STATE OF KARNATAKA v.

HEMAREDDY ALIAS VEMAREDDY AND ANR.

January 27, 1981

[S. MURTAZA fAZAL ALI AND A. VARADARAJAN, JJ.]

Code of Crimina: Procedure 1973, S. 195(1)(b)(i) & Indian Penal Code 1860, S.1. 467, 193 and 114-Suit for reden1p1io11 of 1nortgage-Conspiracy by accused to deprive con1plai11ant of land-Safe deed forged-Prosecution without lvrittcn con1plaint of Court-Maintainability.

Section 195(1)(b)(i) of the Code of Criminal Procedure 1973 provides that no court sha.11 take cognizance of any offence punishable under any of the sections enumerated therein (one of v ... hich is S. 193 J.P.C.) when such offence is allL'ged to haie been conunifled i11, or in relation to, any proceeding in any court, except upon a written co1nplaint from a Court.

The prosecution alleged that both the respondents conspired to cheat the complainant and to deprive him fabricating a sale deed.

along\\'ith of certain two others lands by

The complainants' paternal grand-uncle mortgaged certain lands with possession to the father of respondent No. 1 for a period of 20 years with the condition that possession would be surrendered. to the owner after the expiry of

th~ period. The father of the complainant executed a will bequeathing the

aforesaid lands to hinl. The period of 20 years having expired the complainant E requested respondent No. 1 to surrender possession. Respondent No. 1 having failed to deliver possession, the compla.inant filed a suit for redemption of the mortgage.

Subsequent to the institution of the suit the complainant came to know that respondent No. 1 had purchased the lands in question from respondent No. 2 who had impersonated the real ov..ner, i.e. wife of the complainJnt's paternal grand-uncle.

On inquiries made in the office of the Sub-Registrar, the complainant learnt that the sale deed had been registered on 10-11-1970. After F obtaining a registration copy of the sale deed and ascertaining that respondent No. 2 had no property of her own, the complainant filed a criminal complaint in the Court.

After investigation, the Sub-Inspector of police filed a chargesbeet against both the respondents a.nd two others for having commiUed offences under sections 120B, 193, 465. 468 and 420 read with section 114 I.P.C. The Sessions Court to which only the respondents were committed, convicted respondent No. l under section 467 read with section 114 and section G 193 I.P.C. and respondent No. 2 under section 467 I.P.C. and sentenced them to imprisonment and fine.

In the appeals. against their conviction and sentence. the High Court found that respondent No. 1 was guilty nnder section 467 read with section 114 and section 193 J.P.C., but acquitted him on the ground that the complaint in the crjminal case which ended in the conviction of both the respondents Vi'aS filed by a private individual i.e. the complainant and not by a Civil Court. As regards respondent ~Na. 2 it found her to be guilty under section 467 l.P.C. but finding that she forged the document independently of respondent No. 1 and

A being an illiterate \\'Oman who haJ n1ercly put her thumb impression on the docun1ent to admit its execution hct'ore the Subi-Registrar modified the ,_entcncc awarded to her,

In the appeal to this Court.

HELD:

1 (i) The High Court was not right in law in holding that the complaint was totally not maintainable against respondent No. l in view of the provisions of S. 195(l)(b) of the Code of Criminal Procedure 1973, and in not only acquit ting him of the offence under s. 467 read with s. 114 I.P.C. but also in finding that he has comn1itted an offence punisbabJe under section J 93 l.P.C. [7.lOH]

1 (ii) The High Court was justified in coming to rhe conclusion on the evi dence that respondent No. 1 was guilty under section 467 read with section 114 I.P.C. and that respondent No. was guilty under section 467 l.P.C. [711AJ

l(iii) 'fhe conviction of respondent No. l under section 467 read with section 114 I.P.C. and of respondent No. 2 of 467 I.P.C. are confirmed.

[711B]

2. S. 195 ( 1) (b) of the Code of Criminal Procedure requires that the offence under s. 193 LP .C. should be alleged to have been committed in or in relation to, any proceeding in any court.

Since the forged sate deed was not produced in evidence in any stage of the redemption suit, s. 195(l)(b) of the Code of Criminal Procedure is not attracted.

Therefore, the Magistrate who committed the accused to the Se'. sions. ccukl not n1ve taken cognizance of any

offence under s. 193 I.P, C. so far as respondent No. 1 is concerned. The complaint could have been taken on file only for an offence punishable under s. 467 read with s. 114 I.P.C. so far as that accused is concer, ned. No complaint by the court for prosecuting respondent No. 1 for offence under s. 467 read with s. 114 l.P.C. is therefore required and he could be validly convicted for that offence on the complaint given by the private individual.

[701E-GJ

3. The Legislature could not have intended to extend the prohibition cont.'lined ins. 195(1)(c) Cr. P.C. to the offences mentioned therein when committed by a party .to a proceeding in that court prior to his becoming such party.

[708HJ

4. In cases, v;'here in the course of the same transaction an offence for which no complaint by a Court is necessary under section 195(1)(b) of the- Code of Criminal Procedure, and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not rossible to split up and hold that the prosecution of the accused for the offences not mentioned in

s. 195 ( 1) (h) of the Code of Criminal Procedure should be upheld.

[702G]

Jn the instant case the document forged by Respondent No. 2 was the sale deed d<lted 10-11-70. The suit for redemption of the mortgage was filed by the complainant P.W. 3 on 24-11-70.

He filed the complaint before the police on 24-11-70 and before the court subsequently on 15-12-70. The forged sale deed dated 10-11~70 was not produced in the suit filed by the complainant for redemption of the rnortgage. r703A]

KARNATAKA v. JJEMAREDD\ ( Varadarajan, J.) 697

:S. The offence of abietn1ent of forgery \\as complete when the forged sale . .\ deed dated 10-11-70 was registered. But no offence under s. 195( I )(b) of Cr.

P.C. \Vas committed as the forged sale deed was not at aH put in evidence at any stage in the redemption suit filed by the complainant. [7108]

lr1 Re. V V, L. l\,, arasi111/u1111urthy, [1955] A.J.R. Madras 21 approved.

Vasudeo Ra111clu111dra Joshi [1923] A.l.R. Bombay 105 disapproved.

In re. J:lian.l:'ruo Yc1hwa11t (1912) 14 Bombay Law Report 362 & Mahadev Yadne.shwar Joshi (1912) 14 Bombay Law 'Report 715 distinguished.

(Jirija IVandini Devi v. Bigendra l\'andini Choudry [1967j I

S.C.R. 93 & Patel Laljib/iai Son:abhai v. Thi' State of Gujarat (1971] Supr.

S.C.R. 834

1 eferred to.

CRl~!INAL APPELLATE JURISDICTION

(f 1975.

Criminal Appeal No. 341

Appeal by Special Leave from the Judgment and Order dated 19-4-1974 of the Karnataka High Court in Criminal Appeal Nos. 324 and 335 of 1973.

N. Ncttar, and R. C. Kaushik for the Appellant.

P. R"m Reddy and A. V. V. Nair for Respondent No. I.

The Judgment of the Court was deli<ered by

V AR'.IJ.\1:1..IAN, J.

This appeal by special leave has been filed by

the State of Karnataka against the judgment of a Division Bencl1 of the E Karnataka High Court in Criminal Appeals Nos. 324 and 335 of 1973 against the acquittal of Hemareddy alias Vemareddy (A-l) in Cr!. A. No. 324 of 1973 and against the order in Cr!. A. No. 335 of 1973 modifying the sentence awarded by the learned Sessions Judge, Raichur to Pyatal Bhimakka ( A-2) in Sessions Case No. 25/72. The learned Sessions Judge convicted Hemareddy alias Vernareddy under F s. 467 read with s. 114 and s. 193 Indian Penal Colic and sentenced him to undergo R.l. for two years and to pay a fine of Rs. 500/-, and in default to undergo R. I. for three months under s. 467 read with s. 114 and to undergo R.I. for six months and to pay a fine of Rs.

200/- and in default to undergo R.l. for one month for the offence under s. 193 1.P.C. He convicted Pyatal Bhimakka (A-2), the appel !ant in Cr!. A No. 335 of 1973 before the High Court, under s. 467

I.P.C. and sentenced her to undergo R. I. for six months and to pay a fine of Rs. 200/- and in default to undergo R.I. fur one month. Both

the accused filed appeals before the High Court against their convictions and sentences awarded to them by the learned Sessions Judge.

In Cr!. A. No. 324 of 1973 filed bv Hemareddy alias Vemareddy, the learned Judges held that on the facts there could be no doubt

A that he is guilty under s. 467 read withs. 114 ands. 193 1.P.C. In the appeal filed by Pyatal Bhimakka, Crl. A. No. 335173, also the learned Judges found that there could be no doubt that she is guilty under s.

467 I.P.C.

They confirmed the conviction of Pyatal Bhimakka, observing that she forged the document independently of Hemareddy alias Vemaredd y but taking into consideration the fact that Pyatal Bhimakka is an illiterate women who had been taken to the Office of the Sub- Registrar by Hemareddy alias Vemareddy and asked to put her thumb impression to the document and to admit execution of the document, which she did, for which Hemareddy alias Vemareddy paid her a sum of Rs. 1001-, the learned Judges felt that the sentence awarded to Pyatal Bhimakka by the learned Sessions Judge was harsh and that the ends of justice would be met by sentencing her to undergo rigorous imprisonment for one day, which she had already undergone before she was probably released on bail, and to pay a fine of Rs. 200 /- and in default to suffer RI. for a perrod of one week and thus modified the sentence awarded to Pyatal Bhimakka accordingly. The State has filed the appeal by special leave also against this order modifying the sentence awarded to Pyatal Bhimakka.

