....

' -\

l0'.l7

KASAMBHAI ARDUL REHMANBHAI SHAIKH v.

STATE OF GUJARAT & ANR.

February 13, 1980

(P. N. BHAGWATI AND A. P. SEN, JJ.]

Prevention of Food Adulteration Act 1954, Sertioru. 7 and 16-Plea-bargaining-Magistrate if co1npetent to record conviction if ar.cused pleads guilty.

Cri1ninal Trial-Judgn1ent-Cyclostyled fonn in which nzerely blanks filled by Magistrate-Such Disposal-Reprehensible Policy.

Sentencing-Offences of food adulteration-Deterrent and punitive sentences-Necessity for.

The appellants were prosecuted for con1mitting offences under section 16(l)(a)(i) read with section 7 of the Prevention of Food Adulteration Act,

1954. After some evidence \vas led on behalf of the prosecution, ple:l.- bargaining took place between the prosecution, the accused and the :r..1agistrate.

The accused pleaded guilty which plea Vi1as accepted by the Magistrate. The D accused were accordingly convicted a, nd sentenced to undergo imprisonment till the rising of the Court and to pay a sn1all fine.

The High Court initiated suo n1otu proceeding in revision. The accused appeared and challenged the convictions recorded against them, but the High Court did not go into the circumstances in which the plea of guilty was entered, enhanced the sentences in1poscd on them to three months' simple E imprisonment a.nd fine.

Allowing the appeals,

HELD : 1. A conviction based on the plea of guilty entered by the accused as a result of plea-bargaining cannot be sustained. [1041EJ

2. The I-Iigh Court was clearly in error in not setting aside the conviction and sending the case back to the Magistrate for trial in , accordance. with Jaw, ignoring the plea of guilty entered by the appellants.

[1041F]

3. The Magistrate trying an accused for a serious offence like adulteration must apply his mind to the evidence recorded before him and, on the facts .as they emerge from the evidence, decide \\-'hether the accused is guilty or not.

[1040B]

In the instant case the 1fagistrate had got a cyclostyled form of judgment in which merely blanks were filled in by him. This clearly indicates that the Magistrate \Vas in the habit of encouraging pleabargaining and letting off the accused lightly if there was a plea. of guilty, enabling quick disposal without any effort. This Was a highly reprehensible practice.

The High Court had expressed strong disapproval of it.

[1039H-1040A]

4. (i) It is highly regrettable that the prosecution as well as the 1fagistrate 0 should have been a. party to any plea-bargaining in a prosecution for adulteration iiivolVing the health and well-being of the comn1unity. Adulteration has

assumed alarming proportions and it is essential to \vipe it out ruthlessly and completely by bringing to book offenders responsible for adulteration resulting in ruination of the health of the people. The investigating agencies must .intensify their effo1ts and catch hold of those who for private economic gain are prepared to jeopardize the health of the community.

When such persons are arraigned before the Court and found guilty a deterrent and punitive sentence must be imposed upon thctn.

[1039E-CJ]

(ii) If it is possible to get a\vay with a light sentence in respect of an offence of adnltera.tion the anti-adultcratio11 hl\v will cease to have any meaning and validity.

[1039H]

5. Administration of justice is a sacred t~L'k and partakes of the divine function.

Jt is with the greatest sense of responsibility and anxiety that the judicial officer must discharge his judicial function, pa.rticularly when it con- cc:Tis the liberty of a person.

[1040C]

6. It would be contrary to public policy to allo\v a conviction to be recorded against an accused by inducing hlln to confess to a plea of guilty on an allurement being held out to him that if he enters a plea of guilty, he will be let off very lightly. Such .a. procedure would be clearly unreasonable, unfair and unjust and would be violative of Art. 21 of the D Constitution.

It \VOtil<l have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishn1cnt rather than go through a long and ardous criminal trial. The judge also might be likely to be deflected from the path of duty to do justice and he n1ight either convict an innocent accused by hccepting the plea of guilty or let off a guilty accused with a light sentence,

thus, subverting the process of hw and fru-; trating the social objective and purpose of the anti-adulteration statute. This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice.

[1041B-EJ

CRIMINAT- APPELLATE JURISDICTION : Criminal Appeal Nos .. 93-94 of 1980.

Appeals by special leave from the Judgment and order dated 30" 1-1979 of the Gujarat High Court in Criminal Revision Application No. 306/78 and 305/78.

T. U. Mehta and Vimal Dave for the Appellant.

H. R. Khanna and M. N. Shro[j for the Respondent.

G The following Judgments were delivered :

.. __ ,....

BHAGWATJ. J.

This appeal by special leave is directed against a .Al judgment of the Gujarat High Court in suo motu revision against an order passed by the Judicial Magistrate, First Class, Balasinor convicting the appdlant of the offence under s. 16(1) (a) (i) read withs. 7 of H the Prevention of Food Adulteration Act, 1954 and sc!iltencing him to suffer simple imprisonment till the rising of the Court and to pay a fine of Rs. l 25 /- or in default to undergo simple imprisonment forr

' I

K. ADDUL REHMAN BHAI v. GU.JARAT (Bhagwati, J.) 1039

a further period of 30 dnys. The appellant was prosecuted in the Court A of the learned Magistrate for an offence of adulteration of turmeric powder punishable under s. 16(1)(a)(l) read withs. 7 of the Preven-. !ion of Food Adulteration Act, 1954.

It appears fro'm the record that after some evidence was led on behalf of the prosecution, plea bargaining took place between the prosecution, the defence and the learned Magistrate and on the basis of an understanding arrived at between these three parties, the appellant pleaded guilty and the learned Magistrate accepting this pica of guilty,· recoroed a finding oJ conviction against the appellant and let off the

appellant with a nominal sentence of imprisonment till the rising of the Couit and a small fine. It is, of course true that there is no specific evidence to show that the plea for guilty was entered by the appellant as a result of plea bargaining, but two circumstances, viz., (1) that the appellant pleaded guilty, even though the sample was treated as can-. celled by the public Analyst on account of its being broken and leaking and there was no evidence of the report of the public Analyst showing the sample as adulterated and (2) that the judgment of the learned Magistrate was given in a cyclostyled form, clearly lead to the inference that-the pka of guilty was entered by the appellant in consequenc<' of an assurance held out by the prosecution and acquiesced in by the learned Magistrate that he would be let off with a very light sentence.

It ishighly regrettable that the prosecution as well as the learned Magistrate should have been a party to any such plea bargaining in a prosecution for adulteration involving the health and well-being of the community. Unfortunately, in our country aJu!teration has assumed alarming proportions and it is absolutely essential to wipe it out ruthlessly . and completely by bringing to book offenders responsible for adulteration resulting in ruination of the health of the people. The investigating agencies must intensify th.eir efforts and catch hold of those who for some private economic gain are prepared to jeopardize the health of the community and indulge in mass murder and when such persons are arraigned before the Court and found guilty a really deterrent and punitive sentence must be imposed upon them. If it comes to be known that even in respect of an offence of adulteration, it is possible to get away v.ith a light sentence, the anti-adulteration law will cease to have any meaning and validity. It will be mocked at by the people as a futile legislative exercise. Moreover, we find that here the learned Magistrate had got a cyclostyled form of judgment in which merely blanks were filled in by him and this is the clearest possible evidence that he was in

the habit of encouraging plea bargaining and letting off the accused S, . lightly if there was a plea of guilty, so that he may get quick disposal

1~138 SCI/80

without any effort. This was a high! y reprehensible practice and we are glad to note that the High Court has expressed strong disapproval of it.

The Magistrate trying an accused for a serious offence like adulteration must apply h's mind to the evidence recorded before him and, on the facts as they emerge from the evidence, decide whether the accused is guilty or not. It must always be remembered by every judicial officer that administration of justice is a sacred task and according to our hoary Indian traditipn, it partakes of the divine function and it is with the greatest sence of responsibility and anxiety that the judicial, officer must discharge his judicial function, particularly when it concerns the liberty of a person. The course followed by !he learned Magistrate in the present case clearly showed that there was no application of mind by him to the case laid on behalf of the prosecution and he was a consenting party to the appellant being persuaded to enter the plea of guilty and, acting mechanically on the plea of guilty as extracted from the appellant, be appeased bis insensitive conscience by recOl'ding a finding conviction against the appellant and let him off with a mere sentence of imprisonment till the rising of the Court and a nominal fine.

The High Court on its attention being drawn to the Order passed by the learned Magistrate initiated suo motu proceeding in revision by issuing notice to the appellant to show cause why the sentence impOsed on him should not be enhanced. The appellant appeared in answer to the notice and challenged the conviction recorded against him, but Ute High Court did not go into the circumstances in which the plea of guHty was entered by the appellant and relying on the plea-of guilty prcx:eeded on the basis that the appellant was rightly convicted and since the offence said to be established against the appellant, was with respect to an article of 'primary food' punishable under s. 16(1)(a,)

(i) of the Prevention of Food Adnlteration Act, 1954, the High Court held that the appellant was liable to be sentenced to imprisonment for a minimum term of 3 mpntbs and a fine of not less than Rs. 500. The High Court accordingly enhanced the sentenced. imposed on the appellant to 3 months' simple imprisonment and a fine of Rs. 500 or in default, further simple imprisonment for 30 days. This order made by the High Court is challenged in the present. appeal preferred by the appellant after obtaining special leave of this Court.

