January ,9.

I J ,-t f

!140 SW~J!jNE[:OP, R'l;'-RlpPOR~S.f~Q.621 SUPP.

I ? ... _ __. •

THE COMMISSIONER. OF ~QPME TAXA ,-

. ,.·, '. ,!>fi\'DR~~, A~R A~O'.If.I; ER

-.rt~ l f (l).. " l $.'y. ANGIDI CHETTIAR'-

(B:P.:Sf.NkA, c. J., J. L. r(Apm'. 11:r. E:rnlvATef.c.uH,

J. C: SHAH and J. R .. MunHOLii:AR, J, J.)'

61, • ' ,•] \l 1 ' I Income #a)j-Penalt11 pn concealed income-'-Power lo itliJ!Ose penally 6'n Aregislerea firm after dissolution-0.qndition , Jo• the xercise 'O.f ,.iufis{Ji'ition b11 Tncci~-tax Officer-Indian

Incp11JeJa:t'Ac~, J92Z.(Jt•cf1.922J. ss. 28,' 44.

/ A registered

1 fim; i' c6ncealed Particulars of incorn! ""'bile syb111ittin_g _its, etur.i.l§ fordbb'i v.ars 1947-48, 1949-50 and

/9oq-s~, .. The, .1 Irlpolije-t'!I'. , Offier imposed penalty under s.2\l. (l) of the Indian Income-tax Act, 19?2. • Tlie High Court was moved for a Wtit of certiofari, subllJ.i; ting that the Incqme-tax Qfficenc; ould hot impose jjehalty under , the said S':, ctioQ, as he ~&9. in(o1mation that ,.the .registered firm was ?issolv!'d an Awjl j3 .• l?~.l. hY. ?l:r~mnt,,; ind in any event on M"av5, 19S3, by theJl.e~•h, of on.e pf, tl\e., partners. The Higll Cb'lfrt issued tlit \\Ii-ft '!i.nd' qtashecf the order imposing l

If ( • I' P pena ty. •

He(d; tthat the.ptin'ciple lfaid llof>t in o. A. Abraha"if case [196li ~. S.-C. ,&, 7J5,5, 1 i• as'rlluch'app1icable to a registered irl!l a~. o an unrrgistei; ed fjrm., , Thor~ is -.nothing in s.4{ of th 1e 1Act "or the context jn \\1 hich...it..-occurs to jndicate that it does not apply to regi~'tercd firm. "!"!

Held, further'; thit lhe 'pea'iiy provision;' uclr s. ~8 would ij\ the"evsn;.of te default cbotemplated br els. (_a)

(b) or (c) be applicable 1n the course of assessment of a reinstered firm.

If tlie registf'rerl firm is exposed to liability of paying penalty because t ha1t commiltrd any of the defaults contemplated hy els. (a), lb) or \c) by virtue of s.44 the

assesn1ent proceedings are liable to be continued against the rf'gistered firm evcrn after Ji.-.sulution as if it has r.ot been dissolved ..

The power to impose pena!ty under. s. ¥8 depends upon the satiifaction of the IncoJie.tax Off1crr in the course nf

proceedigs under the ict.

It cannot le exercised if he is not sathfied about the existence of CAnditions specified in cl. (a), (b) or (c) Lefore the proccedins arc concluded. The

proccdings f'1r levy of penalty has, , ho\vever1 not to be con1- 1nenced by the Incorne-tax Offier, befo1c complr.tion of the asseSSII}ent proc:eedings by hini.

Saisfaction before the conl

clusion of the proceeding under the Act and not the issue of notice of intimation of any step for imposing penalty is a condition for the . exercise of the jurisdiction.

0. A. Abraham v. Income-tax Officer, Kottayam, [1961] 2 S. C. R. 765, applied.

MareddevKrishna Reddy v. Income-tax Officer, Tenali [1957] 31 I. T. R. 678 and Khushiram Murarilal v. Commiasioner of Income-tax, Central, Calcutta, [1954] 25 I. T. R. 572, approved.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 6 to 8 of 1961.

Appeals from the judgment and order dated Mav 3, 1957 of the Madras High Court in Writ Petition Nos. 943 to 945 of 1955.

K. N. Rajagopala Sastri and P.D. Menon, for the appellants.

V. S. Venkataram and K. P. Bhat, for responflents.

1962. January 18.-The Judgment of the Court was delivered by

SHAH, J.-These a, re three appeals with certificates of fitness granted by the High Court of Madras against orders passed in Petitions for the issue of writs of certiorari setting aside orders imposing penalty upon the firm of Messrs. S. V. Veerappan Chettiar & Co. passed by the Income-tax Officer under s. 28(l)(c) of the Indian Income-tax Act.

Four persons carried on business in cloth at Virudhunagar in the name and style of S. V.

Veerappan Chettiar & Co.-hereinafter ca.!led the firm. The firm was registered under Art. 26A of the Indian Income.tax Act, 1922, for the assessment years 19!7-48, 1949-50and 1950-51. The firm concealed particulars of its income in submitting its returns, and the Income-tax Officer, Virudhunagar in the course of assessment proceedings directed, by order dated May 20, 1954, payment of penalty of Rs. 20,000/- for the year 1947.48, Rs. 10,000/-for the

JB6Z

T 1u Comntilsio111r of

lncom..tax, M•dr..,

S. V.Antidi

Chcttiar

SMA].