The learned Judges of the High Court, however, acquitted Hemareddy alias Vemarcddy, the appellant in Crl. A. No. 324 of 1973 and set aside the .sentence awarded to him by the learned Sessions E Judge on the ground that the complaint in the criminal case which ended in the conviction of both accused in the Sessions Court, was fll"d by the private individual Narsappa Eliger, P.W. 3 and not by the Civil Court. As stated earlier the Criminal Appeal has been filed by the State against the acquittal of Hemareddy alias Vemareddy by the F High Court.

It is 'necessary to set out briefly the facts of the case. One Narsappa is the son of one Thimmaiah who had an elder brother Nagappa Thimmaiah and Nagappa were the sons of one Thayappa. Nagappa's wife was one Bhimakka alias Bhieamma.

Thimaiah and Nagappa G lived for sometime in Underaldoddi. Nagappa purchased lands bearing Survey Nos. 93, 94 and 96 in Underaldoddi.

Those lands were in the possession and enjoyment of Narsappa's father Thimmaiah.

Subsequently, Nagappa and his wife left Underaldoddi and settled down in Alkur village.

While Nagappa was living in Alkur village, he mortgag~ the aforesaid lands with possession to one Kurbar H Bhimayya, the father of Hemareddy alias Vemareddy, A-1. According to the terms of the mortgage, Kurbar Bhimayya was to be in possession of the lands for twenty years and surrender possession thereof to the

owner after the expiry of the period. Subsequently, Nagappa and his A wife as well as Nagappa's brother Thimmaiah came and settled down at Raichur. Bhimakka alias Bhisamma, the wife of Nagappa, died in •. or about 1953 and Nagappa died two or three years later. Nagappa's brother also died leaving behind him his son Narsappa as the only heir in the family, Meanwhile Kurbar Bhimayya, the mortgagee and father of Hemareddy alias Vemareddy (A-1) died.

Hemareddy alias B Vemareddy continued in possession of the lands.

Narsappa, son ol Nagappa's brother Thimmaiah executed a will in favour of the complainant Narsappa Eliger, bequeathing the aforc,1id lands to him.

Narsappa Eliger, the legatee under the will of Thimmaiah's son Narsappa, approached Hemareddy alias Vemareddy, the son of the mortgagee Kurbar Bhimayya, who was in possession of the lands and requested him to surrender possession of the lands on the ground that c

the period of twenty years had expired. Then Hemareddy alias Vemareddy informed the complainant Narsappa Eliger that he would consider his request a few days later as it was harvesting time.

Finding that there was no response from Hemareddy alias Vemareddy, Narsappa Eliger wrote a letter, for which, according to the prosecution, Hemareddy alias Vemareddy sent the reply, Ex.

P-3.

Subsequently, Narsappa Eliger filed a suit for redemption of the mortgage. Subsequent tu the institution of the suit, Narsappa Eliger came to know from Shivareddy (P.W. 12) that Hemareddy alias Vemareddy has purchased the lands in quest; on from Pyatal Bhimakka (A-2) ana another and that A-2 had impersonated the real owner Bhimakka, wife of Nagappa,

who, as stated earlier, had died in or about 1953.

Thereupon, Narsappa Eliger made inquiries in the Office of the concerne<l Sub-- Registrar and learned that the sale deed had been registered on 10-11-

1970. After obtaining a registration copy of the sale deed and after making inqmries at Alkur Narsappa Eliger learnt that Pyatal Bhimakka (A-2) had no properties of her own, Narsappa Eliger thereafter filed a criminal complaint in the Court, which was referred to the Police.

After investigation, the Sub-Inspector of Police, P.W. 21 filed a charge-sheet against both the accused and two others alleging that they had conspired to cheat N arsappa Eliger and to deprive him of the lands and that in pursuance of that conspiracy they put forward Pyatal Bhimakka as Nagappa's wife Bhimakka and got the sale deed executed by her and they thereby committe<l offences under ss. 120B,

193, 465, 467, 468 and 420 read with s. 114 of the Indian Penal Code.

Only Hemareddy alias Vemareddy and Pyatal Bhimakka, A-1 and A-2 were ccmmittcd to the Court of Sessions at Raichur, and they were found guilty and convicted and sentenced as mentioned above.

We were taken through the judgment of the learned Judges of the High Court.

We are satisfied that the learned Judges were justified

A in coming to the conclusion on the evidence that Hemarcddy alias Yemareddy is guilty under s. 467 read with s. 144 J.P.C. and that Pyatal Bhimakka i• guilty under s. 467 J.P.C.

Since we agree with the learned Judges of the High Court on the question of fact in so far as it relates to A-2 in full and as regards Hcmareddy alias Vcmaredd) (A-2) in respect of his co'nviction under s. 467 read with s. 114, it is unnecessary for us to refer to the evidence relied upon by the learned Judges for coming to the conclusion that Hemareddy alias Vcmarcddy is guilty under s. 467 read with s. 114 1.P.C. and that Pyatal Bhimakka is guilty under s. 467 l.P.C. This Court has obserwd in Girija Nandini Devi v. Bige1uira Nandini Choudry(') that it is not the duty ot the appellate court when it ngrees with the view of the trial court 011 the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial court expression of general agreement with reasons given by the court the decision of which is under appeal, will ordinarily suffice.

We shall deal with the case of the prosecutiop against Hemareddy alias Vemareddy under s. 193 J.P.C. separately.

We, therefore, confirm the conviction of Hemareddy alias Yemareddy under s. 467 read with s. 114 I.P.C. and of Pyatal Bhimakka u'ndcr s. 467 I.P.C.

We are of the opinion that no interference with the judgment of the learned Judges of the High Court in regard to the sentence awarded to Pyatal Bhimakka is called for having rcg:Jrd to the fact that the learned Judges have given sufficient reasons for taking a lenient view in regard to that accused on the question of sentence.

We, therefore, dismiss the Criminal Appeal in so far as it relates to the question of .sentence awarded to Pyatal Bhim"kka.

It is seen from the judgment under appeal that the learned Public Prosecutor of Karnataka had contended before the learned Judges of the High Court that the rose against Hemarcddy alias Vemareddy for fabricating false evidence may not be maintainable in view of the provisions of s. 195 (l )(b) of the Code of Criminal Procedure, that be may be prosecuted for abetting the offence of forgery and that the conviction of that accused under s. 467 read with s. I J 4 I.P.C. is justified o•n the facts of this case for while s. 193 I.P.C. is one of the sections mentioned in s. 195(l)(b) of the Code of Criminal Procedure, s. 467 J.P.C. is not mentioned in that <ub-clause of s. 195(1).

The learned Judges rejected that submission, relying upon three decisions of the Madras High Court in Perianna Muthirian v. Vengu Ayyar('), Ramnappa Reddy v. Emperor(') and in re. V.V.l,, Narasimhamurthy(').

In the first of those ca>es the complainant stated

(1) lt967] I SC R 93.

(2) A.l.R. 1929 Madras 21.

(3) A.LR. 19J2 Madras 253.

(4) A.LR. 1955 Madras 217

- J

that certain persons conspiTed with others and forged a document with the object of using it in evidence in certain proceedings pending in a court and other proceedings which might follow. That document was actually used in the proceedings pending before a court, and it has been held that the offence complained of fell under s. 195(1) (b) of the Code of Criminal Procedure and, therefore, the complaint cannot be taken cognizance of unless it was in writing and by the court in which the offence was alleged to have been committed. It has

been observed in that decision that to hold in such a case that although a private person was barred from prosecuting the accused for fabricating false evidence, he would still be at liberty to prosecute him for fraud would result in the provisions of s. 195(1) (b) of the Code of Criminal Procedure being evaded and that it is not open to the court to try the accused either for fabricating evidence or for fraud because

the specific offence of fabricating false evidence should be given preference over the more general offence of forgery. In the second case the complaint was filed by a private person alleging that the accused had fabricated a promissory note and induced a third party to file a suit against the complainant so as to obtain a fraudulent decree, and it has been held that the allegation made in the complaint attracted the provisions of s. 195(1) (b) of the Code of Criminal Procednre and the Conrt must refuse to take cognizance.

In the third case, Som&<lundaram, J. has observed : ·

"The main point on which Mr. Jayarama Aiyar appear- E ing for the petitioner seeks to quash this commital is that on the facts an offence under s. 193 I.P.C. ls disclosed for which the court cannot take cognizance without a complaint by the court as provided under s. 195(1) (b) Criminal P.C. The first question which arises for consideration is whether on the facts mentioned in the complaint, an offence under s. 193 F I.P.C. is revealed- Section 193 reads as follows : "Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine."

"Fabrication of false evidence" is defined in s. 192. The relevant part of it is :

"Whoever causes any circumstance to exist intending that such circumstance may appear in evidence in a judicial proceeding and that such circumstance may cause any person who in such proceeding is to form an opinion upon the

12-152SCI/81

evidence to entertain an erroneous opinion touching any point material to the result of such proceeding is said "to

fabricate false evidence."

