants E or refuses to grant the permission, the party aggrieved by his order may within 30 days from the date on which the order is communicated to him apply to the Commissioner to revise the order."

The State Government also rejected the rev1s10n application of the appellant tenant, filed under section 7F of the Act, against the

F .

Commissioner's order.

The appellant tenant then approached the Allahabad High Court with a petition under Article 226 of the Constitution.

The petition was rejected by a learned Judge on 21st October, 1972, on two grounds : firstly, under Section 3 (2) of the Act; and, secondly, that the time spent on obtaining the certified copy of the order of the G District Magistrate could not be excluded under Section 12(2) of the Limitation Act of 1963.

For the second proposition reliance was placed upon Shyam Sunder Bajpai v. Commissioner Allahabad Division, Allahabad & Anr.(I) and Ram Lakhan v. Commissioner, Varanasi Division, Varanasi & Ors. (').

A Division Bench of the Allahabad High Court had rejected the tenant's Special Appeal summarily.

This Court, however, granted special leave to appeal under Article 136 of the Constitution on 20th

(I) 1965 A.L.J. 211. (2)

1970 A.L.J. 909.

109 4

SUPREME COURT REPORTS

[1976] 3 S.C.R.

July, 1975.

We need not express any opinion on the correctness of the second proposition here if we agree with the High Court's view on the first point because, in that case, the tenant's application would be time barred even if the time spent in obtaining the copy was exclqded.

The only contention, put forward by Mr. B. Sen on behalf of the temnl-appe!Jant, on the first point, is that there is a practice in Dehradun, acting on so1ne instruction of the Commissioner, Meerut Division, to receive revision applications to the Commissioner through an Additional District Magistrate of Dehradun, who has, therefore, the Commissioner's authority to receive these applications. It was urged that the filing of the Revision application before an Additional District Magistrate should be deemed, in these circumstances, to be sufficient compliance with the requirements of Section 3(2) of the Act which provides, as it clear from a bare look at it, that the revision application lies before the Commissioner.

It is difficult to sec how a practice could possibly modify the provisions of the Act. There is not even a rule on this subject made by the State Govt. under the provisions of Section 17 of the Act which authorises the Govt. to "make rules to give effect to the purposes of this Act." There are rules on other matters but not on such a matter.

Mr. B. Sen relied on a Division Bench decision of the Allahabad High Court in T. C. Pasricha & Anr. v. The State of U.P.( 1 ) where it was held :

"It appears that the Commissioner had authorised the District Magistrate to receive revisions meant for him. By so authorising, the Commissioner was only indicating the place and, the manner of representation of the revisions.

Since the Rent Control Act did not either by itself or rules framed under it lay down the precise procedure in regard to the presentation of the revision, the Commissioner who was the authority entitled to entertain and decide the revisions was

withinhis rights to prescribe the procedure in respect of representation of the revisions. The direction given by the Commissioner in 1946 with regard to the presentation of revision was valid and enforceable".

In Pasricha's case (supra), the Single Judge decision in Seth Bal Gopal Das v. State of U.P.(') on the case now before us, was noticed by the Division Bench and distinguished on the ground that there was no evidence here to prove that there was any such practice.

Both Pasricha' s case (supra) and the case now before us come from the Dehradun District.

We think it is difficult to reconcile the Division Bench decision in Pasricha's case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No. 180 of 1973 on 8th August, 1973, which is under appeal before us, al'.h?'!gh we find that one of the learned Judges is common to both the D1v1S1on Benches.

-·(ll- Special Appeal No. 744 of 1971 decided on 5th April, 1973. (2)

1973 A.L.J. 120.

't r

( ·~ )

f (

We prefer the reasoning of the learned Single Judge in Seth Bal Gvpal Das v. Stat~ of U.P. (supra) to the reasoning of the Division Bench m Pasncha s case (supra). A wrong practice cannot possibly modify what naturally and fog, call)'. follows trom the Jaguage m Section 3_\2) of the Act.

Thi.s prov1s10n sas that the party aggrieved must apply to the Comm1ss10ncr to revise the order".

The natural inference is that the party must apply to the Commissioner directly and not through some other authority or official.

It is true that Section 3(2) does not prescribe the manner and place of presentation of applications.

But, unless there is some rule made to confer authority, upon the District Magistrate or the Additional District Magistrate concerned or his office to act as the agent of the Commissioner, or a clear and specific authrisation by the Commissioner is proved, we fail to sec how filing a revision application before the Additional District Magistrate can be deemed to amount to making the application to the Commissioner.

In Pasricha's case (supra), the Division Bench had gone to the .extent of hold; ng that some communication made by the Commissioner in 1946 to the D:strict Magistrate of Dehradun, even a copy of which was not placed before the Court, could be hown by means of an affidavit of a party, to have been both established and to be enough to confer .an authority on an Additional District Magistrate of Dehradun to receive applications on behalf of the Commissioner under the provisions of Section 3 ( 2) of the Act which were introduced after 1946 according to the statement of facts in Pasricha's case (supra) itself.

Prima facie, an authorisation cannot relate to a power or right conferred by a provision which could not be present to the mind of the Commissioner at all at the time when he is supposed to have made some communication to the District Magistrate as the provision for a revision in sueh a case did not even exist then.

We, therefore, think that the reasoning of the Division Bench in Pasricha's case (supra) is unacceptable.

The alleged practice cannot be held to have been even established. And, in any event, such a practice was not enough to confer .authority to receive petitions on. behalf of .the. Commissioner. 'for that purpose, proof of at least specific authonsation by the Comm1ssiom:r, after the introduction of the new provision, was required.

The result is that we are unable to find any merit in the case of the appellant who has been able to hold up proceedings for his evic.tion Jong enough in respect of accommodation which, on the allegations made on behalf of the landlord (this term includes the "land-lady .. ),

has been required to meet the landlord's dire personal needs since at least 1969. We hope that the trial of the suit in such a case will not be delayed now.

We dismiss this appeal with costs throughout.

M.R.

Appeal dismissed.

F

SETH BALGOPAL DAS

THE STATE OF U.P. & ORS

April 8, 1976

A. N. RAY, C.J.

M. H. BEG

JAsWANT SINGH, JJ.

Control of Rent and Eviction Act, 1947

s. 3

Control of Rent and Eviction Act

s. 3

s. 7F

Article 226

Allahabad

s. 3

s. 12(2)

Limitation Act, 1963

Dehradun

s. 3(2)

s. 3

s. 3(2)

8th August, 1973

Allahabad High Court

B. Sen

Leila Seth

B. Mohan

Parveen Kumar

0. P.

Khaitan

T. S. Krishnamoorthy Iyer

P. K. Pillai

BEG

Section 3

19th November, 1969

Section 3

Sheila Ka1

New Delhi

25th August, 1969

section 3(2)

16th September, 1969

24th September,

1969

Section 3(2)

section 7F

Article 226

21st October, 1972

Section 3

Section 12(2)

Limitation Act

Article 136

Section 3(2)

Section 17

Since the Rent Control Act

Pasricha

Dehradun District

5th April, 1973

Section 3

Section 3(2)

Dehradun

Section 3


COMMISSLONER OF WEALTH TAX, WEST BENGAL v.