1}, c-.;,,;..,,, of

l•eomNax, Madtas

S. V, A111idi

CMu1ot

S/WiJ;

642 SUPREilE COURT REPORTS [Hlu:?] SUPP.

year 1949-50 :-nd Rs. 5,000(.for the year 1950-51.

Against the orders imposing ponalty, one of the partners of the firm moved the Commissioner of Income-tax, Madras in revision but without succeBB.

Thereafter, petitions under Art. 226 of the Constitution for issur of writs of certiorari or other appro priate writs oalling for records relating to the orders dated May 20, 1954, passed by the Income-tax Officer, Virudhunagar, in respect of tho three assessment orders and tho record relating to the order of the Commissioner and for quaahing tho penalty orders were filed by two partners of the firm in the High Court at Madras. It was submitted by the petitioners that by agreement between the partners the firm stood <liBBolved on April 13, 1951, and intimation in that behalf was given to the Income-tax Officer, and that in any event the furn stood dissolved on May 5, 1953, when one of the partners died and the Income-tax Officer could not, in exercise of the power under s. 28( I) make an order imposing penalty after dissolution of the firm.

The High Court accepted the plea of the petitioners and directed that the orders of the Income-tax Officer dated May 20, 1954, and the further action of the Commissioner thereon declining to revise the order of the Incom'l-tax Officer in each of the peti tions be set aside. Against the orders paBBed by t.he liigh Court the Commissioner appPals to this Court.

This Court in a recent judgment--C. A.

Abraham v. Income-tax Officer, Kottayam (')-held that the Income-tax Offioer had power under s. 28 of the Income-tax Act to impoee penalty in the course of aBBessment of a firm even if the firm stood at the date of tho order diBBolved by the death of one of its partners. In so holding, this Court observed that s. 44 of the Income tax Act sets up machinery for assessing tax liability of a firm which has discontinued its business and that the expres sion "assessment" in the different sections of

(I) [1961) 2 S.C.R. 765.

Chapter IV of the Income-tax Act was not used merely in the sense of computation of income, and whens. 44 declared that the partners or members of the firm shall be jointly and severally liable to assessment, it referred to the liability to computation of income under s.23 as well as the application of the procedure• for declaration and imposition of tax liability and the machinery for enforcement thereof.

Counsel for the appellants, however, contended that C. A. Abraham's rose was one of an unregistered firm and the principle of that case has no application where the firm is a registered firm. But s. 44 makes the provisions of Chapter IV, so far as may be, applicable to assessment when any business, profession or vocation carried on by a firm h-ts been discontinued : the section declares liability of all discontinued firms and not merely of unregistered firms. There is nothing in s. 44 or the context in which it occur to indicate that it does not apply to registered firms. This Court in C. A. Abraham's rose approved the decision of. the Andhra Pradesh High Court in Mareddy Krishna Re, ddy v. lncome-tax Officer, Tenali, (') which was a case of a registered firm, which was dissolved before imposition of penalty.

Counsel then argued that in any event, no penalty under s. 28 can be imposed against a registered firm either before or after dissolution, even if the defaults set out in els. (a), (b) or (c) are proved.

This, counsel submits, is the result of the scheme of the Act under s. 23(5) for asaessment of tax liability of a registered firm. This plea was not set up in the petition, and there is no reference to it in the judgment of the High cmrt and even in the statement of the case filed in this Court there is no trace of it. On that ground alone the plea raised by the appollant is liable to be rejected. Even if the appellant is permitted to raise the contention there

G I) [1957] 31 l. T. R. 678.

The Commissioner of

lnrom11-t~.Y, M adr•s

'"· s. V. Angidi-

CMUiar

SluzhJ.

Tiu C!1mmiriio~ of

lnc11mt-'4x, .ll adras

S. V. A t1&idi

Clutti4r

Shah].

644 SUPREME COURT REPORTS [l!l62] SlJPP.

is, in our judgment, no force in it. Section 28(1) of the Act (in so far as it is mat..rial to these appeals) providP-s :

"If the Income-tax Officer x x x x x x in the course of any proceedings und<r this Act is satisfied that any person- (a} has without reasonablo <', ause failed to furnish the return of his total income which he was required to furnish by notice given under sub-B<'ction ( 1) or subsection (2) of section 22 or section 34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such notice, or (b) has without reasonable cause failed to comply with a notice under subsection (4) of section 22 or sub-section (2) of section 23, or

(c) bas concealed the particulars of his income .or deliberately furnished inaccurate particulars of uch income, he or it may direct tba.t such persons shall by way of penalty, in the case referred to in els.use (a), in addition to the amount of the income-tax and super-tax, if any, payable

by him, & sum not exooeding one and a ha.If tim<'s that amount, and in the caBCB referred to in clauses (b) and (c), in addition to any tax payable by .him, a sum not exceeding one and a half times the amount of the income-tax and super-tax, if any, which would have been avoided if the income as returned by such person had been acoopted as the correct income".