Now, it does npt appear from the record whether the entire prosecution evidence was completed before the learned Magistrate before the plea of gnilty was entered on bel]alf of the appellant, but one thing' is clear that the finding conviction recorded by the learned MagiStrate

' '

K. ABDUL REHMAN BHAI V. GUJARAT (Bhagwati, J.)

I 041

against the appellant was not based on the evidence led on behalf of the prosecution. The conviction of the appellant based solely on the plea of guilty entered by him and thi&. confession of guilt was the result of plea of bargaining between the prosecution, the defence and the learned Magistrate. It is obvious that such conviction based on the plea of guilty entered by the appellant as a result of plea bargaining cannot be sustained. It is to our. mind contrary to public policy to allow a conviction to be recorded against an accused by inducing him f ,..- to confess to a plea of guilty on an allurement being held out to him 1hat if he enters a plea of guilty, he will be let off very lightly. Such a procedure would be clearly unreasonable, unfair and unjust and would be violative of the new activist dimension of Art. 21 of the Constitution unfolded in Maneka Gandhi s case. It would have the effect of polluting the pure fount of justice, because it might induce an innocent accused to plead guilty to suffer a light and inconsequential punishment rather than go through a long and ardous criminal trial which, having regard to our combrous and unsatisfactory system of administration of justice, is not only long drawn out and ruinous in terms of time and money, but also uncertain and unpredictable in its result and the judge also might be likely to be deflected from the path of duty to do justice and he might eitl1er convict an innocent accused by accepting the plea of guilty or let off a guilty accused with a light sentence, thus, subverting the process of law and frustrating the social objective and purpose of the anti-adulteration statute.

This practice would also tend to encourage corruption and collusion and as a direct consequence, contribute to the lowering of the standard of justice.

There is no doubt in our mind that the conviction of an accused based on a plea of guilty en!ered by him as a result of plea-bargaining with the prosecution and the Magistrate must be held to be unconstitutional and illegal.

The High Coun should have therefore, set aside the conviction of the appellants and sent the case back to the learned Magistrate for trial in accordal)ce with law, ignoring the plea of guilty entered by the appellant.

The High Coun was clearly in error in not doing so.

We accordingly allow the appeal,· set aside the judgments of the High Court as also the Order of conviction and sentence recorded against the appellant by the learned Magistrate and remand the case to the \earned Magistrate so that he may proceed with the case from the stage at which the appellant confessed to a plea of guilty.

The learned trial Magistrate will ignore the plea of guilty entered by ilie

appellant and proceed further with the case after giving an opportunity to the prosecution to lead such additional evidence as it thinks fit and

t A then allowing the appellant to enter upon his defence and lead sncb e'1dence in defence as he thinks proper and then dispose of the case in accordance with law. The appellant will continue on the same bail on which he has been released by this Court by its Order dated 30th March, 1979.

BHAGWA TI, J.

The facts giving arise to this appeal by special leave are almost identical with those of Criminal Appeal No. 93 of 1980 save and except that the appellant is different and for the same reasons as are given by us in our Judgment disposing of Criminal-._,_ Appeal No. 93 of 1980, we allow the present appeal, set aside the. judgment of the High Coort as also the Order of Conviction and , sentence recorded against the appellant by the learned Magistrate and remand the case to the learned Magistrate so that he may proceed with the case from the stage at which the appellant confessed to a plea of

guilty. The learned trial Magistrate will iguore the plea of guilty entered by the appellant and proceed further with the case after giving an opportunity to the prosecution to lead such additional evidence as it thinks fit and then allowing the appellant to enter upon his defence and lead such evidence in defence as he thinks proper and then dispose of the case in accordance with law. The appellant will continue on the same bil on which he has been released by this Court by its Order dated 30th March, 1979.

N.V.K.

Appeals allowed.

.. ,-,

l7

KASAMBHAI ARDUL REHMANBHAI SHAIKH

STATE OF GUJARAT & ANR

P. N. BHAGWATI

A. P. SEN, JJ.

section 16(l)(a)(i)

section 7

Prevention of Food Adulteration Act

Art. 21

T. U. Mehta

Vimal Dave

H. R. Khanna

M. N. Shro[j

BHAGWATJ

G The following Judgments were delivered :

..  ,....

BHAGWATJ.

s. 16(1)

s. 16(1)(a)(l)

Food Adulteration Act, 1954

s. 16(1)(a,)

K. ABDUL REHMAN BHAI V. GUJARAT

Bhagwati

Art. 21

Maneka Gandhi

30th March, 1979

BHAGWA TI

N.V.K.


NIROD BARAN BANERJEE v.

DY. COMMISSIONER OF HAZARI BAGH February 14, 1980 [S. MURTAZA FAZAL ALI AND A. D. KosHAL, JJ.]

New Plea-A point not taken either before the trial court or before the !High Court when the appeal was not taken,, cannot be allowed to be raised for the first time either in the Supren1e Court or in the application given he/ore the lligh Court for granting a certificate of fitness-Civil Procedure ., Code Order VI Rule 8 and Order Vlll Rule 2.

In respect of the lands acquired by the State of Bihar, the appellant w315 awarded a sum of Rs. 9665-35 which along with sola.tium and other <:barges totalled to a sum of Rs. 20,23 Hi7. The appellant claimed a sum

of Rs. 2,80,000/- as the market value of the land acquired. Before the Distr, ict Magistrate could take up the hearing on a reference made under

1. 18 of the Land Acquisition Act, the matter was agreed by the parties to be referred to a Board of Arbitration consisting of three persons of whom one wa5 appointed by the appellant. The Board so constituted gave an award confirming the con1pensa.tion given by the Collector. The appellant moved the District Court for setting aside the award. The said application was diS!missed by the Court and an appeal to the High Court thereon was also dismissed. Thereafter, the appellant approached the High Court for -granting a certificate of fitness for appeal to the Supreme Court and it was .at that stage that for the first time the appellant raised the point tha.t the arbitration agreement was not in accordance with the provisions of Article 299 of the Constitution and that there being no arbitration agreement in the eye of la.w, the a\Vard was invalid and liable to be set aside. The High Court accepted the contention and granted leave as prayed for.

Dismissing the appeal, the Court,

HELD : 1. The question \Vhether or not there was an agreement which fulfilled the requirements of Art. 299 is not a pure question of law but is a <iuestion which depends on investigation of facts.

[1046C]

2. ln view of the provision of Order VI Rule 8 and Order VIII Rule ' (If the Code of Civil Procedure, the appellant would be debarred from $ising a point for the first time before this Court or even before the High Court. It is well settled that no evidence can be looked into by the Court for which there is no foundation in the pleadings.

[1047BJ

In the instant case, the appellant cannot be allowed to raise the plea for the first time in the Supreme Court, in as much as :

(a) the appellant contented himself by relying on the resolution by the Government, treated it as a -valid arbitration agreement and never raised the .question that the said resolution was hit by Art. 299 ot the Constitution of India. [I047C]

(b) he fully participated in the arbitration proceedings aad having taken the benefit of a decision by the Board in his favour made a complete somer- B sault only when the decision went against him, by taking the plea now under <ixrunination, which doublless required investigation of facts. [1047D]

 A

(c) Even that plea he took neither before the Additional Sub-Judge nor in the High Court when the appeal was heard on merits but only for the-- first time in the application which he gave for gr3nting leave to appeal to- ..(" this Court. Had he raised the plea before the Trial Court that the arbitration agreement was not in consonance with Art. 299 of the Constit11tion of India, the rrespondent may have been in a position to rebut the plea by producing evidence a.nd circumstances to sho\v that an agreement for arbitration was g authenticated in the form required by Art. 299 of the Cons.titution. [1047El ,

Ka/yanpur Lime Works Ltd. v. State of Bihar and Anr.; [1954] S.C.R. 958 @ 969; followed.

CIVIL

APPELLATE JlTRISDICTION 1970.

Civil A ppcal No. 1105 of\., \

Appeal by Certificate from the Judgment and Order datea 13-5-1968 of the Patna High Court in Misc. Appeal No. 178 of 1963.

Dr. Y. S. Chitale, K. N. Choubey and B. P. Singh for the Appelial!t.

Lal Narain Sinha Attorney General and S. N. !ha for the Respondent.

1 he Judgment of the Court was delivered by

FAZAL ALI, J.-This appeal by certificate is directed against a judgment of the Patna High Court dated 13-5-1968 dismissing the appeal filed by the appellant before the High Court.

The case arose out of land acquisition proceedings taken by the Government in respect of the land in dispute which comprised 84.31 acres.

On 21-9-1980, the Collector by his award allowed a compensation of Rs. 9666.35 which along with solatium and other charges totalled to a sum of Rs. 20,231.67.

The appellant claimed Rs. 2,80,000/- as the market value of the land acquired.

On 11-10-1960, a reference was made to the District Judge under S. 18 of the Land Acquisition Act.

Before the District Judge couldtake up the proceedings for hearing, the matter was agreed by the parties, to be referred to a Board of Arbitrators consisting of three

persons of whom ane was appointed by the appellant Accordingly, a joint petition for referring the case to the arbitrator was made on 19-12-1961 and on the next day, dated 20-12-1961 the case was referred for arbitration to the Board. On 22-5-1962. the Board gave an award confirming the compensation given by the Collector.

Having thus lost his case before the Board, the appellant moved the District Court for setting aside the award.

His application was dismissed by the Additional Sub-Judge to whom

' '

N. B. BANERJEE V. DY. COMMISSIONER (Fawl Ali, J.)

I 045

the case was transferred in the meantime and hence an appeal was tiled by him before the High Court which was also dismissed.

Thereaftet; the appellant approached the High Court for granting a certificate of fitness for appeal to this Court and it was at that stage that for the first time he raised the point that the arbitration agreement was not in accordance with the provisions of Article 299 of the Constitution and that thus there being no arbitration agreement in the eye of law, the award was invalid and liable to be set aside.

The High Court appears to have been impressed by the point raised before it and granted leave as prayed for.