BISHW ANATH CHATTERJEE AND OTHERS

April 8, 1976

[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA, P. N. SHINGHAL ANI>

JASWANT SINGH, JJ.]

Wealth Tax Act, s. 3-Coparceners goierned by Dayabhaga School of Hindu Law-If could he assessed as Hindu Undivided Family.

llindu Law-Coparcener under Dayabhaga School-If could be t1sssscd as Hindu Undivided Fan1ily.

Rejecting the respondents' plea that as persons governed by the Dayabhaga School of Hindu Law they had held definite and determined shares in the properties inherited by them. from their father and were liable to separate assessment of wealth tax, the Wealtb. Tax Officer assessed them as a Hindu Undivided Family. On appeal the Appellate Assistant Commissioner held that the properties should be taxed in the hands of the co-sharers ')eparately. On further appeaJ, the Appellate Tribunal held that notwithstanding that there was no unity of ownership amongst members governed by the Dayabhaga School of Hindu La\V in respect of family property and each member thereof lwd no definite share in it, such property, until partitioned, was assessable to wealth tax in the hands of the Hindu Undivided Family.

On reference, the High Court held in favour of the assessee.

Dismissing the appeal to this Court,

HELD : Dayabhaga means partition of heritage.

A Dayabhaga male's wife or sons or daughters have no ownership_ in his property during his lifetime.

Ownership of wealth is ve:-; led in the heirs by the death of their father, \Vhen they become co-heirs and can clail}1 partition. The heritage of a Dayabhaga male does not become the ioint property of the heirs or of the joint family on the demise of the Jast owner but becomes the fractional property of the heirs in well-defined shares. That is why partition in Dayabhaga is defined as an aCt of particularisin_g ownership. In Dayabhaga, the sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father.

While fitakshara is known as the SchooJ of "aggregate ownership", Dayabhaga is known as the school of "fractional ownership". The essence of a coparcenary under the Mitakshara Law is unity of ownership; under the Dayabha_ga it is unity of possession, not unity of ownership at all.

Under the Dayabha_ga school every .coparcener takes a definite share in the property and he is the owner of that share which is defined immediately the inheritance falls in. [l 099D-G; 11 OOBH]

Sreemutty Soorieemoney Dossee v. Denobundoo Mullick, 6 i\I.l.A. 526 at p. 553.

1. Hindu Law by Colebrooke p. 9, 2. Law relating to the Joint Hindu Family (Tagore Law Lectures) by Krishna Ka1nal Bhattacharya, p. 168 and 3.

Principles of Hindu Law by l'rfulla (14th Edition) p. 348. Hindu Law & Usage, by Mayne, 11th Edition 364, approved.

(i) Under s._ 3, the liability of wealth tax arises in respect of the net wealth of the assessee.

The term "net wealth" means all the assets belonging to the assessee, on the valuation date. The expression "belong" accordin_g to the Oxford Dictionary means "to be the property or rightful possession of". [1098G- H HJ

(ii) The liability to wealth tax arises out of ownership of the asset and not otherwise. l\1ere possession or joint possession unaccompanied by the right to or ownership of property would, therefore, not bring the property within the

definition of "net wealth", for it would not then be the asset belonging to the A assessee. ll099C] In the instant case, the property in question \Vas the individual property of the father of the respondents and it devolved on the heirs according to the provisions of the Hindu Successio11 Act, 1956.

The coparcenary had unity of possession but not unity of ownership on the property.

Each coparceaer took a defined share in the property and was the owner of his share.

Each such defined share thus belonged to the coparcener.

It was his net wealth within the meaning of s. 2(m) of the Wealth Tax Act and was liable to \Vealth tax, as such, under s. 3.

[1102C-D]

Co1nniissioner of JVealth-tax, 1-Vest Bengal v. Gouri Shankar Bhar, (1972)

1 84 I.T.R. 699. explained. .

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1101 of 1969.

From the Judgment and Order dated the 26th April 1968 of the Calcutta High Court in Wealth Tax Matter No. 421 of 1964.

S. T. Desai, B. B. Ahuja, S. P. Nayar and R. N. Sachthey, for the

Appellant.

S. K. Sen, A. K. Nag and D. P. Mukherjee for the Respondents.

The Judgment of the Court was delivered by

SmNGHAL, J.

This appeal by certificate has come before us as the question of law arising for decision is said to be of great importance.

The facts giving rise to the appeal are quite simple and may be shortly stated.

One Bircswar Chatterjee, who was admittedly governed by the Dayabhaga School of Hindu law, was assessed to income-tax as an E individual.

He died intestate on January 7, 1957, leaving his widow, sons and daughters.

The Wealth-tax Ofticer rejected their plea that on the death of Bircswar Chatterjee they held definite and determined shares in his properties and were liable to separate assessment, and assessed them as a Hindu undivided family for the assessment year 1958-59.

On appeal, lihe Appellate Assistant Commissioner held that since the assessee was governed by the Dayabhaga School of Hindu F law, the properties could not belong to the Hindu undivided family and were to be taxed "in the hands of the co-sharers separately." The department took an appeal to the Income-tax AppeUate Tribunal, 'B' Bench, Calcutta.

There was difference of opinion between the members of the Tribunal, and in accordence with the opinion of the majority of llhe members it was ordered that "notwithstanding that there was no unity of ownership amongst members governed by the G.

Dayabhaga School of Hindu law in respect of the family property and each member thereof had definite shares in it, such property, until partitioned, was assessable to wealth-tax in the hands of the Hindu undivided family." The Tribunal however referred the following question of law to the Calcutta High Court for decision,-

"Whether on the facts and in circumstances of the case, fl the Tribunal was right in holding that properties possessed jointly by the members governed by the Dayabhaga School of Hindu law were assessable to wealth-tax jointly in the status of a Hindu undivided family?"

A The High Court accepted the contention that the question assumed that the property was owned jointly by the members of a Hindu

undivided family governed by the Dayabhaga School of Hindu law, j and reframed it as follows,- I

"Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the property possessed by the heirs of a Hindu male governed by the Dayabhaga School of Hindu law were assessable to wcalthtax jointly in the status of a Hindu undivided family?"

It took the view that the matter was covered by its earlier decisions including Commissioner of Wealth-tax. West Bengal v. Gouri Shankar

Bhar( 1) where it had been held that on the death intestate of a Dayabhaga male, his heirs do not inherit his estate as members of a Hindu undivided family, and remain as co-owners with definite and ascertained shares in the properties left by the deceased unless they voluntarily decide to live as membrs of a joint family.

The High Court also took notice of the fact that a suit for partition had been filed and a preliminary decree had been obtained on July 4, 1959, and answered the reframed question in the negative.