The expreBBio11 "person" is defined in s. 2(a) of the Act as including "a Hindu undivided family and a local authority". That evidently is not an exhaustive definition and recourae

2 S.C.R.

SUPREME COURT REPOR~S 645

is permissible to the. General Clauses Act whioh says in s. 3( 42) that a "person" includes "any company or association or body of individuals whether incorporated or not." A firm is manifestly a body of individuals and would therefore fall within the definition of "person", and may be exposfld to an order for payment of penalty in the circumstances set out in cl!. (a}, (b) and (c} of s. 28 of the Income-tax Act. That a firm, registered or unregistered, may be liable to pay penalty has been further clarified by proviso (d) which declares the quantum of penalty payable by fiims, registered as well as unregistered. Counsel for the appellant however contends . that even if a fim be regarded as a person within the meaning of the operative part of s. 28 and the proviso thereof, because of an obvious defect in drafting no liability for payment of penalty can be imposed upon a registered firm and in support of that contention he relies upon the last clause of the Ist sub-section which provides for imposition of penalty "in addition to any tait payable by him". Counsel submits that only the person

liable to pay tax, may if found guilty of wrongful conduct specified in. els. (a), (b) and (c) be ordered to pay penalty, and. by the scheme adopted by the Legislature for imposing tait liability upon registered firms under s. 23(5) tax is never payable by a registered firm. Counsel says that when the Legislature by Act 40of1940 enacted cl. (d) of the proviso; only the quantum of penal liability of a registered firm was declared but the liability could not still be enforced because by the substantive provision, it depended solely upon the existence of an enforceable obligation ofthe firm, and so long as 4n obligation was not imposed upon the firm to pay tax by an adequate amendment of s. 23 (5), the li&bility though quantified W&!l unenf9rce&ble. It is urged that there were two defects in s. 28(1), as origina.lly drafted : ( 1) that t)te (ltinalty could be

Thi Commissiorur of

InerJme-tax, .tl adriJs

8. V. Angidi

Chettiar

Shah].

7111 CommUJiofw of

ltu#t•IU, Madras

v. s. v. Jl., iii

 Cittti.r

5hhJ.

imposed only upon a person who was liable to pa.y income-tax or super-tax, and (2) that the penalty which may be imposed wa.s a. multiple of the income-tax and super-tax if any, which would have been a.voided if the income as returned by such person would bavo been accepted as the correct income, and by tho enactment of ol. (d) to the proviso, the second defect was removed, but not first.

In support of this argument, counsel relied upon s. 23(5) as it stood, before it waa amended by s. 14 ofthe Finance, Act of 1956.

The clause provided that where an assossee is a. firm and the total income of the firm ha.a been &BBessed under sub-s. (1), subs. (3) or sub-s. (4), as the case may be, the sum payable by the firm shall not be determined but the total income of each partner of the firm, including therein his share of its income, profits or gaina of the previous year ahall be asseBSed and the sum payable by him on the basis 0f such assossment shall be determined.

Under this scheme the income of the registered firm was to be computed but ta.x was not a&l!CBl!ed on the total income of the registered firm : the income was distributed aocording to the terms of the agreement amongst the partnel'I of the registered firm, and added to the separate income of the partners and ta.x was levied on the partners individually. Relying upon this scheme of levying tax, it was urged by counsel for the respondent that as the registered firm was not liable to pay tax it could not be rendered liable to pay penalty under s. 28 ( 1) ( c).

Section 28, a.a it was originally enacted, was somewhat obscure. The penalty which could be impoeed in caaes referred to in ols. (b) and (c) was to be a llUIII not exceeding one and a. half times the a.mount of the ta.x which would have been avoided if the income as returned by such person had been aceepted as the correct income. But the Legi.sfature did not give any indication whether the

penalty was related to the tax avoided by the partners of the firm, or by the firm on the footing ttiat it was to be regarded as an unregistered firm.

By a. 23( 5), income tax not being made payable by the firm but by the individual partneri of a registered firm the legislative intention was not clearly expressed. The Legislature to rectify the defect fixed an artificial basis for computing the penalty payable by a registered firm : it provided that in the cases referred to in els. ( b) and ( c), the amount of the income-tax and super-tax which would have been avoided if the income as returned had been accepted as the correct income, shall be taken to be the difference betwfen the amount of the tax which would have been payable by an unregistered firm, on an income equal to tht> firm's total income. But the provision relating to imposition of liability to pay penalty by registered firms was clearly expressed. The assumption that the expression "any tax" used ins. 28 ( 1) is intended to indicate that there must be some tax payable by the assessee before penalty could be imposed is wholly unwarranted. The futility of the assumption is exhibited by the terms of cl. (b).

Penalty may be imposed for failure to comply with the notice under sub-s. (4) of s. 22 or sub-s, (2) of s. 23 even if the assessee has no assessable income.

To the imposition on of a penalty liability to pay tax by the person against whom the penalty is sought to be imposed is therefore not a condition precedent.