Hence this appeal before us.

Dr. Y. S. Chitale, learned counsel appearing for the appellant submitted that on the admitted facts there was no separate arbitration agreement, that the resolution of the Government incorporating the agreement of both the parties that the matter be referred to the Board ot Arbitrators would be deemed to be the arbitration agreement, that the resolution not having been authenticated in accordance with the provisions of Article 299 of the Constitution of India was invalid and that therefore the award which followed it would also be invalid. . In support of his argument the learned counsel relied on a decision of this Court in the case of Mulamchand v. State o.1 Madhya Pradesh(') where this Court while considering the scope and the ambit of Article 299 observed as follows :-

"It was held by this Court that the provisions of s. 175(3) were mandatory and the contracts were therefore void and not binding on the Union of India which were not liable for damages for breach of the contracts.

The same principle was reiterated by this Court in a later case- State of West Bengal v. M/s. B. K. Monda/ and Sons [19621 1 Supp. SCR 876. The principle is that 1he provision of s. 175 (3) of the Government of India Act, 1935 or the corresponding provisions of Art. 299 (1) of the Constitution of India are mandatory in character and the contra. verition of these provisions nullifies the contracts and makes them void.

There is no question of estoppel or ratification of such a case." It was argued by Dr. Chitale that in view of the constitutional provisions of Art. 299, this Court held that the agreement was void, and that there could be no estoppel against a statute or constitutional rrovisions.

To the same effect are the decisions in Laliteshwarl

(ll [t96SJ 3 s.c.R.. 214, 22t.

G ,

.I c

Prasad Sa hi Y. Baseshwar Prasad & Ors.(') and Bihar Eastern Gangetic Fisherman Co-operative Society Ltd. v. Sipahi Singh and Ors.('). Great reliance was placed by the learned counsel for the appellant on the decision of this Court in The Marine Cooled (Bengal) P. Ltd. v. Union of India(') which was also a case of an arbitration

agreemnt.

The Attorney General while Pcpelling the arguments of the appellant submitted that there can be no dispute with the propositions laid down by this Court regarding the interpretation of Art. 299 of the Constitution of India but that the question whether or not there was an agreement which fulfilled the requircmcn ts of Art. 299 is not a pure question of law but is a question which depends on investigation of facts.

He added that as the appellant did not plead this point either before the Trial Court or before the High Court when the appeal was heard on merits the appellant cannot be allowed to raise it for the first time either in this Court or in his

application given before the High Court for granting a certificate of fitness.

It was argued by the Attorney General that if the point had been pleaded at the initial stage, the respondent might have been in a position to show that an agreement conforming to the provisions of Art. 299 of the Constitution of India existed.

We am of the opinion that the contention raised by the Attorney General is sound and must prevail.

In the case of Kalyanpur Lime Works Ltd. v.

State of B1har and Another(') a similar situation arose and this Court refused to entertain the point relating to the applicability of s. 30 of tho Government of India Act 1915 which corresponds to Art. 299 of the Constitution ors. 175(3) of the Government of India Act, on the ground that the party concerned did not raise the same in their pleadings. In this connection this Court observed as follows :-

"The first question which arises in this connection is whether the contract was to be executed by a formal document or whether it could be spelt out from the correspondence in which the negotiations were carried on by the parties.

We do not think it necessary to go into this question, for assuming that a. formal document was necessary, the plea of secti0n 30, it is to be noted, was not raised in the pleadings.

Objection is taken on behalf of the ::ippellant that

(1) [1966] 2 S.C.R. 63, 70.

(2) [1978] I S.C.R. 375, 381.

(3) [1964) 2 S.C.R. 859.

(4) [1954] S.C.R.

958. @ 969.

N. B. BANERJEE v. DY. COMMISSIONER (FazaJ Ali,!.)

the point not having been raised in the written statement it was not incumbent npon the plaintiff to show that the , contract was executed according to the provisions of section 30, before it could be specifically enforced and reliance was placed upon the provisions of order VI, rule 8, and Order VIII, rule 2 of the Civil Procedure Code."

This Court pointed out that in view of the provisions of Order VI Rule 8 and Order VIII Rule 2 of the Code of Civil Procedure, the appellant would be debarred from raising the point for the first time before this Court or even before the High Court.

The facts of the present case appear to be on all fours with facts of the case in the decision cited above. In the instant case also, the appe11ant contented himself by relying on the resolution by the Government, treated it as a valid arbitration agreement and never raised the question that the said resolution was hit by Art. 299 of the Constitution of India. On the other hand, the appellant fully participated in the arbitration proceedings and having taken the benefit of a decision by the Board in his favour made a complete somarsault only when the decision went against him, by taking the plea now under examination, which doubtless required investigation of facts.

Even that plea too he took neither before the Additional Sub-Jrndge nor in the High Court when the appeal was heard on merits but only fer the first time in the application which he gave for granting leave to appeal to this Court.

In. these circumstances it is manifest that if the appellant had raised the plea before the Trial Court that the arbitration agreement was not in consonance with Art. 299 of the Constitution of India, the

espondent may have been in a position to rebut the plea by producing , evidence and circumstances to show that an agreement for arbitration was authenticated in the form required by Art. 299 of the Contitution. It is well settled that no evidence can be looked into by the Court for which there is no foundation in the pleadings.

We <:annot therefore allow the appellant to raise the plea for the first time in this Court a'nd the High Court also ought not to have entertained it at the stage of the application for a certificate of fitness to be granted for leave to appeal to this Court.

No other point was pleaded before us.

The appeal fails and is accordingly dismissed. In the circumstances of this case however, there will be no order as to costs.

V.D.K.

Appeal dismissed.

NIROD BARAN BANERJEE

DY. COMMISSIONER OF HAZARI BAGH

February 14, 1980

S. MURTAZA FAZAL ALI

A. D. KosHAL, JJ.

Order Vlll Rule

State of Bihar

Supreme Court

Article 299

Art. 299

Order VI Rule

Order VIII Rule

the Code of Civil Procedure

Art. 299

Constitution of India

Art. 299

Art. 299

Y. S. Chitale

K. N. Choubey

B. P. Singh

Lal Narain Sinha

S. N. !

FAZAL ALI

S. 18

N. B. BANERJEE V. DY. COMMISSIONER

Fawl Ali

Article 299

Y. S. Chitale

Article 299

Constitution of India

Article 299

s. 175(3)

Union of India

s. 175

Government of India Act, 1935

Art. 299

Constitution of India

Chitale

Art. 299

Laliteshwarl

Art. 299

Constitution of India

Art. 299

Art. 299

Constitution of India

s. 30

Government of India Act 1915

Art. 299

[1966] 2 S.C.R. 63

[1964) 2 S.C.R. 859

section 30

Order VIII Rule

the Code of Civil Procedure

Art. 299

Constitution of India

Art. 299

Constitution of India

Art. 299


UTTAM CHAND v.

STATE OF MAHARASHTRA & ANR.

February 14, 1980

[S. Mu!l.TAZA FAZAL ALI AND A. D. KosHAL, JJ.]

Maharashtra Agricultural Land (Ceiling of Holdings) Act 1961, Seclions; 2(11), 2(22), 8, 10 and 12-Scope-Only those transfers nlade at any tifne on or after 4-8-1959 would be hit by the Act.

The appellant in his return filed before the Deputy Collector had shoWD the total lands in his possession to be 370 a.cres and 34 gunthas.

Proceedings under the Maharashtra Agricultural Lands (Ceiling of Holdings) Act, 1961 were taken against him in order to determine whether the return filed was correct or not. It was alleged by the appellant that some time in the year 1956 there was a partition between the appellant and his nephews a.s a. result of which his family got 202 acres of land. The appellant had scrld

51 acres of land to other persons before the Act came into force and that he ga.ve some land to his adopted son in lieu of the latter's share and that the adopted son thereafter gave 93.25 acres of land to his mother under Civil Court decree. All these transactions took place some time in the year 1956. The Collector aflcr examining the return found that the total land o\vned by the appellant was 118 a.cres 36 gunthas and the excess was only 4 acres 36 gunthas which could be taken over under the Act. The Commissioner calle<l for the records and interfered suo moto. After making some enquiry, he held that the land declared by the appellant in his return fa.r exceeded the ceiling limit and in computing the total lands owned by the appellant he took into account even the lands which had been giv.en by the adopted son to his mother, the wife of the appellant.

The appellant filed a writ petition against the order of the Commissioner in the High Court which refused to interfere on the ground that the transfer of the land in favour of the adopted sons was held to be collusive as also the decree.

In the appeal to this Court, it was contended on behalf of the appellant that under the provisions of the Act, land whicl1 was received by his wife from the adopted son was her personal property and could not be included in the ceiling of the appell<nt and that the Commissioner had no jurisdiction to add that land and treat the same as the land of the appellant and to set aside the order of the Deputy Collector.

On behalf of the respondent it was contended that the word 'person' defined in section 2(22) of the Act includes family a.nd that 'family' as defined in section 2 ( 11) includes, a: Hindu Undivided family, and in the case of other persons, a group or unit, the members of which by custom or usage are joint in an estate or possession or residence.

Allowjng the appeal.

H HELD : I. The judgment of the High Court is set aside as also that of the Comn1issioner and that the judgment of the Deputy Collector restored.

[1052B]

--""' .)

UTTAM CHAND v. MAHARASHTRA (Faw! Ali,!.) 1049

2. The Act clearly exempts the land which may have been acquired or A. tramferred prior to 4-8-1959.

Section 8, 10 and 12 whirh deal with the subject clearly enjoin that only those transfers would be hit by the Act which are made at any time on or after 4-8-1959.

