SUPREME COURT REPORTS [1957]

Sanvan Singh

bring home to Sarwan Singh the charge framed against him. If that he the true position, we must hold that the learned Judges of the High Court were in error in convicting Sarwan Singh of the offence of murder. It is no doubt a matter of regret that a foul could-blooded and cruel murder like the present should go

The State of

Pu'lfa:b

J. unpunished. It may be as Mr. Gopal Singh strenuous! y urged before us that there is an element of truth in the prosecution story against both the appellants.

Mr. Gopal Singh contended that, considered as a whole. the prosecution story may be true ; hut between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence. We have carefully considered all the arguments which Mr. Gopal Singh urged before us ; but we do not think it would be possible to regard the approver as a reliable witness or to hold that the confession of Sarwan Singh is voluntary or true.

In the result, the appeal preferred by Sarwan Singh must be allowed, the order of conviction and sentence passed against him must be set aside and he must be acquitted and discharged.

Appeals allowed.

THE COLLECTOR OF MALABAR

FRIMAL EBRAHIM HAJEE

(S. R. DAS C.J., JAFER IMAM, s. K. DAS, GoVINDA MENON and A. K. SARKAR JJ.)

Income Tax-Arrears of-Wilfully withholding and evading payment-Arrest of asses see to recover arrears-Whether illegal- /ndian Income Tax Act, s. 46 (2)-Madras Revenue Recovery Act (Mad. II of 1864), s. 48-Constitution of India, Arts. 14, 19 21 and 22.

The Income Tax Officer forwarded a certificate under s. 46(2) of the Indian Income Tax Act to the Collector for recovering the arrears of lncome Tax from the assessee as if they were arrears of land revenue. The Collector proceeded under s. 48, Madras Revenue

---<.·

Recovery Act, and had the asscssee arrested and confined in jail.

Upon a petition for a writ of habeas corpus the High Court ordered the release of the assessee holding that s. 48 of the Madras Revenue Recovery Act and s. 46(2) of the Indian Income Tax Act were ultra vires.

The Collector appealed.

Held, that s. 48 of the Madras Revenue Recovery Act, and s. 46(2) of the Indian Income Tax Act were not ultra vires , and

neither of them violated Arts. 14, 19, 21 and 22 of the Constitution.

Where the personal liberty of a person is lawfully taken away under Art. 21, i.e., in accordance with a procedure established by a valid law, no question of the exercise of fundamental rights under Art. 19(1) (a) to (e) and (g) tan be raised .

. A. K. Gopalan v.

The State of Madras, (1950) S.C.R. 88, followed.

An arrest for a civil debt in the process of or in the mode prescribed by law for recovery of arrears of land revenue docs not c0me within the protection of Art. 22.

State of Punjab v. Ajaib Singh (1953) S.C.R. 254, followed.

Section 46(2) of the Indian Income Tax Act does not offend Art. 14 and there is no violation of Act. 21 where a person is arrested under s. 48, Madras Revenue Recovery Act, in pursuance of a warrant of arrest issued for the recovery of the demand certified under s. 46(2) of the Indian Income Tax Act.

Purshottam Govindji Halai v. Shri B. M. Desai, Additional Collector of Bombay, ( 1955) 2 S.C.R. 887, followed.

Section 46(2) of the Indian Income Tax Act gives authority to the Collector to recover arrears of tax if it were an arrear of land revenue. Section 48 of the Madras Revenue Recovery Act read with s. 5 make it clear that the arrest of the defaulter is one of the modes by which the arrears of land revenue can be recovered, to be resorted to if the said arrears cannot be liquidated by the sale of the defaulter's property. Such an arrest is not for any offence committed or a punishment for defau!ting in any payment.

Section 48 of the Madras Revenue Recovery Act does not require the Collector to give the defaulter an opportunity to be heard before arresting him. But the Collector must have reason to believe that the defaulter is wilfully withholding payment or has .been guilty of fraudulent conduct in order to' evade payment. Such

belief must be based upon some material. which a Court may look into in appropriate cases. to find out if the conditions laid down in the section have been fulfilled. The Collector has also the power to release the defaulter if the amount due is paid.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeal No. 145-A of 1954.

Tiu Collector of Malabar v.

Erimal Ebrahim

llaju

Tht Collector of

Malabar

Erimal Ebrahim

Hajee

Imam J.

Appeal under Article 132 ( 1) of the Constitution of India from the Judgement and Order dated July 23, 1954, of the Madras High Court in Criminal Miscellaneous Petition No. 922 of 1954.

Porus A. Mehta and R. H. Dhebar, for the appellants.

B. Packer and B. K. B. Naidu, for the respondent.

1957. April 11. The Judgment of the Court was delivered by IMAM J .-The appellant obtained a certificate from the .Madras High Court to the effect that the case involved a substantial question of law as to the interpretation of the Constitution under Art. 132(1), in consequence of which the present appeal is before us.

The respondent had filed a petition in the High Court under s. 491 of the Code of Criminal Procedure praying that directions in the nature of habeas corpus may be issued for his production before that Court to he dealt with according to law and for his release from imprison1nent.

The respondent had been arrested on June 1, 1954 in pursuance of a warrant issued on March 10, 1954 hy the Collector of Malabar under s. 48 of the Madras Revenue Recovery Act (Madras Act II of 1864) (hereinafter referred to as the Act). The circumstances, as stated in the affidavits filed bv the Collector and the Income Tax Officer of Kozikhde in the High Court, which led to the respondent's arrest, were, that he had been assessed to income-tax for various assessment years and the total amount of tax remaining outstanding against him, in round figures, was Rs. 70,000.

Some amount was recovered by the Collector in pursuance of a certificate issued by the Income Tax Officer under s. 46(2) of the Indian Income Tax Act and by the Income Tax Officer himself under s. 46(5)A of the said Act. After deducting the amount so realised the arrears of income-tax were about Rs. 61,668 and odd for the assessment years 1943-44, 1945-46 to 1948-49. Meanwhile the Income Tax Officer had made enquiries into the affairs of the respondent and had discovered that he had sold certain properties of his between November 18, 1947 and March, 25, 1948 to

the tune of about Rs. 23,100. Demand notice had been served upon him on November 6, 1947 and the series of transactions of sale started on November 18,

1947. Out of the said sum of Rs. 23,100, the respondent paid arrears of tax to the extent of Rs. 10,500 only.

Enquiries also revealed that although the respondent had closed his business at Cannanore in August, 1947, he had set up a firm in 1948 at Tellichery carrying on an identical business in the name of V.P. Abdul Azeez & Bros. consisting of his one major and four minor sons. The respondent had alleged that the capital of this firm was mainly supplied from the sale of jewels belonging to his wife, that is, Abdul Azeez's mother.

He denied that the above-mentioned firm belonged to him. In the assessment proceedings before the Income Tax Officer concerning the firm V.P. Abdul Azeez & Bros., the source of these jewels was gone into, but it was found that the same had not been proved and it was held that the business of V.P. Abdul Azeez & Bros. belonged to the respondent.

All these facts were communicated to the Collector by the Income Tax Officer who made independent enquiries for himself and had reason to believe that the respondent was wilfully withholding payment of arrears of tax and had been guilty of fraudulent conduct in evading payment of tax. As a certificate had already been issued to him by the Income Tax Officer under s. 46(2) of the Indian Income Tax Act, the Collector proceeded under s. 48. of the Act to issue a warrant of arrest against the respondent in consequence of which he was arrested and lodged in Central Jail, Cannanore.

In the High Court, the petition under s. 491, Criminal Procedure Code, was heard by Mack and Krishna swamy Nayudu JJ. which was allowed and they ordered that the respondent be set at liberty as his arrest was illegal.

Mack J. thought that s. 48 of the Act was ultra vires the Constitution as it offended Art. 22. He did not deal at length with the argument that s. 48 offended Art. 21 as he was of the opinion that if that section was ultra vires, then the respondent had not been arrested in accordance with procedure established by

The Collector of

Malabar

Erimal EbiuJri,11

Hajce

Imam}.

TM Collector of Malabar v.

Erim:1l Ebrahim

Hajte

Imam].

law and his arrest and imprisonment had seen unlawful.

On the other hand, if s. 48 was intra vii-es the Constitution, then the respondent had been lawfully deprived of his personal liberty. He was further of the opinion that s. 46(2) of the Indian Income Tax Act was ultra vires as it offended Art. 14 of the Constitution.