As has been stated, the lj:igh Court has certified this to be fit case for appeal to this Court.

Mr. S. T. Desai appearing for the Commissioner of Wealth-tax has challenged the view taken by the High Court and has argued that under the Dayabhaga School of Hindu law the property left by the father is taken by the sons jointly by descent, as coparceners, as their joint family comes into existance by operation of law.

He has accordingly argued that the father's property is liable to be taxed under section 3 of the Wealth-tax Act, hereinafter referred to as the Act, as a unit until it is partitioned amongst its members by metes and bounds.

Reference has in this connection been made to certain commentaries and judgments and we shall refer to them as and when necessary.

Section 3 of the Act is the charging section and the correctness or otherwise of the view taken by the Hi.Qh Court depends on its meaning and content.

The section provides for the charge of wealth-tax in these terms.-

"3. Subject to the other provisions contained in this Act, there shall be charged for every assessment vear commencing on and from the first day of April, 1957, a tax (heremafter referred to as Wealth-tax) in respect of the net wealth on the corresponding valuation date of every individual Hindu undivided family and company at the rate or rates specified in the Schedule."

The liability to wealth-tax therefore arises in respect of the "net wealth" of the assessee, which expression has been defined as follows in section 2(m) ,-

"(m) "net wealth" means the amount by which the aggregate value computed in accordance with the provisions ---------

(!) (1968) 68 I.T.R. 345.

' . \

of this Act of all the assets, wherever located, belonging to the assessee on the valuation date, including assets required to be included in his net wealth as on that date under this Act, is in excess of the aggregate value of all the debts owned by the assessee on the valuation date other than, . ..... "

The expression "belong" has been defined as follows in the Oxford English Dictionary.-

"To be the property or rightful possession of." So it is the property of a person, or that which is in his possession as of right, which is liable to wealth-tax.

In other words, the liability to wealth-tax arises out of ownership of the asset, and not otherwise. Mere possession, or joint possession, unaccompanied by the right to, or ownership of property would therefore not bring the property within the definition of net wealth" for it would not then be an asset "belonging" to the assessee.

The question is whether the estate or property of Bireswar Chatterjee could be said to belong jointly to his heirs, after his death?

It is not in controversy, and is in fact admitted, that the property in question belonged to Bireswar Chatterjee who was its sole owner in his life time and was assessed to income-tax as an individual.

His family consisted of his widow, sons and daughters and was governed by the Dayabhaga School of . Hindu law.

Bireswar Chatterjee's property was therefore the heritage, or the wealth, which vested in his heirs en his death.

According to Jimuta Vahana, his wife or sons or daughters had no ownership in his property during his life time for "sons have not ownership while the father is alive and free from defect." (Hindu Law by Colebrooke, P.9) Ownership of wealth is

however vested in the heirs "by the death of their father" (page 54, supra) when they become coheirs and can claim partition.

It is on this basis that "Dayabhaga" (partition of heritage) has been expounded by Jimuta Vahana.

According to him, "since anyone parcener is proprietor of his own wealth, partition at the choice even of a single person is thence deducible." (page 16, supra). The heritage does not therefore become the joint property of the heirs, or the joint family, on the demise of the last owner, but becomes the fractional property of the heirs in well defined shares.

This concept of fractional ownership has been stated as follows by Krishna Kamal Bhattacharya in his "Law relating to the Joint Hindu Family" (Tagore Law Lectures) with reference to the doctrine of negation of the on's right by birth (page 168) ,-

"As a corollary of the doctrine set forth above, negativing the son's right by birth, is another peculiar doctrine of the Bengal School, that of what is called the 'fractional ownership' of the heirs, contrasted with the doctrine of 'aggre· gate ownership expounded by all other schools."

That is why 'partition' in Dayabhaga is defined as an act of "particularising ownership", and is not the act of fixing diverse ownerships on particular parts of an aggregate of properties as in Mitakshara. The

llOO

SUPREME COURT REPORTS

(1976] 3 S.C.R.

A learned author has clarified the position in nnmistakable terms as follows (pages 172-73),-

"From what has been said above, it is evident that there is no unity of ownership in Bengal joint family, although there may be something like a unity of possession." (Emphasis added)

This is why Mitakshara is designated as the School of "aggregate ownership", while Dayabhaga is known as the Sdhool of "fractional

ownership." As has been stated in Gopalchandra Sarkar Sastri's "Hindu Jaw" (eighth edition page 4@5), while the joint family system prevails in Bengal, "there cannot be a real joint family consisting of father and sons during the father's life-time, inasmuch as joint property which is the essence of the conception of joint family, would be wanting to make them joint." This is why, accoring to the Bengal School, the sons become tenants-in-common and not joint-tenants in respect of the estate inherited by them from their father.

The position of joint family under the Dayabhaga Jaw has been stated as follows in Mayne's Treatise on "Hindu Ldw and Usage" (eleventh edition, page 364),-

"lt follows therefore that under the Dayabhaga Jaw, a father and his sons do not form a joint family in the technical sense having coparcenary property. But as soon as it has made a descent, the brothers or other co-heirs hold their shares in quasi-severalty.

Each coparcener has full powers of dispo&al over his share which is defined and not fluctuating with births and . deaths as in the case of a Mitakshara family and his interest, while still undivided, will on his death pass on to his own heirs male or female or even to his legatees .. "

That was stated to be the Jaw in Sreemutty Soorjeemoney Dossee v.

Denobundoo Mullick( 1).

The position has been dealt with in Mulla's "Principles of Hindu Law" (fourteenth edition, at page 348), as follows,-

"The essence of a coparcenary under the Mitakshara law i§ unity of ownership.

On the other hand, the essence of a coparcenary under the Dayabhaga law is untiy of possession.

It is not unity of ownership at all.

The ownership of the coparcenary property is not in the whole body of coparceners.

Every coparcener takes a defined share in the property, and he is the owner of that share.

That share is defined immediately the inheritance falls in.

It does not fluctuate with births and deaths in the family.

Even before partition any coparcener can say that he is entitled to a particular share, one-third or one-fourth. Thus if A dies leaving three sons, B, C, and D, each son will take one-tihird, and each on~ will be the owner of his onethird share.

The sons are coparceners in this sense that ' '

(1) 6 M.1.A. 526 at p. 553. i

possession of the property inherited from A is joint. It is the unity of possession that makes them coparceners.

So long as there is unity of possession, no coparcener can

say that a particular third of the property belongs to' him; that he can say only after a partition.

Partition then, according to the Dayabhaga Jaw, consists in splitting up joint possession and assigning specific portions of the property to the several coparceners.

According to the Mitakshara law, it consists in splitting up joint ownership and in defining the share of each coparcener."

In fact we find that a case somewhat similar to the one before us arose when one Prafulla Chandra Bhar, a Hindu governed by the Dayabhaga School, died intestate.