The effect of the allegations in the complaint preferred by the complainant is that the petitioner has caused this will to come into existence intending that such will my cause the Judge before whom the suit is filed to form an opinion that the will is a genuine one and, therefore, his minor daughter is entitled to the property. The allegation, therefore, ill the complaint will undoubtedly fall under s. 192, l.P.C. It will, therefore, amount to an offonce under s. 193, l.P.C., i.e. fabricating false evidence for the purpose of being used in the judicial proceeding. There is no doubt that the facts disclosed wiill also amount to an offence under ss. 467 and 4 71 l.P.C. For prosecuting this petitioner for an offence under ss. 467 and 471, a complaint by the court may not be necessary as under s. 195(1)(c), Criminal P.C. a complaint may be made only when it is committed by a party to any proceeding in any court.

Mr. Jayarama Aiyar does not give up his contention that the petitioner, though he appears only a guardian of the minor gir~ is still a party to the proceeding.

But it is unnecessary to go into the question at the present moment and I reserve my opinion on the question whether the guardian can be a party to a proceeding or not, as this case can be disposed of on the other point, viz., that when the allegations amount to an offence under s. 193, I.P.C., a complaint of court is necessary under s. 195(1)(b), Criminal P.C. and this cannot be evaded by prosecuting the accused for an offence for which a complaint of court is not necessary.

We agree with the view expressed by the learned Judge and hold that in cases where in the course of the same transaction an offence -~ for which no complaint by a court is necessary under s. 195 (1 )(b) of the Code of Criminal Procedure and an offence for which a complaint of a court is necessary under that sub-section, are committed, it is not possible to split up and hold that the prosecution of the accused for the offences not mentioned in s. 195(J)(b) of the Code of Criminal Procedure should be upheld.

However, it is not possible to agree with the learned Judges of the High Court that the complaint in this case given by the private individual Narsappa Eliger, P.W. 3 against Hemareddy alias Vemareddy for the offence under s. 467 read with s. 114 I.P.C. is not cognizable and

that s. 195 ( 1 )(b) of the Criminal Procedure Code is attracted so far as Hemareddy alias Vemareddy is concerned. The document forged by Pyatal Bhimakka, A-2 is a sale deed dated 10-11-70. The suit for redemption of the mortgage was filed by the complainant Narsappa Eliger, P.W. 3 on 17-11-70. He filed the complaint before the Police on 24-11-70 and before the court subsequently on 15-12-70. It is not disputed that the forged sale deed dated 10-11-70 was not produced in the suit filed by the complainant for redemption of the mortgage.

Mr. P. Ram Reddy, learned counsel appearing for A-1, who assisted the court as Amicus Curiae for Pyatal Bhimakka , A-2, invited our attention to the decision in re. Vasudeo Ramchandra Joshi(') and submitted that the complaint should have been filed by the court in which the suit for redemption of the mortgage was filed by the complainant Narsappa Eliger in view of the provisions of s. 195(1) (b) of the Code of Criminal Procedure and that as the complaint was filed directly by the private individual, the prosecution of Hemareddy alias Vemareddy for offences under s. 467 read with s. 114 I.P.C. and s. 193 I.P.C. is bad. In that decision reference has been made to the decisions of the Bombay High Court in (1912) 14 Bombay Law Reporter 362 and 715. In that case there was a proceeding before the Magistrate at Bhusaval against one Vana Khusal in respect of the charge under s. 401 I.P.C. An application was made for bail on behalf of that person by Vasudeo Ramachandra Joshi, the petitioner before the High Court, but that application was refused on April 1, 1922.

The statements of three witnes§.es were recorded under s. 164, Criminal Procedure Code on April 18, 1922 from which it appeared that on April 10, 1922 those three witnesses had an interview with the Pleader Vasudeo Ramachandra Joshi and he had instigated them to give false evidence.

On April 15, 1922 another case against Vasudeo Ramachandra Joshi in respect of a dacoity was sent up to the Magistrate.

The case of the prosecution was that in connection with that case of

~ . . dacoity the alleged instigation by the Pleader to give false evidence was

made. Those witnesses were examined before the Magistrate on June 2, 1922 in the dacoity case, and on June 7, 1922 a complaint was filed by the Police against Vasudeo Ramachandra Joshi, charging him with having abetted the giving of false evidence. The learned Judges of the Bombay High Court who heard the Civil Revision Case have observed:

"On behalf of the Crown it is urged that no sanction is necessary because at the date of alleged abetment no proceeding in relation to which the offence is said to have been committed, was pending.

It is contended that the offence

(I) A.I.R. 1923 Bombay 105.

had no relation to the proceedings pending on April 10 and that the proceedings to which it related, were sent up to the Magistrate on April 19 and were not pending at the time.

It is quite clear, however, from the very nature of the offence alleged against the present petitioner that if the offence. was committed, it was committed in relation to the proceeding in which those three persons were to be examined as witnesses, and it is difficult to understand how it could be said that the present proceedings against the petitioner could go on without the sanction of the Court before which these proceedings are pending at present, and in relation to \Vhich the offence is said to have been committed. I assume, without deciding that the offence alleged against the petitioner related to the Budhgaon dacoity case and not to the case under s. 401, Indian Penal Code, then actually pending even then the offence related to proceedings which were clearly under contemplation then and which were sent up to the Magistrate on April

15. The expression used in s. 195 ( 1) (b) is wide enough to cover such a proceeding and the decisions of this Court in re Khanderao (1912) 14 Bombay L.R. 362 and in re Mahadev Yadneshwar (1912) 14 Bombay L.W. 715, support that conclusion.

I am unable to follow the reasoning adopted by the learned Magistrate in holding that no sanction is necessary. We, therefore, quash the present proceedings, without prejudice to any proceeding that may be taken after obtaining the necessary sanction.

I may also point out that the prosecution of a pleader defending an accused person while that proceeding is pending, and before the evidence of the witnesses who are said to have been instigated to give false evidence has been appreciated by the Court, is inadvisable. If such a prosecution is to be started it ought to be started after the principal proceeding, in relation to which the offence is said to have ben committed, has terminated."

We are of the opinion that it is not possible to agree with the view of the learned Judges expressed in that case that even when the offence of instigating the witnesses to give false evidence was committed in relation to a proceeding which was not actually pending in the court but was only under contemplation the provisions of s. 195 (1) (b) of the Code of Criminal Procedure would be attracted.

~· ...

The decisions in 1912 (14) Bombay Law Report 362 and 715 would not apply to the facts of the present case for whereas in those cases the false evidence hap been actually put in evidence in the present case, as already stated, the forged sale deed dated 10-11-70 was not at all tendered by Hemareddy alias Vemareddy in the redemption suit filed by the complainant NarsapP'a Eliger on 17-11-70 at any stage of the proceedings in that suit. In the first of these two decisions-re.

Khanderao Yeshwant(') the petitioner before the Bombay High Court, a Policeman, was present in a village Dhanchi on 20-2-1911 in relation to work about census and on that day a panchnama was filed in that village in regard to an offence alleged to have been committed by a certain Talukdar under the Arms Act.

The investigation into the alleged offence was not made by the petitioner Police constable but by the village constable Shamserkhan who sent up the case to the Sub-

Inspector by whom in turn it was committed to a Magistrate. In the course of trying the alleged offence the Magistrate found that certain rccitah in the panchnama were false.

The Talukdar was discharged as the Magistrate came to the conclusion that the charge imputed to him was false. In that view he issued a notice to the village constable Shamserkhan as to why sanction for prosecution should not be granted under s. 195 Cr!. P.C.

After hearing Shamserkhari the Magistrate issued notice against the Police Constable and on 8-9-1911 directed the prosecution of the Police Constable under s. 211 I.P.C. Thus it is seen that the panchnama containing false recitals prepared by the Police Constable was actually used in a criminal proceeding against the Talukdar who had been implicated as a culprit in the panchnama.

In the second case re Mahadev Yadneshwar Joshi('), Mahadev and five others were being prosecuted for offences under s. 193 read with s. 109 I.P.C.-in that they were alleged to have abetted the making of a false statement during the police investigation in a theft case. The theft case was subsequently tried by a Magistrate who convicted the accused. The appeal filed against the conviction by the Magistrate was unsuccessful. During the trial the accused raised an objection that before they could be prosecuted, sanction of the competent Court should have been obtained.

Th~ Magistrate over-ruled the objection.

The learned Judges of the Bombay High Court held that sanction was necessary and that the offences cannot be tried in the absence of a complaint by a. court before which the evidence, which is now said to be fabricated. was adduced. In that case also the fabricated evidence had been actualh used in a criminal proceeding and s. 195 (1) (b) of the Code of Cri,;, inal Procedure was therefore attracted. But in the present case. as lated ear; ier, the fabricated sale deed dated I 0-11-70 had not

(I) (1912) 14 Bombay Law Report 362

(2)

(1912) 14 Bombay Law Report 715

A been put in evidence at any stage of the suit for redemption filed by the complainant Narsappa Eliger in the Civil Court on 17-11-1970.

