7 li4

KSHITISH CHANDRA BOSE

COMMISSIONER OF RANCHI

February 6, 1981

[S. MURTAZA FAZAL ALI, A. VARDARAJAN AND A. N. SEN, JJ.]

Right to assail, in an appeal against the second judgment of the High Court, the correctness of its first judgment, explained.

Law relating to adverse possession and title by prescription, clarified.

scond appeal bre-fore the High Court, scope of section 100 Civil Proacdure Code.

Allowing the appeal and answering against the respondent municipality both on the question of title and adverse possession, the Court ·

'D HELD : 1. The order of remand by the High Court being an inlcrlocutory judgment -which did not terminate the proceedings, it is open to the appellant to assail even the first judgment of the High Court and if it is held that the first judgment was legally erroneous, then all the subsequent proceedings, namely, the order of remand, the order passed after remand, the appeal and the second judgment given by the High Court in appeal against the order of remand would become non est.

[767 D-F, 767 A-BJ

Keshardeo Chan1ria v. Radha Kissen Cllan1ria & Ors. and \vice versa) [1953] SCR 136; Satyadhyan Ghosal & Ors. v. Smt. Deorajin Debi & Anr. (1960] 3 SCR

590, followed.

2 : 1 All that the law of adverse possession requires is that the possession must be continuous, open and without any attempt at concealment. It is not F necessary that the possession must be effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded, but that is not so in the instant case. [768 B-C]

2 : 2. H a person asserts a hostile title even to a tank and despite the hOstile assertion of title no steps were taken by the owner to evict the trespasser, bis title by prescription would be complete after tlurty years. [769 F-G]

3. 1'be High Court had no jurisdiction to entertain the second appeal or findings of fact even if it was erroneous.

In the instant case, the High Court clearly exceeded its jurisdiction under Section 100 of the Civil Procedure Code in reversing concurrent findings of fact given by the trial court and by the appellate court. [769 G-H, 770 Al

Pattabhiramaswamy v. Hanumayya, AIR 1959 SC 57, Raruha Singh v. Achal Singh, AIR 1961 SC 1097; Mst. Kharbuja Kuer v. JanRbahadur Rai, [1963] 1 SCR 456; R. Ramachandran Ayyar v. Ramalingam Chettiar, [1963] 3 SCR 604,

followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1034 of 1971.

Appeal by Special Leave from the Judgment and Order dated 30-9-1970 of the Patna High Court in Appeal from Appellate Decree No. 733 of 1967.

V. S. Desai, D. N. Mukherjee and N. R. Chaudhury for the Appel- ~

K. K. Sinha and S. K. Sinha for the Respondent.

The Judgment of the Court was delivered by /' FAZAL ALI, J.-This is a plaintiff's appeal by special leave against

)' .;:>

11 judgment and decree of the Patna High Court dated 30th September, C 1970 and arises in the following circumstances :-

The plaintiff filed a suit for declaration of his title and recovery of possession and also a permanent injunction restraining the defendant municipality from disturbing the possession of the plaintiff. It appears that prior to the snit, proceedings under s. 145 were started between the parties in which the Magistrate found that the plaintiff was not in possession but upheld the possession of the defendant on the land until

evicted in due course of law.

In the suit the plaintiff based his claim in respect of plot No. 1735, Ward No. I of Ranchi Muuicipality on the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912 which is Exhibit 18. Apart from the question of title, the plaintiff further pleaded that even if the

land belonged to the defendant municipality, he had acquired title by

prescrii[ltion by being in possession of the land to the knowledge of the municipality for more than 30 years, that is to say, from 1912 to 1957.

The trial court accepted the plaintiff's case and decreed the plaintiff's suit both on the question of title and adverse possession.

The defendant filed an appeal before the Additional Judicial Co=issioner, Ranchi (Chota Nagpur) which after a consideration of the evidence affirmed the finding of the trial court and maintained the decree of the trial court on both points. Thereafter, the respondent went up in second appeal to the High Court which was heard by a single Judge of

the Court who held that there was no clear ev!dence to show that the plaintiff had obtained title by adverse possession and by his judgment of 17-2-1967 (hereinafter to be referred to as the first judgmePt) remanded the case to the trial court for a decision only on the question of title.

The effect of the order of remand was that so far as plaintiff's case that he had acquired title by prescription was concerned, it was finally decided against him.

After remand, the Additional

Judicial Commissiouer held that the municipality had proved its title to the land in Qispute aud accordingly dismissed the plaintiff's suit.

The plaintiff then went up in aweal to the High Court which affirmed the finding of the Additional Judicial Commissioner and dismissed the appeal by its judgment of 30-9-1967 (hereinafter referred to as the 5econd judgment).

Hence, this appeal by special leave.

Appearing for the appellant, Mr. V. S. Desai, submitted two points before us.

In the first place, he urged that the first judgment of the High Court by which it remanded the matter to the trial court for a finding on the question of title was legally erroneous inasmuch as the High Court exceeded its jurisdiction under s. 100 of the Code of Civil Procedure by reversing pure finding of fact given by the <wo courts below on the question of adverse possession as also on the question of title.

Secondly, it was contended that even so the finding of the High Court on the question of adverse possession was given without at all D considering the materials and evidence on the basis of which the two courts had concurrently found that the plaintiff had acquired title by adverse possession. It is true that the plaintiff did not come up in appeal before this Court against the first judgment of the High Court obviously because the order passed by the High Court was not a final one but was in the nature of an interlocutory order as the case had E been remanded to the Additional Judicial Commissioner and if the said Court had affirmed the finding of the trial Court, no question of filing a further appeal to the High Court could have arisen. Thus, the appellant could not be debarred from challenging the validity of the first judgment of the High Conrt even after the second judgment by the High Court was passed in appeal against the order of remand. In F support of this contention, the counsel for the appellant relied on a decision of this Court in the case of Satyadhyan Ghosal & Ors. v.

Smt. Deorajin Debi & Anr.(1), where under similar circumstances this Court observed as follows :

"In our opinion the order of remand was an interlocu- G tory judgment which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final orders."

In coming to this decision this Court relied on an earlier decision in the case of Keshardeo Chamria v. Radha Kissen Chamria & Ors. and vice versa (2) where the same view was taken.

(I) [1960] 3 S.C.R. 590

(2) [1953] S.C.R. 136

. '

Mt. Sinha appearing for the respondent was unable to cite any .authority of this Court taking a contrary view or overriding the decisions referred to above. In this view of the matter we are of the opinion that it is open to the appellant to assail even the first judgment of the High Court and if we hold that this judgment was legally erroneous then a.II the subsequent proceedings, namely, the order of remand, the order passed after remand, the appeal and the second judgment given by the High Court in appeal against the order of remanil would become .non-est.

We have gone through the judgment of the High Court dated 17th February, 1967 and we find that the High Court has reversed the findings of fact recorded by the two courts below on the question of adverse possession without at all displacing the reasons given by the courts below or considering the important circumstances proved and relied on by them.

The High Court based its decision on three circumstances : In the first place it was of the opinion that no clear case of adverse possession was put forward by the plaintiff in his plaint, and all that had been pleaded was that certain building materials wern placed on the land in dispute for sonie time.

Here, with due respect, we are constrained to observe that the High Court committed a serious error of record.

The allegations in paras 6, 7, 8, 9, 15, 17 and 19 are clear and specific to show the nature of the overt acts committed by the appellant to the knowledge and notice of the defendant. It was not a question of a stray or sporadic act of possession exercised by the plaintiff but the plaint shows that there was a consistent course of conduct by which the plaintiff asserted his hostile title against municipality ever since 1912.

It has also been clearly alleged in the plaint 1hat in spile of the objection taken by the municipality the plaintiff had asserted his hostile title by giving notice to the municipal authorities and in the year 1953 even in a criminal case started between the parties it was found that the plaintiff was in possession.

The High Court has not at all adverted to any of the circumstances which have been considered by the courts below.

For instance, one of the most important facts which clearly proved adverse possession was that the plaintiff had let out the land for cultivatory purposes and used it himself from time to time without any protest from the defendant.

During the period of 45 years no serious attempt was made by the municipality to evict the plaintiff knowing full well that he was asserting hostile title against the municipality in respect of the land.

For these reasons, therefore, the first ground on which the High Court based its finding cannot be 'upported .

It was then observed by the High Court that mere sporadic acts of poisession exercised from time to time would not be sufficient for the

acquisition of title by adverse possession. As discussed above, the High Court has not at all cared even to go through the evidence regardingthe nature of the acts said to have been committed by the appellant nor to find out whether they were merely sporadic or incidental.