His mother, widow, hree sons and one daughter survived him. Since the death took place before the Hindu Succession Act, 1956 came into operation, he was succeeded by his widow and three sons, each inheriting one-fourth share in the estate. Gouri Shankar Bhar, one of the sons, took out letters of • administration and filed a wealth-tax return in his capacity as adr- ministrator describing the status of the assessee as a Hindu undivided family.

The Wealth-tax Officer also treated the status as such, and made the assessment.

Gouri Shankar however filed an appeal and contended that the family being governed by the Dayabhaga School, the shares of the coparceners in the property of the deceased were definite and ascertained and !he assessment should not have been made in their status as a Hindu undivided family and each member should have been assessed separately upon the value of his share in the inherited property.

The Appellate Assistant Commissioner overruled the Contention and took the view that even though the shares of the coparceners were definite and ascertained, the income from the property of the family did not belong to the several members in specified }( shares but continued to belong to the Hindu undivided family as a whole.

On further appeal, the Tribunal held that as the coparcener under the Dayabhaga Jaw had a definite share in the property left by the deceased and was legally the owner thereof, he had a defined share and that since the wealth-tax was levied on the basis of ownership, it was proper that the assessment should have been made on the individual coparceners on their respective shares and assessment of the total wealth in the hands of the undivided family would be illegal.

The matter was r'1)'erred to the High Court at the instance of the Commi- ssioner of Wealth-tax.

The High Court of Calcutta in Commissioner t

of Wealth-tax case (supra) made a reference, inter alia, to the decision in Biswa Ranjan Sarvadhikari v. Income-tax Officer, F. Ward District,

(2) Calcutta(') and upheld the view that where property is owned by two or more persons governed by the Dayabhaga School and their shares are definite and ascertainable, then, although they are in joint possession, the tax will be assessed on the basis of the share of the income in the hands of the assessee and not as of a Hindu undivided family.

It was held that the position was not different under the :-Vealth-tax Act.

The 1'.1tter was brought to. this Court on appeal and 1t was conceded by Solicitor General appeanng for the Commissioner of Wealth-tax that as the property was the individual property of the

(I) (1963) 471.T.R. 927.

deceased, it devolved on his heirs in severalty. It was held that as each of them took. a definite and separate share in the property, each of l them was hable, m law, to pay wealth-tax as an individual.

While upholding the decision of the High Court it was however observed by

, J, this Court that it was not necessary to decide, in that case, whether a Dayabhaga family .could be considered as a Hindu •undivided family

within the meaning of section 3 of the Act: That decision is Commissioner of Wealth-tax, West Bengal v. Gauri Shankar Bhar.(')

In the case before us, it is not in dispute that the property in question was the individual property of Bireswar Chatterjee and that it devolved on his heirs according to the provisions of the Hindu Succession Act, 1956.

It will be recalled that a suit for partition was filed on June 21, 1957 and a preliminary decree was passed on July 4, 1959.

For reasons already stated, the coparcenary had unity of possession but not unity of ownership on the property. Each coparcener therefore took a defined share in the property and was the owner of his share.

Each such defined share thus "belonged" to l the coparcener. It was his "net wealth" within the meaning of ". section 2(m) of the Act and was liable to wealth-tax as such under section 3.

The High Court was therefore right in answering the rcframed question in the negative, and as we find no force in the argument of Mr. Desai, the appeal fails and is dismissed with costs.

P.B.R.

(l) (1972) 84 f'T.R. 699.

725 SCl/76-GlPF.

Appeal dismissed,

COMMISSLONER OF WEALTH TAX, WEST BENGAL

BISHW ANATH CHATTERJEE AND OTHERS

April 8, 1976

A. N. RAY, C.J.

M. H. BEG

R. S. SARKARIA

JASWANT SINGH, JJ.

Wealth Tax Act

s. 3

Krishna Ka1nal Bhattacharya

s. 2(m)

s. 3

Calcutta High Court

S. T. Desai

B. B. Ahuja

S. P. Nayar

R. N. Sachthey

S. K. Sen

A. K. Nag

D. P. Mukherjee

SmNGHAL

Bircswar Chatterjee

January 7, 1957

July 4, 1959

S. T. Desai

section 3

Wealth-tax Act

Section 3

section 2(m)

Bireswar Chatterjee

Jimuta Vahana

Colebrooke

Krishna Kamal Bhattacharya

Mitakshara

Dayabhaga

Gopalchandra Sarkar Sastri

Bengal

Mayne

Mulla

Prafulla Chandra Bhar

Gouri Shankar Bhar

Gouri Shankar

High Court of Calcutta

section 3

Hindu Succession Act, 1956

21, 1957

section 2(m)

section 3

Desai


MAHA SINGH

STATE (DELHI ADMINISTRATION)

January 8. 1976

[P. K. GOSWAMI AND P. N. SJIINGHAL, JJ.J

11 9

CrI111inal Procedure Code (Act V) 1898- Sec. 367 contents of j11dg'!11ent- Verdic! of g11ilty-Duty of the Court to exercise caution .

Crin1inal Procedure Code (Act V) 1898-Sections 222, 223 and 225- Whcn e~'idencc is led to prove a charge and the accused is fully. aware of the charge and n1adc 110 niistake in takinf: a definite defence, oniission of a nan1e in the charge is not "material prejudicial" to the accused,

Pica of defence in Prevention of Corruption Act cases-Plea of planting of C ; ncritninatinR object without the knowledge or acquie.1ce11ce of ti1e accused is valid.

"Participe.1 crhninis"-Whcther a11 unwillinf{ and a forced bribe given a// accomplice-Indian Evidence Act (Act I) 1872, s. 133.

fndian Evidence Act (Act /), 1872-Se(·. 3 read with s. 133 eridentiar\' value of a trap witness in a pre-arranged raid-Trap witness is neither a; i accamp!icc per se nor an interested witness-Appreciation of such evidence.

Crl!ninal Procedure Code (Act 5), 1_898-Sections 4(1), 161 and 162- Steps ta1e11 by the Inspector of the Anti-Corruption Departn1ent to detect the accused in a case under the Preyention of Corruption Act, 1947 is "investilgation" within the n1eanb1g of s. 4(1)-Sending complaint of the investigation for for:na( registration does not take away the character of "investigatio1i".- Staten1ent n1ude by the accused in such an "invesagafion" admitting to have rt'-

ceivcd the incrin1inatin.r: ohiect is a staterne111 under s. 161, Cr. P.C. and /Jenee fnadnihsible under s. 162, Cr. P.C.

Indian Evidence Act (Act I) 1872--Sec. 8 relevancy of the conduct of the accused ill pro.\eCution for o!Jence of, bribery under Prevention of Corruption Act.

After recording a complaint dated 7-4-1969 by one "SDM" that the accusedappeliant, a head constable, demanded a sum of Rs. 10/- for not puttiag up a challan on 8-4-1969 before the SDM, Delhi in a case pending against him, (the said sum being payable by 3.00 p.m. on 7-4-1969) and also a sum of Rs. SO/- for not challaning him in future, the Anti-Corruption Departn1ent arranged a raid to detect the accused, as his name was not known to the complainant.