[105\A]

3. There was neither nny pleading nor any case made out either before the Deputy Collector or even before the Commissioner to indica.te that the transfer of the land in favour of the adopted son and the transfer by the B adOpted son in favour of his mother were collusive or tainted by fraud.

Both these transactions took place as far back as 1956 th3ot is to say 5 years before the Act came into force.

[1050G-H]

4. The High Court was not justified in presuming that the transfer made by the appellant in favour of his adopted son towards his sha.re and the transfer by the adopted son to his mother was either collusive or fraudulent.

C There v:as neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court.

[1051A-C]

5. Sections 2(11), 2(12) are of no assistance a.s Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the separate or individual property of a member of the family which is self-acquired property and cannot be clubbed together D with 'the lMid of the owner or his family.

To begin \\1ith, the Act merely intended to include the land within the ceiling limits of a person or his family \Vhich belonged to such a person or persons having different shares in that property. That is v.hy all transfers made prior to 1959 were expressly exempted from the operation of the Act.

[105\E-G]

CIVIL APPELLATE JURISDICTION: Civil App., a! No. 1415 of 1970.

From the Judgment and Order dated 30-9-69 of the Bombay High Court in S.C.A. No. 1512 of 1967.

V. M. Tarkunde, R. Salish, V. K. Pandita and E. C. A garwala for the Appellant.

M. C. Bhandare, C. K. Ratnaparkhi and M. N. Shrof] for the Respondent.

The Judgment of the Court was delivered by

FAzAL Au. J.

This appeal by certificate is directed against a judgment of the Bombay High Court dated 30-9-1969 dismissing the G writ petition filed by the appellant against an order of the Commissioner.

The facts of the case lie within a narrow compass and may be stated as follows :

Proceedings under Maharashtra Agricultural Lands (Ceiling of R Holdings) Maharashtra Act No. XXVII 1961 and (hereinafter to be referred to as the Act) which received the assent of the President on

SUPREME COURT REPORTS

[1980] 2 S.C.R. -·- 16-6-1961 were taken against the appellant in order to determine whether the return filed by the appellant under the provisions of the Act was correct or not. In his return filed before the Depuiy Collecfor, the appellant had shown the total lands to be 370 acres and 34 gunthas.

It was however alleged by the appellant that some time in the year 1956, there was a partition between the appellant and bis nephews as a result of which his family got 202 acres of land.

The appellant bad sold 51 acres of land to other persons before the Act came into force.

The appellant further alleged that he gave some lauds to his adopted son in lieu of the latter's share. Th~ adopted son Nemichand thereafter gave 93.25 acres of land to his mother under a civil Court decree.

All these transactions took . place some time in the year 1956.

The Collector after exainining the return found that the total land owned by the appellant was 118 acres 36 gunthas and the excess was only 4 acres 36 gunthas which could be taken over under the Act.

Against ihe order of the Deputy Collector, the Commissioner appears to have called for the records and interfered suo moto and after making some enquiry, he held that the land declared by the appel" !ant in his return far-exceeded the ceiling limit. In computing the total lands owned by ihe appellant, the Commissioner appears to have taken into account even that land which had been given by Nem.ichand to his mother, ihe wife of the appellant.

Against this order of Commissioner, the appellant filed a writ petition before the High Court which was dismissed as a result of which an application was filed for frant of certificate for appeal to this Court which was granted. Hence this Appeal.

The short point taken by Mr. V. M. Tarkunde, learned counsel for the appellant is that under the provisions of the Act, land which was received by his wife from the adopted son Was her personal property and could not !J.~ included in the ceiling of the appellant and that the Commissioner iherefore had no jurisdiction to add that land and treat the same as the land of the appellant and proceed to set said the order of the Depnty Collector. The High Court in a short judgment refused to interfere mainly on lhc ground that the transfer of the land in favour of Nemichand, the adopted son, was held to be collusive as also the decree.

There was neither any pleading nor any case made out either before the Deputy Collector or even before ihe

Commissioner to indicate that the transfer of the lands in favour of the adopted son and ihe transfer of N em.ichand in favour of his mother were collusive or tainted by fraud.

In fact both these transactions took place as far back as 1956, ihat is to say, five years before the Act came into force.

Even ihe Act clearly exempts lands which may

• y

UTTAM CHAND v. MAHARASHTRA (Fazai Ali, J.) 1051

have been acquired or transferred prior to 4-8-1959.

Ss. 8, 10 and 12 which deal with the subject clearly enjoin that only those trallsfers wouW be hit by the Act which are made at any time on or after 4-8-1959. As both the transfers mentioned above were prior to 4-8-1959, it is obvious that they fell completely outside the ambit of the provisions of the Act. The High Court was thus not justilied in pr\:Suming that the transfer made by the appetlant in favour of his ad0pted son towards his share and the transfer by the adopted son Nemichand to his mother were either collusive or fraudulent.

There was neither any foundation in the pleadings nor any evidence to support this conjecture of the High Court.

Mr. Bhandare, learned Counsel appearing for the respondent submitted that the. word 'person' defined in Sec. 2(22) of the Act includes family and that 'family' as defined in Sec. 2(11) of the Act includes, a Hindu undivided family, and in the case of other persons, a group or unit the members of which by custom or usage are joint in estate or possession or residence. Reliance was also placed on Section 6 of the Act which runs thus :

"Where a family unit consists of members which exceed five in number, the family unit shall be entitled to bold land exceeding the ceiling area !o the extent of one-fifth of t.he ceiling area for each member in excess of five, 50 however that the total holding shall not exceed twice the ceiling area, and in such cas~, in relation to the holding of such family unit, such area shall be deemed to be the ceiling area."

These sections are of no assistance to the Respondent because Section 6 takes within its fold lands belonging to the owner, or his family as a single unit and is not meant to cover the seperate or individual property of a member of the family which is self-acquired property and cannot be clubbed together with land of owner or his family.

To begin with the Act merely intended to include land within the ceiling limit of a person or his family which belonged lo such a person or persons having different shares in that property.

That is why all transfers made prior to 1959 were expressly exempted from the operation of the Act.

The arguments advanced by the rspondent appear to have found favour with the Commissioner, but it was legally erroneous as indicated above. In these circumstances, therefore, the most important fct to be determined was whether or not any transfer that has been made by the person concerned was prior to or after 4-8-1959. If the transfer was prior to 4-8-1959 then the provisions of the Act would not apply at all. In the instant case, both the

.A transfers being three years prior to the date mentioned above, the Act would not apply to the appellant, and the Commissioner and the High Court therefore erred in holding that the lands transferred by Nemichand to his mother should be included in the total area of the land owned by the appellant.

B We, therefore, allow this Appeal, set aside the judgment of the High Court and also that of the Commissioner and restore the judgment of the Deputy Collector. In the special circumstances, there shall be no on:Jers as to costs.

The appeal is accordingly allowed.

N.K.A.

Appeal allowed.

• •

UTTAM CHAND

STATE OF MAHARASHTRA & ANR

February 14, 1980

S. Mu!l.TAZA FAZAL ALI

A. D. KosHAL, JJ.

section 2(22)

section 2

Section 8, 10 and 12

Sections 2(11), 2(12)

Section 6

V. M. Tarkunde

R. Salish

V. K. Pandita

E. C. A garwala

M. C. Bhandare

C. K. Ratnaparkhi

M. N. Shrof

FAzAL Au

Nemichand

Nem.ichand

V. M. Tarkunde

Ss. 8, 10 and 12

Bhandare

Sec. 2(22)

Sec. 2(11)

Section 6

Section 6

N.K.A.


> >

HAZARI LAL

DELHI ADMINISTRATION

February 15, 1980

[R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.J

Prevention of CorruptiQn_ Act, 1947-Section 4(1)-Scope of-Accused .charged with den?anding and taking illegal gratification-Many prosecution witnesses turned hostile-Staten1ents 1nade by witnesses in the course of investiga- .Jion-Jf could be used as substantive evidence-Evidence of police. inspector- 1/ needs corroboraition.

Panch l-Vitncsses-Clerks-lf could not be called independent lvUncs!.eS.

The accused (appella.nt) who \Vas charged with offences under section 5(1) {<!) of the Prevention of Corruption Act and section 161 of the Perutl Code was convicted and sentenced by the Specit1l Judge. The convictions and .. entences were confirmed by the High Cuurt.

The prosecution alleged that the &eooter rickshaw of the complainant driven '.by his driver was one day involved in a traffic accid'ent and the vehicle ; vas ttarken to the police station by the accused1 who was a police oonstablC.

The .cooiplainant obtained orders of the Magistrate for its releese but the accused detlined to release the vehicle unless he w.as paid a sum of Rs. 60. fhe complainant was not prepared to pay the sum demanded. He then went to an inspector of the Anti-Corruption Department and lodged a complaint th at the .accused was demanding illegal gratification from him for the release oI his ·.scooter rickshaw which \\'tls ordered by the Magistrate to be r'eleased'.

The prosecution further alleged that the lnspector called two panch v:itnesses and after noting down the numbers of six ten rupee currency notes given

y the complainant, treated them with phenol phthalene powder and gave them to the complai1u1nt.

It was arranged that the complainant should hand over th'e currency notes to the accused and should thereafter make ai signal at whicb ·-the Inspector and panth witnesses would enter the room.

The complainant carried out the plan as arranged and gave the call on which the Inspector and panch witnesses enter'ed the room of the accused.

On seeing the lnsptct<Jr, the accused 1-cn10\'ed the currency notes from his pocket aind flung then1 across the wall into the adjoining room.

The notes were coll'etted and when compared with the numbers noted earlier, they tallied.

The hands of the accused were th'en dipped in sodium bicarbonate solution which, colourless earlier, turned pink.