Another reason given by the High Court was that the adverse po••ession should have been effective and adequate in continuity and in publicity.

Here, the High Court has gone wrong on a point of Jaw.

All that the law requires is that the possession must be open and without any attempt at concealment.

It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner.

Such a requirement may be insisted on where an ouster of title is pleaded but that is not the case here.

The findings, however, clearly show that the possession of the plaintiff was hostile to the full knowledge of the municipality.

In this connection we might extract below the well considered findings recorded by the trial court and Additional Judicial Commissioner both on the question of title and that of adverse possession.

Trial Court (Re-Title) :

"I have, therefore no doubt that these receipts relate to the suit land and, therefore, they show payment of rent by the plaintiff or hls father.

Thus, it has got to be held that the land belonged to the landlords within whose zamindari it lay. The plaintiff's father, therefore, obtained a valid title by the settlement from them."

(Re-Adverse possession)

"I, therefore, find that the plaintiff has also obtained title by adverse possession inasmuch as he and ills father before him had been in continuous possession of this land from 1912 till 1957 when they were dispossessed by the order of the magistrate in the case nnder section 145 Cr.P.C."

Considering all these, I hold that the plaintiff has subsisting title to the suit land and he is entitled to khas possession of G the same."

Additional Judicial Commissioner (Re-Title)

''There can be no doubt that Ex.ts. 5 to 5 (g) relate to the same lands for which the Hukurnnama (Ext. 18) was granted as they are for the same area as given in the Hukumnama and the first of these namely, Ext. 5 is for the very first year after the settlement and is dated 20-5-1913. Certainly by the Hukumnama (Ext. 18), which is unregistered document the

. . "

• •

land in suit could be settled and it could create good title in favour of the settlee as the settlement was for agricultural purpose and was accompanied by the delivery of possession and grant of rent receipts ...... P.Ws. 1, 2, 6, 9 and 8

(Plaintiff) have stated about the constant possession of the plaintiff and his father."

(Re-Adverse possession)

"Thus from the facts stated above it is quite clear that the plaintiff and his father were coming in possession of the land in suit since 1912 till the year 1954-55. The Municipality made several attempts to prevent the plaintiff and his father from storing building materials on the suit land from 1924 till 1954-55.

Thus the plaintiff's father is proved to have been in possession of the suit land both before and after the Municipal Survey of 1928-29. The oral evidence of P.Ws. 1, 6, 5, 8 and 9 also prove the plaintiff and his father were in actual possession of the suit land at all times after the settlement by the landlord in 1912. Hence, the presumption of correctness of the Municipal Survey entry has been successfully reputted in this case by the plaintiff.

The High Court was clearly in error in interfering with the aforesaid findings of fact.

Lastly, the High Court thought that as the land in question consisted of a portion of the tank or a land appurtenant thereto, adverse possession could not be proved. This view also seems to be wrong.

If a person asserts a hostile title even to a tank which, as claimed by the municipality, belonged to it and despite the hostile assertion of title no steps were taken by the owner, (namely, the municipality in this case), to evict the trespasser, his title by prescription would be complete after thirty years.

On a perusal of the first judgment of the High Court we are satisfied that the High Court clearly exceeded its jurisdiction under s. 100 in reversing pure concurrent findings of fact given by the trial court and the then appellate court both on the question of title and that of advcrsl' possession.

In the case of Mst. Kharbuja Kuer v. Jangbahadur Rai( ') this Court held that the High Court had no jurisdiction to entertain

(!) [1963] I S.C.R. 456

2-214 SCI/81

A second appeal on findings of fact even if it was erroneous. In this connection this Court observed as follows :

"It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding "

of fact

As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the said finding."

To the same effect is another decision of this Court in the case of

R. Ramachandran Ayyar v. Ramalingam Chettiar(I) where the Court l observed as follows :- c

"But the High Court cannot interfere with the conclusions of fact recorded by the lower appellate court, however, erroneous the said conclusions may appear to be to the High Court, because, as the Privy Council observed, however, gross or inexcusable the error may seem to be there is no juriscliction

under section 100 to correct that error."

The same view was taken in two earlier decisions of this Court in the cases of Pattabhiramaswamy v. Hanumayya(') and Raruha Singh

v. Achal Singh.( 3 )

Thus, the High Court in this case had no jurisdiction after reversing E the concurrent findings of fact of the Courts below on the question of adverse possession to remand the case to the Additional Judicial Commissioner on the question of title which also was concluded by the concurrent findings of fact arrived at by the two courts as indicat~<l above.

The conclusion, therefore, is inescapable that the first judgment of F the High Court remanding the case to the Additional Judicial Commissioner was clearly without jurisdiction and as a logical result thereof the order of remand and all proceedings taken thereafter would become void ab initio.

For these reasons, therefore, we allow this appeal, set aside the G judgment of the High Court under appeal as also the judgment of the High Court dated 17th February, 1967 and decree the plaintiff's suit.

In the peculiar circumstances of the case, there will be no order as to costs.

S.R.

(!} [19631 3 S.C.R. 604.

(2) AIR 1959 S.C. 57.

(3) A JR 1961 s.C. 1097 .

Appeal allowed.

. -~-- -f"'<--~

li4

KSHITISH CHANDRA BOSE

COMMISSIONER OF RANCHI

February 6, 1981

S. MURTAZA FAZAL ALI

A. N. SEN, JJ.

section 100

Civil Proacdure Code

(1960] 3 SCR

590

Section 100

AIR 1959 SC 57

AIR 1961 SC 1097

[1963] 1 SCR 456

[1963] 3 SCR 604

V. S. Desai

D. N. Mukherjee

N. R. Chaudhury

K. K. Sinha

S. K. Sinha

FAZAL ALI

Patna High Court

30th September, C 1970

s. 145

17th April, 1912

V. S. Desai

s. 100

the Code of Civil Procedure

[1960] 3 S.C.R. 590

Sinha

17th February, 1967

section 145

Cr.P.C

s. 100

section 100


• '

DUDH NATH PANDEY

THE STATE OF U.P.

February 11, 1981

[Y. V. CHANDRACHUD, C.J. AND A. P. SEN, J.]

Indian Penal Code-Section 302-For the offence of murder the nornial sn tence is sentence of life imprisonment and not of death-Witnesses failed ta rtveal the whole truth-Considerations to be taken into account while dealing

with the qurestion of sentence for the offence of murder.

Concurrent findings of two courts below-Supreme Court, if could examine C their correctness.

Plea of alibi-Its postulates.

The prosecution alleged that when the appellant, a motor-car driver who was living as a tenant in the out-house of the bungalow belonging to the famil; of the deceased, developed a fancy for the sister of the deceased. His overtures created D resentment in the family and the deceased took upon himself the task of preventing the appellant from pursuing his sister. The appellant's effort to take custody of the deceased's sister through legal proceedings had failed; sometime later on a complaint to the police that the appellant had been making indecent overtW'es towards her he was arrested. A day before the day of the occurrence the appellant was alleged to have threatened to kill the deceased if he oppooed his ( appel lant's) marriage with his sister. It was further alleged that while the deceased E was returning home on his scooter after leaving his sister in the school where she was working as a teacher, the appellant fired a shot at him with a pistol at which the deceased fell dead instantaneously.

He was convicted under section 302 J.P .C. and sentene:ed to death. order of conviction and sentence was confirmed by the High Court.

On the question of sentence

Tue

HELD : 1. The Sessions Court and the High Court were right in convicting the appellant under section 302 l.P.C. [779 G]

(a) The mere circumstance that two or more courts have taken the same view of facts does not shut out all further inquiry into the correctness of that view.

Concurrence is not an insurance against the charge of perversity though a strong G case has to be made out in order to support the charge that findings of fact recorded by more than one court are perverse. The merit of the normal rule that concurrent findings ought not to be reviewed by this Court consists in the assumption that it is not likely that two or more tribunals would come . to the same conclusion unless it is a just and fair conclusion to come to.

[718 E-GJ

2. While dealing with the question of sentence for the offence of mu; der, the ll normal sentence is the sentence of life imprisonment and not of death. If in a same conclusion unless it is a just and fair conclusion to come to. [778 E-0]

A balances do not choose to reveal the whole truth the Court while dealing with the question of sentence has to step in interstitially and take into account all reasonable possibilities having regard to the normal and natural course of human affairs. In the instant case it would be unsafe, on the evidence on record, to sentence the appellant to the extreme penalty of death. (780 HJ

The appellant, a poor motor-car driver, must have been offended enormously B when the deceased abuse_d him that he was a man of two paise worth and that if he attempted to marry his sister he would break his hands and feet and that his poverty was being put up as the reason why his sister would not be allowed to marry him.