On a signal from the complainant., after the receipt of the G.C. Note of Rs. 10/-

(the number of which was already noted by the Anti-Corruption Department) by the accused, the raid party including the trap witnesses surrounded the accused, recovered the G.C. note of Rs. 10/- which tallied with the number already nott:d, besides a further sum of Rs. 51 /- and two challans referred to in the compfoint of "SDM".

The statement of the accused duly signed by him and witnessed by the trap witnesses and also a search memo duly signed by the accused and the trap witnesses, were produced as docun1entary evidence at the trial. The accused was charged under s. 161, T.P.C. read , vith s. 5(2) read withs. 5(1) (d) of the Prevention of Corruption A<.:t, 1947, found guilty. convicte<l anU eutenced to one year rigorous in1prisonment besides fine.

On appenl the High Court affirmed the conviction and the sentence.

Dismissing the appeal by special leave, the Court,

HELD: (1) In a case under s. 161 !.P.C. ands. 5(2) read withs. 5(l)(dl cf the Prevention of Corruption Act, 1947, where there was a clinching factor that a particular already marked currency note v.ras recovered fron1 the left side front rocket of the shirt of the <tCCU<; ed that too immcdiale!y after its :-ceipl from the complainant anJ which fact is corroborated by the seizure m•::mo dul~ , c, igned by the accus:.:tl about the state of its recovery duly witnessed and also by

9--Ll90SCl)76

A. the oral evidence, the defence story of the complainant giving a ten rupee not\! wrapped inside the "purchee" is absolutely false.

When such a conclusive proot is found with regard to this part of the case, viz. "'seizure of the currency note·; deficieT1cy of corroboration with regard to the negotiation of the accused with the co1nplainant pales into insignificance. [126 A-F]

(2) When \vitnesses swear home through a two inch board and somctin1es quantitatively the defence musters up a number of witnesses, the court has to be extren1ely cautious and careful to enter a verdict of guilty only if the complainant's version is supported by some clinching circumstance of such character and quality as may reasonably assure the judicial mind about the truth of the re:l position against the accused. [126 G-HJ

( 3) A defence plea of planting any incriminating object, in answer to a charge, to be successful must be or at any rate should reasonably appear to have been 1nade V>ithout the knowledge or acquiesence of the accused.

Rani Prakash Arora v. State of Punjab, [1972] 3 S.C.C, 652, distinguished.

( 4) When, in a trial against a head constable for not challaning, evidence was clearly led regarding the said challan, which had been handed over to the accused by the complainant along with the curfency note, and the accused was fully aware of the charge, he had to meet and made no mistake in taking a defence, particular mention of the challan against the complainant instead of Charan Dass in the charge, does not result in any "material prejudice" to the accused. [127 A-BJ

(5) Where the complainant comes from a class of poor hawkers who some how eke out their li"'.ing, unable to pay the demanded bribe for purchasing immunity from being challaned by the accused head constable, and out of des- .peration, takes recourse to public authorities against such illegal proposals he is an unwilling or forced bribe-giver. Such an unwilling or forced bribe-giver may not even be stagmatised as an accomplice in the strict sense of the term of "parlicipes criminis". [127 D-F] '

(6) There is no rule of law that even if a witness is otherw"ise reliable and independent his association in a pre-arranged raid about Vlhich he had become acquainted makes him an accomplice or a partisan witness. In the. absence of anything to warrant a contrary conclusion, conviction is not untenable merely because it is based on the testimony of such a witness.

EverY Witness of a raiding party cannot be dubbed as an accomplice per se or even <] s an interested

\vitne~s in total absence of materials justifying such an inference. [128 A-B]

(7) In a case, where on a complaint made to the Inspector of the Anti- Corruption Department he recorded the same, arranged for the raid by noting each step taken, thereafter in a regular manner, the steps taken by him in order to detect the accused while taking the bribe comes \Vithin the term "investigation" under s. 4(1) of the Criminal Procedure Code, 1898. The fact that he had also later on forwarded the complaint for formal registration of the case at the police station having the jurisdiction did not do a\vay with the character of the "investigation" already commenced, by the Inspector or recording the complainant's statement disclosing a cognizable oITence. [128 F--H]

Therefore, any statement made by the accused in ansvv"er t1J questions put by the Inspector is inadmissible under s. 162, Criminal ProceJure Code and neither the prosecution nor the accused can take advantage of these answers.

[129 A]

(8) For an offence under the Prevention of Corruption Act. 1947, the conduct of the accused v, iould be relevant under s, 8 of the evidence Act, jf his immediate reactions to the illegal overture of the complainant or his action in inserting unwanted something in his pocket were reveafed in f1e form of acts accompanied then and there or immediately thereafter by words or gestL1res reliably established.

Jn the present case., there is no evidence to support an innocent piece of conduct of the accused, [ 129 B-C]

.. ..,

CRIMINAL APPELLATE JuRISDJCT!ON : Criminal Appeal No. 209 A of t97L

Appeal by special leave from the judgement and order dated the i9th January, 1971 of the Delhi High Court at New Dell>i in Criminal Appeal No. 71 of 1970.

Frank Anthony, K. B. Rohtagi and V. K. Jain, for the appellant.

S. N. Anand and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

GOSWAMI J.-The complainant Shiv Darshan Nath, (PW 1) was an unlicensed hawker selling oranges and fruits in what is described as a 'chabba' around Novelty Cinema area in Delhi.

The locality is within the jurisdiction of the Lahori Gate Police Station.

The accused Maha Singh was enrolled as a Constable in the Delhi Police in July 1957 and was promoted as Head Constable (Havaldar) in August 1963. He was posted to the Lahori Gate Police Statioa on November 21, 1967 and had since been serving there in that capacity until his suspension in connection with the present case.

During April 1969 the accused was deputed for prosecuting unauthorised squatters and persons indulging in petty offences within the area of the said Police Station. The accused in performance ol these duties was required to and did maintain a petty offences Register and he had "to do pervi of these cases challaned by him in the court."

The complainant approached the Anti-Corruption Jnspector Delhi, Bal Krishan (PW 7)· on April 7, 1969 at about 11.00 a.m. and made a complaint to him.

This complaint was recorded by the Inspector (PW! I A). The material allegations disclosed therein were :-

" ...... Now, for some days a new Havaldar of

P.S.

Lah?ri Gate, has been coming there for challaning under section 33, Bombay Police Act, and he has been harassing people unlawfully.

He has challaned me also a number of

ties. He drew up one challan (against me) on 3-4-69,

whih stands fixed for hearing on 8-4-69, in the Court of

Shn 0. P. Yadav, SDM. This Havaldar says that he will not put up this challan in case I pay him Rs. JO/- and that in case I give him Rs. 50/- p.m.