Similarly the oondkerchief in the right side pocket of the trousers of the accused was removed and also dipped in sodium bicarbonate , solution. Th>! too turned pink.

Before the trial court many of the \Vi1.nesses turned hostile and one of the , panch witnesses became mentally deranged.

Jn appeal it was contended before this Court that ( 1) the courts below had made free use of the statements made by the witnesses in the course of 'investigation as if they were substantive evidence and, if they were excluded, the .rest of the evidence would not be sufficient to draw the presumption under

A soctioo 4(1) of the Prevention of Corruption Act, (2) the fact that the lmp<C

t.or wa<> the very police officer 'vho laid the trap, should be sufficient to insist on corroboration of his evidence.

Dismissing the appeal,

HELD: l(a) The courts below were clearly wrong in tive evidence statements made by witnesses in the course

[1059El

using as substanof investigation.

(b) Section 162 of the Code of Criminal Procedure imposes a bar on µte use of any statement made by any person to a police officer in the course . of. investigaition at nny enquiry or trial in respect of any offence under invetiga tion at the tirne wh'en such statement was made, except for the purpose of contradicting the witnesses in the manner provided by section 145 of the Evidence Act W'here any part of such statement is so used any part thereof may also he used in the re-examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exception to this emb&rgo on the use of statements made in the course of an

investigation relates to the statements falling within the provisions of section 32 ( 1) of the Evidence Act or permitted to be proved under s. 27 of the Evidence Act. [1059A-(\, l

(c) The contention of the prosecution that the earlier statements with whk:h witnesses were confronted for the purpose of contradiction could be takeil into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act has no substance.

The definition of the term ''proved" dOes not enable a Court to take into consideration matters, including tililte-·

ments. whose use is statutorily barred.

[1059G]

2(ai) The evidence of the Inspector is entirely trustworthy and there is no need to seek any corroboration.

[1059H]

(b) Ther'e is no rule of prudence which has crystallised into a rule: of law, nor any rule of prudence which requires that the evidence of such t'.lolice

officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration.

In the facts and circunlStanceS of a particular c21>e a court may be disinclined to act upon the evidence' ot: such an officer without corroboration, but, equally in the facts and circum- 1tances of another case the court may unhesitatingly accept the evidence 0f such an officer. It is aJJ a matter of appreciation of evidence and on i; uch mattc; rs.

there can be no hard and fast rule nor can there be any prccedential guidance ..

[1060A-Bl

In the instant case the proved facts were that the complainant mad~ a report to the Inspector, and currency notes whose numbers were noted nd which were treated with phenol phthaJene powder were handed ovr t..1 the complainant.

Th'e complainant went into the accused's room and came out after a short while giving the agreed signal.

When the Inspector rushed in,. the accused thre\v the currency notes acros~ the wall into the adjoining roon1.

His hands and the handkerchief when dipped in sodium bicarbonate , ofutilln turned pink and lastly instead of giving a plausible explanation as lo how thii phenol phthalene powder came to his hands and the handkerchief in bis .poc::ket all that he could say was that he "knew nothing about it".

From all thcsefacts the only inference that follows is that currency notes were obtaine!f.- br

the accused from the cotnplainant. It is not necessary that the passing .of

• •

> )

' 1 ) . <

r-··

• J

money should be proved by direct evidence, it may also be proved by circum A stantial evidence. The events which followed in quick sucoession in the present

case led to the only inference that the money was obtained by the accused from the complainant.

3. Under section 114 of the Evidence Act the Court may presume tt.e existence of any !'act which is likely to have happened regard being had to the common course of natural events, human conduct and public and private B business, in their relation to facts of the particular case.

One of the illustrations to this section is that the Court may pr'csume that a person Who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless h'e can account for his possession.

So too in .the facts and circumstances of the present case the Court may presume that the accused who tcok out the currency notes from his po.;::ket and flung then1 across the wall had' Obtained them from the complainant \l.ho, a C few ntinutes earlier, was shown, to have been in possession of th'e notes. Once it is found that the accused had obtained the money from the complai11a11t the presumption under section 4(1) of the Prevention of Corruption Act is immediately attracted.

The presumption is rebuttable, but in the present case there is no material to rebut the presumption.

The accused was, therefore, rightly convicted by the courts below.

[1061D-FJ

Sita Ram v. The State of Rniasthan AIR 1975 SC 1432; Sura; Mal v.

D The Sitate (Delhi Administration) AIR 1979 SC 1408 held inapplicable.

4. There is no force in the contention that persons holding clerical posts could not be called independent witnesses on the ground that they would be under fear of disciplinary action if they did not support th'e prosecution case.

The respectability and verasity of a witness is not necessarily dependent upon his status in Jife and it cannot be S<'1id that clerks are less tn1thful and amen- E able than superior officers.

[1060E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 211 of 1974.

Appeal by special leave from the Judgment and Order dated 19-4-1974 of the Delhi High Court in Crl. A. No. 186172.

Frank Anthony, S. K. Dholakia and R. C. Bhatia for the Appellant.

H. S. Marwah and R. N. Sachthey for the Respondent.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. The appellant Hazari Lal was convicted by the learned Special Judge, Delhi, of offences under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act, 1947, and Section 161 of the Indian Penal Code. On the first count he was sentenced to suffer rigorous imprisonment for a period of two years and to pay a fine of Rs. 500. On the second connt he was sentenced to suffer rigorous imprisonment for a period of two years.

The two sentences were directed to nm concnrrently.

The convictions and sentences were confirmed by the High Conrt of Delhi.

l3-138SCI/80

1056 SUPREME COURT REPORr; ' [1980] 2 s.c.R.

The case which the prosecution set out to prove before the Trial Judge was briefly as follows : •

\. )

1 >

The scooter rickshaw belonging to Sri Ram (P.W.3) and driven by his driver Ram Lubhaya (P.W. 6) was involved in an accident on July 12, 1969. The scooter rickshaw and a tonga which were involved in the accident were taken to the Police Station, Kashmere Gate by the accused, a Police constable attached to that station. P.W. 3 obtained orders from the Magistrate for the release of his vehicle and went to the Police Station to obtain delivery of tile vehicle.

The accused, who was present took him outside and told him that the vehicle would be given to him only if he paid a bribe of Rs. 60.

P.W. 3 then went away.

He went to the Anti Corruption Department and made statement to Inspector Paras Nath, P.W. 8.

After recording the statement of P.W. 3, P.W. 8 sent for two persons Davinder Kumar (P.W. 4) and Kewal Krishan.

The statement of P. W. 3 was read out to P. W. 3 in the presence of the two Panch witnesses Davinder Kumar and Kewal Krishan. P. W. 3 then produced six currency notes of the valne of Rs. 10 each. The numbers of the notes were noted and they were treated with phenol phthelene powder.

After the usual instructions were given to P .W. 3 and the panch witnesses, the raiding party proceeded towards Kashmere Gate. P.W. 3, P.W. 6 and Kewal Krishan went into the Police Station, while P.W. 8 and others stayed outside.

The money was handed over to the accused who took it and put it inside the right hand pocket of his trousers. P.W. 6 and Kewal Krishan then came out and signalled to 'P.W. 8 whereupon P.W. 8 and the Panch witnesses went inside the Police Station. The accused was present inside. As soon as he saw the party led by P.W. 8 he took out the currency notes from the right side pocket of his trousers and threw them across the wall into the adjoining room. P. W. 8. instructed some of the police officers accompanying him to rush to the adjoining room and to keep a watch over the notes which must have fallep. there. He then introduced himself to the accused and took him to the adjoining room. Some of the notes were lying on the table of the Duty Officer in that room while others had fallen on the ground near the chair of the Duty Officer.

The six notes were collected in the presence of the witnesses and their numbers were compared with the numbers noted before they proceeded on the raid. The numbers tallied. The accused was questioned by the Jllspector and he denied that he had demanded any bribe and kept silent about the acceptance of the bribe. Both the hands of the accused were dipped in sodium carbonate solution and the solution which was previously colourless turned pink. The same test was repeated

,,.-""'i.

• y

' }

; .

with the handkerchief which was taken out of the right hand side pocket of the accused and also with the trousers of the accused. Each test resulted in the bicarbonate solution turning pink. After completion of the investigation a charge-sheet was laid against the accused being for offences under s. 5 (2) read with s. 5 (1 )( d) of the Prevention of Corruption Act and s. 161 of the Indian Penal Code.

All that has been mentioned in the previous paragraph was what the prosecution set out to prove before the Trial Court. But many of the witnesses turned volte face. P.W. 3 stated in his evidence that on the first occasion when he went to the Police Station to obtain delivery of his scooter rickshaw it was not the accused that was present but one Hawaldar. It was the Hawaldar and not the accused that demanded the bribe of Rs. 60 from him. According to him at the time of the raid, when he, P.W. 6 and Kewal Krishan went inside the Police Station they found the accused there and asked him to take the sum of Rs. 60 and return the scooter rickshaw. P.W. 3 stretched his hand with the money towards the pocket of the accused's trousers but the accused said the money might be paid to the person for whom it was meant. He refused to receive the money and jerked P.W. 3's hand with his hand as a result of which the notes came to be flung across the wall into the neighbouring room.

He told the Inspector that the notes had been flung across the wall and that the accused had neither demanded the amount from him nor accepted the money from him. On the other hand the accused had refused to take the money from him. The Inspector recovered the notes from the neighbouring room, placed them on the table and thereafter subjected the handkerchief and the pocket of the accused's trousers to the phenol phthelene test. The implication of this part of the evidence was that it was as a result of the handling of these articles by the Inspector that they came to have phenol phthelene powder and that was the reason why the solution turned pink.