The dispute thus assumed proportions of a fued over social status. The poor man was fretting that the rich man's daughter would not be allowed to marry him for the mere reason that he did not belong to an equal class of society. The appellant, rightly or wrongly, believed that the girl was not un- C willi11g to marry him. The incident of the previous evening could not be considered as affording "sudden" provocation to the appellant for thei crime committed by him on the following morning. It cannot reduce the offence of murder into a lesser offence, but the mental turmoil and the serue of being socially wronged through which the appellant was passing could not be overlooked while deciding the appropriate sentence. [780 B-D]

D Secondly the fact that, apart from the gun-shot \vound, the deceased had no other injury on his person except an abrasion on the left side of the chest evidently caused by the gun-shot itself coupled with the fact that the scooter was found

"standing" on the road showed that the deceased stopped on seeing the appellant and that there was an exchange of hot words between them culminating in the murder. But since in the present case a part of the crucial evidence had been screened from the Court's scrutiny the possibility of an altercation between the E appellant and the deeeased cannot reasonably be excluded. (780 F-H]

(3) The evidence of the defence witnesses has failed to establish the alibi of the appellants. The plea of alibi postulates the physical impossibility of the presence o( the accused at the scene of offence by reason of his presence at another place. The plea therefore succeeds only if it is shown that the accused

v.as so far away at the relevant time that he could not be present at the place F where the crime was committed. But in the present case the evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant's presence at the factory at the appointed hour and half an hour later at the scene of offence.

So short is the distance between the t\vo points.

[778 H; 779 DJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 163 G of 1979.

Appeal by Special Leave from the Judgment and Order dated 23-8-1978 of the Allahabad High Court in Criminal Appeal No. 1264/ 78 and Murder Reference No. 9/78.

R. C. Kohli for the Appellant.

0. P. Rana ood K. K. Bhatta for the Respondent.

Yogeshwar Prasad and Mrs. Rani Chhabra for the Complainant.

,. •

I r

The Judgment of the Court was delivered by

CHANDRACHUD, C.J .-A college-going boy called Vi jay Bhan Kishorc was shot dead on the morning of November 2, 1976 near the Hathi Park, Dayanand Ma_rg, Allahabad.

The appellant was con-

• victed for that offence under section 302 of the Penal Code by the B \ learned Third Additional Sessions Judge, Allahabad and was sentenced to death. The order of conviction and sentence having been confirmed by the High Court of Allahabad by its judgment dated August 23,

~-\ 1979, the appellant has filed this appeal by Special Leave.

~·

Vijay Bhan Kishore alias Pappoo was the son of an Advocate C called Brij Bhan Kishore who died in about 1967 leaving behind a widow, three daughters and Pappoo. The youngest of the three daughters was married while the two elder were working as school teachers. Out of those two, Ranjana Kishore was a teacher in the St.

Anthony's Convent.

The appellant, Dudh Nath Pandey, who was a motor-car driver by occupation, used to live as a tenant in an out-house of a sprawling bungalow belonging to the family of the deceased, situated at 17,

Stanley Road, Allahabad.

The appellant develop-'A a fancy for E Ra'njana who was about 20 years of age when he came to live in the out-house. The overtures made by the appellant to Ranjana created resentment in her family and its only surviving male member, her brother Pappoo, took upon himself the task of preventing lhe appellant from pursuing his sister. As a first step, the appellant was turned out of th~ out-house. Soon thereafter, he filed an application before F the City Magistrate, Allahabad, asking for the custody of Ranjana, alleging that she was his lawfully wedded wife. That application was dismissed by the learned Magistrate after recording the statemerit of Ranjana, in which she denied that she was married to the appellant.

The appellant thereafter filed a habeas corpus petition in the Allahabad High Court alleging that Ranjana was detained unlawfully by the G members of her family, including her uncle K. P. Saxena, and asking that she be released from their custody. Ranjami denied in that proceedings too that she was married to the appellant or that she was unlawfully detained by the members of her family. The habeas corpus petition was dismissed by the High Court on November 8, 1973. On August 1, 1975, the Principal of St. Anthony's Convent made a com- H plaint to the police that the appellant had made indecent overtures to Ranjana. The appellant was arrested as a result of that complaint.

l:X.UW

On November 1, 1976, Ranjana was having an evening stroll with her brother, the deceased Pappoo, in the compound of their house.

The app!'llant came there in a rikshaw, abused Pappoo and is alleged to have threatened to kill him, if he dared oppose his, the appellant's marriage with Ranjana. As a result of these various incidents and the family's growing concern for Ranjana's safety, Pappoo used to escort Ranjana every morning to the school where she was teaching.

On the following day, i.e. on November 2, 1976, Pappoo took Ranjana to her school on his scooter as usual.

The classes used to begin at 9-30 A.M. but Ranjana used to go to the school 30 to 40 minutes before time for correcting the students' home-work.

After dropping Ranjana at the school, Pappoo started back for home on his scooter. While he was passing by the Children's Park, known as-the Hathi Park, the appellant is alleged to have fired at him with a country-made pistol.

Pappoo fen down from his scooter and died almost instantaneously.

The. occurrence is said to have been wi.tnessed by Harish Chandra (P. W. 3), a domestic servant of the family of the deceased and by Harish Chandra's friend Ashok Kumar (P. W. 1). Harish Chandra used fo live in the out-house of the deceased's bunglow at 17, Stanley Road, while Ashok Kumar, who generaHy lived at Kanpur, is said to have come to Allahabad the previous day in search of employment.

Almost immediately after Pappoo and Ranjana left the house on the scooter, Ashok Kumar and Harish Chandra too left the house as the former wanted to see the Hathi Park. They were nearabout the gate of the park, which is a few steps away from the scene of occurrence, when the deceased Pappoo was passing along on his scooter, after dropping Ranjana at the St. Anthony's Convent. Ashok Kumar and Barish Chandra are alleged to have seen the appellant, who was standing near the northern boundary of the park, firing a shot at Pappoo.

The appellant re-loaded his pistol and is said to have run away towards the south-east.

Ashok Kumar and Harish Chandra rushed to St. Anthony's Convent in a rikshaw and informed Raujaua Kishore about the muraer of her brother. Ranjaua went to the scene of incident along with them and on finding that her brother was dead, she went straight to the Cannington police station which is about 2 kms. away. She wrote out the report (Ex. Ka-1) in her own hand and submitted it to the officerin-charge of the police station at 9-45 A.M. In the meantime, information of the murder had reached the police station of Colonelganj, within the 'jurisdiction' of which the murder had taken place.

I' •

The police deserve a word of appreciation because they did not, as usual, enter into a squabble as to in whose 'jurisdiction' the offence had taken place.

H. R. L. Srivastava, the sub inspector attached to Colonelganj police station, went within minutes to the scene of offence and, believing that Pappoo was alive, sent him in a jeep to the Tej Bahadur Sapru hospital. A little later, P. S. I. Chandrapal Singh of the Cannington police station arrived on the scene and started the inveitigation.

He took charge of an empty cartridge-shell and the bloodstained earth and later, he sent the dead body of Pappoo for postmortem examination.

P. S. I. Srivastava arrested the appellant at about 2-30 P .M. while c he was standing near a pan-shop in front of the Indian Telephone Industries, Naini, where he used to work. The appellant was taken to the scene of offence where he made a certain statement and took out a loaded pistol from a heap of rubbish lying on the Kamla Nehru Road, being the direction in which he had run away after killing Pappoo.

The Ballistic expert, Budul Rai, opined that the empty cartridge-shell, D which was lying at the scene of offence, was fired from that particular pistol.

Dr. G. S. Saxena, who conducted the post-mortem examination found a single gun-shot injury on the left side of the chest of the E deceased, below the armpit.

The injury had caused seven pellet wounds, each measuring 1 /3 inch in diameter.

Seven pellets were recovered from the body. The injury, according to Dr. Saxena, was sufficient in the ordinary course of nature to cause death.

The appellant stated in his defence that he used to live in the house of the deceased as the guest of the family and not as a tenant and that Ranjana got intimate with him during that period. He left the house because she told him that there was danger to his life.

The murder of Pappoo, according to the appellant, was engineered by Dr. K. P.

Saxena, the maternal uncle of the deceased.