I will not be 'challaned in future. I am poor man and unable to meet his said desire.

On 5-4-69, the Havaldar aforesaid came to me and said that he would come again on 7-5-69 about 3.00 p.m. and that m case rupees ten were not paid, the cha!Jan would be put in Court. Since the Havaldar of Lahori Gate Police

Station has demanded Rs. 10/- from me as bribe I have come for report.

Suitable action may be taken ... ' ... ".

The words "against me" in parentheses in the above extract arc not to be found in the oiginal statement recorded in the Urdu language.

This has to be mentioned as Mr. Frank Anthony appearing on be- Blalf of the accused strenuously submitted that since there had been

no challan against the complainant the entire edifice of the case was destroyed.

We felt some doubt about the translation in the paperbook and, therefore, looked into the original document and we are satisfied that the words "against me" are not to be found therein.

Now following the sequence, the Inspector decided to arrange a raid and summoned two witnesses from the Deputy Commissioner's Office (PWs 3 and 4) and recorded in a raid memo the number of the only ten rupee note (P-1) which the complainant had with him. The Inspector proceeded to state that-

"The said G.C. note was later returned to the complainant with a direction to pass it on to the accused within the sight of the panch witnesses having such talk with the accused as to indicate the said G.C. note had been passed on to the accused by way of bribe.

Both the panch witnesses were also instructed to remain close to the complainant and the accused, hear their talk, see the passing of the bribe money and on ascertaining that the same had been passed to the accused by way of bribe, Ved Prakash was further instructed to give the agreed signal".

The Inspector and the party with the complainant were in the area of the Novelty Cinema from about 2.10 p.m. The accused was not to be seen in the area till 5.45 p.m. when, however, he was located in plain clothes in a three-wheeler scooter sitting in the rear seat with Babu Ram (P.W. 6) a constable of the Lahori Gate Police Station on duty, in uniform.

In addition to the complainant, Sohan Singh (PW 3) stated that " .... somebody came and called the complainant.

He took him along with .him." This has to be particularly noted as the High Court put great reliance upon this piece of evidence of PW 3 as will be noticed later.

The complainant approaching the accused sat in the driver's seat inside the scooter.

According to the complainant-

'The accused then asked me that if I had to get the challan cancelled, I should pay Rs. 10 /- and that if further challans were not desired, a sum of Rs. 50 /- on my behalf and on behalf of my brother should be paid to him.

I handed over Rs. 10/- G.C. note P-1 and the challan P-2 to the accused.

The accused put these in his front pocket of the shirt."

As arranged the signal was given to the Inspector oy PW 4 (Ved Parkash) and the Inspector and the party, who were at an eye-shot. reached the place immediately.

The Inspector recovered the G.C. note P-1 from the pocket of the accused's shirt and comparing the number of the G.C. note found it to tally with the one already recorded by him.

On further search of the person of the accused a sum ol Rs. 51 /- alongwith carbon copies of two challans were also recovered.

According to the Inspector when challenged by him the accused

'tt-

...

"replied that he had taken a ten rupee G.C. note which he had put in the front pocket of his shirt.

On his search one G.C. note of Rs. 10/- was recovered from the front pocket of his shirt and fater comparing its number with the raid report which was found to tally' and it was taken into possession vide memo.

PW 1/C. Besides, the two challans P-2 and P-3 and a sum of Rs. 51/- were also recovered and were taken into possession vide memo PW 1 /D".

Although PWs 3 and 4 were requisitioned for help in the arranged raid, as stated above, they did not come upto full expectations.

According to PW3 "I heard no talk between the complainant and the accused, nor could I see the passing of the money".

He stated that he was standing at quite a distance whereas Ved Parkash was nearer to the scooter".

He also stated that on the accused being challenged by the Inspector "if he had taken the bribe money'', the accused replied "that he had taken one challan 'purchee' P-2 and one G.C. note P-1 of Rs. 10/-" and "on being searched G.C. note Ex. P-1 was recovered from the front pocket of the shirt of the accused which he was wearing." He further stated that "from the personal search of the accused 51 currency notes and two challan purchees P-2 and P-3 were also recovered and the same were taken into possession vidc memo PWl/D".

P.W. 4, on the other hand, stated that-

"thc complainant handed over a ten rupee G.C. note major portion of which was wrapped in a white paper to the accused Maha Singh present in court and told the accused that my challan may be got corrected (mera challan theek kara dena).

The accused took the the G.C. note with the white paper and put the same in his front shirt pocket.

I gave the signal.

Inspector Bal Krishan reached the spot.

He disclosed his identity and secured the accused.

I told the Inspector that G.C. note has been put by the accused in his shirt pocket.

The same was recovered by Inspector Bal Krishan vide memo PW 1/C. Two challans P-2 and P-3 were also recovered besides Rs. 51 /- from the accused vidc memo PW 1/D".

P.W. 4, however, stated that "the accused denied having taken any bribe when challenged by Inspector Bal Krishan."

It may be mentioned here that P-2 is the challan relating to the complainanCs brother, Charan Dass. It appears from P-2 that the case against Charan Dass was fixed in the court of Shri 0. P. Yadav, Sub-Divisional Magistrate, on April 8, 1969. P-3 related to Mangal Sain (DW 5) showing that he was to attend his case in the same court on the same date, April 8, 1969. Both the cases were under section 33/13/131 Bombay Police Act (obstruction of public passage) and P-2 and P-3 are personal recognizance bonds.

The case was investigated by the Anti-Corruption Department and the charge-sheet was snbmitted after obtaining sanction from the Superintendent of Police, North District, Delhi (PW 5).

A The accused stands charged under section 161 I.P.C. and section 5 ( 2) rea<J with section 5 (I) ( d) of the Prevention of Corruption Act (briefly the Act).

His defence is that the case was concocted against him by the complainant and the money was planted in his pocket as he "had casually told him also not to obstruct the public way once earlier." He further stated in his examination under section 342.

Code of Criminal Procedure "in fact the complainant hastened to put B something in the challan in my pocket against my wishes and I was trying to know \Vhat it was about when I was su1rounded by the Inspector.

I told the Inspector also that I had not done anything and l might not be harassed unnecessarily".

From the above, the version of the prosecution and that of the accused arc clear.

While according to the prosecution the accused c had earlier negotiated for a bribe and later on accepted the same from the complainant, according to the accused he had made no negotiation

with the complainant nor did he voluntarily accept any money from .i fhe complainant.

Qn the other hand, the complainant planted the currency note of Rs. 10/- in to his pocket against his wishes when ht:°

was all of a sudden surrounded by the Inspector and the raiding party.

The trial court accepted the prosecution case and convicted the accused under both the sections and sentenced him to rigorous imprisonment for one year on both the counts running concurrently and t<> a fine of Rs. 100/- in addition, in default one month's imprisonment.

The High Court affirmed the conviction and the sentence.

Hence this appeal by special leave.