Krishnaswami Nayudu J. was of the opinion that s. 46(2) of the Indian Income Tax Act read with s. 48 of the Act offended Art. 14 of the Constitution. He was of the opinion that s. 48 of the Act offended Art. 21 of the Constitution to the extent that it afforded no opportunity to the arrested person to appear before the Collector by himself or through a legal practitioner of his choice and to urge before him any defence open to him and that it did not provide for the production of the arrested person within 24 hours before a magistrate as required by Art. 22(2). Relying upon the decision of this Court in A. K. Copa/an v. The State of Madras ( 1 ), he was of the opinion that the contention that the provisions of Art. 21 had been infringed did not require serious consideration because in so far as there was a law on the statute book on which the Collector had acted that would be sufficient to support the legality of the action taken by the Collector.

On behalf of the appellant, it was contended that neither s. 48 of the Act nor s. 46(2) of the Indian Income Tax Act was in violation of Arts. 14, 19, 21 and 22 of the Constitution. Section 46(2) of the Indian Income Tax Act was a valid piece of legislation and under its provisions the Collector was authorised to recover the arrears of income tax as land revenue on receipt of a certificate from the Income Tax Officer.

On behalf of the respondent it was contended that these sections of the Act and the Indian Income Tax Act <li<l offend Arts. 14, 19, 21 and 22 of the Constitution.

It was further contended that on a proper interpretation of s. 46(2) of the Indian Income Tax Act the authority given to the Collector on receipt of the certificate from the Income Tax, Officer was to recover the amount of arrears of Income tax, but there was no authority thereunder in the Collector to arrest

(') (1950) S. C.R. 88.

the defaulting assessee.

Even if the. said section could be interpreted to give the power of arrest, arrest could only be made under s. 48 of the Act. A proper reading of s. 48 of the Act would indicate that the defaulter should be given an opportunity to be heard in his defence, previous to a warrant of arrest being issued against him, as the same could only issue if the Collector had reason to believe that the defaulter was wilfully withholding the arrears of tax or had been guilty of fraudulent conduct in order to evade payment. Such :a belief could not be entertained by the Collector without first giving the defaulter an opportunity to be heard.

The warrant of arrest issued against the respondent without hearing him in his defence was invali<l and the arrest of the respondent was illegal..

The learned Advocate for tl)e respondent further drew our attention to the fact that in s. 48 there was no provision for the release of the defaulter if he paid up the :irrears of revenue.

What we have to consider in this appeal, at the outset, is, whether either s. 48 of the Act or s. 46(2)" of the Indian Income Tax Act or both offend Arts. 14,

19. 21 and 22 of the Constitution. The decisions of this Court in Gopalan's case, in The State of Punjab

v. Ajaib Singh . ( 1) and in Purshottam Govindji Halai

v. Shree B. R. Desai, Additional Collector of Bombay ( 2 ) are to be borne in mind in deciding this question.

It was heid by the majority of the . learned Judges in Gopalan's case that the right "to move freely throughout the territory of India" referred to in Art. 19 (l) ( d) of the Constitution was but one of the many attributes included in the concept of the right to

"personal liberty" and when a person. is lawfully deprived of his personal liberty without offending Art. 21, he cannot claim to exercise any of the rights

ranteed by sub-els. (a) to (e) and (g) of Art. 19(1), for those rights can only be exercised by a freeman.

In that sense, therefore, Art. 19 (1) (d) has to be read as controlled by the provisions of Art; 21, and the view that Art. 19 guarantees the substantive right and Art. 21 prescribes a procedural protection is incorrect.

{I) [1953] S. C. R. 254

(2) .[ 1955 j 2 S. C.R. 887

The Co/ltctor of

Malabar

Erimal Ebrahim

Hajee

Imam J.

T /,,, Col!tttor of Ma/abat v.

Erirrta/ Ebrahim

llaju

Imam].

The decision in Gopalan's case has been followed in this Court in a series of cases and that decision must now be taken as having settled once for all that the personal rights guaranteed by sub-els. (a) to (e) and (g) of Art. 19( 1) are in a way dependent on the provisions of Art. 21 just as the right guaranteed by sub-cl. (f) of Art. 19 ( 1) is subject to Art. 31. If the property itself is taken lawfully under Art. 31, the right to hold or dispose of it perishes with it and Art. 19 (i) (f) cannot be invoked. Likewise, if life or personal liberty is taken away lawfully under Art. 21 no questior. of the exercise of fundamental rights under Art. 19 (1) (a) to (e) and (g) can be raised. Under Arr. 21 "Procedure established by law" means procedure enacted by a law made by the State, that is to say, the Union Parliament or the Legislatures of the States.

In the appeal before us, the principal question, therefore, is whether the respondent was deprived of his personal liberty in accordance with a procedure established by law, i.e. a valid law. If the law is valid then he has been lawfully deprived of his personal liberty and, in that situation, he cannot complain of the infraction of any of the fundamental rights mentioned in Art. 19

(1) (a) to (e) or (g).

In Ajaib Singh's case, a person wa~ taken into custody by the police a.'1d sent to the Ollicer-in-<:harge of the nearest camp under s. 4 of the Abducted Persons (Recovery and Restoration) Act (Act LXV of

1949) and it was submitted that the said Act contravened the provisions, inter alia, of Art. 22 of the Constitution. None of these submissions were found to be vaild. It was held, so far as Art.. 22 is concerned, that the taking into custody was not arrest and detention within the meaning of Art. 22.

Krishnaswami Nayudu . J. in his judgment, attempted to distinguish the decision. With respect to the learned Judge the principle emerging out of the decision in Ajaib Sitigh's case appears to us to be clear enough. The decision did not attempt to lay down in a precise and meticulous manner the scope and ambit of the fundamental rights or to enumerate exhaustively the cases that come within the protection of Art. 22. What was

clearly laid down was that the physical restraint put upon an abducted person in the process of recovering and taking that person into custody without. any allegation or accusation of any actuai or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest. cannot be regarded as an arrest or detention within the meaning of Art. 22.

In the present case, the arrest was not in connection with any alleation or accusation of any actual or suspected or apprehended commission of any offence of a criminal or quasi-criminal nature.

It was really an arrest for a civil debt in the process or the mode prescribed by law for recovery of arrears of land revenue.

In Purshottam Govind; i Halai's case, this Court held that there was no violation of Art. 21 of the Constitution where a person had been arrested under s. 13 of the Bombay Land Revenue Act 1876 in pursuance of a warrant of arrest issued for recovery of the demand certifien under s. 46(2) or the Indian Income Tax Act, which did not offend Art. 14 of the Constitution, inasmuch as such arrest was under a procedure established hy law, that is to say, s. 13 of the said Act constituted a procedure established by law.

Mr.

Pocker. however. attempted to distinguish the case. because this Court was dealing with s. B of the Bombay Act. The grounds stated in that case for declaring that s. 46(2) of the Indian Income Tax Act was not ultra vires the Constitution, as it did not offend Art. 14, are equally applicable to the present case and we can find no true principle upon which we can distinguish that case from the present one.

In . our opinion. having regard to the previous decisions of this Court referred to above, neither s. 48 of the Act nor s. 46(2) of .the Indian Income Tax Act violates Arts. 14, 19, ::!l and 22 of the Constitution.

We now proceed to consider the interpretation sought to be put by Mr. Pocker on s. 46(2) of the Indian Income Tax Act and s. 48 of the Act. He contended that s. 46(2) of the Indian Income Tax Act merely authorised the Collector to recover the amount

The Coll eclor of

Malabar

Erimal Ebrahitrt

Hajee

Imam].

T ii< Co/Lui"' ef .

Malabar ..

Erimal Ebrahim

Hajee

Imam]

of .. arrears of Income Tax, but it did not give him any authority to arrest the respondent.

He submitted that the act of arrest was not a mode of recovery of the arrears of tax, but it was a punishment for failure to pay. .We are unable to accept this interpretation.