The Calcutta High Court in Khushiram Murarilal v. Commissioner of Income-tax, Central Calcutta(')

was called upon to deal with the submission made before us in this case. In that case the question which fell to be determined was whether imposition of a penalty on a registered firm under s. 28 (1) (b) of the Income Tax Act was justified in law. It was urged in that case on behalf of tho

(I) [1954]25 I. T. R. 572.

li62

The Commissioner of

Incametax, Jladras

\'. s. V. Angidi

Chettiar

Shah].

1161 n. C.....Usiootr •!

l11C011V-l4X, M °"" v. s. v. "•1iJi

Cj, uiu

SA.Ji J,

a.sl!eSSCe-a. registered firm -that inasmuch as under s. 28 (I) (b) a. person can be ma.de liable to pay penalty, in addition to the amount of income-tax and eupor-ta.x, if any, pa.ya.hie by him in ca.sea falling under els. (bl and ( c), no order for payment of penalty ca.n be made against a. registered firm, beoau.eo under the Income Ta.x Act no tax is ma.de payable by the firm.

Chief Justice Cha.kra.va.rtti, speaking for tho Court, observed," ............... even

when construed by its own language tho concluding para.graph of section 28 (l) cannot be said to make it a condition precedent that a person must be liable to pa.y some income-tax or it ma.y be also super-tax if ho is to hr made liable for a penalty.

Clause (b) of the proviso to my mind emphasizes

that meaning of the concluding para.graph of Section 28 (I) a.nd rests on an a.ssumption that under that provision a person may be chargeable to penalty although he ma.y not be ohargeablo to tax." The learned Chief Justice also obaerved, " ......... it wa.s not really necessary for ola.u116 (d) ef the pro- . viso to enact 1pecifioally that a. registered firm would be liable to pay a penalty despite the fact that it could not be charged and was not, in fa.ct, charged to income-tax or super-tax. The whole argument of Dr. Sen Gupta was that tho concluding paragraph o! Section 28 (1) had loft a ga.p which had been attempted to be filled up by clause (d) of ilie proviso, but the attempt had not been suoce- Aful. In my view the gap which undoubtedly existed in the concluding paragraph of section 28 (I) was only a.n absenoe of a. provision regarding the quantum of the penalty that .oould be leTied from a.

regi.ltered firm because tho quantum depends upon the amount of income-tax payable".

In our view the lea.med Chief Justice was right is so e. nunoiating the law. Under a. 23 (5) of the Indian Income-tax Act, before it was amend- ·.a in 1956, the case of a regiltered firm the tax payable by the firm italf waa not required to be

determined but the total income of each partner of the firni including therein the share of its income, profits and gains of the previous year was required to be assessed and the sum p11yable by him on the basis of such assessment was to be determined. But this was merely a method of collection of tax due from the firm.

The penalty provisions under s. 28 would therefore in tho event of the default contemplated by els. (a}, (b) or ( c) be applicable in the course of assessment of a registered firm. If a registered firm is exposed to liability of paying pcncilty, by committing any of the defaults contemplated by els. (a), (b) or (c) by virtue of s. 44, notwithstanding the dissolution of tlie firm the assessment proceedings are liable to be continued against the registered firm, as if it has not been dissolved.

Counsel contended th'l.t in any event, penalty for the assessment year 1949-50 could not be imposed upon the assessee firm because there was no evidence that the Income-tax Officer was satisfied in the course of any assessment proceedings under the Income-tax Act that the firm had concealed the particulars of its income or had deliberately furnished inaccurate particulars of the income. The power to impose penalty under s.28 depends upon the satisfaction of the Income-tax Officer in the course of proceedings under the Act: it cannot be exercised if he is not satisfied about the existence of conditions specified in els. (a), (b) or (c) before the proceedings are concluded.

The proceeding to levy penalty has, however, not to be commenced by the Income Tax Officer before the completion of the assessment prpceedings by the Income-tax Officer.

Satisfaction before conclusion of the proceeding under the Act, and not the issue of a notice of initia tion of any step for imposing penalty is a condition for the exercise of the jurisdiction. There is no evidence on the record that the Income-tax Officer

Tht Commissiomr of

Income-lax, Madras

S. V Ant:idi

Chettfor

Sh, h J,

19' 2

74'C-isfton.rof

laeotN-to.x, Madror

•• S. I'. A n1idi

0/wtliar

Bi..h J.

was not satisfied in the course of the assessment proceeding that the firm had concealed its income.

The assessment order is dated November 10, 1951, and there is an endorsement at the foot of the assessment order by the Incomt.-tax Officer that action under s. 28 had been taken for concealment of income indicating clearly that the Income-tax Officer waa satiBfied in the course of the assessment proceeding that the firm had conoealed its income.

In our view, the High Court was in error in holding that penalty could not be imposed under s. 28 (l) (c) upon the firm Messrs. S. V. Veerappan Chettiar & Co.,.after its disaolution.

The appeals will therefore be allowed and the orders pB.118Cd by thl" High Court will be set a.aide and the petitions filed by the respondents dismissed with ooats in this Court and the High Court.

One hearing fee.

Appeals allowed.