Mr. Frank Anthony submitted that since the prosecution failed to establish that there was any case instituted by the accused against the complainant which might furnish an occasion for offering a bribe the entire story of the complainant should stand discredited.

He also submitted that the complainant's brother, Charan Dass, was not even examined by the police nor in the court.

Mangat Sain was not examined by the prosecution but had been examined by the 'accused.

He further emphasised that the story of the complainant_ with regard to the negotiation for the bribe stood on his solitary uncorroborated testimony and he was not such an absolutely independent witness whose testimony was worthy of credit for the purpose of basing a conviction.

Counsel further emphasised that while the prosecution sought to prove that the accused voluntarily accepted the bribe and himself put the currency note in bis pocket, this story did not find corroboration from any independent source.

J-·

PW 3, of course, does not state about the passing of the money nor about any conversation.

P.W. 4, however, supported the complainant in his examination-in-chief although he added that "the accused denied having taken any bribe when challenged by Inspector Bal Krishan".

In the course of his cross-examination, however, he stated that "he did not hear the talk between the complainant and the

accused." Constable Babu Ram (PW 6), who was sitting with the accused in the scooter, deposed that his attention was more towards

the road than towards the complainant and the accused. He com- A pletcly threw overboard the complainant's version and stated "I saw the complainant Shiv Darshan Nath putting a purchee with a note in the pocket of the accused." He further stated that "I did not hear the accused telling the Inspector that he had taken no bribe and should not be harassed."

The High Court accepted the version of the complainant and B found that the prosecution case stood established beyond any doubt.

The learned Judge observed :

''To me it appears an admission that the appellant allowed PW 1 to put something in his pocket. If that was against his wishes he should have thrown it out".

The High Court also accepted the testimony of PW 3 corroborating c the complainant in that a person had called PW 1 to the scooter where the accused was sitting.

From this the High Court concluded- "Why at all was PW 1 sent for if there were no prior negotiations and if the accnsed was not sure that in fulfilment thereof he will be receiving the money from PW 1".

Nothing has been elicited against PW 3 as to why he should be disbelieved. He has not gone to the entire length of supporting every detail of the prosecution case. It is, therefore, not possible to hold that the High Court was absolutely wrong in accepting his statement that the complainant had been sent for by the accused to the scooter through some persons who could not be later identified for the purpose of examination in court. It was not possible in such a situation to recognise and locate the messenger.

The trial court does not seem to have relied upon the evidence of PW 4.

From the evidence of the defence witnesses (DWs 1, 2, 3, 4 and 7) it is clear that the witness is not an independent person, nor a very reliable one.

There was a case against him under section 161 !PC and section 5(2) of the Act.

His services were terminated for massing of certain records although he was later on re-employed in July 1968. He was a raid witness for the police in several anticorruption cases.

The High Court also has not relied upon his evidence .

In view of the defence of the accused which is supported by PW 4, PW6, DW5 and DW6 with regard to the fact of the complainant putting the currency note wrapped inside 'purchee' P-2 into the pocket of the accused, the recovery of the note by the Inspector from the accused's pocket is absolutely inconsequential says Mr. Frank Anthony.

There are, however, more things than meet the eye.

There were two persons, DW 5, Mangal Sain and Charan Dass (complainant's brother), who has been sent up by the accused on April 3, 1969, under the Bombay Police Act for prosecution in Court. It is understandable that while performing these duties policeman may clash with the shopkeepers. There is also equal possibility of patching up with concerned offenders.

In this situation it is extremely important for

A the court to find by unerring and cogent evidence whether the accused had committed the offence.

In our view there is a clinching factor. If the accused's version is true, the recovery of the note would have been inside 'purchee' P-2 since the accused and his four supporting witnesses had deposed to that effect. If this version is even prima facie reliable, the accused will be entitled to the benefit of doubt.

We are however, unable to hold so. The seizure memo PW l/C about which there has been no cross-examination shows that a currency note of Rs. 10/- bearing number C-67-090721 was recovered from the left side front pocket of the shirt worn by the accused. There is nothing to show that this currency not was recovered from his pocket being wrapped inside the particular 'Purchee' or for the matter of that jp.side "another white paper". This fact of recovery is proved by t!JJ, Police Inspector as well as by PW3 and the complainant who had signed the memo.

Even Ved Prakash (PW 4) had signed this memo.

Similarly, we have the seizure memo.

PW 1/d which is prepared by the Inspector and signed by the complainant and PWs 3 and 4.

This seizure memo shows that the currency notes of Rs. 51 /-, a carbon copy of challan of Charan Dass (P-2) and another carbon copy of challan of Mangal

Sain (P-3) admittedly received by the accused a short while ago were recovered from the left side front pocket of the shirt.

From the above it is clear that the defence story of the complainant giving a ten rupee note wrapped inside the 'purchee' relating to Charan Dass is absolutely false.

If, as stated by the accused, the Inspector arrived immediaely after the money was put inside his pocket, namely, wrapped inside a 'purchee', the seizure memo (PW 1/C) would have shown the recovery in that state. We do not find it to be so. The evidence of the complainant is corroborated by the Inspector and P W3 and also corroborated by the documentary evidence, PW l/c, coupled with the manner of the recovery of the note.

When we find such a conclusive proof with regard to this part of the case, deficiency of evidence of corroboration with regard to the negotiation of the accused with the complainant pales into insignificance.

Further, one of the witnesses, who deposed with regard to the recovery of the note as per PW 1/C was cross-examined to the effect that the note was recovered wrapped in the 'purchee' (P-2). Even the evidence of PW4, PW 6, DWS, and DW 6 called in aid to support the accused's plea of planting the currency notes, is belied by the Ione recovery of the marked currency note of Rs. 19/- by itself detached from the 'purchec' in which it was said to be more or less concealed from external view.

When witness swear home through a two inch board and sometimes quantitatively the defence musters up a number of witnesss, the co_urt has to be extremely cautious and careful to enter a verdict of guilty only if the complainant's version is supported by some clinching circumstance of such character and quality as may reasonably assure the judicial mind about the truth of the real position against the accused. This we have been able to find in this case as noted above.

' MAHA SING II ". STATE, (Goswami, I.) 127

It was also argued at the stage that the charge being with reference to favour shown to the complainant in person, with regard to his. own case, the accused was entitled to an acquittal as the case in court was that it related to his brother Charan Dass. We do not think that a particular mention of the challan against the complainant ; nstead of against Charan Dass, in the charge, has resulted in any material prejudice to the accused in the present trial.

Evidence was clearly led regardin@ the challan against Charan Dass and it was his 'purchec' which had been handed over to the accused by the complainant alongwith the currency note.

The accused was fully aware of the charge he had to meet and made no mistake in taking a definite defence although, unfortunately, the same could not be established. Even the grievance of non-examination of Charan Dass as a prosecution witness in presence of admitted 'purchee' is not of any consequence.