P. W. 3 was treated as hostile and crossexamined by the prosroution with reference to the earlier statements made by him. P.W. 6 followed suit and he too was declared hostile and cross-examinied by the prosecution with reference to bis earlier statements.

Of the two panch witnesses Kewal Krishan was not examined as he had become mentally deranged before the trial of the case.

Davinder Kumar was examined as P.W. 4. This witness supported the prosecution case i'n some particulars but in regard to other particulars he made statements contrary to his earlier statements. He was also treated as hostile and cross-examined by the prosecution. In substance bis chief-examination was to the affect that P.W.3, P.W.6 and

Kewal Krishan went inside the Police Station, while he stayed outside with the Inspector P.W. 8. P.W.3, P.W.6 and Kewal Krishan came out after sometime and stated that the accused had accepted the bribe.

The raiding party then went inside.

On seeing the Inspector the accused got suspicious and threw away the currency notes across the wall into the neighbouring room.

In examinatio\1-in-chief he also stated that before they proceeded to the Police Station for the raid, statement of both P.W.3 and P.W.6 had been recorded. He stated that after the bribe was given P.W.3 also came out and signalled to P.W.8 that the bribe had. b; ien given.

Another statement made by him in chief-examinatio'n was that he was unable to remember if the Inspector questioned the accused at the time of the raid.

As these statements were contrary to his earlier statements he was crossexamined by the prosecution.

Paras Nath, (P.W.8) spoke to the complaint made to him by P.W.3., the action that he took, the raid etc.

Regarding the actual raid he stated that P.W.3, P.W.6 and Kewal Krishan first went in side the Police Station.

After sometime, P.W.6 and Kewal Krishan came out and signalled that P.W.3 had passed the bribe money and that P.W.3 and the accused were in the room.

When he went i'n, the a"ccused took out the notes from the right side pocket of his trousers and threw them across the wall into the adjoining room. He theii spoke to the test made by him etc.

On this evidence both the learned Sessions Judge and the High Court found the accused gnilty of the two offences with which he was charged.

Shri Frank Anthony, learned counsel for the appellant submitted that the Courts below had made free use of the statements made by the witnesses in the course of the investigation .as if such statements were substantive evidence. If those statements were exclnded from consideration there would be no evidence of any demand or acceptance of bribe by the accused.

All that the prosecution would be left with would be the evidence of the Inspector and P.W.4 to the effect that the accused took out the currency notes from the right side pocket of his trousers and flung them across the wall into the adjoining room.

That evidence accordi'ng to the learned counsel would not be sufficient, even if accepted, to draw the presumption under s. 4(1) of the Prevention of Corruption Act. Reliance was placed upon the decision of this Court in Sita Ram v. The State of Rajasthan,(') and Suraj Mal v. The State (Delhi Administration(') .

(l) AIR 1975 SC 1432 •.

(2) AIR 1979 SC 1408.

1 '

• •

HAZARI LAL v. DELm ADMN. (Chinnappa Reddy,!.) 1059

The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enqniry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by s.145 of the Indian Evidence Act. Where any part of such statement is so used any part t.hereof may also be used in the re-examination of the witness for the limited purpose of explaining any matter referred to in his cross-examination. The only other exceptions to this embargo on the use of statements made in the counse of an investigation, relates to the statements falling within the provisions of s. 32(1) of the Indian Evidence Act or permitted to be proved under s. 27 of the l'ndian Evidence Act. S.145 of the Evidence Act provides that a witness may be cross-examined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the courne of investigation. Shri H. S. Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of "proved" in section 3 of the Evidence Act which is, "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists." We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred .

. After excluding irrelevant material we are left with the evidence of P.W.8 and that of P.W.4 whose evidence corroborates that of P.W.8 in several material particulars. We, however, wish to say that the evidence of P.W.8 is entirely trustworthy and there is no need to

eek any corroboration. We are not prepred to accept the sub B mission of Shri Frank A'nthony that the fact that he is the very Police Officer who laid the trap should be sufficient for us to insist upon

• 1 . '

corroboration.

We do wish to say that there is no rule of prudence which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration, but, equally, in the facts and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all a matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance.

We are forced to say this because of late we have come across several judgments of Courts of Session and sometimes even of High Courts where reference is made to decisions of this Court on matters of appreciation of evidence and decisions of pure question of fact. \Vhile on this subject of appreciation of evidence we may also refer to an argument of Shri Frank Anthony based on the observations of a learned single judge in Kharaiti Lal v. The State,(') that peons holding clerical posts and the like should not be called as panch witnesses, as such witnesses could not really be called independent witnesses as they would always be under fear of disciplinary action if they did not support the prosecution case. We do not think we can accept the submission of Shri Frank Anthony. The respectability and the veracity of a . witness is not necessarily dependent upon his status in life and we are not prepared to say that Clerks are less truthful and more amenable than their superior officers.

From the evidence of P.W.8 and that of P.W.4 we may take the following facts as established : P.W.3 made a report to P.W.8. He produced six currency notes of the denomination of ten rupees whose numbers were noted and which were treated with phenol phthelene powder.

Thereafter the notes were handed over to P.W.3. P.W.3, P.W.6 and Kewal Krishan went inside the Police Station.

After sometime P.W.6 and Kewal Krishan came out and gave a sigbal.

P.W.8 then went inside the Police Station.

On seeing him the accused who was inside the Police Station with P.W.3 took out some cnrrency notes from the right side pocket of his trousers and threw them across the partition wall into the adjoining room. The notes which were so thrown out by the accused, were found to be the same notes which had been treated with phenol phthelene and handed over to P.W.3 before the raid.

The handkerchief which was taken out of tl1e right side pocket of the trouser of the accused as well as the

(I) 1965(1)DelhiLawTimes362.

right side pocket itself were subjected to a test which showed that they too had come into contact with phenol phthelene powder. It may be rioted that the circulll\Stance that the handkerchief (Ex.P-4) recovered from the right side pocket of the pant on the person of the accused was subjected to the colour test which indicated the presence of phenol phthelene powder on that handkerchief was put to the appellant in his examination under section 313, Criminal Procedure Code. Instead of giving any explanation as to how this phenol phthelene powder came on the handkerchief lying in his pocket, the apP"llant replied : "I k"now nothing about it." From these facts the irresistable inference must follow, in the absence of any explanation from the accused, that currency notes were obtained by the accused. from P.W.3.

It is not necessary that the passing of money should be proved by direct evidence.

It may also be proved by circumstantial evidence.

The events which followed ih quick succession in the present case lead to the only inference that the money was obtained by the accused from P.W.3.

Under s.114 of the Evidnce Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, huma'n conduct and public and private business, in their relation to facts of the particular case.

One of the illustrations to s.114 of the Evidence Act is that the Court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or bas received the goods knowing them to be stolen; unless he can account for his possession.

So too, in the facts ahd circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from P.W.3, who a few minutes earlier was shown to have been in possession of the notes.

Once we arrive at the finding that the accused had obtained the money from P.W.3, the presumption under s.4(1) of the Prevention of C9rruption Act is immediately attracted.

The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the Courts below.

We will now refer to the two decisions of this Court on which.

Shri Frank Anthony relied.

In Sita Ram v. The State of Rajasthan,

(supra) the evidence of the complainant was rejected and it was held that there was no evidence to establish that the accused had received ahy gratification from any person.

On that finding the presumption

under s.4(1) of the Prevention of Corruption Act was not drawn.

H The question whether the rest of the evidence was sufficient to establish that the accused had obtained the money from the complainant

I 062

SUPREME CC(JRT REPORTS [1980] 2 s.c.R:

was not considered.

All that was taken as established was the recovery of cert_a_in money from the person of the accused and it was held that mere recovery of money was not enough to entitle the drawing of the presumption under s.4 (1) of the Prevention of Corruption Act.

The Court did not co"nsider the further question whether recovery of the money alongwith other circumstances could establish that the accused had obtained gratification from any person. Jn the present case we have found that the circnmstances established by the prosecution entitled the Court to hold that the accused received the gratification from P.W.3. In Suraj Mal v. The State (Delhi Administration) (supra) also it was said mere recovery of money divorced from the circumstances under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of briln or to show that the accused voluntarily accepted the money. There can be no quarrel with that proposition but where the recovery of the money coupled with other circumstances leads to the conclusion that the acc11sed received gratification from some person the Court would certainly be entitled to draw the presumption under s.4( 1) of the Prevention of Corruption Act. In our view both the decisions are of no avail to the appellant and as already observed by us conclusions of fact must be drawn on the facts of each case and not on the facts of other cases. In other words there can be no precedents on questions of facts. The appeal is, therefore, dismissed.

P.B.R.

Appeal dismissed.

LAL

DELHI ADMINISTRATION

February 15, 1980

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ

Section 4(1)

section 5(1)

Prevention of Corruption Act

section 161

Prevention of Corruption Act

Section 162

Code of Criminal Procedure

section 145

section 32

s. 27

section 3

section 114

section 4(1)

Prevention of Corruption Act

AIR 1975 SC 1432

AIR 1979 SC 1408

Frank Anthony

S. K. Dholakia

R. C. Bhatia

H. S. Marwah

R. N. Sachthey

Hazari Lal

section 5(2)

section 5(1)

Prevention of Corruption Act, 1947

Section 161

Indian Penal Code

High Conrt of Delhi

Ram

Ram Lubhaya

July 12, 1969

Police Station, Kashmere Gate

Paras Nath

Davinder Kumar

Kewal Krishan

s. 5

s. 5

Prevention of Corruption Act

s. 161

Indian Penal Code

Hawaldar

Frank Anthony

s. 4(1)

Prevention of Corruption Act

AIR 1975 SC 1432

AIR 1979 SC 1408

Section 162

Code of Criminal Procedure

Indian Evidence Act

s. 32(1)

Indian Evidence Act

s. 27

H. S. Marwah

Delhi Administration

section 3

Marwah

Frank A'nthony

Frank Anthony

section 313

Criminal Procedure Code

Prevention of Corruption Act

Prevention of Corruption Act

s.4( 1)

Prevention of Corruption Act


• . \

' I

RAGHUNANDAN SINGH & ORS.