The appellant denied his hand in the murder, saying that he had no reason to do so since the deceased's mother and the other members of the family desired that he should marry Ranjana.

The appellant examined five witnesses to prove his alibi, his contention being that he was on duty at the Indian Telephone Industries, H right from 8-30 A.M. on the date of the incident and that he was arrested from inside the factory at about 2-30 P.M. while on duty.

A The learned Additional Sessions Judge, Allahabad, examined the

Deputy Superintendent of Police, R. P. Bhanu, and the General Manager of the Indian Telephone Industries as Court witnesses.

The prosecution examined 13 witnesses in support of its case that the appellant had committed the murder of Pappoo.

Ashok Kumar (P.W. 1) and Harish Chandra (P.W. 3) were examined as eyewitnesses to the incident.

R:i.njana Kishore (P.W. 2) was examined to prove the motive for the murder as also for showing that the deceased Pappoo had taken her to the school on his scooter. and that, soon thereafter, she was informed by the two eye-witnesses of the murder.

Ram Kishore (P.W. 4) was examined to prove the arrest of the appellant and the recovery of the loaded pistol.

P. S. I.

Srivastava (P.W. 9) and P.S.I. Chandrapal Singh (P.W. 10) deposed about the various steps taken during the course of investigation.

Dr.

G. S. Saxena (P.W. 11) was examined in order to show the riature of the injuries suffered by the deceased while Budul Rai (P.W. 12) stated that the empty cartridge-shell which was lying at the scene of offence was fired from the particular pistol which is stated to have been recovered at the instance of the appellant. The other prosecution witnesses are mostly of a formal nature.

Were this a case of circumstantial evidence, different considerations would have prevailed because the balance of evidence after excluding the testimony of the two eye witnesses is not of the standard required in cases dependent wholly on circumstantial evidence.

Evidence of recovery of the pistol at the instance of the appellant cannot by itself prove that he who pointed out the weapon weilded it in offence. The statement accompanying the discovery is woefully vague to identify the authorship of concealment, with the result that the pointing out of the weapon may at best prove the appellant's knowledge as to where ihc weapon was kept.

The evidence of the Ballistic expert carries the proof of the charge a significant step ahead, but not near enough, because at the highest, it shows that the shot which killed Pappoo was fired from the pistol which was pointed out by the appellant.

The evidence surrounding the discovery of the pistol may not be discarded as wholly untrue but it leaves a few significant questions unanswered and creates a sense of uneasiness in the mind of a Criminal CO'Urt, the Court of conscience that it has to be : How could the appellant have an opportunity to conceal the pistol in broad-day light on a public thoroughfare? If he re-loaded the pistol as a measure of self protection, as suggested by the prosecution, why did he get rid of it H so quickly by throwing it near the Hathi Park itself ? And how come that the police hit upon DOile better thnn Ram Kishore (P.W. 4) to witness the .discovery of tl1e pistol ? Ram . Kishore had a!mldy

....

deposed in seven different cases in favour of the prosecution and was , 'A evidently at the beck and call of the police.

But the real hurdle in the way of the appellant is the evidence of the eye witnesses : Ashok Kumar (P .W. 1) and Harish Chandra

(P.W. 3). Shri R. C. Kohli who appears for the appellant made a . valiant attempt to demolish their evidence but in spite of the counsel's able argument, we find it difficult to hold that the eye-witnesses have perjured themselves by claiming to be present at the time and place of the occurrence. It is true that Harish Chandra, who was working as a domestic servant with the deceased's family, should normally have been doing his daily morning chores.

Few masters would permit a household servant to go away on a sight-seeing spree right in the morning. But there are at le'!, st two plausible reasons which lend assurance to the claim that Harish Ch<mdra left the house almost immediately after the deceased Pappoo drove away with his sister Ranjana.

Ashok Kumar had come to Allahabad the previcms evening and he wanted to go to the Hathi Park where, though it is called a children's park, adults too find their merriment.

There is nothing fundalnentally improbable in Ashok Kumar coming to Allahabad in search of employment and equally, nothing inherently strange in the two friends going out on a frolic.

And though a small consideration, it is relevant that the normal morning routine of Harish Chandra was to help in the kitchen but the 2nd November, 1976 was an Ekadashi day and therefore, there was not much to do for him.

The second reason is more weighty and almost clinches the issue. The evidence of Ranjana (P.W. 2) shows beyond the manner of doubt that Harish Chandra and Ashok Kumar broke to her the news of her brother's murder, while she was in the school. The events after the murper happened in such quick succession that there was no time for any one to contrive and confabulate. Within ten minutes of the occurrence, Ranjana was informed of the incident by the two eyewitnesses and within a few moments thereafter she went to the scene of the tragedy.

Her F.l.R. (Ex. Ka-1) was recorded at the police station at 9-45 a.m. A fact of preponderating importance is that the story which Ranjana disclosed in the F.I.R. is precisely the same as the witnesses, including herself, narrated in the Court.

The F.I.R. is a brief document of a page and half. But it is remarkable that it mentions ( 1) that the appellant wanted to marry Ranjana and was harassing her towards that end; (2) that there was a quarrel between the appellant and Pappoo the previous evening, in which the former gave a threat of life to the latter (3) that Ranjana left for the school on the day of occurrence at 8-45 A.M.; and ( 4) that soon thereafter Harish

Chandra and Ashok Kumar met her at the school and conveyed to her that they had gone to see the Hathi Park when, while Pappoo was passing along the road, the Appellant fired a shot at him. We consider it beyond the normal range of human propensities that Ranjana could have built up the whole story within three quarters of an hour which intervened between the time that she learnt of her brother's murder and the lodging by her of the F.I.R. She could not have taken the risk of creating a false witness by placing Aslfok Kumar, who normally, resided in Kanpur, alongside Harish Chandra.

With the death of her brother, her own house was left without a male member.

At home was an ailing mother and tw;, other sisters, more or less of her own a_ge.

There was no one to advise her upon the hatching of a conspiracy to involve the appellant and she could not have been in a proper frame of mind to do anything of the kind on her own. Her inexperience of life, the promptness with which she gave the F.l.R. and the weqlth of details she mentioned therein afford an assurance that the story of the eye-witnesses is true in so far as it goes. Shri Kohli's submission that Ranjana's F.I.R. is anti-timed and must have been recorded late in the evening leaves us cold.

Shri Kohli has pointed a defect here and an improbability there in the evidence of the eye-witnesses but it has to be borne in mind that the Trial Court and the High Court have concurrently believed E that eVidence.

We do not suggest that the mere circumstances that two or more courts have taken the same view of facts shuts out all further inquiry into the correctness of that view.

For example, concurrence is not an insurance against the charge of perversity though a strong case has to be made out in order to support the charge that findings of fact recorded by more than one court are perverse, that is F to say, they are such that no reasonable tribunal could have recorded them. The merit of the normal rule that concurrent findings ought not to be reviewed by this Court consists in the assumption that it is not likely that two or lllPfe tribunals would come to the same conclusion unless it is a just and fair conclusion to come to. In the instant case, the view of the evidence taken by the Sessions Court and the G H; i.gh Court is, at least, a reasonable view to take and that is why we are not disposed, so to say, to re-open the whole case on evidence.

We have indicated briefly why we consider that the eye-witness account accords with the broad probabilities of the case.

Counsel for the appellant pressed hard upon us that the defence H evidence establishes the alibi of the appellant. We think not.

The evidence led by the appellant to show that, at the relevant time, he was on duty at his usual place of work at Naini has a certain amount

of plausibility but that is about all. The High Court and the Sessions Court have pointed out many a reason why that evidence cannot be accepted as true. The appellant's colleagues at the Indian Telephone Industries made a brave bid to save his life by giving evidence suggesting that he was at his desk at or about the time when the murder took place and further, that he was arrested from within the factory.

We do not want to attribute motives to them merelv because they were examined by the defence.

Defence witnesses are entitled to equal treatment with those of the prosecution. And, Courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses.

Granting that D. Ws. 1 to 5 are right, their evidence, particularly in the light of the evidence of the two Court witnesses, is insufficient to prove that the appellant could nqt have been present near the Hathi Park at about

~-00 A.M. when the murder of Pappoo was committed. The plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place.

The plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The evidence of the defence witnesses, accepting it at its face value, is consistent with the appellant's presence at the Naini factory at 8-30 A.M. and at the scene of offence at 9.00 A.M.

So short is the distance between the two points. The workers punch their cards when they enter the factory but when they leave the factory; they do not have to pnnch the time of their exit. The appellant, in all prnbability, went to the factory at the appointed hour, left it immediately and went in search of his prey.