The authority given to the Collector by this section is

to recover the arrears of tax as if it were an arrear of land revenue. The preamble of the Act clearly states that the laws relating to the collection of the public revenue should be consolidated and simplified and s. 5 provides for the manner in which the arrears of revenue may be recovered. It reads, "Whenever revenue may be in arrear, it shall be lawful for the Collector, or other officer empowered by the Collector in that behalf, to proceed to recover the arrear, together with interest and costs of process, by the sale of the defaulter's movable and immovable property, or by execution against the person of the defaulter in manner hereinafter provided." This section clearly sets out the mode of recovery of arrears of revenue, that is to say, either hy the sale of the movable or immovable property of the defaulter, or by execution against his person in the manner provided by the Act. Section 48 provides that when arrears of revenue cannot be liquidated by the sale of the property of the defaulter then the Collector, if he has reason to believe that the defaulter is wilfully withholding payment of the arrears or has been guiltv of fraudulent conduct in order to evade payment of tax, can lawfully cause the arrest and imprisonment of the defaulter. This section read with s.

5. makes it abundantly clear that the arrest of the defaulter is one of the modes, by which the arrears of revenue can be recovered, to be resorted to if the said arrears cannot be liquidated by the sale of the defaulter's property. There is not a suggestion in the entire section that the arrest is by way of punishment for mere default.

Before the Collector can proceed to arrest the defaulter, not merely must the condition be satisfied that the arrears cannot be liquidated bv the sale of the property of the defaulter but the Collector shall have reason to believe that the defaulter is wilfullv withholding payment, or has been guilty of fraudulent conduct in order to evade

payment. When dues in the shape of money are to be realised by the pro<:ees of law . and not by voluntary payment, the element of ·· coercion in varying degrees must necessarily be found at all stages in the morle of recovery of the money due. The coercive element, perhaps in its severest form, is the act of arrest in order to make the defaulter pay his dues. When the Collector has reasori to believe that withholding of payment is wilful, or that the defaulter has been guilty of fraudulent conduct in order to evade payment, obviously, it is on the supposition that the defaulter can make the payment, but is wilfully with~ holding it, or is fraudulently evading payment.

In the Act there are seve:al sections (e.g. ss. 16, 18 and

21) which prescribe. in unambiguous language, punishment to be inflicted for certain acts done. It is clear, therefore, that where the Act intends to impose a punishment or to create an offence, it employs a

language entirely different to that to be found in s. 48.

We are of the opinion. therefore,· that where an arrest is made under s. 48 after complying with ·. its . provisions, the arrest is not for any offence committed or a punishment for defaulting in any payment .. The mode of arrest is .. no more than a mode for recovery of the amount due. There is nothing in s, 48 of the Act which .· requires the Collector to give the defaulter an opportunity to be heard before arresting him .. • It is . true that the Collector musthave reason to believe that the defaulter is wilfully withholding_ payment or has been guilty of fraudulent conduct in order to evade payment. The Collector, therefore. must have some material upon which he bases his bdiefa belief whieh must be rational - belief...:_and a . court may look into that material in appropriate cases In . order to find out if the conditions laid downin the section have been fulfilled or not.: Ftotn the affidavits filed in the High . Court by .the Collector and the Income Tax Officer it

is quite clear that there wa.~ material upon which the

Collector could base his belief that the respondent was wilfully .withh(>lding payment ·· of the arrears. of tax arid had been gtiilty of fraudulent conduct in order to

T/18 Collector of

Malabar

Erimal Ebrahi11t

Haju

Imam J.

T h1 Coiled or of

Malabar

Erimal Ebrahim

Hqju

Imam J.

evade payment. The Collector was, therefore, justified in arresting the respondent.

As pointed out by Mr. Pocker, s. 48 of the Act d~ not in terms provide for the release of the defaulter if he pays up the arrears, but it is to be remembered that in addition to the powers under s. 48 of the Act, the Collector has. under the proviso to s. 46(2) of the Indian Income Tax Act, similar powers to that which a Civil Court has for recovery of an amount due under a decree. It was helcl in Purshottam Go11indji Halai's case that the proviso is not an alternative remedy open to the Collector but only confers additional powers on the Collector for the better and more effective application of the only mode of recovery authorized by sub-sec. (2) of s. 46 of the Indian Income Tax Act. Under s. 58 of the Civil Procedure Code a Ci vi! Court must release the judgment debtor if the amount due is paid. Accordingly, the Collector has the power to release the defaulter if the amount due is paid and there is no substance in the submission of the learned Advocate. Moreover, one of the conditions precedent to action under s. 48 is the existence of arrears of revenue.

On payment of the arrears, that condition no longer exists and the debtor must clearly be entitled to release and freedom from arrest. lt was urged 1hat the respondent was a man of about 70 years at the time of his arrest and a person suffering from serious ill health. Indeed, it is said, he is suffering from paralysis and that he should nor be sent back to jail custody. We cannot in the present proceedings make such an order. The respondent may, if he is taken into custody again, approach the Collector for his release who could do so, in the circumstances set out in s. 59 of the Code of Civil.

Procedure, in the exercise of his powers under the proviso to s. 46(2) of the Indian Income Tax Act.

The appeal is accordingly allowed with costs and the judgment of the High Court is set aside. It will be open to the Income Tax Officer of Kozikhode and the Collector of Malabar to take such steps _against the respondent according to law as they may be advised,

Appeals allowed.

Sanvan Singh

Sarwan Singh

Gopal Singh

THE COLLECTOR OF MALABAR

FRIMAL EBRAHIM HAJEE

S. R. DAS C.J.

JAFER IMAM

GoVINDA MENON

A. K. SARKAR JJ.

Income Tax Act

s. 46

Madras Revenue Recovery Act

s. 48

Constitution of India

Arts. 14, 19

s. 46(2)

s. 48

s. 48

Revenue Recovery Act

s. 46(2)

s. 48

Revenue Recovery Act

s. 46(2)

Arts. 14, 19, 21 and 22

Art. 21

Art. 19(1)

Art. 22

Section 46(2)

Art. 14

s. 48

Madras Revenue Recovery Act

s. 46(2)

1955) 2 S.C.R. 887

Section 46(2)

Section 48

Revenue Recovery Act

s. 5

Section 48

Revenue Recovery Act

Imam

Article 132

Constitution of India

Porus A. Mehta

R. H. Dhebar

B. Packer

B. K. B. Naidu

IMAM

Art. 132(1)

s. 491

Code of Criminal Procedure

June 1, 1954

March 10, 1954

Malabar

s. 48

Revenue Recovery Act

Madras Act II of 1864

Kozikhde

s. 46(2)

s. 46(5)

November 18, 1947

March, 25, 1948

November 6, 1947

November 18,

1947

Cannanore

Tellichery

V.P. Abdul Azeez

Abdul Azeez

V.P. Abdul Azeez & Bros.

s. 46(2)

s. 48

s. 491

Criminal Procedure Code

Mack

Krishna swamy Nayudu

s. 48

Art. 22

s. 48

Art. 21

s. 48

s. 46(2)

Art. 14

Krishnaswami Nayudu

s. 46(2)

s. 48

Art. 14

s. 48

Art. 21

Art. 22(2)

Art. 21

s. 48

s. 46(2)

Arts. 14, 19, 21 and 22

Section 46(2)

Arts. 14, 19, 21 and 22

s. 46(2)

s. 48

s. 48

s. 48

s. 48

s. 46(2)

Arts. 14,

19

Gopalan

India

Art. 19

Art. 21

Art. 19(1)

Art. 19

Art. 19

Art. 21

Co/ltctor of

Malabar

Erimal Ebrahim

Art. 19( 1)

Art. 21

Art. 19

Art. 31

Art. 31

Art. 19

Art. 21

Art. 19

Union Parliament

Art. 19

Ajaib Singh

s. 4

Art. 22

Art. 22

Ajaib Sitigh

Art. 22

Art. 22

Purshottam Govind

Halai

Art. 21

s. 13

Bombay Land Revenue Act 1876

s. 46(2)

Art. 14

s. 13

Pocker

s. 46(2)

Art. 14

s. 48

s. 46(2)

Arts. 14, 19

s. 46(2)

s. 48

s. 46(2)

s. 5

Section 48

s.

5

ss. 16, 18 and

21

s. 48

s. 48

Erimal Ebrahi11

Erimal Ebrahim

s. 48

s. 48

s. 46(2)

Purshottam Go11indji Halai

s. 46

s. 58

s. 48

s. 59

s. 46(2)

Kozikhode


s.c.R.

SUPREME COURT REPORTS

V ADJVELU THEV .AR

THE STATE OF MADRAS

(with connected appeal)

(JAGANNADHADAs, B. P. SINHA and

P. B. GAJENDRAGADKAR JJ.)

Murder-Convictio11 on the testimony of a single witness- P,-opriety-Capital sentence, if appropriate-Extenuating circumstance-Indian Evidence Act (I of 1872), s. 134.