Mr. N. Nettar, appearing for the State, invited our attention to the decision of this Court in Patel Laljibhai Somabhai v. The State of Gujarat.(') In that case the appellant before this Court had filed a suit for recovery of a certain amount on the basi's of a forged cheque. A private complaint was filed in the Court of a Judicial Magistrate against the appellant and another person under ss. 467 and 471 I.P.C. The Magistrate prima facie found on the evidence that the appellant had fraudulently used in the Civil Court a forged document and he committed the appellant to Sessions for trial.

The appellant raised an objection that under s. 195 (l)'(c) of the Code of Criminal Procednre no cognizance of the offence could be taken on a private complaint.

The High Court upheld the committal order. But this Court held ou the scope and effect of s. 195 (1) (c) and its applicability to cases where a forged document had been produced as evidence in a judicial proceedings by a party thereto and the prosecution of that party sought for offences under ss. 467 and 471 I.P.C. that the words "to have been committed by a party to any proceeding in any court" according to s. 195 (!) (c) mean that the offence should be alleged to have been committed by the party to' the proceeding in his character as such party, that is, after having become a party to the proceeding. This Court has observed:

"We are directly concerned only with cl. (c) of s. 195(1).

What is particularly worth noting in this clause is (i) the allegation of commission of an offence in respect of a document produced or given in evidence in a proceeding in a court; and (ii) the commission of such offence by a party to such proceeding. The use of the words "in respect of" in the first ingredient would seem to some extent to enlarge the scope of this clause. Judicial opinion, however, differs on the effect and meaning of the words "to have been committed by a party to any proceeding in any court". As cl. (b) of s. 195(1) does not speak of offence, committed by a party to the proceeding, while considering decisions on that clause this distinction deserves to be borne i'n mind.

Broadly speaking two divergent views have been expressed in deciaed cases in this connection.

According to one view, to attract the prohibition contained in cl. ( c) the offence should be alleged to have been committed by the party to the proceeding in his character as such party, which means after having

(I) [1971J Suppl. S.C.R. 834

I •

become a party to the proceeding, whereas according to the other view the alleged offence may have been committed by / the accused even prior to his becoming a party to the proceeding provided that the document in question is produced or given in evidence in such proceeding.

The language used seems to us to be capable of either meaning without straining it.

We have therefore, to see which of the two alternative constructions is to be preferred as being more in accord with the legislative intent, keeping in view the statutory scheme and the purpose and object of enacting the prohibition contained ins. 195(1)(c).

The underlying purpose of enacting s. 195 (1 )(b) and ( c) and s. 476 seems to be to control the temptation on the part

of the private parties considering themselves aggrieved by the offences mentioned in those sections to start criminal prosecutions on frivolous, vexatious or insufficient grounds inspired by a revengeful desire to harass or spite their opponents.

These offences h_ave been selected for the court's control because of their direct impact on the judicial process. It. is the judicial process, in other words the administration of public justio~, which is the direct and immediate object or victim of these offences and it is only by misleading the courts and thereby preverting the due course of law and justice that the ultimate object of harming the private party is designed to be realised.

As the !Purity of the proceedings of the court is directly sullied by the crime the Court is considered to be the Qnly party entitled to consider the desirability of complaining against the guilty party.

The private party designed ultimately to be injured through the offence against the administration of public justice is undoubtedly entitled to move the court for persuading it to file the complaint.

But such party is deprived of the general right recognized by s. 190 Cr. P.C. of the aggrieved parties directly initiating the criminal proceedings.

The offences about which the court alone, to the exdusion of the aggrieved private pai:ties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that cour(, the commission of which has a reasqnably close nexus with

the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference princ\pally to its records the expediency of prosecuting the delinquent party. It, therefore, appears to us to be more appropriate to adopt the strict construction of confining the prohibition contained in s. 195 (1) ( c) only to those cases in which the offences specified therein were committed by a party to the proceeding in the character as such party.

It may be recalled that the superior court is equally competent under s. 476A Cr. P.C. to consider the question of expediency of prosecution and to complain and there is also a right of appeal conferred by s. 476B on a person on whose application the Court has refused to make a complaint under s. 476 ors. 476A or against whom such a complaint has been made. The appellate court is empowered after hearing the parties to direct the withdrawal of the complaint or as the case may be, itself to make the complaint.

All these sections read together indicate that the legislature could no_t have intended to extend the prohibition contained in s. 195(1) (c) Cr\. P.C. to the offences mentioned therein when committed by a party to a proceeding iri that court prior to his becoming such party. It is no doubt true that quite often-if not almost invariably-the documents are forged for being used or produced in evidence in court before the proceedings are started. But that in our opinion cannot be the controlling fader, because to adopt that construction, documents forged long before the commencement of a proceeding in which they may happen to be actually used or produced in evidence, years later by some other party wonld also be subject toss. 195 and 476 Cr!. P.C. This in our opinion would unreasonably restrict the right possessed by a person and recognized by s. 190 Cr. P.C. without promoting the real purpose and object underlying these two sections. The Court in such a case may not be in a position to satisfactorily determine the question of expediency or making a complaint."

We are bound by the view expressed in this decision that the Legislature could not have intended to extend the prohibition contained ins. 195(1) (c) Cr. P.C. to the offences mentioned therein when committed by a party to a proceeding in that court prior to his becoming such party.

In the decision in Raghunath and Others v. State of U.P. and Others(') it is observed :

(1) [1973] 1 S .C.C. 564 at 568

-111 I

I ..

KARNATAKA v. HEMAREDDY (Varadaraja11, J.) 709

"In this Court the main contention raised on behalf of the appellants by their learned counsel was that even prosecution for an offence under Section 465 I.P.C. requires complaint by th() revenue court concerned as such an offence is covered by Section J 95 (I) (c), Cr.P.C. This contention is diilkJlt to accept. This Court has recently in Patel Laljibhai Somabhai

v. The State of Gujarat [1971] 2 SCC 376 after considering the conflict of judicial opinion on this point, approved the view taken in Kushal Pal Singh case (supra). According to that decision the words "to have been committed by a party to any proceeding in any court" in Section 195(1)(c) mean that the offence should be alleged to have been committed by tbc party to the proceeding in his character as such party, that is, after having become a party to the proceeding. The appellants learned counsel tried to distinguish the decision of the Allahab>ad High Court in Kushal Pal Singh case (supra) by pointing out that in that case lhe offence 4:lf forgery was alleged to have been committed in 1898, more than 25 years before it was produced or given in evidence in court and it was for this reason that Section 195(1) (c), Cr.P.C. was held to be inapplicahk. In our view, the duration of time between the date of forgery and the production or giving in evidence of the forged document in court is not a governing factor. The principle laid down in Sombabhai's case (supra) was not founded on any such consideration. Reference to such delay was made in that decision in another context. After taking notice of the fact that Section 195(1) (c), Cr. P.C. deprives a private aggrieved party of the general right recognized by Section 190 Cr.P.C. of directly initiating criminal [proceedings this Court observed in the case:

"The offences about which the Court alone, to the exclusion of the aggrieved private parties, is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that comt, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry, satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party. It, therefore, appe'arS to be more appropriate to adopt in strict construction of confining the prohibition contained in Section 195 (1) (c) only to those cases in which the

offences specified therein were committed by a party to the proceeding in the character as such party".

In the present case, the offence of abetmcnt of forgery was complete when the forged sale deed dated 10-11-70 was fabricated and registered. But no offence under s. 193 I.P.C. falling within the scope of s. 195(1) (b) of Cr.P.C. could be stated to have been committed by Hemareddy alias Vemareddy as the forged sale deed was not at all put in evidence at any stage in the redemption suit filed by the complainant on 17-11-70. Section 195 (l)(b) of the Code of Criminal Procedure reads :

"(195) (1) No Court shall take cognizance

(a) ........................... .

(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code, namely, sections l 93 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or

It could be seen that the section requires that the offence under s. 193 I.P.C. should be alleged to have been committed in or in relation to, any proceeding in any court. Since the forged sale deed was not produced jn evidence in any stage of the redemption suit, s. 195(1) (b) of the Code of Criminal Procedure is not attracted. Therefore, the Magistrate who committed the accused to the Sessions, could not have taken cognizance of any offence under s. 193 I.P.C. so far as Hemareddy alias Vemareddy (A-1) is concerned. The complaint could have been taken on file only for an offence punishable under s. 467 read with s. 114 I.P.C. so far as that accused is concerned. It would follow that no complaint by the court for prosecuting Hemareddy alias Vemareddy for the offence under s. 467 read with s. 114 I.P.C. is required, and he could be validly convicted for that offence on the complaint given by the private individual. We are,.therefore, of the opinion that learned Judges of the. High Court were not right in law in holding that the complaint in this case was totally not maintainable against Hemareddy alias Vemareddy in view of the provisions of s. 195 (1) (b) of the Code of Criminal Procedure, und in not only acquitting Hemareddy alias Vemareddy of the offence under s. 467 read with s. 114

I.P.C. but alw in finding that he has committed an olfence punishable under s. 193 I.P.C. We accordingly confirm the judgment of the

' I t

High Coutt as regards modification of the sentence awarded to Pyatal Dhimakka (A-2) and the acquittal of Hemaredd; alias Vemareddy under s 11)3 l.P .C. and dismiss the appeal to that extent but allow the appeal in part so far as Hemareddy alias Vcmareddy is concerned and find him guilty under s. 467 read with s. 114 l.P.C. and convict him and sentence him to undergo RI. for one year and also pay a fine of Rs. 500/. and in default to undergo R.I. for thice months.