He knew when, precisely, Pappoo would return after dropping Ranjana at the school.

The appellant appears to have attempted to go back to his work but that involved the risk of the time of his re-entry being pnnched again.

That is how he was arrested at about 2-30 P.M. while he was loitering near the pan-shop in front of the factory.

There is no truth in the claim that he was arrested from inside the factory.

That settles the issue of guilt. We agree with the view of the High Court and the Sessions Court and uphold the appellant's conviction under section 302 of the Penal Code.

The question of sentence has gravely agitated our minds. A young college-going boy was murdered because he was trying to wean away

his sister from th_e influence of the appellant who had set his heart R upon her.

But there are two reasons why we are not disposed to confirm the death sentence. In the first place, the appellant was smarting

under the insult hurled at him by the deceased Pappoo, the previous evening.

As stated by Ranjana in the F.I.R., when the appellant proclaimed his determination to marry her, Pappoo retorted : "You ar~ a ma'n of two Paisa's worth. How can you dare to marry my sister ? I will break your hands and feet." A poor motor-car driver that ihe appellant was, he must have been offended enormously that his poverty was being put up as the reawn why Ranjana would not be allowed to marry him. The dispute thus assumed the proportions of a feud over social status, the poor man fretting that the rich man's daughter would not be allowed to marry him for the mere reason that he did not belong to an equal class of society.

And it is evident that he believed, rightly or wrongly, that Ranjana was not unwilling to take him as a husband. It is in the immediate background of the previous evening's incident that the question of sentence has perforce to be considered.

That incident cannot certainly be considered as affording "sudden" provocation to the appellant for the crime committed by him the next morning and, therefore, it cannot reduce the offence of murder into a lesser offence.

But, the mental turmoil and the sense of being socially wronged through which the appellant was passing cannot be overlooked while deciding which is the appropriate sentence to pass, the rule being that for the offence of murder, the normal sentence is the sentence of life imprisonment and not of death.

Secondly, Harish Chandra and Ashok Kumar do not appear to have revealed the whole truth to the Court. If the appellant had fired a shot at Pappoo while the latter was driving along on his scooter, and if Pappoo, as is alleged, dropped dead, his scooter would have dragged him ahead and in that process he would have received some injury.

The scooter too would have been damaged, howsoever slightly. But it is strange that apart from the gun-shot wound, Pappoo had no other in jury on his person except an abrasion on the left side Of the chest which was evidently caused by the gun-shot itself.

The scooter was not dragged at all, except for the mark of pellets.

And, most importantly, the scooter was not lying on the road but was "standing".

Pappoo s_eems to have' stopped on seeing the appellant and quite clearly, there was an exchange of hot words between them which culminated in Pappoo's murder.

The death of the brave, young lad which has deprived the familv of the succour of its only male member is to be deeply lamented. But, if witnesses on whose evidence the life of an accused hangs in the balance, do not choose to reveal the whole truth, the Court. while dealing with the question of sentence, has to step in interstitially and take into account all reasonable possibilities, having regard to the normal and natural course of human affairs.

Since a part of the crucial event has been screened from the Court's A scrutiny and the possibility of [ln altercation between the appellant and !he dej:eased cannot reasonably be excluded, we consider it unsafe to sentence the appellant to the extreme penalty.

frt the result, we confirm the conviction of the appellant under • section 302 of the Penal Code but set aside the sentence of death n

imposed upon him. We sentence the appellant to imprisonment for life.

The appeal is, accordingly, allowed partly.

P.B.R.

Appeal allowed pnrt/.v.

l 1

DUDH NATH PANDEY

THE STATE OF U.P

February 11, 1981

Y. V. CHANDRACHUD, C.J.

A. P. SEN, J.

Indian Penal Code

Section 302

section 302

section 302

Allahabad High Court

P. Rana

K. K. Bhatta

Yogeshwar Prasad

Rani Chhabra

CHANDRACHUD

section 302

Penal Code

High Court of Allahabad

Vijay Bhan Kishore alias Pappoo

Brij Bhan Kishore

Pappoo

Ranjana Kishore

St.

Anthony's Convent

Dudh Nath Pandey

Allahabad

E Ra'njana

Ranjana

City Magistrate, Allahabad

K. P. Saxena

Ranjami

November 8, 1973

1, 1975

November 1, 1976

Ranjana

November 2, 1976

Harish Chandra

Harish Chandra

Ashok Kumar

Ashok Kumar

Kanpur

Barish Chandra

St. Anthony's Convent

Raujaua Kishore

Ranjaua

Cannington police station

Colonelganj

H. R. L. Srivastava

Colonelganj police station

Tej Bahadur Sapru hospital

P. S. I. Chandrapal Singh

P. S. I. Srivastava

Indian Telephone Industries, Naini

Budul Rai

G. S. Saxena

Saxena

K. P.

Saxena

Indian Telephone Industries

Additional Sessions Judge, Allahabad

R. P. Bhanu

R:i.njana Kishore

Ram Kishore

P. S. I.

Srivastava

P.S.I. Chandrapal Singh

G. S. Saxena

Ram . Kishore

R. C. Kohli

Harish Ch

2nd November, 1976

Ranjana

Harish

Chandra

Aslfok Kumar

Kohli

Naini

Naini factory

section 302

Penal Code

section 302

Penal Code


DR. C. GIRIJAMBAL

GOVT. OF ANDHRA PRADESH

February 11, 1981

[Y. V. CHANDRACHUD, C.J. AND V. D. TULZAPURKAR, J.J

Contitution :; f fndia 1950, Article 16-Medical Officers of Dispensaries-- ] hrle raJegories-G.C.l.M., L.l.M. and D.A.M. degree holders-Different pay scale for each category-Whether valid.

Profe.sional sen1ices-Pri11ciple of equal pay for equal work-Whether clin be invoked.

The appellant was selected for .the post of Medical Officer in the Local Fund, Ayurvedic Dispensary in the Zilla Parishad. She possessed a Diploma in Ayurvedic Medicine (D.A.M.). Her salary was fixed in the scale of Rs. 125- 220.

Her representation to fix her pay in the higher scale had been rejected by the State Government on the ground that only candidates with 'A' class Registration could be given the higher scale of pay.

Under the Andhra Ayurvedic and Homoeopathic Medical Practitioners Registration Act, 1956 holders of Diploma in Ayurvedic Medicine (D.A.M.), holders of Graduate of the College of Integrated Medicine (G.C.l.M.) and, holders of Licentiate in Indigenous Medicine (L.l.M.) were entitled to class 'A' Registration Certificate. Her application to the Andhra Board of Ayurveda for registration as 'A' class Practitioner was rejected.

Allowing her petition, impugning the action of the Board of Ayurveda, the High Court held that being a person p0ssessing a diploma similar to the G.C.l.M. or L.I.M. she was entitled to be registered in class 'A' and that she should be given all the benefits of the higher pay scale of Rs. 180-320.

The scale of pay of Rs. 180-320 for Medical Officers holding L.I.M. was revised to Rs. 200-400. Sometime later the scales of pay were again revised.

The scale of Rs. 200-400 was split into two categories: (i) Rs. 530-1050 for Medical Officers holding L.I.M. and (ii) Rs. 430-800 for other Medical Officers.

In the first revision she was given the scale of Rs. 200-400 but under the second revision she was given only the scale of Rs. 430-800.

Her representation to the Government for fixing her pa.y in the scale of Rs. 530-1050 having not been answered, she moved the Andhra Pradesh Administrative Tribunal which held that she was not entitled to a higher scale as she did not possess the requisite qualifications mentioned in the relevant government order.

Before this Court it was contended on behalf of the appellant that: (1) Medical Officers holding the degrees of G.C.I.M. or D.A.M. perform the same functions and discharge the same duties in dispensaries and that on the principle of equal pay for equal work,- the appellant should be given the pay scale meant

....

• • • }

C. UIRIJAMBAL V. ANDHRA PRADESH 783

fur Medical Officers holding G.C.l, M. because she was entitled to class 'A" Re..

A gistration Certificate and (2) since she had been fixed in the scale of Rs. 200- 400 under the first revision she should have been fixed under the second reviw

sion in the scale of Rs. 530-1050 alongwith holders of L.l.M.

Dismissing the appeal,

IIELD ; 1. The contention that because her diploma was regarded as similar or equivalent to G.C.I.M. for registration purposes she should be given the pay B scale avail•ble to the holder of G.C.l.M. was rightly rejected by the tribunal.