The appellants were charged with murder and convicted on the sole testimony of a wimess. The first appellant was sentenced to death and the second to five years' rigorous imprisonment. It was contended for them, inter alia, that the conviction and sentences should not be upheld because in a case: involving a charge of murder-the court should not, on the ground of prudence, convict an accused person upon the testimony of a single witness, and, in any case, impose the extreme penalty of law.

Held, that the question whether in such a case the court could convict l::im depended upon the facts and circumstances of the case and unless corroboration was a statutory requirement, a court could act upon such evidence, though uncorroborated, except in cases where the nature of the testimony of the single witness itself required, as a matter of prudence, that corroboration should be insisted upon, as in the case of a child witness, an accomplice or any ohers of an analogous character.

Where the court has recorded an order of conviction the question of sentence must be determined, not by the volume or character of the evidence adduced, b'.lt on a consideration of any extenuating circumstances which could mitigate the enormity of the crime.

Mohamed Sugul Esa Mamasan Rer Ala/ah v.

The King, A.LR. (1946) P.C. 3 and Vemirddy Satyanarayan Reddy and three others v.

The State of Hyderabad, (1956) S.C.R. 247, distinguished.

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeals Nos. 24 and 25 of 1957.

Appeals by special leave from the judgment and order dated July 25, 1956, of the Madras High Court in Criminal Appeals Nos. 247 & 248 of 1956 and Referred Trial No. 41 of 1956 arising out of the judgment and order dated March 28, 1956 of the Court of Sessions, East Tanjore Division at Nagapatam, in r.ase S.C. No. 5 of 1956.

Apiil It.

V odive[u T lunar

TkSt-uof

Madrru Sinn• ].

H. /. Umrigar and S. Subramanian, for the appellants.

P. S. Kailasham and T. M. Sen, for the respondent.

1957. April 12. The Judgment of the Court was delivered by

SINHA J.-These two appeals by special leave, which arise out of the same occurrence. are directed against the Judgment and Order dated July 25, 1956, of the Madras High Court, confirming the sentence of death passed by the Court of Sessions. East Tanjore Division, at Nagapattinam, under s. 302 of the Indian Penal Code, against appellant in Criminal Appeal No. 24 of 1957, for the murder of Kannuswami. and modifying the order of conviction and sentence under s. 302, read with s. 109 of the Indian Penal Code, to one under s. 326, Indian Penal Code, and reducing the sentence of imprisonment for life to one for 5 years, in respect of the appellant in Criminal Appeal No. 25 of 1957. In the .course of this judgment, we shall call the appellant in Criminal Appeal No. 24 of 1957, as the "first appeallant", and the appellant in Criminal Appeal No. 25 of 1957, as the "second appellant".

The occurrence which was the subject-matter of the charges against the two appellants took place at about 11-30 p.m. on November 10, 1955, at Muthupet, in front of the tea stall of Kannuswami, husband of Shrimati Dhanabagyam-prosecution witness No. 1who will be referred to, in the course of this judgment as the "first witness", and who is the principal witness for the prosecution, because, as will presently appear, the prosecution case and the convictions and sentences .of the appellants depend entirely upon her testimony.

The occurrence took place in the immediate vicinity of a cinema-house in which the second show was in progress at the time of the alleged cold-blooded murder. As there were no customers at that time at the tea shop run by Kannuswami, his wife called him for his . dinner to be served to him behind the tea stall, as the husband and wife used to live there. Kannuswami was about to attend to the call for dinner when

an old man came into the shop and asked for a cup of tea. When Kannuswami got busy . preparing the tea, the two appellants rushed into the premises. The old man-the intending customer-naturally ran away, and the two accused dragged Kannuswami out of the shop on to the road-side ; and the first appellant gave him several blows on -the front part of his body in the

egion of the chest with an aruval-a cutting mstrument about 2 feet long including the liand1e.

Kannuswami fell down on his back and cried out for help. His wife, the only other inmate of the house, tried to come to his rescue by raising and putting his head into her lap after the two accused had left him.

But soon after, perhaps, realising that Kannuswami was not dead as a result of the first blows, as deposed by the wife, both the accused returned. Kannuswami's wife who figures in court as the sole witness to the killing, placed his head on the ground and went and stood on the steps of the tea stall. The first appellant this time, made the body of Kannuswami lie with face downwards and gave a number of cuts in the region of the head, the neck and back. These injuries were such as to cause instantaneous death. At the time of the second ass:mlt, according to the evidence of the first witness, Shunmuga Thevar-Prosecution Witness No. 3, one of the proprietors of the cinema-housecame and remonstrated with the accused but to no purpose. After inflicting the injuries, both the accused ran away.

According to the testimony of the first witness, it was the first appellant, the second accused (A-2 in the record), who inflicted cutting injuries with the ar11vtd~ The second appellant, the first accused (A-1 in the record), was standing nearby at the time the cutting injuries were inflicted. There were two electric lights burning in the tea shop, a Panchayat Board light burning on the road, as also a light burning on the pathway leading to the cinema-house. The wife of the deceased, finding her housband thus murdered, went and told Ganapathi-Prosecution Witness No. 4-who had a tea stall on the other side of the road, and informed him as to what had taken place.

He aked her to lodge information of the

:l--fil fi. C. Indiai59

1'ad{vd1' Thcr{;1

v. 7 ht Stale oj

Madra>

Si11ha J.

Vodivelu Thevar v.

The State of Madras

Sinha J.

occurrence at the Police Station.

She then went to the Mathupet Police Station, but found it shut. She went to the house of the Sub-Inspector of Police, who took her to the Police Station, and recorded her '\ statement as the first information report (Exhibit P. 1 ).

After recording the first information report, the Sub-

Inspector came along with the first informant to the scene of occurrence. He held an inquest early in the mornmg.

At the trial, the Prosecution examined, besides the widow of the murdered man (P.W.1), P.W. 2-an assistant in the tea shop of Ganapathi Thevar, P.W. 3-one of the proprietors of the cinema-house and P.W. 4- Ganapathi who kept another tea stall near the cinema- _.... house, in support of the prosecution case. P.W. 2- 7 Singaram-testified to the occurrence and stated that he had seen Vadivelu 'cut' Kannuswami and Chinniah standing by the side of Vadivelu, a few feet away ; but he added that the accused persons were not those concerned with the crime though they bore the same names.

The Public Prosecutor was permitted to cross-examine this witness who admitted that he knew that the Police were searching for the accused in the dock and that he did not tell the Police that these were not the persons who had committed the murder. He went to the length of admitting that he did not tell anybody that the accused in the dock were not the persons who had committed the murder and that it was in the committal court that he stated, for the first time, that the accused persons were not concerned with the crime. He also arlmitted that at the time of the occurrence, lights

wre burning at the place of occurrence, in the tea shop and in the theatre. P.W. 3, one of the proprietors of the cinema-house, when examined in court, admitted that he had been examined by the police two days after the occurrence, but stated that he did not tell the Police that he had seen the accused assaulting Kannuswami. It appears that, though the record of the examination-in-chief of this witness would itself indicate that the Public Prosecutor had put questions to him in the nature of cross-examination, yet it is not recorded, unlike the record of the depositions

of P.W. 2 and P.W. 4, that .this witness had been declared hostile and the Public Prosecutor had been permitted to cross-examine him.

That appears to be a slip of the learned Sessions Judge as he had been so treated even in the committal court. The Investigating Sub-Inspector, P.W. 14, stated, with reference to his diary, that P.W. 3 had stated before him that he had seen accused No. 2 ct:tting the deceased on the head and neck with an aruval, and accused No. 1 standing by the side of the second accused.

Witness No. 4 for the Prosecution-Ganapathi-who ran a tea stall near the cinema-house, about 50 to 60 feet away from the tea stall of the deceased Kannuswami, stated in court that the first witness came to him weeping and saying that Chinniah and Vadivelu Thevar had cut her husband, 'but added that the two accused in col!rt were not these pers9ns.

Thus, whatever may have been the previous statements of the prose::ution witnesses 2 to 4, aforesaid, their evidence in court does not directly support the prosecution case.

The orders of conviction and sentence, as passed by the courts below, as indicated above, rest solely on the testimony of the first witness.