A defence plea of planting of any incriminating object in answer to a charge, to be successful must be or, at any rate, should reasonably appear to have been, made without. the knowledge or acquiescence of the accused.

The case in hand is not such a case.

The learned counsel strenuously relied upon Ram Prakash Arora v. State of Punjab (1) where notwithstanding recovery of the two marked ten rupee currency notes the accused was acquitted in a bribery charge.

But in that case recovery of the currency notes which was denied by the accused, assumed great importance and the fact that the same could not be established by reliable and independent search witnesses was considered by this Court as one of the serious infirmities.

The class from which the complainant comes is one. of poor hawkers who somehow eke out their living.

Nothing is known whether they just deliberately avoid payment of licence fees for hawking, which may not even be exorbitant, or they avoid being tucked to a particular place being subject to a licence in absence of which they may squat at any place of their choice and convenience. It is, however, manifest that such encroachment of public place will be a continuing offence and, if repeated, will be committed every day afresh. In that view a demand of Rs. 10/- for clearing one single day's offence and Rs. 50/- for purchasing immunity for the whole month may drive such a person to desperation prompting recourse to public authorities against such illegal proposals. In this view of the matter, an unwilling or forced bribe-giver, as in the case at hand, may not even be stigmatised as an accomplice in the strict sense of the term of particeps cri- 1ninis.

Even so we will adopt a cautious line in following the dictate of G prudence to seek for some material corroboration even in this case to assure the judicial mind about the truthfulness of the crux of the matter in respect of the offence charged and of the nexus of the crime with the criminal.

The matter will be different when a person himself abets the offences of bribery under section 161 and section 165 IPC which is an independent offence uhder section 165A equivalent earlier to section H 161 read with section 109 or section 116 IPC. ---·----

(]) [1972] 3 S.CC. 652.

This also leads to the question whether all witnesses who are called upon to assist detection of a bribery case by laying trap, should be considered unreliable as accomplices or at any rate partisan witnesses.

There 1s no rule of law that even if a witness is otherwise reliabk and independent, his association in a pre-arranged raid about which he 1.1ad become acquainted, makes him an accomplice or a parlisan witness_. fo absence of anything to warrant a contrary conclus1on, conv1clion m not untenable merely because it is based on the testimony of such a witness.

We are also n.°1 prepared to dub every witness of a raiding party to be an accomplice per se or even as an interested witness in total absence of materials justifying such an inference.

While PW 4 will be highly partisan witness in this case in his own interest to oblige the police, nothing was shown against PW 3.

P.W. 7, the Inspector, cannot be considered as an absolutely partisan witness because he is a Police Officer who took immediate action on the complaint.

Nothing unusual is suggested against him.

We have no hesitation in accepting the testimony of PW 3 and PW 7 on their own.

They do corroborate the complainant.

As demonstrated above, it is not a case where conviction of the accused by the High Court is based only on the uncorroborated testimony of the bribe-giver.

Even three or four days' time taken by the complainant after the accused's demand of the bribe for the purpose of reporting the matter to the Anti-Corruption Deparl!nent is not such as to efface the offence when it was actually committed on the very day of the report which was faithfvlly recorded by the Inspector then and there without loss of time.

A question arose whether the statement of the accused before the Inspector admitting to haw received the bribe was admissible in evidence.

It is apparent from the evidence of the Inspector that these cases are investigated by the Anti-Corruption Department which carries on its work on its own.

On a complaint made to the Inspector he recorded the same and arranged the raid by notiug each step taken thereafter in a regular manner.

What has been done by the Inspector in this case in order to detect the accused while taking the bribe comes within the term 'investigation' under section 4(1) of the Code of Criminal Procedure, 1898.

The moment the Inspector had recorded the complaint with a view to take action to track the offender, v:hose uame was not even known at that stage, and' in this case proceeded to achieve the object, visited the locality, questioned the accused, searched his person, seized the note and other documents, turns the entire process into an investigation under the Code.

Indeed the Inspector himself stated that he examined the witnesses under section 161 Cr. P.C. and completed the investigation.

The fact that he had also later on forwarded the complaint for formal registration of the case at Lahori Gate Police Station does not do away with the character of the investigation already commenced by the Inspector

on recording the complainant's statement disclosing a cognizable offence.

Therefore, any statement made by the accused in answer to questions put by the Inspector is inadmissible under section 162 Cr. P .C. and neither the prosecution nor the accused can take advantage of these answers.

These are, therefore, excluded from consideration in

this case by us.

But all the same the conduct of the accused would be relevant under section 8 of the Evidence Act if his immediate reactions lo the illegal overture of the complainant or his action in inserting unwanted something in his pocket were revealed in the form of acts accompanied then and there or immediately thereafter by words or gestures reliably

csld1lishcd.

There is no evidence to support an innocent piece of c conduct.

In the entire circumstances of the case we agree with the High Court that it was not against the wishes of the accused that the money passed from lhc hands of the complainant into his pocket.

The High Court and the trial court cannot, therefore, be said to have made any gross error of law in appreciating the evidence and coming to the conclusion that the charges against the accused were D fully established.

In the result the appeal fails and is dismissed.

The accused shall surrender to his bail to serve the sentence.

S.R.

Appeal dismissed .

MAHA SINGH

STATE (DELHI ADMINISTRATION

January 8. 1976

P. K. GOSWAMI

Sec. 367

Sections 222, 223 and 225

Indian Evidence Act

s. 133

s. 133

Sections 4(1), 161 and 162

Preyention of Corruption Act, 1947

s. 4(1)

s. 161

s. 162

Indian Evidence Act

Sec. 8

Prevention of Corruption Act

Delhi

s. 161

s. 5(2)

s. 161

Prevention of Corruption Act, 1947

Charan Dass

Vlhich

s. 4(1)

Criminal Procedure Code, 1898

s. 162

Criminal ProceJure Code

Prevention of Corruption Act

Frank Anthony

K. B. Rohtagi

V. K. Jain

S. N. Anand

R. N. Sachthey

GOSWAMI

Shiv Darshan Nath

Maha Singh

Delhi Police

Lahori Gate Police Statioa

November 21, 1967

Anti-Corruption Jnspector Delhi

Bal Krishan

April 7, 1969

section 33

Bombay Police Act

P. Yadav

Ved Prakash

Babu Ram

Lahori Gate Police Station

Sohan Singh

Ved Parkash

Ved Parkash

Bal Krishan

0. P. Yadav

April 8, 1969

Mangal Sain

section 33

Bombay Police Act

section 161

I.P.C

section 5

section 5

Prevention of Corruption Act

section 342

Code of Criminal Procedure

Mangat Sain

Shiv Darshan Nath

section 161

section 5(2)

Charan Dass

April 3, 1969

Police Act

Ved Prakash

Mangal

Sain

section 161

section 165

IPC

section 165A

section 109

section 116

IPC

section 4(1)

Code of Criminal Procedure, 1898

section 161

section 162

section 8