PALAKDHARI SINGH & OTHEHS.

1).

THE STATE OF UTl'AR PRADE.<::H

A~'TI ANOTHER (J.L. KAPUR and RAGHUBAR DAYAL, JJ.)

/, imitation-Panchayati Adaiat-Fine i111po8fd on con i>i<lion-RUO!ltry aftu expiry of .i:r: year1-IJ barred-U .P. l'amhayat Had Act, 19,7. (U.P; XXVI of 1947) 88. 54, 83, 94lndian Penal Code, 1860 (XI.I of 1960) B. 70.

The appellant was convicted by the Panchayati Adalat for theft and sentenced to pay a fine of Rs. 75/- in 1950.

The conviction and sentence was confirm_ed in 1953 by the High Court in revision.

In 1958 proceedings were taken to recover the fine. The appellant contended that the recovery was barred by s. 70 The Indian Penal Code.

Th~ .rcspon dent contended thats. 70 was not applicable to conv1ruons by

Pauchayati Adalats and that the limitation started from the date of the order of the High Court.

l $.'y. ANGIDI CHETTIAR

C: SHAH

ss. 28

Income-tax Act

[1961] 2 S. C. R. 765

s. 28(l)(c)

Income-tax Act

Art. 26A

Art. 226

s. 28( I)

s. 28

Income-tax Act

s. 44

[1961) 2 S.C.R. 765

Chapter IV of the Income-tax Act

s. 44

s. 44

s. 28

s. 23(5)

Section 28(1)

section 22

section 34

section 22

section 23

s. 2(a)

S 645

General Clauses Act

s. 3( 42)

s. 28

Income-tax Act

s. 28

s. 23(5)

s. 23

s. 28(1)

s. 23(5)

s. 14

s. 28

Section 28

s. 22

s. 23

s. 28

s. 28

section 28

Section 28

Section 28

section 28

Income-tax Act

s. 28

s. 44

Income-tax Act

s. 28

s. 28

Penal Code, 1860

s. 70

Indian Penal Code


19' 2

74'C-isfton.rof

laeotN-to.x, Madror

•• S. I'. A n1idi

0/wtliar

Bi..h J.

€50 SUPREME COURT REPORTS [l9ti2) SUPP.

was not satisfied in the course of the assessment proceeding that the firm had concealed its income.

The assessment order is dated November 10, 1951, and there is an endorsement at the foot of the assessment order by the Incomt.-tax Officer that action under s. 28 had been taken for concealment of income indicating clearly that the Income-tax Officer waa satiBfied in the course of the assessment proceeding that the firm had conoealed its income.

In our view, the High Court was in error in holding that penalty could not be imposed under s. 28 (l) (c) upon the firm Messrs. S. V. Veerappan Chettiar & Co.,.after its disaolution.

The appeals will therefore be allowed and the orders pB.118Cd by thl" High Court will be set a.aide and the petitions filed by the respondents dismissed with ooats in this Court and the High Court.

One hearing fee.

Appeals allowed.

PALAKDHARI SINGH & OTHEHS.

1).

THE STATE OF UTl'AR PRADE.<::H

A~'TI ANOTHER (J.L. KAPUR and RAGHUBAR DAYAL, JJ.)

/, imitation-Panchayati Adaiat-Fine i111po8fd on con i>i<lion-RUO!ltry aftu expiry of .i:r: year1-IJ barred-U .P. l'amhayat Had Act, 19,7. (U.P; XXVI of 1947) 88. 54, 83, 94lndian Penal Code, 1860 (XI.I of 1960) B. 70.

The appellant was convicted by the Panchayati Adalat for theft and sentenced to pay a fine of Rs. 75/- in 1950.

The conviction and sentence was confirm_ed in 1953 by the High Court in revision.

In 1958 proceedings were taken to recover the fine. The appellant contended that the recovery was barred by s. 70 The Indian Penal Code.

Th~ .rcspon dent contended thats. 70 was not applicable to conv1ruons by

Pauchayati Adalats and that the limitation started from the date of the order of the High Court.

2 s.c.R.

SUPREME COURT REPORTS 631

Held, that 1. 70 Indian Penal Code was applicable to convictions by the Panchayati Adalats and that . the recovery of the fine after the expiry of six years from the date of conviction was barred.

There was no provision in the U. P.

Panchayat Raj Act prescribing any period of limitation or providing for the non-applicability of s. 70 of the Code tc sentences of fine imposed by the Panchayati Adalats. The limitation started from the date of the "passing of the sentence" and the. filing of appeal or revision did not, unless specifically ordered, arrest the operation of theorder imposing the sentence.

CRIMINAL APPELLATE JuRISDIC'l'ION: Criminal Appeal No. 5 of 1960.

Appeal by special leave from the judgment and order dated September, 7 11:159, of the Allahabad High Court in Crimin1tl Reference No. 470 of 1958.

K.P. Gupta, for the appellants.

G. 0 . .bfathur and 0. P. Lal, for the respondent No. 1,

1962, January 19. The Judgment of the Court was delivered by

KAPUR, J.-This appeal raises the question of the applicability of e. 70 of the Indian Penal Code

to fines imposed in convictions for offences under the Indian Penal Code but tried by TribunJJ.ls called the Pancha.yati Adalats, now known as Nyaya Panchaya.ts.