It has been argued by the learned counsel for the appellants that the conviction and sentences of the appellants should not be upheld because they rest on the s0le testimol'.\' of the first witness, particularly, because, it is further argued, her testimony is not free from all blemish. In this connection. her statement in court that it was the second accused (first appellant) who gave the rumber of cut iniuries with the aruval to the deceased Kannuswami, was challenged in cross-- examination.

She has been cross-examined with reference to her statement (Exhibit D-2) recorded by the committing Magistrate, and she has categorically stated :

"Accused 1 had no weapon of any kind with him.

He did not give any cut. I have not stated in the committal court that accused 1 continued to cut even after Shanmugham Thevar asked him not to cut." Exhibit D-2 is in these terms :

Vadivelu Ther, ar

The State of

Madras

Sinha],

1957 "Even while he was asking not to cut, accused l was cutting.

Soon after, accused 1 stopped cutting Vadivelu T/u:v(Jr and went away~" v.

Tht State of

Madras

Sinha J.

With reference to the statement of the first witness, as recorded in Exhibit D-2, the learned Sessions Judge has observed that it was a mistake of recording by the committing Magistrate.

We have looked into the whole evidence of the first witness, as recorded by the committing Magistrate-not printed in the record, but supplied to us by the learned counsel for the appellants-and in our opinion, there is no doubt that the learned Sessions Judge was correct in his conclusion that the recording by the Magistrate is defective in the sense that accused I has been recorded in place of accused, 2, inasmuch as, throughout her deposition, the first witness had consistently stated that it was accused 2 who actually used the deadly weapon against her husband and that accused 1 was only aiding and abetting him and lending him strength by his presence. That this conclusion is well-founded, is also substantiated by the state of the record of the appeal in the High Court. Each of the two appellants in the High Court filed a separate Memorandum of Appeal through his own counsel. In neither of tl1e Memoranda of Appeal, any ground has been taken that the first witness had materially contradicted herself with reference to her previous statement in the committal court. Her testimony was assailed •mly as 'interested, artificial and unnatural'.

It is not even suggested that the learned Sessions Judge's conclusion in respect of the recording by the committing Magistrate (Exhibit D-2) was not based on any material. When the matter was argued before a Bench of the High Court, tl1ere is no indication in the judgment that any point was sought to be made of this alleged serious discrepancy rn the statement of the first witness at different stages. In the High Court, it w:rn sought to be argued only that she was an interested witness though her testimony throughout had been consistent, as will appear from tl1e following obset vations of the High Court

"To prove that it was . the two accused that caused these injuries to the deceased, the prosecution put forth as many as four witnesses. On these four witnesses, P.¥l s. 2, 3 and 4 turned hostil both in the committal court as also in the Sessions Court. The only witness that remained constant throughout was P.W. 1 who is no other than the wife of the deceased."

The same was the position with reference to the petition for leave to appeal to this Court filed in the High Court. It was a joint petition on behalf of both the appellants, and as many as 13 grounds had been taken. There is not even a suggestion that the testimony of the first witness was vitiated by any such discrepancy as has been sought to be made out in this Court. It was after the High Court refused to grant the necessary certificate that for the • first time, in the petition for special leave to appeal, filed in this Court, the ground is taken that the High Court failed to appreciate that the testmony of the first witness was untrustworthy for the reason that there was the alleged discrepancy between her statement n the committal court and in the Court of Sessions. Thus, it is abundantly clear that the finding of the learned Sessions Judge about the mistake in recording the evidence of the first witness, by the committal court, has not been challenged at any stage in the court below.

The second ground of attack against the veracity of the first witness is tl1at she had stated that Shanmugham Thevar-Prosecution Witness No. 3-had also seen the first appellant giving the deadly blows to her husband, and that the assailant continued giving his blows in spite of protests of P.W. 3. This argument proceeds upon the assumption that Prosecution . Witness No. 3 is telling the truth and that, therefore, his evidence effectively contradicts that of the first witness. P.W. 3 was, as indicated above, cross-examined by the Public Prosecutor with reference to his previous statement before the Investigating Police Officer (P. W. 14). P. W. 14 has stated that before him P.W. 3 had stated just the contrary of what he stated in court. The statement of P.W. 3 at

Vadivelu~ T/Jnlar

T /,. Stale of Madras

Sillha ].

V adivelu The'f)(lr

The State of

Madras

Si11ha J.

the earlier stage, before the Police, and later when examined in court, may or may not have been false, but certainly both cannot be true. Hence, it cannot be said that the evidence of P.W. 3 in court was the true version. That being w, his evidence in court is not strong enough to wipe out the evidence of the first witness on the ground that it is contrary to what P.\V. 3 had stated. It is, thus, clear that none of the grounds urged in support of the contention that the evidence of the first wimess is unreliable, has been made out. On the other hand, the first witness, being the most important witness from the point of view of the prosecution, was put to a severe test in her cross-examination.

She has frankly made admissions in her cross-examination, which throw a very lurid light on the past life of her deceased husband.

She admitted that he had been transported for life for having committed a murder and that after his release also, he had been sent to jail twice for having caused cut injuries to others.

If the first witness wer~ inclined to tell falsehoods or at least to conceal her husband's past, she could have taken shelter behind failing memory or want of informationnot an uncon11r1on characteristic of prevaricating witnesses. Her evidence. read as a whole. rings quite true, and we have no hesitation in acting upon it.

It is true that her evidence in court has been sought to be contradicted by the evidence of P.Ws. 2 to 4, but the latter set of witnesses have been shown to be not reliable become thcv appear to have made different statements at different stages for reasons of their own.

Their testimony does not inspire confidence and we cannot. therefore. hrush asi<le the testimony of the first witness as com oared to the evidence of P.\V s. 2 to 4. The testimony of the first witness is consi>tent with what she has state<l m her first information report at the Police Station without • any avoidahle dealy, within less than an hour of the occurrence. It cannot, therefore, be s.1i<l that her statement in conn, is an afterthought, or the result of tutoring hy other interested persons.

Her story of the double attack, first on the front. and subsequently on the back and

side of the victim, is also consistent with the medical evidence as deposed to bv the Medical Oflicer-P.W. 8.

It is not necessary to set our in detail the doz<'.n incised gaping wounds on the Derson of the deceased. which arc all set out in extrnso in the imhmcnt of the karne<l Sessions Judge who has written ;~ verv careful a11d satisfactory judgmenr. .

Alternatively, it has been argued 0;1 behalf of the appellants that it is not safe to convict the appellants on the testimonv of a sinl!k witness even tl10u-rh she may not have been demonstrated to have b~n a lying witness.

It has not c::vcn been claimed by counsel for the appellants that this is a ruk of hw.

He has only put it on the ground of prudence that, ordinarily, the court should not, in a case involving a charge of mmder, convict an accused person upon tht: testimony of a single witness. In this connection. our attention was drawn to the observations of their Lordships of the Judicial Committee of the Privy Council in the Cise of Mnliaml'd Sut, al E_, a Mmilasan Re;· . //, dalz v. T lie Ki11g ( 1 ). In that case, their Lordships looked for corrolioration of the testimony of a single \':jtness in a murder case. It is true that in th::it case. the court had to look for and found corroboration of the testimony of the single witness in support of the murder ch::irge, hut the testimony of th::it witness

sulkred from two infirmities. nameiv : (I) The witness was a girl of ; bout 10 or 11 1e:m at the time of occurrence.

(2) The girl witness had not lx:cn admi:1istncd oath becmse the Court did not consider that >he 11as able: to understand the nature o_f the oath though s!ic was compctt"llt to testify.

That was a ca>c from Som::ililand to which the provisions of the Indian faidnKt Act <I of 1872) and of the Indian Oaths Act (X of 1873). had been made applicable.

Special lea1c had been gr:meJ to appeal to His Ma jestv-in-Council on the i!fOUll<i that the local courts h::id atimitteJ and acted upon the unsworn evidence of

:i girl of 10 or 11 vears of age. Their Lordships upheld the conviction and sentence of death, holding that the

\t) .\.I.R. (1916) P.C. 3.

V adil:e/ll T htl ar

The State q(

A1adras

Sinha J.

Vadiuetu Tilevar

The State of

Madras

Sinha J

evidence, such as it was, was admissible. In the course of their Judgment, they made the following observa- "\ tions (at pp. 5-6) which are pertinent to the present controversy :

"It was also submitted on behalf of the appellant that assuming the unsworn evidence was admissible the Court could not act upon it unless it was corroborated. In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law."