BRIJ MOHAN SINGH & ORS.

February 15, 1980

[S. MURTAZA FAZAL Au AND A. D. KosHAL, JJ.]

[J. P. Zan1i11dari Abolition and Land Reforms Act, 1950 (U.P. Act 1 o1

1950) Section 12-Scope of.

Terms of Thcka empowering lease-holders to remain in possession of agrl .. .c; ultural land--Appoint te1nporary tenants and recover Govern1nent Revenue- Thekadar whether a hereditary tenant.

The appellants who were originally the Zamindars of the land in dispute granted Thekas to the respondents first on the 10th July, 1933 and then on the 24th May, 1943.

While the first Theka provided that the tease-holders were to remain in pos.4ession of the entire agricultural land either through them~ 1elves or by euanging with temporary tenants and by recovering government revenue, the second Theka though in the same terms, provided that the leasehold'ers would remain in possession of the agricultural land as lease-holders themselves and may appoint temporary tenants by receiving the government

, revenue.

' i

The appellants succeeded before the Settlement Officer (Consolidation), but the Deputy Director of Consolidation held in revision, that the appellants were Bhoomidars and the respondents could not get any status under Section 12 of the Uttar Pradesh Zam.indari Abolition and Land Reforms Act, 1950.

The High Court dismissed the writ petition filed by the appellants in limine.

In the appeal to this Court it v,.-as submitted on behalf of the appellants that as the Theka granted by the Zamindars was not made with the les<ees <>nly for the purposes of personal cultivation of the lands the respondents 'Nould not fall within the ambit of section 12 of the Act, while on behalf of th~ respondents it wa<I contended that oo they were in cultivating possession of the lands in question, they had acquired the status of her'editary tenants conferred p on them by section 12 of the Act and they were not Assamis as contemplated by section 13 of the Act.

Allowing the appeal,

HELD : 1. Before a person can be held to be a hereditary tenant under Section 12 of the Act, three conditions must be fulfilled: (1) He must be in

possession of the land in dispute on the !st May 1950, (2) His possession mlist G be under a Tbeka and (3) The Th'eka must be for the purpose of personal cuttivlltion of the lands in dispute by that person and not for other purposes.

!1065C-DJ

2. The dominant intention of the statute, as of other land reforms legisla tion, is to secure land for the tiller of the soil who alone would be clothed with the special rights of a hereditary tenant.

[1065-DJ H

3. The terms of the Tbeka do not spell out the facts that the respondents llad taken the lease for purposes of personal cultivation only, because other

' A purpoSes also are indicated as part of the Theka namely to sublet the land or to appoint tcmpora.ry tenants and the like.

The conditions required by section 12 are therefore not fulfilled in the case of the respondents.

[1066C]

Balu Noorul Hassan Khan (Dead) by LRs v. Ram Prasad Singh and oilier! [1980] 1 S.C.C. 367 followed and relied upon; Rani Dullaiya & Anr. v. Ganga Prarad 1968 ALJ 518 over-ruled.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1197 of 1970.

From the Judgment and Order dated 9-4-19.69 of the Allahabad High Court in Civil Misc. Writ Petitiou No. 1005 of 1969.

S. P. Singh and R. A. Gupta for the Appellant.

C Yogeswar Prasad, Mrs. Rani Chhabra, S. K. Bagga and Mrs.

S. K. Bagga for Respondent No. 4.

S. N. Singh for Respondents 1-3 and 5.

The Judgment of the Court was delivered by

FAzAL Au, J.-This appeal by certificate is directed against a judgment of the Allahabad High Court, which dismissed the writ petition filed by the appellants in limine. We have heard learned counsel for the parties at great length.

The only point for detennination in the present appeal is whether the case of the parties is governed by section 12 or section 13 of the U .P. Zamindari Abolition and Land Reforms Act 1950 (Act I of 1950) (hereinafter called the Act).

The facts in dispute are that so far as the appellants are concerned, they were orginally the zamindars of the lands in dispute and they granted Thckas to the respondents first on the 10th of July, 1933 and then on the 24th May, 1943. The interpretation of the tenns of the Theka wonld determine the question of the status of the appellants.

Shri Shiv Pujan Singh, appearing for the appellants, submitted that as the Thcka granted by the Zamindars was not made with the lessees only for the purposes of personal cnltivation of the lands the respondents would not fall within the ambit of Section 12 of the Act.

On the other hand, it was argued or the respondents that as they were in cultivating possession of the lands in question, they had acquired the status of hereditary tenants conferred on them by section 12 of the Act and they are not Assamis contemplated by section 13 of the Act.

Although the appellants succeeded before the Settlement Officer (Consolidation) the Deputy Director of Consolidation held in revision that the appellants were Bhoomidars and the respondents could not get any status under section 12 of the Act.

In order to decide this question, we have to determine the scope and ambit of Section 12 of the Act.

. t •

Jl.; ..

RAGHUNANDAN v. BRIJMOHAN (Fazal Ali, J.)

I 065

. "12. Thekedars to be hereditary tenants in certain circumstances- A ( 1) Where any land was in the personal culliivation of a person on the 1st day of May, 1950, as a thekedar thereof and the theka was made with a view to the cultivation of the land by such thekedar personally, then notwithstanding anything in any law, document or order of court, he shall be deemed to be a hereditary tenant thereof entited to hold, and when he has been ejected from the land after the said date, to B regain possession as a heredifary tenant thereof liable to pay rent at hereditary rates." ·

An analysis of this section would show that before a person can be held to be a hereditary tenant under the section, the following conditions must be fulfilled :- C

l. He must be in possession of the land in dispute-on the 1st of May, 1950.

2. His possession must be under a Theka.

3. The Theka must be for the purpose of personal cultivation of the lands in dispute by that person (emphasis supplied) D and not for other purposes. The dominant intention of the statute, as of other land reforms legislation, is to secure land for the tiller of the soil who alone would be clothed with the special rights of a hereditary tenant.

It is, therefore, manifest that only if the above three conditions are E fulfilled, would the Thekedars get the status of hereditary tenants and not otherwise. This section was interpreted by a decision of this Court in Babu Noorul Hasan Khan (Dead) by Lrs. v. Ram Prasad Singh and Others(') where this Court observed as follows :-

"If such a land was in .the personal cultivation of a person on the p 1st of May, 1950 as a Thekedar thereof and if the Theka was made with a view to the cultivation of the land by such Thekedar personally then because of the non-obstante clause occurring in sub-section ( 1) of section 12 of the Act the Thekedar would be deemed to be a hereditary tenant of the land entitled to hold as such and liable to pay rent on hereditary rates.

If, however, the land was in personal cultivation G of the Thekedar merely as a Thekedar appointed to collect rent from other tenants and incidentally allowed to cultivate the Sir or Khudkasht land of the lessor then he will be a mere assami in accordance with section 13(2) (a) of the Act."

The facts of the case before us are similar to the facts of the H' present case' and the decision of the courr is therefore directly in point.

A perusal of para 1 of the Theka executed on the 10th of July 1933 in favour of the Thekedars clearly shows that the lease-holders were to remain in possession of the entire agricultural land eiliier through themselves or by arran!jing with temporary tenants and by recovering government revenue. The other Theka which was executed on 24-5-43 was almost in the same terms and clause(!) provide that the lease-holders will remain in possession of the agricultural land as lease-holders themselves and may appoint temporary tenants by receiving the govermnent revenue.

Thus, the terms of the Theka, do not spell out the fact that the respondents had taken the lease for the purpose of personal cultivation only because other purposes also are inddcated as part of the Theka viz. to sublet the land or to appoint temporary tenants and the like.

In these circumstances, the condition required by section 12 are

clerly not fulfilled in the case of the respondents.

Mr. Singh appearing for the respondents relied on a decision of D the Allahabad High Court in Rani Dullaiya & Anr. v. Ganga Prasad(') where it was held that although the Theka may be for some other purpose also, but if it was also for personal cultivation section 12 of the Act would apply to the Thekedars. With due respect, we are of the opinion that the view taken by the Allahabad High Court is in direct conflict with the decision of this Court referred to above and E it must, therefore, be held to be incorrect.

For the above reasons, we allow this appeal, set aside the order of the High Court as also that of the Deputy Director of Consolidation and restore the order of the Settlement Officer (Consolidation) dated 24-1-1968.

F In the circumstances of this case, there will be no order as lo costs.

N.V.K.

Appeal allowed.

(l) (1968) A. L. J. 518.

I

RAGHUNANDAN SINGH & ORS

BRIJ MOHAN SINGH & ORS

February 15, 1980

A. D. KosHAL, JJ.

Abolition and Land Reforms Act, 1950

Section 12

Section 12

Abolition and Land Reforms Act, 1950

section 12

section 12

section 13

Section 12

section 12

Balu Noorul Hassan Khan

Allahabad High Court

S. P. Singh

R. A. Gupta

C Yogeswar Prasad

Rani Chhabra

S. K. Bagga

S. N. Singh

FAzAL Au

section 12

section 13

10th of July, 1933

Shiv Pujan Singh

Section 12

section 12

section 13

section 12

Section 12

1st of May, 1950

section 12

section 13(2)

10th of July 1933

section 12

Singh

section 12

N.V.K.


STATE OF U.P.