N.V.K.

Appeal dismissed.

STATE OF KARNATAKA

HEMAREDDY ALIAS VEMAREDDY AND ANR

January 27, 1981

S. MURTAZA fAZAL ALI

A. VARADARAJAN, JJ.

S. 195(1)(b)(i)

Indian Penal Code 1860

Section 195(1)(b)(i)

Code of Criminal Procedure 1973

S. 193

sections 120B, 193, 465

section 114

I.P.C

section 467

section 114

I.P.C

section 467

I.P.C

section 467

section 114

section 193

section 467

S. 195(l)(b)

Code of Criminal Procedure 1973

s. 467

s. 114

I.P.C

section 467

section 114

I.P.C

section 467

section 467

section 114

I.P.C

I.P.C

S. 195

Code of Criminal Procedure

s. 193

s. 195(l)(b)

Code of Criminal Procedure

s. 193

s. 467

s. 114

I.P.C

s. 467

s. 114

section 195(1)(b)

Code of Criminal Procedure

s. 195

Code of Criminal Procedure

10-11~70 was

s. 195( I )(b)

Vasudeo Ra111clu111dra Joshi

N. Ncttar

R. C. Kaushik

P. R"m Reddy

A. V. V. Nair

V AR'

State of Karnataka

Hemareddy alias Vemareddy

Pyatal Bhimakka

Hemareddy alias Vernareddy

s. 467

s. 114

s. 193

s. 467

s. 114

s. 193

Pyatal Bhimakka

s. 467

I.P.C

s. 467

Pyatal Bhimakka

s.

467

I.P.C

Hemareddy alias Vemaredd

Hemareddy alias Vemareddy

Hemareddy alias Vemarcddy

Narsappa Eliger

Narsappa

Thimmaiah

Nagappa Thimmaiah

Nagappa

Thayappa

Bhimakka alias Bhieamma

Thimaiah

Nagappa G

Underaldoddi

Nagappa

Alkur village

Kurbar H Bhimayya

Kurbar Bhimayya

Raichur

Bhimakka alias Bhisamma

Hemareddy alias B Vemareddy

Narsappa

Narsappa Eliger

Shivareddy

Bhimakka

10-11-

1970

Alkur Narsappa Eliger

N arsappa Eliger

ss. 120B,

193, 465, 467, 468 and 420

s. 114

Indian Penal Code

Court of Sessions at Raichur

Hemarcddy alias Yemareddy

s. 467

s. 144

s. 467

Hcmareddy alias Vcmaredd

s. 467

s. 114

Hemareddy alias Vcmarcddy

s. 467

s. 114

s. 467

s. 193

Hemareddy alias Yemareddy

s. 467

s. 114

I.P.C

s. 467

I.P.C

Pyatal Bhim"kka

Karnataka

Hemarcddy alias Vemareddy

s. 195

Code of Criminal Procedure

s. 467

I.P.C

s. 193

I.P.C

s. 195(l)(b)

Code of Criminal Procedure

s. 467

s. 195(1)

Madras High Court

s. 195(1)

Code of Criminal Procedure

s. 195(1)

Code of Criminal Procedure

s. 195(1)

Som&<lundaram

Jayarama Aiyar

s. 193

I.P.C

s. 195(1)

s. 193

I.P.C

Section 193

s. 192

s. 192

s. 193

ss. 467 and 4

ss. 467 and 471

s. 195(1)(c)

s. 193

I.P.C

s. 195(1)(b)

s. 195

Code of Criminal Procedure

s. 195(J)(b)

Code of Criminal Procedure

s. 467

s. 114

I.P.C

s. 195

P. Ram Reddy

Vasudeo Ramchandra Joshi

s. 195(1)

Code of Criminal Procedure

s. 467

s. 114

I.P.C

s. 193

I.P.C

Bombay High Court

Bhusaval

Vana Khusal

s. 401

I.P.C

Vasudeo Ramachandra Joshi

April 1, 1922

s. 164

Criminal Procedure Code

April 18, 1922

April 10, 1922

April 15, 1922

June 2, 1922

June 7, 1922

s. 401

Indian Penal Code

s. 195

Mahadev Yadneshwar

s. 195

Code of Criminal Procedure

Hemareddy

alias Vemareddy

NarsapP'a Eliger

Khanderao Yeshwant

Dhanchi

Talukdar under the Arms Act

Shamserkhan

s. 195

Shamserkhari

s. 211

I.P.C

Talukdar

Mahadev Yadneshwar Joshi

s. 193

s. 109

I.P.C

s. 195

Narsappa Eliger

N. Nettar

ss. 467 and 471

I.P.C

s. 195

s. 195

ss. 467 and 471

I.P.C

s. 195

s. 195(1)

s. 195(1)

s. 195

s. 476

s. 190

s. 195

s. 476A

s. 476B

s. 476

s. 195(1)

s. 190

Section 465

I.P.C

Cr.P.C

Kushal Pal Singh

Section 195(1)(c)

Allahab>ad High Court

Section 195(1)

Cr.P.C

Sombabhai

Section 195(1)

Section 190

Cr.P.C

Section 195

s. 193

I.P.C

s. 195(1)

Cr.P.C

Section 195

Code of Criminal Procedure

Indian Penal Code

s. 193

I.P.C

s. 195(1)

Code of Criminal Procedure

s. 193

I.P.C

s. 467

s. 114

I.P.C

s. 467

s. 114

I.P.C

s. 195

Code of Criminal Procedure

s. 467

s. 114

I.P.C

s. 193

I.P.C

Pyatal Dhimakka

Hemaredd; alias Vemareddy

s 11

Hemareddy alias Vcmareddy

s. 467

s. 114


STATE OF PUNJAB & ORS.

RAJA RAM & ORS.

January 29, 1981

[A. D. KOSHAL AND BAHARUL !SLAM, JJ.]

Land Acqui.sition Act, 1894, .51ectio11 3(e) read with section 4-U'hether the Food lorporarion, creaf(d by section 3 of the Food Corporation At!, 1964, is a co111pa11y within the 111eaning of section 3(e) of the Land A('qtd1ition Act.

l)isn1issing the State appeal on certificate, the Court

I~ELD : ( 1) The acquisition of land for the Food Corporation of India is not in nccordance \Vith law for the reason that compliance with the pro-- visions of Chapter VII of the Land Acquisition Act had not heen made.

[717A-B]

(2) The Food Corporation of lndia is a Compa11y within the meaning of the term appearing in clause ( e) of section 3 of the Land Acquisition Act, 1894.

Section 3 (e) mentions in unrnistakable terms that a company incorporated by an Indian law would be a "Company" for the purposes of lhe Land Acquisition Act.

The Corporation wias adn1ittedly creat'ed by

scction 3 of the Food Corporation Act. 1964. Sub-section (2) of section 3 of the Food Corporation Act, 1964 is an Indian Law and clothes the Corporation with the attribute~ of a<- compan)'. [7l 5A-E.]

(3) A Government department has to be an. organisation which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the department are losses of the Government. The Corporation, on the other hand, is an autonomous body capable of ocquiring, holding and disposing of properly and having tho power to contract. It n1ay also sue or be sued by its own nan1e and tho Government does not figure in any litigation to which it is a party. It is true that its original share capital is provided by the Central Government and thati 11 out of the 12 members of its Board of Directors are appointed by the Central Government but then these factors may at the most lead to the conclu~ sion that the Corporation is an agency or instrumentality of the Central Government. [715E-H]

Even the conclusion, ho\\1ever, that the Corporation is an agency or instru mentality of the Central Government does not lead to the further inference that rhe Corporation is a Government department. The reason is that the Food O:Jrporation Act has given the Corporation an individuality apart from that of the Government. In any case the Corpor::ition cannot be divested Qlf its character as a ''Company" within the meaning of the definition in clause, (e) of section 3 of the La-nd Acquisition Act, for it completely fulfils the require~ ments of that clause.

[716G-H, 717A-B]

Raniana Daynrani Shetty v. The International Authority of India and Ors .. [1969] 3 SCR 1014, applied.

) )

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2063 of 1970.

From the Judgment and Order dated 26-2-1970 of Punjab and Haryana l'Iigh Court in L.P.A. No. 283/69.

0. P. Sharma and M. S. Dhillon for the Appellant.

S. K. Mehra, P. N. Puri, E. "M'. S. Anam and M. K. Dua for Res- B pondents Nos. 1-3.

K. J. John for Respondent No. 4.

The Judgment of the Court was delivered by

BAHARUL ISLAM, J.-This appeal by the State of Punjab and two others, namely, the Collector, Rupar District and the Sub-Divisional Officer (Civil-cum-Land Acquisition Collector, Rupar, is on a certificate granted by a Division Bench of the High Court of Punjab and Haryana in respect of its judgment in a Letters Patent Appeal holding the acquisition of the land in question to be bad in law on the grounds that the Food Corporation of India for which the Land in question was sought to be acquired was not a "Company" within the meaning of section 3 ( e) of the Land Acquisition Act that the land had also not been acquiTed for a public purpose and that the State could acquire the land under that Act only for a public purpose or for the purpose of a Company.