The appellants were convicted by a Panchayati Adalat on February 5, 1950, for an offence under s. 379 of the Indian Penal Code and were sentenced to a fine of Rs. 75/, each. A revision against that order was taken to the High Court which was dis

issed on May 13, 1953. In January 1958, proceedmgs were tii.ken for the recovery of the fine imposed against the appellants by the Panchayati Adalat. In a revision against. that order an objection was raised that the fine was not recoverable as it was barred by s. 70 of the Indian

1~62

Patakdliari Singh.

v. 'rh1 Sta!e of

Ultar Pre<derh

Kapur].

191;2

P•loidh4ti Singh

v, Tn. St.,, of

U ttar p, adtslt.

Kapur J.

652 SUPREiE COlRT REI'Ol1TS (lf62) SlJI>P.

Penal Code.

Tho learned SubDivisional Magis traw by his order da.too February 6, 19158, held the recovery of the fine to be barred under that section.

But a revision was taken to the District Magistrate who recommended tbe setting aside of the order of the sub-Divisional Magistrate on the ground that thcro was no period of limitation. The High Court by its order dated' September 7, 1959 accepted the recommendation of the District Magistrate and held that there is no limit to the time within which the fines imposed by a Pancha.yati Ada.lat can be realised. It is against this order that the appellants havo brought this appeal by special leave.

The conviction of the appellants waa under s.379 of the Indian Penal Codo an<l if they had been tried and convicted by a Magistrate acting under tho Criminal Procedure Code, the recovery of tho fine would have been barred under s. 70, Indian Penal Code. But it is submitted that if tho conviction is by a.

Pancha.ya.ti Ada.lat, the ban on the recovery of the fine after the expiry of six years limitation is no longer applicable.

It is necC'ssa.ry to refer to tho relevant provisions of the lJ.P. Panchayat Haj Act (Act XXVI of HJ47), hereinafter called the 'Act', as applicable to tho facts of this case.

Under s. 52 of the Act, certain offeuces aro cognizable by the Panchayati A<lalat1 a.nd the offence under s. 3i9 of the Indian Penal Code is one of them. tiection 54 empowers those Panohayati Adalats to impose penalties and it is provided that they have no power to inflict substantive sentences of impriilonment or imprison ment in default of payment of fine. Under s.b::I, provisions of the Indian .b.vidence Act, (.; ode of Criminal l'roccdure and the Limitation Act, are made inappli cablo excepting to the extent that the Act makes them applicable. :Section 114 providoa for recovery of fine and it 1uns as follows :

f, I ' /

f I I

•,#,)

2 S,.Q.It. ' S, UP1nw::moo1JR'IitREPORT8. 653 ' [,"any fil)"Q. iinpnsed;! mr >oomp'ensation

1 ortlllrd to be, P\tici-in s. 61 by a Kyaya Panr

, cha.yJl.t. .sharH"be.irec'overable iin the manner

t R\'PSIJribed.-.But if tho.Nyaya•J'ancliayat finds

nXJ..Jl;\Ldifljpulty.tin, itsl recovc><ry; it may request

thp Sub-DivisionaHMa!!i't.rA.M .within whose

"~ jur~diqt!Pq !Jr.,;; Jgya, y1t P; i,11c1J:3:Y?<t p()s .-to recillyet it ,11nii)l~,'hall, re60, verjt 'as if t.11e B<\Il;, , tcnce "of fino lrnd \icen p:isserl py him.:• , ,, Y"'~JJ••' lf u ....... " 1 .1v -r,.. - Rule 82 of the LJ.P. PancT1av:it Raj Rule:g"ue:ile:with th" limitation for writing r, ff of fines and juriidiotion of the Panch&'y'A'ti A<lalats. It provides as to how fines which arc not recoverable .can be writ.ten off, but th<'re is no pro,•ision in this rule as to the period of liIJl:~a}iolfv J'Jn'ref<r:c ; as frl u:s the Act is concerned. th.ere is 110 , provision prscribing a period of limit\iti{1n OJ', p1:o~!ding , fqr thP. non-applieability of s. 70 of1th.o•[n-dl.ih F'enili Code to senknce~, of. fine, passec; l • 1by'th1l PanP.ha;>aLi ·.Arlalats.:As a matter of facts. 9'1; jnf tho, Ant prQ\lides.that if there

i~.diffin~).ty-iq h.ii rerov, cry of a fi1•s, , the Sub-Divisri; m; i, l :l.J; i.gis.trntp h&lJ i:ecQ\'('l' it as.if it wns a dine impost'd" by himself, whic-h supporfs• .. t.he co1iten .. tion oft.he 'n.ppollahtsih'Lt''t!N pe1'iod of ijmit11.tion as provided in s. 70 of the Indian I'e1:1al Cddc is'lltit 'made irm, pj)lfoaBlo for<i1wi'ntionR" 1;, H Panchaya'ti'1a, iUHs. Tn. 1, eM~·i'bi1)'i(;1/ll1e, D'.if{ict 'Magis, tra le

aS., vl:l a~; tqe, High 'co}it ifer9 in .orfor jn ho]ding. tl}(\i .tl1p tieriwl, of limit.atipn prn.\ded b.y. .. s. 70, qf

the: Indian.rllenal iCodo is inapplicahle to 1 the rec\h'er}'6f'finea 1<i1!f poll,{'rl hy' Pni1ehayliti , Adalats.