[787 E]

2. The principle of equal pay for equal work cannot be invoked invariably in every kind of service. It cannot be invok~ in the area of professional services. [786 Pl

ill the instant case by rea.on of the fact that Medi<:al Officers holding the qualificatioos uf G.C.I.M. or L.I.M. or D.A.M. were placed incharge of Zilla

Paiishad dispensaries, they cannot be treated on par with each other. If the State Government or the Zilla Parishads prescribes different scales of pay for each category of Medical Officers no fault could be found with such prescription. [786 H-787 Al

3. The similarity or equality conferred on holders of G.CJ.M .. I.I.M •. and D.A.M. was for the purposes of registration as practitioners of modern medi~

cine under the Registration Act, 1956, and not in the matter of proficiency.

The High Court in its order made it clear that for the purposes of registration under the Registration Act the appellant as a holder of D.A.M. was similar to G.C.I.M. and was entitled to class 'A' Registration Certificate. That these three categories were not equated in the matter of proficiency is borne out from the fact that right from the beginning the pay scales prescribed for these categories were different, highest pay scale being available to holders of G.C.I.M. the next lower being available to holders of L.l, M. and the lowest to medical prac~ titioners other than these two categories. [787 C-D]

4. When the first revision was undertaken, the appellant was put in the pay scale of Rs. 200-400, the one which was also given to Medical OJ!icers holding L.I.M. because under the order of the High Court the appellant had been fixed initially in the scale of Rs. 180-320 and when that pay scale wa. revised to Rs. 200-400 she was required to be given that revised scale. When the second revision was undertaken it was open to the State Government to split the scale into two categories : one meant for Mroica.l OJ!icers hc>lding I.I.M. and the other for Medica.l Officers other than L.I.M. Since the appellant was not a holder of L.J.M. but fell in the other category she was properly fued in the lower revised pay scale or Rs. 430-800. [787 G-788 A] G CivIL APPELLATE JURISDICTION : Gvil Appeal No. 1173 of 1979.

Appeal by Special Leave from the Judgment and Order dated 18-8-1977 of the Andhra Pradesh Administrative Tribunal, Hyderabad in Representation Petition No. 286/77.

M. K. Ramamurthi, Miss R. Vaigai and J, Rama Murthi for the Appellant.

G. N. Rao for the Respondent.

The Judgment of the Court was delivered by

TULZAPURKAR, J.-This appeal by special leave raises the question about the eligibility of the appellant to a higher pay scale under

B G.O.M. No. 574 P.R. dated October 20, 1975 with etfect from • November 1, 1974.

The facts giving rise to the question may be stated : the appellant passed Diploma in Ayurvedic Medicine (DAM) from Kerala University in the year 1962, having studied this course for four years C and nine months with one more year of House Surgeoncy.

Besides Ayurvedic Medicine this course consisted of Modern Medicine also. fhis Diploma is also included in the Second Schedule to the Indian Medicine Central Council Act, 1970.

According to the appellant the Government of Kerala had treated the holders of D.A.M. on par with holders of G.C.I.M. (Graduate of the College of Integrated D Medicine) arid LI.M. (Licentiate in Indigenous Medicine) in regard to registration of medical practitioners in modern medicine, and all the three were also entitled to Class 'A' Registration Certificate under the Andhra Ayurvedic and Homoepathic Medical Practitioners Registration Act, 1956 (hereinafter called 'the Registration Act').

In response to the advertisement published by the Zilla Parishad, Nellore the appellant applied for appointment to the post of Medical Officer, Local Fund Ayurvedic Dispensary, Duggarajapatnam, Ncllore District and after an interview on being selected she joined the duties of the post on December 26, 1963. It appears that her salary was fixed in tl1e pay scale of Rs. 125-220, though the post carried a higher salary according to the advertisement [in fact the advertisement mentioned two pay scales for the post-(i) Rs. 220- 425 for candidates holding the qualification of G.C.I.M. with Houe Surgeoncy and (ii) Rs. 180-320 for candidates holding the qualification of L.I.M.] The appellant, therefore, made representations to the concerned authorities saying that she was entitled to a higher pay scale but the authorities refused to give her the higher pay scale on the ground that only candidates with 'A' Class Registration could be given the scale of Rs. 180--320 and the pay scale of Rs. 125-220 was for candidates holding qualifications other than 'A' Class Registration.

The appellant, therefore, applied to the Andhra H Bc>ard of Ayurveda on payment of requisite fees to register her as 'A' Class Practitioner and on their refusal to do so she filed writ petition No. 3507 of 1969 in the Andhra Pradesh High Court.

On a

• '

c. GIRIJAMBAL v. ANDHRA PRADESH (Tulzapurkar, J.) 785

consideration of the provisions of the Registration Act the High Court held that the appellant being a person who possessed a Diploma similar to G .C.I.M. or L.I.M. was entitled to be registered in Class 'A' and the High Court further directed the Ziila Parishad that the appellant be given the higher pay-scale of Rs. 180-320. The High Court's directions were carried out and the appellant was given all the benefits of the higher scale of Rs. 180-320 with retrospective effect from the date of her appointment.

It appears that the pay scales of Medical Officers in Ziila Parishad and Panchayat Samitis were revised twice, once with effect from Maich 19, 1969 under G.O.M. No. 708 dated December 11, 1970

and second time with effect from November 1, 1974 under G.0.M.

No. 574 P.R. dated October 20, 1975. As per G.O.M. No. 708

the then existing sc:ile of Rs. 220-425 (for M.Os. holding G.C.I.M.) was revised to Rs. 250-500 and the then existing scale of Rs. 180- 320 (for M.Os. holding L.l.M.) was revised to Rs. 200-400. Under G.O.M. No. 574 the then existing scale of Rs. 250-500 was again revised to Rs. 530-1050 and the existing scale of Rs. 200 to 400 was again revised by splitting the revision into two categories-(i) Rs. 530 to 1050 for M.Os. holding L.I.M. and

(ii) Rs. 430-800 for other Medical Officers.

Under the first revision the appellant was given the scale of Rs. 200-400 and when the second revision was undertaken she was fixed in the revised pay scale of Rs. 430-800

with effect from November I, 1974. She represnted to the Government that she should be given the scale of Rs. 530-1050 as was done for M.Os. holding either G.C.l.M. or L.I.M. but she did not receive any reply from the Government whereupon the appellant filed a Representation Petition No. 286 of 1977 before the Andhra Pradesh Administrative Tribunal seeking the relief of revised pay scales contending that since in the earlier writ petition No. 3507 of 1969 the High Court had accepted that her qualifications were similar or equivalent to holders of G.C.I.M. which entitled her to Class 'A' Registration, she was entitled to the scale of pay meant for Medical Officers holding G.C.I.M. from the date of her appointment and the benefits of all the revisions in that scale.

Alternatively she contended that in any event at the time of the second revision she should have been treated on par with holders of L.I.M. and not lower and should have been fixed in the scale of Rs. 530-1050

and not Rs. 430-800. The Tribunal rejected the Representation Petition holding that the appellant was not entitled to higher scale as H she did not possess the requisite qualifications mentioned in the

3--214 SCI/81

A G.O.M. 574 dated October 20, 1975, and hence the appeal to this Court.

Counsel for the appellant reiterated before us the same two contentions which were urged before the Tribunal.

In the first place counsel pointed out that in the earlier writ proceedings the High Court had accepted the position that the appellant's qualifications were similar to the holders of G.C.I.M. and like the latter she was entitled to Class 'A' Registration and he, therefore, urged that the appellant was entitled to the pay scale meant for Medical Officers holding G.C.I.M. right from the date of her appointment, namely, December 26, 1963, and the benefits of all the revisions of that scale.

In support of this contention counsel sought to invoke the principle of equal pay for equal work as, according to him, Medical Officers holding either G.C.I.M. or D.A.M. perform the same functions and discharge the same duties in dispensaries run by Zilla Parishads and Panchayat Samitis.

Secondly, in the alternative counsel contended that in any event the appellant could not be regarded as holder of any lower qualification than a Medical Officer holding L.I.M. inasmuch as under the first revision effected by G.O.M. No. 708 both had been fixed in the revised pay scale of Rs. 200-400 and, therefore, when the second revision was effected under G.O.M. No. 574 the appellant should have been fixed in the revised scale of Rs. 530-1050 alongwith holders of L.I.M. and there was no justifi. cation for giving her a lower revised scale of Rs. 430-800. For the reasons which we shall presently indicate it is not possible to accept either of these contentions.