2. The material facts of the case may be stated thus : Nine biswas of the disputed land situated within the municipal area of Morinda in the District of Rupar was owned by respondent No. 1, Raja Ram, Respondents No. 2 and 3. are Raja Ram's sons. The State of Punjab issued a notification dated December 17, 1968 under section 4 read with section 17 of the Land Acquisition Act of 1894 (hereinafter called "the L.A. Act"). The notification related to 15 different plots of land including the land of the present acquisition proceedings. The material portion of the notification is as follows :

"Whereas it appears to the President of India that the

land is likely to be needed by Government, at public expense, G for a public purpose, namely, for the construction of godowns for storage of food-grains at Morinda, it is hereby notified that the land in the locality described below is likely to be required for the above purpose ........ "

"Further in exercise of the powers conferred by the said H Act, the President of India is pleased to direct that the action under Section 1 7 shall be taken in this case on the

A grounds of urgency and provisions of Section 5 (A) shall not apply in regard to this acquisition."

On the same day another notification under Sections 6 and 7 read with Section 17(2)(c) of the L.A. Act was issued. The material portion of this notification runs thus :

"Whereas the President of India is satisfied th-at the land specified below is needed by Government at the public expense for a public purpose, namely, for the construction of godowns for storage of food grains at Marinda, it is hereby declared that the hmd described in the specification below is required for the aforesaid purpose. This declaration is made under the provisions of Section 6 of the Land Acquisition Act, 1894 .......• "

3. Against the aforesaid notification a writ petition was filed by respondents No. 1 to 3.

The writ petition was heard by a single Judge of the High Court and was dismissed.

The learned Single Judge, inter alia, found that t_he provisions of Part VII of the L.A. Act relating to the acquisition of land for Companies were not applicable to the present case as the Food Corporation of India (hereinafter called the Corporation) was a department of Government and not a Company within the meaning of Section 3 ( e) of the L.A Act although, undoubtedly, accordi!llg to the learned Judge, there was no manner of doubt about the fact that the land in dispute was in fact being acquired for the Corporation and that the purpose for which the land had been acquired was a public purpose.

Against the aforesaid Order of the learned Single Judge a Letters Patent Appeal, being L.P.A. No. 1283 of 1969, was filed by respondents No. 1 to 3 before the Division Bench, that allowed the appeal and quashed the land acquisition proceedings as stated earlier.

4. With respect we find it difficult to agree with the learned division bench when it held that the Corporation was not a "Company" G within the meaning of section 3 ( e) of the L.A. Act which runs thus:

"3. In this Act, unless there is something repugnant in the subject or context- '1

( e) the expression "Company" means a Company registered under the Indian Companies Act, 1882 or under the II (English) Companies Act, 1862 to 1890 or incorporated by an Act of Parliament of the United Kingdom or by an Indian law or by Royal Charter or Letters Patent and includes a

~· ..

society registered under the societies Registration Act, 1860, and a registered society within the meaning of the. Co-operative Societies Act, 1912 or any other law relatmg to cooperative societies for the time being in force in any State."

The section mentions in unmistakable terms that ll company incorporated by an Indian law would be ll 'Company' for the purposes of the L.A. Act. Now the corporation was admittedly created by section 3 of the Food Corporation Act, 1964 (hereinafter called the F.C. Act).

That section states :

"3. ( 1) With effect from such date as the Central Government may, by notification in the Official Gazette, specify in this behalf, the Central Government shall establish for the purposes of this Act a Corporation kµown as the Food Corporation of India.

(2) The Corporation shall be a body corporate with the name, aforesaid, having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract, and may, by that name, sue and be sued."

Sub-section (2) which we need hardly say, is an Indian law, clothe~ the Corporation with the attributes of a company. It cannot, therefore,

be contended with any plansibility that the Corporation is not a 'Com- E pany' within the meaning of the definition of that term appearing in clause (e) of section 3 of the L.A. Act.

5. Learned counsel for the appellant then urged that 111e Corporation is a Government department. W~. are unable to accept this submission also.

A Government department has to be an organisation which is not only completely controlled and financed by the Government but has also no identity of its own. The money earned by such a department goes to the exchequer of the Government and losses incurred by the dpartment are losses of the Government. The Corporation, on the other hand, is an autonomous body capable of acquiring, holding and disposing of property and having the power to contract. It may also sue or be sued by its own name and the Government does not figure in any litigation to which it is a party. It is true that its original share capital is provided by the Central Government (section 5 of the F.C.

Act) and that 11 out of the 12 members of its Board of Directors are appointed by that Government (section 7 of the F.C. Act) but then these factors may at the most lead to the conclusion (about which we express no final opinion) that the COip9ration is an agency or instrumentality of the Central Government. In this connection we may cite

with advantage the following obsenations of this Court in Rama11J1 Dayaram Shetty v. The Inter11J1tional Authority of India and Ors.(1)

"A Corporation may be created in one of two ways. It may be either established by statute or incorporated under a law such as the Companies Act, 1956 or the Societies Registration Act, 1860. Where a corporation is wholly controlled by government not only in its policy making but also in carrying out the functions entrusted to it by the law establishing it or by the Charter of its incorporation, there can be no doubt that it would be an instrumentality or agency of Government.

But ordinarily where a corporation is established by statute. it is autonomous in its working subject only to a provision, often times made, that it shall be bound by any directions that may be issued from time to time by Government in respect of policy matters. So also a Corporation incorporated under law is managed by a Board of Directors or committee of management in accordance with the provisions of the statute under which it is incorporated. When does such a corporation become an instrumentality or agency of Government ?

Is the holding of the entire share capital of the Corporation by Government enough or is it necessary that in addition, there should be a certain amount of direct control exercised by Government and, if so what should be the nature of such control? Should ihe functions which the Corporation is charged to carry out possess any particular characteristic or feature, or is the nature of the functions immaterial? Now, one thing is clear that if the entire share capital of the Corporation is held by Government it would be a long way towards in, Iicating that the Corporation is an instrumentality or agency of Government. But, as is quite often the case the Corporation established by statute may have no share or shareholders in which case it would be a relevant factor to consider whether the administration is in the hands of a Board of Directors appointed by Government though this consideration also may not be determinative, because even where the directors are appointed by Government, they may be completely free from governmental control in the discharge of their functions."

Even the conolusion, however, that the Corporation is an agency or instrumentality of the Central Government does not lead to the further inference that the Corportion is a Government department. The reason is that the F.C. Act has given the Corporation an individuality apart

(I) (1%9] 3 S.C.R. 1014.

Ir-···

from that of the Government. In any case the Corporation cannot be A divested of its character as a 'Company' within the meaning of the definition in clause ( e) of section 3 of the L.A. Act, for it completely fulfils the requirements of that clause, as held by us above ..

6. The Corporation being a 'Company', compliance with the provisions of Chapter VII of the L.A. Act had to be made in order to lawfully acquire any land for its purpose. It is not denied that such compliance is completely lacking in the present case.

7. As a result of the foregoing disc11ssion it must be held that the land in dispute has not been acquired in accordance with law, although

our reasons in that behalf are different from those forming the basis of impugned judgment. This appeal is thus found to be without merit and C is dismissed but with no order as to costs.

S.R.

Appeal dismissed.

13-152 SCI/81

STATE OF PUNJAB & ORS

RAJA RAM & ORS

January 29, 1981

A. D. KOSHAL

section 4

section 3

section 3(e)

section 3

Land Acquisition Act, 1894

Section 3

Land Acquisition Act

section 3

Food Corporation Act, 1964

Central Government

section 3

[1969] 3 SCR 1014

P. Sharma

M. S. Dhillon

S. K. Mehra

P. N. Puri

E. "M'. S. Anam

M. K. Dua

K. J. John

BAHARUL ISLAM

State of Punjab

Rupar District

Food Corporation of India

section 3

Morinda

Rupar

Raja Ram

December 17, 1968

section 4

section 17

India

Section 1

Section 5

Sections 6 and 7

Section 17(2)(c)

Marinda

Section 6

Land Acquisition Act, 1894

Section 3

section 3

Companies Act, 1862

Registration Act, 1860

Co-operative Societies Act, 1912

section 3

Food Corporation Act, 1964

section 3

section 5

section 7

Societies Registration Act, 1860

section 3


KIRIT KUMAR CHAMAN LAL KUNDALIYA

STATE OF GUJARAT & ORS.

January 30, 1981

[S. MURTAZA FAZAL ALI AND A. VARADARAJAN, JJ.l

Constitution of India-Art. 32-Habeas Corpus petition-Urging additional grounds in different petitions-If barred by constructive res judicata.

Conservation of Foreign Exchange and Preve11tion of Smuggling Activities Act--Section 3-Petitioner's representation rejected by Secretary to the Depart- 1nent but not by the detaining authority-Validity of.

Words and Phrases : "relied on", "referred to", "based on'~ meaning! df.

The petitioner filed a Special Leave Petition impugning the order of the Foreign Exchange and Prevention of Smuggling Activities Act impugned tho order of his detention on the grounds that the materials relied upon in the order of detention were not supplied to him and that two of the documents referred to in the order of detention were not supplied to him because the Secretary of the Department thought that they were not relevant.