>t .. 1 irv~~:'ri!'\c.t,'¥g~~C! th.at the, fi11ai .oriki: )vhid,1 is the teimimw •& l q:uo' under s. :.; o,,.of th J Jmli-in Po1}al • C Jcid>i.s t!; i; e orsrers "o'f the Hi; ill (:'oun i"''"'ed.

in fo,\''i'sio.J'l':bn 'l'tfa:V'J;:f. lrj,95:1. anil 'fro".1 !l11•c dnte, t!i, t! :Pl:l:l§¢~Jl!ng'~

1fdr t~\lo, Vetj' iire , vltiiiri' tirbt. ·:i::ut' 1 li ii , '::,,'

~0' I 'b \ • ~. ' l t e.· 11i:rigµag~ }JJ!, i{!. -' • .prr.srp bs , tn1~ te1wM•'lt,8. ,..y, giig , to bEj the-date ¢."passing-or tbe f<en, tent:e" bytC!1u, rt, whichl'pa.3; res srr.::h''!itder"antl: thti''filiTfg<Iof' ippr~ 1"01'1'

.11·1.-.J, .... '

Pal1lkdhari Singh ;- v.

The Stqte o.f Uttar Pradeh

.b."apm J.,

Pa/akdha-ri Sint.h

v, The State of Uttar Pradesh

Kapur J.

. Ji.nuo')' lfl.

Q54 SUPREME COUR'tREPORTS [1!56~) SUPP.

revision does not, unless specifically ordered, arrest the operation cif the order of passing of the sentence of conviction.

In the present case the limitation started from the date of conviction by the Panchavati Adalat and not from 'the date of dismissa1 of i{evision by the High Court.

We.therfore allow this appeal, set aside the order of the High Court aJJ, d restore that of the learned Sub-Divisional Magistrate dated February u, 1958.

Appeal Allowed.

ONDER SINGH AND OTHERS

THE STATE OF PUNJAB (P. B. GAJENDRAGADKAR, K. C. DAS GUPTA and

RAGHUBAR DAYAL, JJ.) Criminal 'I'rial~Acquittal of one acc1ued-No appeal against acquittal--Appeal to High Oaurt by other convicted

accued-Power of High Court-Whether can con8ider correctness of th' acquittal-Code of Criminal Procedure 1898 (Act jj of 1898), s. 423.

Four. persons S, G, L and R were tried for offences under s. ?.02 read with 34 ln.dian P<;_nal Code. The Sessions

Judge gave the benefit of doubt to I) and acquitted him but he convicted the other three of the' offences charged and sentence them to death.

No appeal was preferred against the acquittal o( R. but the three convicted persons appealed ro the High Court .. •The High Court was of the view, that the

sesions Judge was wr0ng in giving the benefit of doub.t, to R, th::it R was present at the scene of offence and all the four accused had the common intention alleged by the prosecution, Relying upon the evidence of the eye witness it dismissed the appeal, but reduced the sentence of G.to life imprisonr:ient.

The appellants contened that the High Court ha.d .. 110 Jurisdiction or authority to embark upoh an enquiry Into 'the propriety or validity of the acquittal of Rand that its.finding that R had ta.ken part in te offene .as . allege~\ b¥ the prosecution had introduced a serious 1nf!rm1ty in the Jµdgment of the High Court. 1

s. 28

s. 28

PALAKDHARI SINGH & OTHEHS

L. KAPUR

RAGHUBAR DAYAL, JJ.

Penal Code, 1860

s. 70

Indian Penal Code

Indian Penal Code

Panchayat Raj Act

s. 70

Indian Penal Code

Indian Penal Code

s. 379

Indian Penal Code

s. 70

Penal Code

s. 70

Indian Penal Code

Panchayat Haj Act

s. 52

s. 3

Indian Penal Code

Limitation Act

Section 114

s. 61

s. 70

s. 70

s. 70

Code of Criminal Procedure 1898

s. 423


Pa/akdha-ri Sint.h

v, The State of Uttar Pradesh

Kapur J.

. Ji.nuo')' lfl.

Q54 SUPREME COUR'tREPORTS [1!56~) SUPP.

revision does not, unless specifically ordered, arrest the operation cif the order of passing of the sentence of conviction.

In the present case the limitation started from the date of conviction by the Panchavati Adalat and not from 'the date of dismissa1 of i{evision by the High Court.

We.therfore allow this appeal, set aside the order of the High Court aJJ, d restore that of the learned Sub-Divisional Magistrate dated February u, 1958.

Appeal Allowed.