Dealing with the first contention we would like to observe at the outset that the principle of equal pay for equal work cannot be invoked or applied invariably in every kind of service and certainly it cannot be invoked in the area of professional services when tl1ese are to be compensated. Dressing of any injury or wound is done both by a doctor as well as a compounder, but surely it carmot be suggested that for doing this job a doctor cannot be compensated more than the compounder.

Similarly, a case in Court of law is argned both by a senior and a junior lawyer, but it is difficult to accept that in matter of remuneration both should be treated equally.

It is thus clear that in the field of rendering professional services at any rate the principle of equal pay for equal work would be inapplicable.

In the instant case Medical Officers holding the qualification of G.C.I.M., or the qualification of L.l.M. or the qualification of D.A.M., though in charge of dispensaries run by Zilla Parishads, crumot, lherefore, be treated on par with each other and if the State

• I

...

• I

• '

" -

c. GIR!JAMBAL v. ANDHRA PRADESH (Tulzapurkar, J.) 787

Government or the Zilla Parishads prescribe different scales of pay for each category of Medical Officers no fault could be found with such prescription.

The gravamen of the appellant's contention has been that in earlier proceedings the High Court had accepted the position that a holder of D.A.M. (like the appellant) was similar to the holder of G.C.l.M. and as such the appellant alongwith the holders of G.C.l.M. was entitled to Class 'A' Registration Certificate and, therefore, in the matter of remuneration she should have been treated in the same manner as the holder of G .C.l.M. all thrcmghout her service.

However, it needs to be clarified that the similarity or equality conferred on holders of G.C.l.M., L.I.M. and D.A.M. was for the purpose of their registration as practitioner of modern medicine under the Registration Act, 1956, all being put under Class 'A'

Registration and not in the matter of proficiency.

The High Court in its order bad also made it clear that for the purposes of registration under the Registration Act the appellant as a holder of D.A.M. was similar to G.C.l.M. and was entitled to Class 'A' Registration Certi ... ficate.

That these three categories were not equated in the matter of proficiency will be amply borne out by the fact that right from the beginning the pay scales prescribed for these categories werd different, highest pay scale being available to holders of G.C.l.M. the next lower being available to holders of L.l.M. and the lowest to Medical Practitioners other than G.C.l.M. and L.l.M. The contention of the appellant, therefore, that because her Diploma was regarded as similar or equivalent to G.C.l.M. for registration purposes she should be given the pay scale tbat was available to the holder of G.C.I.M. r.annot obvionsly be accepted and in our view, it was rightly rejected by the Tribunal.

The alternative contention also is liable to be rejected on the same basis. It is true that when the revision under G.O.M. No. 708 was undertaken the appellant was put in the pay scale of Rs. 200--400 which was also the pay scale prescribed for Medical Officers holding L.I.M. but that was because under the earlier order of the High Court tl1e appellant had been fixed initially in the pay scale of Rs. I 80-- 320-the pay scale also meant for Medical Officers holding L.l.M. and when that pay scale of Rs. 180--320 was revised to Rs. 200--400 she was required to be given that revised scale.

When the second revision was undertaken as per G.O.M. No. 574 it was perfectly open to the State Government to split the revision into two categories, one meant for Medical Officers holding L.l.M. and the other for Medical Officers other than L.l.M. as has been done in the instant case and since the appellant was not a holder of L.I.M. but fell in the other

A category she was, in our view, properly fixed in the lower revised pay scale of Rs. 43()....800.

As no other contention was urged the appeal is dismissed, but we make no order as to costs.

N.V.K.

Appeal dismissed. • ..

C. GIRIJAMBAL

GOVT. OF ANDHRA PRADESH

February 11, 1981

Y. V. CHANDRACHUD, C.J.

V. D. TULZAPURKAR, J.J

Article 16

Andhra Board of Ayurveda

Andhra Pradesh Administrative Tribunal

Registration Act, 1956

Registration Act

M. K. Ramamurthi

R. Vaigai

Rama Murthi

G. N. Rao

TULZAPURKAR

Government of Kerala

Registration Act

Registration Act

Zilla Parishad, Nellore

Ncllore District

December 26, 1963

Houe Surgeoncy

Andhra H Bc>ard of Ayurveda

Andhra Pradesh High Court

Registration Act

October 20, 1975

Registration Act, 1956

Registration Act

N.V.K.


• • •

• \

AKHILESH PRASAD

UNION TERRITORY OF MIZORAM

February 11, 1981

[A. D. KosHAL AND A. N. SEN, JJ.J

Code of Criminal Procedure, section 197(2)-Whether Central Reserve Po!ice Force falls within the expression "Armed Forces of the Union" as used thereat- Section 3 (I) of the Central Reserve Police Force Act and Entry 2 in List I of the Seventh Schedule to the Constitution.

Allowing the appeal, the Court

HEID ' l : I. The Central Reserve Police Force squarely falls within the expression "Armed Forces of the Union" as used in sub""5ection (2) of section 197 of the Code of Criminal Procedure. [794 F]

1 : 2. The expression must be given its ordinary meaning which would cer~ D tainly not be limited to the inclusion of only the military, naval and air-forces of the Union as defined in clause (a) of sub-section (3) of section 132 of the Code of Criminal Procedure. [793 F-GJ

I : 3. Entry 2 in List I of the Seventh Schedule to the Constitution clearly envisages armed forces other than the three well known forces of the State, namely, the naval, military and air-forces. [793 H, 794 A-BJ E

1 : 4. Sub-section (I) of section 3 of the Centrai Reserve Police Force Act itself declares in no uncertain terms that the Central Reserve Police Force is an armed force of the Central Government which is the same thing as saying that it is a part of the "Armed Forces of the Union". [794 DJ

1 : 5. Just because the Central Reserve Police Force is a reserve force it doea F not follow that it is not a regularly operating force. (794 E-F]

1. The question whether the offences alleged to have been committed by the appellant in the instant case, are or are not such as may be said to have been committed while he woo acting or purporting to act in the discharge of bis official dutly is to be left over. [794 GJ

Pancham Lal v. Dadan Singh, [1979J Criminal Law Journal 1018; S. B. Saha

v. M. S. Kochar, [1980] 1 SCR 111-1979 Criminal Law Journal 1367, approved and followed.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 439 of 1980 .

Appeal by Special Leave from the Judgment and Order dated 20-2-1980 of the Gauhati High Court in Cr. Revision No. 173/78.

Ii. K. Puri for the Appellant.

N. Nettar and Miss A. Subhashini for the Respondent.

P. A. Francis, K. S. Gurumurthy and R. N. Poddar for the Intervener.

The Judgment of the Court was delivered by

KosHAL, J.

This is an appeal by special leave against a judgment dated the 20th February, 1980, of a learned Single Judge of the Gauhati High Court dismissing an application made by the appellant under sections 482 and 407 of the Code of Criminal Procedure praying that the proceedings pending in the Court of the Assistant District Magistrate, Aizawl which have been initiated through a police report against the appellant with a prayer that he be punished for offences under sections 307, 326 and 324 of the Indian Penal Code alleged to have been committed by him on the 30th May, 1978, be quashed or, in the alternative, that the proceedings be transferred to a competent court beyond the territory of Mizoram.

2. The relevant facts are not in dispute and may be stated briefly.

On the 30th May, 1978, a case was registered at the Vairengte Police Station at the instance of one Thanugura alleging that men of the Central Reserve Police Force (hereinafter referred to as CRPF), of which the appellant is a member had fired shots at handyman Thara and a driver the two of whom received injuries in the arm and thigh respectively.

After investigation the police submitted a report under section 173 of the Code of Criminal Procedure against the appellant to the Assistant District Magistrate Aizawl.

3. Aggrieved by the commencement of proceedings against him in the Court of the Assistant District Magistrate, the appellant sought redress from the High Court through the application which has been dismissed by the impugned order. The prayer for quashing the proceedings contained in the application was based on various grounds G only one of which has now been canvassed before us and tha, t is that the offences attributed to the appellant are alleged to have been committed by him while he was acting or purporting to act in the discharge of his official duty as a member of the Armed Forces of the Union and that in view of the provisions of sulrsection 2 of section 197 of the Code of Criminal Procedure (hereinafter referred to as the Cr.P.C.) H no Court had the jurisdiction to take cognizance of those offences.

The prayer made in the alternative was supported by various assertions indicative of surcharged atmosRhere in Mizoram which had resulted in

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the entire population becoming hostile to the appellant so that it A would not at all be safe for him to attend the Court at Aizawl.