The decision of this Court in the case of Vemireddy Satyanarayan Reddy and three others v. The State of.

Hyderabad (') was also relied upon in support of the contention that in a murder case the court insists on corroboration of the testimony of a single witness. In the said reported decision of this Court P.W. 14 has been described as "a dhobi boy named Gopai". He was the only person who had witnessed the murder and his testimony had been assailed on the ground that he was an accomplice. Though this Court repelled the contention that he was an accomplice, it held that his position was analogous to that of an accomplice.

This Court insisted on corroboration of the testimony of the single witness not on the ground that his was the only evidence on which the conviction could be based but on the ground that though he was not an accomplice, his evidence was analogous to that of an accomplice in the peculiar circumstances of that case as would be clear from the following observations at p. 252:

(1) (1956) S.C.R. 247.

' I

" .... Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony .unless we feel convinced that he is speaking the truth.

Such corroboration need not, however, be on the question of the actual comm1ss10n of the offence ; if this was the: requirement, then we would have independent testimony on which to act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same."

It is not necessary specifica 11 y _ to notice the other decisions of the different High Courts in India in which the court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases.

On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established :

(1) As a general rule, a court can and may act . on the testimony of a single witness though uncorroborated. One credible witness outweights the testimony of a number of other witnesses of indifferent character.

(2) Unless corroboration is insisted upon by statute, courts should not ms1st on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstan<ies of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.

In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is

V adivelu The11ar

The Slate~(

Madra'

Sinha ].

V adi{lelu T luvar

Tire State qf

Madras

SinJia ].

much too broadly stated.

Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case be required for the proof of any fact". ' The legislature determined. as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact. to call any particular number of witnesses.

In England, both before and after the passing of the Indian Evidence Act, 1872, there haYe been a number of statutes as set out in Sarkar's 'Law of Evidence-9th Edition, at pp. 1100 and llO!. forbidding convictions on the testimony of a singk witness.

The Indian Legislature has not imisted on laring down any such exceptions to the general rule recognized in s. 134 quoted above.

The section enshrines the well recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of iustice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of onlv one witness, leaving aside those cases which are not of uncommon occurrence, where dctermin:uion of guilt depends entirely on circun1stantial evidence. If the Legislatun: \\'ere to insist upon pluralit1 of witnesses, cases where the testimony of a single witness only couid be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding iudge comes into play.

The matter tin" must depend upon the circumstances of each case and the quaiit1 o:' the evidence of the sin_!.'le witness whose testimony has to be either accepted or rejected. Ii such a testimony is found by the court to be entirely rcli=ible, there: is no legal impc<lin1ent to the con \'iction of the 3ccui;; ccf person on such proof.

Even as the guilt of an accu<ed person may be proved by the tc.:stinlony of a singlt: \vitnes, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the c1se for the pr0<ecution.

Hence, in our opinion, it i< a sound and well-established rule of law that the c0urt is concerned with the quality and not with the

quantity of the evidence necessary for proving or disproving a fact.

Generallv speaking oral testimony in this context inay be classific<l into three categories, namelv:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in coming to .its conclusion either wayit may convict or mav acqmt on the testimonv of a single witness, if it is found to be above reproach or suspicion of interestedness. incompetence or subornation.

In the second category, the court, equally has no difficulty in coming to it> conclusion. It 'is in the third category of cases, that the court has to be circumspect and has to look for corroboration m material particulars by reliabk testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses.

Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirecth• encouraging subornation of witnesses. Situations mav amc and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally ha~ to weigh carefullv such a testimony and if it is satisfied that the evidence is reliable and free from all taints which trnd to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court

had to depend and act uoon the testimony of a sin.e:le witness in. support of the prosecution.

There are exceptions to this rule. for example, in cases of sexual offences or of the testimony of an approver ; both these are, cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime.

But; ·· where there are no such exceptional reasons operating, it becomes the dutv of the court to convict, . if it is satisfied. that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the

V adi11t/u T /revar

T Ju State of

Madras

Sinha].

1957 first witness, which is the only rdiable evidence in

,._

Tht State ef

Madras

support of the prosecution.

Lastly, it was urged that assummg that the court was inclined to act upon the testimony of the first witness and to .-ccorJ a conviction for murder as against the first appellant. the court S:10u!d nc, t impose the extreme penalty of law and in rhe state of the record as it is, the lesser punishment provided by law should be deemed to meet the ends of justice. vV e cannot accede to tl11s ji'.lt.: of a:guincnt. 'fhe first question \vhich the court has to consider in a case like this, is whether the accused has been proved, to the satisfaction of the court. to h1vt: ccinrnitte<l the cri1uc.

If the court is convinced about thi.: truth of the prostc!1tion story, conviction lias to follo\v. The question of sent<.:ncc has to be determinnl, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If the court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law.

In other words, the nature of the proof has nothing to do with the character of the punishment. The nature of the proof can only bear upon the question of conviction-whether or not the accused has been proved to be guilty. If the court comes to the conclusion that the guilt has been brought home to the accuocd, anJ w; wiction follows, the process of proof is. at an end. The question as to what punishment should be imposed is for the court to decide in all the circumstances of the case with particular reference to any c:..:Lenuating circu1nstances.

But the nature of proof as we have indicated, has nothing to do with the question u( punishment. In this cac, there arc nr> sucii c...:xtnuati!1g circu1nstanceS \\.hich can be legitimately urged in >upport of the view that the lesser penalty under s. 302 of the Indian Penal Code, should meet the ends of justice. It was a coldblooded. murder. The accused came for the second

time, determined to see that their victim did not possibly escape the assassins' hands.

As regards the second appellant, we need not say anything more than that he was lucky enough to escape conviction under s. 302 of the Indian Penal Code, for the reasons 'given by the High Court, which may not bear close scrutiny. He amply deserves the punishment of 5 years' rigorous imprisonment under s. 326 of the Indian Penal Code.

For the reasons aforesaid, both the appeals fail and are dismissed.

Appeals dismissed.

BALDEO SINGH AND OTHERS

THE STATE OF BIHAR AND OTHERS

(S. R.

DAS c. J.,

]AFER IMAM, s. K.

DAS,

GOVINDA MENON and A. K. SARKAR JJ.) Gram Cutchet'l'y-Criminal Jurisdictio11-Concu1-re1, t jurisdiction of ordinary ffiminal Courts-Enactment, if discriminatory in character.-Bihar Panchayat Raj Act, 1947 (Bihm Act 7 of 1948), ss. 60, 62, 68, 69, 70, 73-Co11sti1t1tion of India, A1t. 14.

The appellants wcr~ coilvicte<l of an offence under s. 379 of the Indian Penal Code by a full bench of the Gram Cutcherry constituted under the provisions of the Bihar Panchayat Raj Act, 1947. It was contended for the appellants that the convic

tion was bad on the grounds int<T alia, that s. 62 of the Act which provided for the criminal jurisdiction of Gram Cutcherries ga \'e concurrent jurisdiction to the ordinary criminal Courts and left it open to a party to go either to. the ordinary criminal Courts or to a bench of the Gram Cutcherry, and as the procedure followed in the ordinary criminal Courts was substantially different from that followed by a Gram Cutcherry, the Act was discriminatory in nature and as such infringed Art. 14 of the Constitution.

Held, that the impugned provisions of the Act are net discriminatory in nature.

The scheme of the Act is that a case or suit cognizable under the Act by a Gram Cutcherry should be tried only by it unless the Sub-Divisional Magistrate or the Munsif concerned chooses to take action under s. 70 or s. 73 of the Act.

The

1957"

V adioelu The var v. . The Stak of

Madras

Sinha J.

April 2.