After exaomining the file and relevant documents the High Court held that failure to supply them did not vitiate the order of detention.

The petitioner filed a Special Leave Petition impugning the order of the High Court and also a petition under article 32 urging certain additiona~ grounds that the endorsement by the Secretary showed that it was he who decided the relevancy of the documents to be supplied and not the Minister Who was the detaining authority and (2) his representation was rejected by the Secretary acting on behalf of the Minister instead of the Minister himself.

A preliminary objection was raised on behalf of tho State that the points not raised in the Hi,2h Court by the detenu could not be: agitated in a writ petition under Article 32 because that is barred by the principle of constructive

re~ judicata.

Allowing the petition,

HELD : The well established position in law is that so far as petitions for. habeas corpus are concerned the doctrine of constructive res judicata could not apply. Secondly even successive petitions for habeas corpus under article 32 would be maintainable in this Court provided the points raised in the subsequent petitions are additional points not covered or agitated in the previous petitions. Thus if the principles of res judicata could not apply to successive writ petitions in this Court, much less could they be attracted to cases where points were not agitated before the High C'ourt but were raised for the first

time in this Court in a writ petition under Article 32.

[723B&E]

Shri Lallubhai Jogibhai Patel v. Union of India & Ors. [1981] 2 S.C.R. 352, B followed.

The doctrine of finality of judgment or principles of res judlcata are found A ed on the basic principle that where a Court of competent jurisdiction h~ decided an issue, the same ought not to be allowed to be agitated a-gain and again.

Such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions. [723F]

The jurisdiction under Article 226 is a discretionary jurisdiction where8$ the jurisdiction to grant relief in & petition under Article 32 is guaranteed by the Constitution. Once the Court finds that there has beetn a violation o~ Article 22(5) of the Constitution it has no discretion in the matter but is , bound to grant the relief to the detenu. The doctrine of res judicata or th<i

, _principles of finality of judgment cannot be allowed to whittle down or over- ._....- ride the express constitutional mandate to the Supreme Court enshrined in C Article 32 of the Constitution. [723G-H]

The concept of liberty has now been widened by Maneka Gandhi's case [1978] 2 S, CR- 621 wher"' Article 21 as construed by this Court has added new dimensions to the various features and concepts of liberty as enshrined in Articles 21 and 22 of the Constitution, [724B] D

Smt, Santosh Anand v, Union of India & Ors,, W, P. No, 1097/79 (decided on 31-I 0 1979) referred to,

11 was not open to the High Court to have waded through the confidential file of the Government in order to fish out a point against the detenu. Secondly. the question of relevance was not to be decided by the Court but by the detain"'

ing authority which alone had to consider the representation of the detenu on merits and then come to the conclusion whether it should be accepted or rejected. As the reasoning of the High Court was legally erroneous the order of the High Court cannot be allowed to stand, [724D-E]

Before the grounds were served on the petitioner, the documents , were placed before the detaining authority and were, therefore, referred to in the grounds of detention. Manifestly the subjective satisfaction could only be ascertained from or reflected in the grounds of the order of detention passed against the detetnu; otherwise without giving the grounds the mere subjective satisfaction of the detaining authority would make the order of detention G incomplete and ineffective.

Once the documents are referred to in the grounds of detention it becon1es the bounden duty of the detaining authority to supply the same to the detenu as part of the grounds or pari passu the grounds of detention. There is no particular charm in the expressions 'relied on', 'referred to' or 'based on' because ultin1ately all these expressions signify one thing, namely, that the subjective satisfaction of the detaining authority bas been arrived at on the documents mentioned in the grounds of detention, The ques- H tion whether the grounds have been "referred to", "relied on" or "baBed on'' is merely a matter of describing the nature of the grounds,

[725A-CJ

Ram Chandra A. Kamat v. Union of India & Ors. [1980] 2 S.C.C. 271 applied.

Whether the docu1nents concerned are "referred to", "relied upon" or "taken into consideration", by the detaining authority they ha.Ye to be supplied to the detenu to make an effective representation immediatley on receiving the grounds of detention.

[725GH]

In the present case this not having been done the continued detention of the petitioner must be held to be void.

There \Vas no decision by the detaining authority that the documents were, 1 irrele\'ant. The documents concerned were examined not by the detaining-......._ authority but by the Secretary. There is nothing to show that the opinion or endorsement of the Secretary was placed and approved by the detnining authority. [7240]

The petitioner's representation had been rejected by an authority which had no jurisdiction at all to consider or pass any orders on the representation of the detenu.

This renders the continued detention of the petitioner void. [7260]

ORIGINAL JURISDICTION : Writ Petition No. 6354 of 1980.

(Under Article 32 of the Constitution)

AND Criminal Appeal No. 53 of 1981.

Appeal by Special Leave from the Judgment and Order dated 25-11-1980 of the Gujarat High Court in Cr!. Application No. 218 of 1980.

Anil Divan, Harjinder Singh and M. M. Lodha for the Petitioner in Writ Petition and in the Criminal Appeal.

M. N. Plwdke and M. N. S!JJ"off for Respondents 1-3.

The Judgment of the Court was delivered by

FAZAL ALI, J.-By our Order dated 21-1-1981 we had already allowed the petition and directed the detenu to be released forthwith. } We now proceed to set out the reasons for the Order which we passed on 21·1-1981.

The writ petition and the criminal special leave arise out of the same subject matter, namely, that the !Petitioner (Kirit Kumar Chaman Lal Kundaliya) was detained by an order passed by the Home Minister of the State of Gujarat on 9-9-1980 under s. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act.

The Petitioner/detenu in the first instance filed a petition for habeas corpus in the High Court of Gujarat which was dismissed by the High Court by its order dated 25-11-1980.

The detenu thereafter filed a petition for special leave against the order of the High Court

and also a writ petition under Art. 32 of the Constitution of India in this Court. Both the petition for special leave and the writ petition hav•e been heard together.

Before the High Court, the detenu assailed the order of detention mainly on the ground that certain materials relied UIJOn or referred to in the order of detention wre not supplied to the detenu and hence he was not in a position to make an effective representation to the Government. It was also pleaded by the detenu before the High Court that two of the documents which were referred to in the order of detention were not supplied to him because the Secretary thought that they were not relevant.

Thoe High Court while examining the contention of the detenu sent for the entire file from the Government and after examining the documents itself found that .as the documents concerned were not relevant and consisted of statements of some other persons, the failure to supply the documents to the detenu did not vitiate the order of dete'ntion.

Hence the petition in thls Court for grant of special leave against the order of the High Court.

A separate writ petition has also been filed by the detenu in this Court in which apart from the point canvassed before the High Court certain additional grounds have been taken.

In the view that we take in the present case. it is sufficient to refer only to two important grounds that have been taken in the writ petition. In (he first place, it was suggested that the endorsement by the Secretary shows that the question as to whether or not the documents demanded by the detenu were relevant was decided not by the Minister who was the detaining authority but by the Secretary. Secondly, it was urged that although the the case relied upon by the respondents also does not decide that the detenu made a representation to the State Government on 3-10-1980

~ the same was rejected on 14-10-1980 not by the detaining authority, namely, the Hon.

Home Minister acting on behalf of the Government but by the Secretary, and this infirmity was sufficient to render the.order of detention void.

Mr. Phadke appearing for the Smte took a preliminary objection regarding the maintainability of the writ petition filed by the detenu in this Court. The sheet-anchor of the argument of Mr. Phadke for the State was that as the dctenu had not raised the additional points taken in the High Court he could not be permitted to agitate those very points in the writ petition filed under Art. 32 of the Constitution as the same were barred by the principles of constructive res ; udicata. In sup-

A port of his argument he relied on a decision of this Court in the case of Ghulam Sarwar v. Union of bidia & Ors.(1).

The learned counsel for the petitioner,- however, countered the submission of the respondents on the ground that a writ under Art. 32 being guaranteed by the Constitution the doctrine of res judicata mn have no application to a writ petition filed in this Court under Art. 32.

Mr. Dewan, learned counsel for the detenu further submitted that the case relied upon by the respondents also does nqt decide that the writ petition was not maintaining as being barred by principles of

res judicata.

In our opinion, the contention raised by the larned counsel for the detenu is well founded and must prevail.- Ghu/am , .

Sarwar's case (supra.) which was heavily relied on by the respondents does not at all support the contention raised before us by them.

In that case this Court traced the history of habei\S corpus writs and ultimately held that atleast so far as [petitions for habeas corpus are concerned, the doctrine of constructive res judicata could not apply.

In this connection Subba Rao, C. J. observed as follows :--

"If the doctrine of res judicata is attracted to an application for a writ of habeas corpus. there is no reason why the principles of constructive res judicata cannot also govern the said application, for the rule of constructivi: res judicata is only a part of the general principles of the law of res judicata and if that be applied, the scope of the liberty of an individual will be considerably narrowed ...... If the doctrine of constructive res judicata be applied, this Court, though it is enjoined by the Constitution to protect the right of a person illegally detained, will become powerless to do so. That would be whittling down the wide sweep of the constitutional protection."