4. The learned Single Judge noted the provisions of sub-section (2) of section 197 of Cr. P.C. which runs thus :

"No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central G<Wernment."

He correctly analysed the section while holding that it would C operate only if

( 1) the concerned accused was a member of the "Armed

Forces of the Union" and

(2) the o!lence attributed to him was alleged to have been committed while he was acting or purporting to D act in the discharge of his official duty.

The learned Judge then proceeded to find out the meaning of the expression "Armed Forces of the Union" as occurring in the subsection, with reference to various provisions of the Army Act, of the Cr. P.C. the Central Reserve Police Force Act, 1949 (hereinafter referred to as the CRPF Act) and of entry 2 in List I of the Seventh Schedule to the Constitution of India, and thereafter concluded :

"If the expression 'Armed Forces' of the Union is understood as including any other armed forces of the Union, then the C.R.P.F. may be included therein, and not otherwise.

Considering the fact that the C.R.P.F. is a Reserve Police Force, the conventional interpretation to mean only the regular armed forces of the Union may be acceptable.

Members of the Police Force are holders of civil posts .... .. .. .. .. .. .. .. .. .. .. Jn AIR 1965 All 236 (238), it was held that the Armed Forces of the Union mean the regular Army, Navy and Air Force or any part of any one or more of them as defined in the Army Act, and it could never have meant the members of the National Cadet Corps who are not part of the regular forces of the Union."

The learned Judge then went on to decide the question as to whether the appellant was alleged to have committed the offences covered by

the proceedings against him while acting or purporting to act in the discharge of his official duty and decided it in the negative with the observations :

"The alleged occurrence is not such as may be said to have been directly and reasonably connected with performance of his official duty. It was neither in his official capacity nor under colour of his office. It does not, therefore, appear to have been while acting or purporting to act in the discharge of his official duty.

Active duty, as defined in the Act, means the duty to restore and preserve order in any local area in the event of any disturbance therein."

However, the learned Judge left the question open with remarks :

"The question of necessity of sanction has to be determined from stage to stage as the case progresses ( 1979 Crl. L.J. 1018) ('). It may be considered at any stage of the proceeding and while considering, it is not necessary for the Court to confine itself to the allegations in the complaint, and the court can take into consideration all the materials on the record at the time the question is raised (1979 Cr!. L.J. 1367) .(') More materials may come up for consideration by the trial court and it will be inopportune to decide the question at this stage."

the

On the question of transfer the views of the learned Single Judge were:

"The petitioner has not alleged any thing directly against the Court itself.

His apprehension is a derivative one from the activities of the Drivers' Union and the meetings and publicity given to the incident.

The Mizoram Government in its affidavit have stated that the Qflicer in seisin of the case is a judicial officer without any administrative functions, and is not likely to be influenced by these events.

The contemporary events of publicity, meetings and processions are all past, and may not have benumbing effects in future.

At this stage, nothing having been alleged against the particular court, it is not reasonable on the part of the petitioner to apprehend that he will not

(1) POJ1Cham Lal v. Dadan Singh.

(2) S.B. Saha v. M.S. Kochar [1980] l S, C.R. 111

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receive a fair trial.

The judicial administration in Mizornm has to run according to law despite such events. If a case is transferred on the alleged grounds, there may be no end to such transfers.

That may cast reflection on the judiciary.

The other difficulty, namely, that the Lushai Hills Autonomous District (Administration of Justice) Rules, 1953, which applies in Mizoram is not applicable elsewhere is also to be considered.

There will also be difficulties of examining witnesses in Mizo language at other places. Considering the above facts, it will not be desirable to transfer the case at this stage.

The Government of Mizoram will take appropriate measures for safety of the petitioner and his witnesses, and for conduct of the case in a befitting

atmosphere."

It was in the above premises that the learned Single Judge dismissed the appellant's application on both counts.

5. The first question which falls for determination by us is as to whether the appellant was a member of the "Armed Forces of

th~ Union" within the meaning of that expression as occurring in sub-secticn (2) of section 197 of the Cr. P.C.

The expression "Armed Forces' has been defined in clause (a) of sub-section (3) of section 132, Cr. P .C. as meaning the military, naval and air forces, operating as land forces and as including any other armed forces of the Union so operating.

That definition however, is limited in its application, by the express language of that clause itself, to the interpretation of sections 129 to 132 of the Cr. P.C. and the argument, therefore, advanced in support of the impugned judgment that that definition will not govern the interpretation of section 197 cannot be said to lack plausibility. Nor has it been shown to us that the expression "Armed Forces of the Union" as occurring in sub-section (2) of section 197, Cr. P.C. is governed by a definition occurring elsewhere either in the Cr. P.C. or in any other statute.

In this situation it must be given its ordinary meaning which, it appears to us, would certainly not be limited to the inclusion of only the milltary, naval and air forces of the union.

In this connection a reference to the contents of entry 2 in List I of the Seventh Schedule to the Constitution of India may be made with advantage.

They are;

"Naval, military and air forces; any other armed forces of the Union ...

.\ The entry clearly envisages armed forces other than the three well known force> of the State, namely the naval, military and air forces.

All tha'. remains to be done, therefore, is to find out answers to tbe following two questions :

(a) Is the C.R.P.F. a force?

(b) If question (aJ is answered in the affirmative, whether C.R.P.F. is an armed force?

In our upinion the answer to both tbe questions must be given in the affirmative in view of the provisions of sub-section (1) of section 3 of the CRPF Act which unfortunately do not appear to have been C brougbt to the notice of !he learned Single Judge.

That sub-section reads t!:; i; s :

"There shcJi continue to be an armed force maintained by the Central Government and called the Central Reserve Police Force."

The sub-section itself declares in no uncertain terms that tbe CRPF is an armed force of the Central Government which is tbe same thing as saying tbat it is a part of the "Armed Forces of tbe Union".

We may make it clear, however, that even if tbe provisions just above extracted were not available our answer to the two questions would still be in the affirmative. The reason given by tbe learned Single Judge for holding a contrary opinion, namely, that tbe force was "only a reserve force and not a regular force" by which expression he appears to mean that it was not a continually operating force does not commend our concurrence. Just because tbe CRPF is a reserve force it does not follow tbat it is not a regularly operating force and no provision of the CRPF Act has been pointed out to us such as may lend support to a contrary view.

5. We hold !bat tbe CRPF squarely falls within the expression "Armed Forces of the Union" as used in sub-section (2) of section 197 of the Cr.P.C.

6. We leave open the question whether the offences alleged to have been committed by the appellant are or are not such as may be said to have been committed while he was acting or purporting to act in the discharge of his official duty. This course we follow in view of the exposition of law contained in that paragraph quoted by us from tbe impugned judgment which makes a reference to 1979 Criminal Law Journal, 1018 and 1979 Criminal Law Jonrnal 1367, which exposition is not only correct according to learned counsel for all parties before us but al§.o has our full approval

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7. Learned counsel for the parties are also agreed that the case against the appellant be transferred to the Court of a Magistrate functioning at Gauhati.

We consider the proposal to be conducive to a fair trial and, accepting it, transfer the proceeilings to the Court of the Chief Judicial Magistrate, Gauhati. We further direct that the State of Assam and the CRPF shall afford full protection to the life and liberty of the appellant.

S.R.

Appeal allowed.

AKHILESH PRASAD

UNION TERRITORY OF MIZORAM

February 11, 1981

A. D. KosHAL

A. N. SEN, JJ

Code of Criminal Procedure

section 197(2)

Section 3

Central Reserve Police Force Act

Seventh Schedule

section 197

Code of Criminal Procedure

section 132

Code of Criminal Procedure

Seventh Schedule

section 3

Central Reserve Police Force

Central Government

[1980] 1 SCR 111

Ii. K. Puri

N. Nettar

A. Subhashini

P. A. Francis

K. S. Gurumurthy

R. N. Poddar

KosHAL

sections 482 and 407

Code of Criminal Procedure

sections 307, 326 and 324

Indian Penal Code

30th May, 1978

Mizoram

Vairengte Police Station

Thanugura

Thara

section 173

Code of Criminal Procedure

section 2

section 197

Code of Criminal Procedure

Cr.P.C

section 197

Army Act

Central Reserve Police Force Act, 1949

Seventh Schedule

Constitution of India

C.R.P.F.

AIR 1965 All 236

Mizoram Government

Mizornm

Government of Mizoram

section 197

section 132

sections 129 to 132

section 197

section 197

Seventh Schedule

Constitution of India

section 3

CRPF

section 197

Cr.P.C

Chief Judicial Magistrate, Gauhati

State of Assam