RAM BABU MISRA

February 19, 1980

(R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ.]

l 067

Evidence Act, 1872, Section 73-Scope of-Comparison of signature, writing or seal with others adn1itted or proved-Competency of the Magistrates to gtve directio1l to the accused to give specimen signature when the case is sti!J under investigation.

Dismissing the appeal by special Jea\e, the Court :

HELD : Though a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation would urely be in the interests of the administration of justic'e, Section 73 of the E\rideace Act does not ena.ble the Magistrate to give such a direction when the case is still under investigation.

[1068G-H]

The second paragraph of Section 73 'enables the Court to direct any person present in Court to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such p'erson.

The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings.

The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'.

If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings.

The language of Section 73 does not permit a Court to give a direction to the accused to give

pecimen writings for anticipated necessity for comparison in a proceeding which may later be' instituted in the Court.

[1069D-F]

(ii) Section 73 of the Evidence Act m•akes no distinction between a Civil Court and a Criminal Court. It would not be open to a person to seek tlre assistance of the Civil Court for a direction to some other p'erson to give sample writing under section 73 of the Evidence Act on the pl'ea that it would help him to decide whether to institute a civil suit in Which the question would be whether certain alleged writing5 are those' of the other person or not. That being the position, it should not make any difference if the investigating a.gency seeks the assistance of the court under section 73 of the Evidence Act ori the plea that a case might be instituted before the Court where it would be necessary to compare the writings.

[1069G-H]

State (Del/ii Admn.) v. Pali Ram, [1979] 1 SCR 931 and State of Bombay

v. Kathi Kalu Oghad, AIR 1961 SC 1808; distinguished,

State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808; T. Subbaiah v.

S. K. D. Ramaswamy Nadar, AIR 1970 Mad. 85; Farid Ahmed v. The State, AIR 1960 Cal. 32; Priti Ran; an Ghosh and others v. The State, 77 C.W.N.

I!'

A 865; Dharamvir Singh v.

State, 1975 Crl.

L.J. 884 (Pb. & Haryana); Brii •

Bhusha11 Raghunandan Pd. v. The State, AIR 1957 M.P. 106; and Srikant Rout

v. State of Orissa, 1972 (2) CUttack Weekly Reporter 1332; appr<'\''d.

Guizar Khan and Ors. v. State, AIR 1962 Patna 255 and B. Rami Reddy and Ors. v. State of A.P., 1971 Crl. L.J. 1591 (AP); over-ruled.

[The Court suggested that suitable legislation may be made on the analogy of s. 5 of the Identification of Prisoners Act, to provide for the investiture of Magistrates \Vith the power to issue directions tO :1ny peron, i:r:icluding an accused person, to give specimen signatures and \Vritings.]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 811 of 1979.

Appeal by special leave from the Judgment and Orde~ dated 18-12-1970 of the Allahabad High Court in Cr!. Revision No. 170 of 1975.

0. P. Rana and M. Ramachandran for the Appellant.

Nemo for the Respondent.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.-The Officer who was investigating into offences under Section 120-B, 420, 468 and 471 Indian Penal Code alleged against the respondent, Ram Babu Misra, moved the Chief Judicial Magistrate, Lucknow, to direct the accused to give his specimen writing for the purpose of comparison with certain disputed writings.

The leruved Magistrate held that he had no power to do so when the case was still under investigation.

His view has been upheld by the High Court. "'he State has preferred this appeal by Special Leave of this Court.

Shri 0. P. Rana, learned Counsel for the appellant, contended that Section 73 of the Evidence Act conferred ample power on the Magistrate to direct the accused to give his speciruen writing even during the course of investigation. He also urged that it would be generally in the interests of the administration of justice for the Magistrate to direct the accused to give his speciruen writing when the case was still under investigation, since that would enable the investigating agency not to place the accused before the Magistrate for trial or enquiry, if the disputed writing, as a result of comparison with the specimen writing, was found not to have been made by the accused. While we agree with Mr. Rana that a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation would surely be in the interests of the administration of justice, we find ourselves unable to agree with his submission that s. 73 of the Evidence Act enables the Magistrate to give. such a direction even when the case is still under investigation.

f "'

' l

U.P. STATE v. RAMDABU (Chinnappa Reddy, J.) 1069

Section 73 of the Evidence Act is as follows :

"73. In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.

This sectton applies also, with any necessary modifications to finger-impressions".

Te second paragraph of section 73 enables the Court to direct any D person present in Conrt to give specimen writings "for the purpose of enabling the Court to compare" such writings with writings alleged to have been written by such person.

The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the.Court in which or as a consequence of which it might be necessary for the Court to compare such writings.

E The direction is to be given for the purpose of 'enabling the Conrt to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of section 73 does not permit a Court to give a direction to the accused

~ F to give specimen writings for anticipated necessity for comparison in a proceeding which may later be institnted in the Court.

Further section 73 of the Evidence Act makes no distinction between a Civil Conrt and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Conrt for a direction to some other person G to give sample writing under section 73 of the Evidence Act on the plea that it would help him to decide whether to institute a civil suit in which the question would. be whether certain alleged writings are those of the other person or not ? Obviously not. If not, why should it make any difference if .the investigating agency seeks the assistance of the Court under s. 73 of the Evidence Act on the plea that a case H might be instituted before the Court where it would be necessary to compare the writings . ?

We may also refer here to Section 5 of the Identification of Prisoners Act, 1920, which provides :

"5. If a Magistrate is satisfied that, for the purposes of any investigation or proceeiling under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measure- • ments or photograph to be taken, as the case may be, by a police officer :

Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class : Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigatiou or proceeding".

Section 2(a) of the Act defines "measurements" as 'including "finger impressions and foot print impressions".

There are two things to be noticed here.

First, signature and writing are excluded from the range of s. 5 of the Identification of Prisoners Act and, second, 'finger impression' are included in both s. 73 of the Evidence Act and s. 5 of the Identification of Prisoners Act.

A possible view is that it was thought that s. 73 of the Evidence Act would not take in the stage of investigation and so s. 5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible, view but not one on which we desire to rest our conclusion. Our conclusion rests on the languageof s. 73 of the Evidence Act.

Section 73 of the Evidence Act was considered by us in State (Delhi Administration) v. Pali Ram('), where we held that a Court holding an enquiry under the Criminal Procedure Code was entitled under s. 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be tried to compare it with disputed writings.

The present question whether such a direction, under s. 73 of the Evidence Act, can be given when the matter is still under investigation and there is no proceeding before the Court was expressly left open. The question was also not considered in State of Bombay v. Kathi Ka/11 Oghad,(')

(!) [1979] 1 S.C.R. 931.

(2) AIR 1961 SC 1808.

• . )

U.P. STATE v. RAMBABU (Chinnappa Reddy,!.)

I 071

where the question which was actually decided was that no testimonial t\ compulsion uhder Art. 20(3) of th; o Constitution was involved in a direction to give specimen signature and hand-writing for the purpose of comparison.

The view expressed by us in the earlier paragraphs, on the construction of s. 73, Evidence Act was the view taken by the Madras High 8 Court in T. Subbiah v. S. K. D. Ramaswamy Nadar('), the Calcutta High Court in Farid Ahmed v. the State(') (Mitter J., at page 32). and Prill Ranjan Ghosh & Ors. v. The State('), the High Court of Punjab

and Haryana in Dharamvir Singh v. State('), the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad v.

The State(•), the Orissa High Court in Srikant Rout v. State of Orissa(6 ) C and the Allahabad High Court in the judgment nnder appeal. A contrary view was taken by the Patna High Court in Guizar Khan & Ors. v. State(') and the High Court of Andhra Pradesh in B. Rami Reddy & Ors. v. State of Andhra Pradesh. (8 ) We do not agree with the latter view. We accordingly dismiss the appeal. and while doing so We would suggest the suitable legislation may be made on the ana- D logy of s. 5 of the Identification of Prisoners Act, to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings.

s. R.

(I) AIR 1978 Mad. 85.

(2) AIR 1960 cal. 32.

(3) 77 C.W.N. 865.

(4) 1975 Crl. L. J. 884 (Pb. & Haryana).

(5) AIR 1957 M. P.106.

(6) 1972(2) Cuttack Weekly Reporter 1332.

(7) AIR 1962 Patna 255.

(8) 1971 Crl. L. J. 1591 (A.P.).

J4-138SCI/80

Appeal dismissed.

STATE OF U

RAM BABU MISRA

February 19, 1980

R. S. SARKARIA

0. CHINNAPPA REDDY, JJ.

Evidence Act, 1872

Section 73

Section 73

Section 73

Section 73

Section 73

section 73

section 73

[1979] 1 SCR 931

AIR 1961 SC 1808

AIR 1961 SC 1808

s. 5

Identification of Prisoners Act

Allahabad High Court

P. Rana

M. Ramachandran

Section 120

Indian Penal Code

Ram Babu Misra

Chief Judicial Magistrate, Lucknow

0. P. Rana

Section 73

Rana

s. 73

Section 73

section 73

section 73

section 73

section 73

s. 73

Section 5

Identification of Prisoners Act, 1920

Code of Criminal Procedure, 1898

Section 2(a)

s. 5

Identification of Prisoners Act

s. 73

s. 5

Identification of Prisoners Act

s. 73

s. 5

Identification of Prisoners Act

s. 73

Section 73

s. 73

s. 73

[1979] 1 S.C.R. 931

AIR 1961 SC 1808

Art. 20(3)

s. 73

Madras High 8 Court

Calcutta High Court

High Court of Punjab

High Court of Madhya Pradesh

Orissa High Court

Patna High Court

High Court of Andhra Pradesh

s. 5

Identification of Prisoners Act

1971 Crl. L. J. 1591 (A.P.)