Bachawat, J., in his concurring judgment also endorsed the view of Subba Rao, C. J., and observed as follows :

"The order of Khanna, J. dismissing the writ petition filed by the petitioner in the Punjab High Court challenging the legality of the detention order passed by the Ce!}tral Government under s. 3(2) (g) of the Foreigners Act, 1946 and asking for the issue of a writ of habeas corpus is not a judgment, and does not operate as tes judicata. That order does not operate as a bar to the aPplication under Art. 32 of the Constitution asking for the issue of a writ of habeas corpus on the same facts. The

(!) [1967! 2 S.C.R. 271.

petitioner has fundamental right to move this Court under A Art. 3 2 for the issue of a writ of habeas corpus for the protection of his right of liberty.

The present petition must, therefore, be entertained and examined on the merits."

Apart from the aforesaid case, there is a recent decision of a Constitution Bench of this Court in Shri Lallubhai Jogibhai Patel v. Union of India & Ors.(') where this Court has held that even successive petotions for habeas corpus under Art. 32 would be maintainable in this Court provided the points raised in the subsequent petitions are additional points not covered or agitated jn the previous petitions. In this connection, Sarkaria, J. speaking for the Court observed as follows :-

"The position that emerges from a survey of the above decisions is that the application of the doctrine of constructive res judicata is confined to civil actions and civil proceedings.

This principle of public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of habeas corpus under Art. 32 of the Constitution on fresh grounds, which were not taken in the earlier petition for the same relief"

Thus, if the principles of res judicata could not apply to successive writ petitions in this Court much less could they be attracted in cases where points were not agitated before the High Court but were raised for the first time in this Court in a writ petition under Art. 32.

Apart from the cases discussed above there is another ground on which the argument of Mr. Phadke for respondents must be rejected.

The doctrine of finality of judgment or the principles of res judicata are founded on the basic principle that where a Court of competent jurisdiction has decided an issue, the same ought not to be allowed to be agitated again and again. Such a doctrine would be wholly inapplicable to cases where the two forums have separate and independent jurisdictions.

In the instant case, the High Court decided the petition of the detenn under Art. 226 which was a discretionary jurisdiction whereas the jnrisdiction to grant relief in a petition under Art. 32 filed in the Supreme Court is guaranteed by the Constitution and once the Court finds that there has been a violation of Art. 22(5) of the Constitution, then it has no discretion in the matter but is bound to' grant the relief to the detenu by setting aside the order of detention.

The doctrine of res iudicata or the principles of finality of judgment cannot be allowed to whittle down or override the express constitu-

(1)

tional mandate to the Supreme Court enshrined in Art. 32 of the Constitution. In a recent decision in the case of Smt. Santosh Anand

v. Union of India & Ors.(') this Court has pointed out that the concept of liberty has now been widened by M aneka Gandhi's(') case where Art. 21 as construed by this Court has added new dimensions to the varions features and concepts of. liberty as enshrined in Arts. 21 and 22 of the Constitution. For these reasons, therefore, we overrule the preliminary objection taken by the respondents.

We now come to the merits of the cases.

So far as the writ petition filed in the High Court is concerned the only point taken . , ,,,,.. was that two documents referred to in the order of detention were -'---.. not supplied to the detenu.

The High Court rejected this contention on the ground that the documents were merely referred to and not relied on by the detaining authority and after having examined the documents it found that the same were not relevant. With due respect to the Judges we are unable to agree with the view taken by them. In the first place, it was not open to the Court to have waded through the confidential file of the Government in order to fish out a point against the detenu.

Secondly, the question of relevnncc was not to be decided by the Court but by the detaining authority which alone had to consider the representation of the detenu on merits and then come to the conclusion whether it should be accepted or rejected.

As the reasoning of the High Court, was legally erroneous the order of the High Court cannot be allowed to stand and is hereby quashed.

The matter does not rest here but two additional points which have been taken in the writ petition before us are sufficient to void the order of detention [passed against the detenu.

In the first place, it was submitted that the endorsement on the file produced before us by the Gove=ent shows that the documents concerned were examined not by the detaining authority but by the Secretary and there is nothing to show that the note or endorsement of the Secretary

was placed and approved by the demining authority.

In these circumstances, therefore, it must be held that there was no decision by the detaining authority that the documents were irrelevant. It was, however, submitted by Mr. Phadke that the documents concerned were merely referred to in the grounds of detention but did not form the basis of the subjective satisfaction of the detaining authority at the time when it passed the order of detention. It was, however, conceded by Mr. Phadke that before the grounds were served on the petitioner, the documents were placed before the detain-

(!) W.P. No. 1097/79 (decided on 31-10-1979). (2)

mg authority and were, therefore, referred to in the grounds of detention.

It is manifest, therefore, that the subjective satisfaction could only be asc<; rtained from or reflected in the grounds of the order of detention passed against the detenu otherwise without giving the grounds the mere subjective satisfaction of detaining authority would make the order of detention incompiete and ineffective.

Once the documents are referred to in the grounds of detention it becomes the bounden duty of the detaining authority to suwly the same to the detenu as part of the grounds or pari passu the grounds of detention.

There is no particular charm in the expressions 'relied on', 'referred to' or 'based on' because ultimately all these expressions signify one thing, namely, that the subjective satisfaction of the detaining autho-- rity has been arrived at on the documents mentioned in the grounds of detention.

The question whether the grounds have been referred to, relied on or based on is merely a matter of describing the nature of the grounds. Even so in the case of Ram Chandra A. Kamat v.

Union of India & Ors.(') a three Judge bench decision of this Court to which one of us (Fazal Ali, J.) was a party, clearly held that even the documents referred to in the grounds of detention have to be furnished to the detenu.

In this connection the Court observed as follows :-

"If there is undue delay in furnishing the statements and documents referred lo in the grounds of detention the right

to make effective representation is denied.

The detention E cannot be said to be according to the procedure prescribed by law."

The same view was taken in a later decision of this Court in Shri Tushar Thakker v. Union of India & Ors.(') where thls Court observed as follows :- F

"This Conrt has repeatedly held that the detenu has a constitutional right under Article 22 ( 5) to be furnished with copies of all the materials relied upon or referred to in the grounds of detention, with reasonable expedition."

Thus, it is absolutely clear to us that whether the documents con- G cerned are referred to, relied upon or taken into consideration by the detaining authority they have to be supplied to the detenu as Part of the grounds so as to enable the detenu to make an effective representation immediately on receiving the grounds of detention.

This not having been done in the present case the continued detention of the petitioner must be held to be void.

(1) [1980] 2 sec 211.

(2) [J9SOJ 4 sec 499.

SUPREME COURT REP()RTS

Lastly, the order of detention suffers from yet another serious infirmity which makes the order of detention absolutely non est. The respondents, in their counter-affidavit have categorically averred that the order of detention was passed by the Home Minister, vide the counter affidavit of P.M. Shah at page 86 of the writ petition, where the following averments have been made by Mr. Shah, Deputy Secretary to the Govermnen.t of Gujarat :-

"Referring to ground No. XXII paragraph 7 of the petition, I say that the file relating to the detention of \he petitioner was placed before the Home Minister of the State of Gujarat and the Home Minister on careful consideration of the same passed the impugned order of detention."

The representation made by the detenu on 3-10-1980 has been rejected on 14-10-1980 not by the Home Minister but by the Secretary, thus, the representation has been rejected by an authority which had no jurisdiction at all to consider or pass any orders on the representation of the detenu. This, therefore, renders the continued detention of the petitioner void. In an identical case this Court in Smt.

Santosh Anand's case (supra.) observed as follows :-

"The representation was, therefore, not rejected by the detaining authority and as such the constitutional safeguard under Art. 22(5) as interpreted by this Court, cannot be said to have been strictly observed or complied with."

For the reasons given above, therefore, we allow this petition and direct the detenu to be released forthwith.

The special leave petition is disposed of accordingly.

P.B.R.

Petitwn allowed.

KIRIT KUMAR CHAMAN LAL KUNDALIYA

STATE OF GUJARAT & ORS

January 30, 1981

S. MURTAZA FAZAL ALI

A. VARADARAJAN, JJ

Constitution of India

Art. 32

Smuggling Activities Act

Section 3

article 32

Article 32

article 32

Article 32

[1981] 2 S.C.R. 352

Article 226

Article 32

Article 22(5)

Supreme Court

The doctrine of res judicata or th<i

, principles of finality of judgment cannot be allowed to whittle down or over- .....- ride the express constitutional mandate to the Supreme Court enshrined in C Article 32 of the Constitution. [

Article 32

Maneka Gandhi

Article 21

Articles 21 and 22

31-I 0 1979

Article 32

Gujarat High Court

Harjinder Singh

M. M. Lodha

M. N. Plwdke

M. N. S!JJ"off

FAZAL ALI

Kirit Kumar Chaman Lal Kundaliya

s. 3

High Court of Gujarat

Art. 32

Constitution of India

Phadke

Art. 32

Art. 32

Art. 32

Dewan

Sarwar

Subba Rao

Bachawat

Khanna

s. 3(2)

Foreigners Act, 1946

Art. 32

Art. 3

Constitution Bench

Art. 32

Sarkaria

Art. 32

Art. 32

Art. 226

Art. 32

Art. 22(5)

Art. 32

M aneka Gandhi

Art. 21

Arts. 21 and 22

Fazal Ali

Article 22

sec 211

sec 499

P.M. Shah

Santosh Anand

Art. 22(5)