AR

THE STATE OF MADRAS

JAGANNADHADAs

B. P. SINHA

P. B. GAJENDRAGADKAR JJ.

s. 134

State of Hyderabad

Apiil It

S. Subramanian

P. S. Kailasham

T. M. Sen

SINHA

July 25, 1956

Madras High Court

s. 302

Indian Penal Code

Kannuswami

s. 302

s. 109

Indian Penal Code

s. 326

Indian Penal Code

10, 1955

Muthupet

Shrimati Dhanabagyam

Shunmuga Thevar

Ganapathi

ha

Sinha

Ganapathi Thevar

Singaram

Vadivelu

Chinniah

Vadivelu Thevar

Shanmugham Thevar

Vadivelu Ther

s. 2, 3 and 4

Shanmugham Thevar

Vadivelu~

State of

Madras

s. 2 to 4

Mnliaml'd Sut

Oaths Act

Vadiuetu Tilevar

England

Indian Act

Gopai

India

Section 134

Indian Evidence Act

Indian Evidence Act, 1872

Sarkar

s. 134

s. 302

Indian Penal Code

s. 302

Indian Penal Code

s. 326

Indian Penal Code

BALDEO SINGH

STATE OF BIHAR

R.

DAS

]AFER IMAM

s. K.

DAS

GOVINDA MENON

A. K. SARKAR

Bihar Panchayat Raj Act, 1947

ss. 60, 62, 68, 69, 70, 73

s. 379

Indian Penal Code

s. 62

Art. 14

s. 70

s. 73


S.C.R.

SUPREME COURT REPORTS 995

time, determined to see that their victim did not possibly escape the assassins' hands.

As regards the second appellant, we need not say anything more than that he was lucky enough to escape conviction under s. 302 of the Indian Penal Code, for the reasons 'given by the High Court, which may not bear close scrutiny. He amply deserves the punishment of 5 years' rigorous imprisonment under s. 326 of the Indian Penal Code.

For the reasons aforesaid, both the appeals fail and are dismissed.

Appeals dismissed.

BALDEO SINGH AND OTHERS

THE STATE OF BIHAR AND OTHERS

(S. R.

DAS c. J.,

]AFER IMAM, s. K.

DAS,

GOVINDA MENON and A. K. SARKAR JJ.) Gram Cutchet'l'y-Criminal Jurisdictio11-Concu1-re1, t jurisdiction of ordinary ffiminal Courts-Enactment, if discriminatory in character.-Bihar Panchayat Raj Act, 1947 (Bihm Act 7 of 1948), ss. 60, 62, 68, 69, 70, 73-Co11sti1t1tion of India, A1t. 14.

The appellants wcr~ coilvicte<l of an offence under s. 379 of the Indian Penal Code by a full bench of the Gram Cutcherry constituted under the provisions of the Bihar Panchayat Raj Act, 1947. It was contended for the appellants that the convic

tion was bad on the grounds int<T alia, that s. 62 of the Act which provided for the criminal jurisdiction of Gram Cutcherries ga \'e concurrent jurisdiction to the ordinary criminal Courts and left it open to a party to go either to. the ordinary criminal Courts or to a bench of the Gram Cutcherry, and as the procedure followed in the ordinary criminal Courts was substantially different from that followed by a Gram Cutcherry, the Act was discriminatory in nature and as such infringed Art. 14 of the Constitution.

Held, that the impugned provisions of the Act are net discriminatory in nature.

The scheme of the Act is that a case or suit cognizable under the Act by a Gram Cutcherry should be tried only by it unless the Sub-Divisional Magistrate or the Munsif concerned chooses to take action under s. 70 or s. 73 of the Act.

The

1957"

V adioelu The var v. . The Stak of

Madras

Sinha J.

April 2.

Daf.deo Singh

and OtherJ

The State of Bihar and OthtrJ

S. /[.Das].

reference to concurrent jurisdiction in s. 62 is explainable by reason of the provisions in ss. 69, 70 and 73, so that on the transfer or withdrawal of a case fro1n the Grun Cutcherry or the cancellation of the jurisdiction of the bench, it may not be said that the ordinary criminal Courts also have no jurisdiction to try it.

CRIMINAL

APPELLATE JuRISDICTION : Criminal Appeal No. 145 of 1955.

Appeal by special leave from the judgment and order dated July 20, 1954, of the Patna High Court in Criminal Miscellaneous No. 228 of 1954 . . S. P. Verma. for the appellants.

R. C. Prasad. for the respondents.

1957. Aoril 22. The Judgment of the Court was delivered b~

S. K.

DAs J.-J'his is an appeal by special leave from an order cf summary dismissal passed by the High Court of Pama on lulv 20. 1954. on an application under Arts. 226 and 227 of the Constitution of India. The relevant facts are these. One Uma Shankar Prasad instituted a case against eight persons, including the three appellants before us.

Baldeo Singh, Ramdeo Singh and Sheodhar Singh, on the allegation that they had forcibly cut and removed 'urad' and 'kodo' crops from his field in village Darwan on October 1.

1953. at about IO a.m. Uma Shankar said that he objected, but was threatened with assault.

The case was instituted before the Gram Cutcherry of Bankat in the district of Chamoaran, constituted under the provisions of the Biha,- Panchavat Raj Act, 1947 (Bihar Act 7 of 1948), hereinafter referred to as the Act. Altogether four witnesses were examined in the case, two on behalf of the prosecution and two for the accused persons. The defence of some of the accused persons was that the land on which the crops stood belonged to one Yogi Sahni. who had sold it to Sunder Singh, accused, on September 25.

1953. On December 28, 1953, a bench of the Gram Cutcherry acquitted all the accused persons.

On Tanuary 7, 1954, Uma Shankar Prasad preferred an appeal under s. 67 of the Act. The appeal was heard on June 24, 1954,

and the full bench by a majority, with three dissentient panches, held the three appellants guilty of the offence under s. 379, Indian Penal Code. and sentenced them to imprisonment for fifteen days each. The appellants then moved the High Court of Patna under Arts. 226 and 227 of the Constitution. with the result stated above. The appellants then moved this Court and obtained special leave under Art. 136 of the Constitution.

Learned counsel for the appellants has pressed the following contentions before us. His first and foremost contention is that the Act, bv reason of certain provmons contained therein, is discriminatory in nature and offends against Art. 14 of the Constitution.

It is advisable to set out first those provisions of the Act which, according to learned counsel for 'the appellants, are discriminatory in character. Section 62 of the Act, which provides for the criminal iurisdiction of Gram Cutcherries, is in these terms :

"Notwithstanding anything contained in the Code of Criminal Procedure, 1898, and subiect to the provisions of this Act. a bench of the Gram Cutcherry shall have jurisdiction concurrent with that of the Criminal Court within the local limits of whose jurisdiction the bench is situate for the trial of the following offences as well as abetment of and attempts to commit any such offence, if committed within the local limits of its jurisdiction, namely :

(a) offences under the • Indian Penal Code, sections 140, 143, 145, 147, 151, 153, 160, 172. 174, 178, 179, 269, 277, 279, 283, 285, 286, 289, 290, 294, 323, 334, 336, 341, 352, 356, 357, 358, 374, 379, 380, 381, 403, 411. 426, 428, 430, 447, 448, 461, 504, 506, 510 ;

(b) offences under the Bengal Public Gambling Act, 1867: ( c) offences under sections 24 and 26 of the Cattle Trespass Act, 1871 : ( d) except as otherwise provided, offences under this Act or under any rule or bye-law made

thereunder ; ( e) any other offence under any other enactment, if empowered in this behalf by the Government :

Ba!tleo Singh

and Others

"· The State af Bihor and Othm

S. K. Do,].

Baldeo Singh

and Otlu1s

T"' State qf Bihar and Othtrs

S. K. Dar J.

Provided that the bench shall not take cognizance of ahy offence under sections 379, 380, 381 or 411 of the Indian Penal Code in which the value of the property alleged to be stolen exceeds fifty rupees or in which the accused-

(i) has been previously convicted of an offence punishable under Chapter XVII of the Indian Penal Code with imprisonment of either description for a term of three years or upwards; or

(ii) has been previously fined for theft by any bench of the Gram Cutcherry ; or

(iii) is a registered member of a criminal tribe under section 4 of the Criminal Tribes Act, 1924 ; or

(iv) has been bound over to be of good behaviour in proceedings instituted under section 109 or 110 of the Code of Criminal Procedure, 1898."

It is worthy of note that the section contains two important qualifications : one is contained in the nonobstante clause with which the section begins and the other is contained in the expression 'subject to the prqvisions of this Act.' The importance of this second qualification will be apparent when some of the other provisions of the Act are set out. Subject to the two qualifications mentioned above, s. 62 gives a bench of the Gram Cutcherry jurisdiction concurrent with that of the ordinary criminal . Court within the local limits of whose jurisdiction the bench is situate for the trial of the offences mentioned therein.

Section 63 vests the bench with the powers of a Magistrate of the third class. Section 64 is not relevant for our purpose and need not be read. Section 65 provides for exclusive civil jurisdiction of a bench of the Gram Cutcherry in certain classes of suits, subject to certain provisos.

Section 66 says that certain suits shall not be heard by a bench of the Gram Cutcherry.

Section 67 provides for appeals.

Then comes s. 68, which is very important for our purpose and must be quoted in extenso--

"No court shall take cognizance of any case or suit which is cognizable under the Act by a bench of the Gram Cutcherry unless an order to the contrary has been passed by the Sub-Divisional Magistrate or

the Munsif concerned under the provisions of the Act or any other law for the time being in force."

Section 69 gives the Sub-Divisional Magistrate or the Munsif power to transfer a case or suit pending before a Magisuate or a MunsiJ to a bench of the Gram Cutchen1' having jurisdiction to try it.

Section 70 gives the Sub-Divisional Magistrate or the Munsif power to withdraw any case or suit pending before a bench of the Gram Cutcherry and transfer the same to the ordinary Courts.

Section 71 provides, inter alia, that no legal practitioner shall appear, plead or act on behalf of any party in any suit or case before the Gram Cutcherry.

Section 73 gives power to the Sub-Divisional Magistrate and the Munsif to take necessary action when there has been a miscarriage of justice or there is an apprehension of a miscarriage of justice.

Sub-section (2) of s. 73 says that when an order under sub-s. ( 1) has been made in respect of any suit or case, the complainant or the plaintiff, as the case may be, may institute the case or suit afresh in the Court of the Sub-Divisional Magistrate or a Munsif of competent jurisdiction.

The argument of learned counsel for the appellants is that inasmuch as s. 62 gives only concurrent jurisdiction, it leaves it open to a party to go either to the ordinarv criminal Courts or to a bench of the Gram Cutche; ry. According to him, this opens the door for discrimination, because the procedure followed in the ordinary criminal Courts is substantially different from tliat followed by a Gram Cutcherry. The procedure to be followed by the latter is indicated in s. 60 which states :

"Subject to the provisions of this Act and to am rules or directions that mav be made or issued bv the Government in this behalf, the procedure to be fl!ow ed by a bench of the Gram Cutcherry shall be such as it rnty co!1sidcr just and convenient and the bc:Kh shall not be bound to fol\mv anv laws of evidence o;: procedure other than the procedure prescribed bv or under tliis Act."

This argument as to cfocriminaiion fails to take note of the other pro:isions 0£ the Act which we have set 4--61 S. C. Indi:\/59

Ba/deo Singh

and Others

The State o Bihar and Othm

S. K. Das].

Baldeo Singh

and Others

The:s1ate of

Biar and Others

S. K. Das].

out above.

Section 62 is. in express terms, subject to other provisions of the Act ; therefore, it is subject to s. 68 which states that no Court shall take cognizance °" of any case or suit which is cognizable under the Act by a bench of the Gram Cutcherry, unless an order to the contrary bas been passed by the Sub-Divisional Magistrate or the Munsif concerned under the provisions of the Act or any other law for the time being in force. On a proper construction of s. 62 and s. 68. it is clear that there is really no discrimination and a case cognizable by a bench of the Gram Cutcherry must be tried there. unless there bas been an order to the contrary in the exercise of his judicial discretion by the Sub-Divisional Magistrate or the Munsif concerned as contemplated by the latter part of s. 68. The provisions of the Act under which such an order can be passed are contained in the succeeding sections already referred to by us. The whole scheme of Cb. VII of the Act is that a case or suit cognizable under the Act by a Gram Cutcberrv should be tried by a bench of the Gram Cutcherry save in those exceptional cases which are provided for in ss. 70 and 73. The reference to concurrent jurisdiction in s. 62 is explainable by reason of the provisions in ss. 69, 70 and 73, so that on the transfer or withdrawal of a case from the Gram Cutcberry or the cancellation of the jurisdiction of the bench, it may not be said that the ordinary criminal y Courts also have no jurisdiction to try it.

For these reasons, we are nf the view that tk impugned provisions of the Act are not discriminatory in nature, and there is no merit in the first contention pressed before us.

Secondly, learned counsel for the appellants has referred us to rr. 60 and 61 of the Bibar Gram Cutcberry Rules, 1949. Rule 60(2) requires that the decision of the full bench shall be signed by the members and where a dissentient judgment has been delivered, the minute of dissent shall also be recorded . ~·· •.

under the signatures of the dissenting members. These r requirements were fulfilled in the present case, and no materials have been placed before us which may lead to the conclusion that rr. 60 and 61 have been violated.

The third and last cor1tention on behalf of the appellants is that the conviction of t; vo of the appellants, Ramdeo Singh and Sheodhar Singh, is bad, because there was no evidence at all against them. The two witnesses examined on behalf of the prosecution definitely said that they saw Baldeo Singh (appellant) and two other named persons who have been acquitted, but <lid not identify the rcmaiuing persons who aho forcibly cut an,! removed the crops. Oa this evidence, there was no legal basis for the conviction of Ramdeo SinglL and Shcodhar Singh.

Our attention bas been drawn to Ramdeo Singh's own statement in which he said that he had removed the crops of his own field That statement, standing by itself. is not an admission of guilt. We agree with learned counsel for the appellants that there was no evidence whatever to sustain the conviction of Ramdeo Singh and Sheodhar Singh.

Their conviction was manifestiv, and on the face of the record, erroneous. ,

The High Court was moved for the exerme of its power of superi1m:ndence under Art. 227, and it is open to us in this appeal to exercise the same power.

We would accordingly allow this appeal so far as Ramdeo Singh and Sheodhar Singh are concerned and set aside their conviction and sentence. They will now be discharged from bail.

So far as Bakko Singh is concerned, he was rightly convicted.

We do not, however, think that any useful purpose will be served by sending him to jail for a short period. We would accordingly reduce his sentence to a fine of Rs. 30/- only or in default imprisonment as directed by the full bench of the Gram Cutcherry. The appeal is disposed of accordingly.

Appeal disposed of accordingly.

Ba/deo Singh

and Others

The Stalt of Bihar and Others

S. K. Das].

s. 302

Indian Penal Code

s. 326

Indian Penal Code

BALDEO SINGH AND OTHERS

THE STATE OF BIHAR AND OTHERS

DAS

AFER IMAM

GOVINDA MENON

A. K. SARKAR JJ.

Bihar Panchayat Raj Act, 1947

ss. 60, 62, 68, 69, 70, 73

s. 379

Indian Penal Code

s. 62

Art. 14

s. 70

s. 73

Sinha

Daf.deo Singh

State of Bihar

s. 62

ss. 69, 70 and 73

S. P. Verma

R. C. Prasad

S. K.

High Court of Pama

Arts. 226 and 227

Constitution of India

Uma Shankar Prasad

Baldeo Singh

Ramdeo Singh

Sheodhar Singh

Darwan

October 1.

1953

Uma Shankar

Gram Cutcherry of Bankat

Chamoaran

Panchavat Raj Act, 1947

Yogi Sahni

Sunder Singh

September 25.

1953

December 28, 1953

Tanuary 7, 1954

s. 67

June 24, 1954

s. 379

Indian Penal Code

High Court of Patna

Arts. 226 and 227

Art. 136

Art. 14

Section 62

Code of Criminal Procedure, 1898

Indian Penal Code

Bengal Public Gambling Act, 1867

sections 24 and 26

Cattle Trespass Act, 1871

Ba!tleo Singh

State af Bihor

Baldeo Singh

S. K. Dar

sections 379, 380, 381

Indian Penal Code

Chapter XVII of the Indian Penal Code

section 4

Criminal Tribes Act, 1924

section 109

Code of Criminal Procedure, 1898

s. 62

Section 63

Section 64

Section 65

Section 66

Section 67

s. 68

Section 69

Section 70

Section 71

Section 73

s. 73

s. 62

s. 60

State o Bihar

S. K. Das

Section 62

s. 68

s. 62

s. 68

s. 68

ss. 70 and 73

s. 62

ss. 69, 70 and 73

Bibar Gram Cutcberry Rules, 1949

Ramdeo Singh

Sheodhar Singh

Ramdeo SinglL

Shcodhar Singh

Art. 227

Bakko Singh

Ba/deo Singh

Stalt of Bihar

S. K. Das