ONDER SINGH AND OTHERS

THE STATE OF PUNJAB (P. B. GAJENDRAGADKAR, K. C. DAS GUPTA and

RAGHUBAR DAYAL, JJ.) Criminal 'I'rial~Acquittal of one acc1ued-No appeal against acquittal--Appeal to High Oaurt by other convicted

accued-Power of High Court-Whether can con8ider correctness of th' acquittal-Code of Criminal Procedure 1898 (Act jj of 1898), s. 423.

Four. persons S, G, L and R were tried for offences under s. ?.02 read with 34 ln.dian P<;_nal Code. The Sessions

Judge gave the benefit of doubt to I) and acquitted him but he convicted the other three of the' offences charged and sentence them to death.

No appeal was preferred against the acquittal o( R. but the three convicted persons appealed ro the High Court .. •The High Court was of the view, that the

sesions Judge was wr0ng in giving the benefit of doub.t, to R, th::it R was present at the scene of offence and all the four accused had the common intention alleged by the prosecution, Relying upon the evidence of the eye witness it dismissed the appeal, but reduced the sentence of G.to life imprisonr:ient.

The appellants contened that the High Court ha.d .. 110 Jurisdiction or authority to embark upoh an enquiry Into 'the propriety or validity of the acquittal of Rand that its.finding that R had ta.ken part in te offene .as . allege~\ b¥ the prosecution had introduced a serious 1nf!rm1ty in the Jµdgment of the High Court. 1

field, that it was open to the High Court, when considering the whole of the evidence in resprct of the accused persons, to consider it so far as it related to the acquitted accused also. One of the grounds on which the appellants had attacked the prosecution evidence was that it had not been accepted by the Trial Court against R.

In dealing with this question the High Court had necessarily to deal with the case against R and there was no legal bar ag,1inst it doing so.

Besides, the Trial Court had not held that the evidence against R was false ; it had merely found that the case against his was not free from reasonable doubt.

The King v. Plumber (1902) 2 K. B. D. 339; Pritam Singh v. State of Punjab, A. I. R. 1956 S. C. 415 and Bimbadhar Pradhan v. The State of Ori8sa, ( 1956) S. C.R. 206

referred to.

CRIMINAL APPELLATE JuRISDICTIO"'° : Criminal Appeal No. 100 of 196l.

Appeal by special leave. from the Judgment and Order dated February 24, 1961, of the Punjab High Court in Criminal Appeal No. 11 of 1961 and Murder Reference No. 9 of 196l.

Jai Gopal Seth1:, C.. L. Sareen and R. L. Kohli, for the appellants.

A. S. R. Chari, Gopal Singh and P. D .. Menon, for the respondent.

1962. January 19.-The Judgment of the Court was delivered by

Su11tfer Singh

Thi Stale of Punjab

GAJENDRAGADKAR, J. The three appellants, o,/md,.gadka• J.

Sunder Singh and his sons Lal Singh and Gurmukh Singh along with one Rachhpal Singh were tried before the learned Additional Sesions Judge, Karna! with having committed the offence of murdering Malook Singh, Anup Singh and Darbara

ingh on January 13, 1960, at about 11 A.M. in the Abadi of village Hahri. The prosecution case, was that these three murders were committed by the four accused persons in furtherance of their common intention; at the time when the offence was committed, Sunder Singh and Gurmukh Singh were armed with •Lathis' and Lal Singh and

SutUkr Sf,, g!r

Tiu Stalt of />un.jnl1

Gaitndragadlutr .J.

656 SUPREME COURT REPORTS [1962] SUPP.

Rachhpal Singh wero armed with guns. According to tho charge farmed against tho accused persons, LR! Singh firoo upon Malook Singh and Darbara Sinizh and thereby killed them, while Raohhpal Singh fired upon Anup Singh and killed him. This firing took plaoe in pursuance of the <'ommon intRntion of All tho accusl"d per8ons. That is how Lal Singh and Rachhpal Sinizh were charged under s. 302 rPad with s. 34 of the Indian Penal Code.

The l!'a rnPd trial Judge took the view that the rvidence adducPd against Rachhpal Singh left room for doubt and so, giving Rachhpal Singh the benefit of doubt, he acquitted him. The remaining three accnsed persons wne, however, convicted by him nnder s. 302 read with s. 34 because he held that the prosecution caae had been proved against th Pm bevond a reasonable doubt. The three convicts w<>re ordered by him to suffiPr the sentence of death.

This ordn waa submitted for <'Onfirmation to the Punjab High Court and it waa also challenged by th<' three convi!'ts b; v their separate appeal. The two mattP!'e were heard t0gether by the Punjab Hiizh Court and in the result, the conviction of the thr1•r appellants was confirmPd; in regard to the scntenc<-, however, the High Court took the view th.'\t the rods nf justice would be met if the sentence of death impo81"d on Sunder Singh and Lal Singh

wa.~ c•mrirmed bt1t that imposed on Gurmukh Singh

was re<lnced to one of liff' imprisonment. In the rl'sult, the appeals perferred by the three accused

p<'rons substantially failed and the order of

~•mtenr!' was confirmed in reiiard to two of them.

I• is azainst the order of oonviction and sentence

~ ,.11, pasilf>d by the High Court that Sander Singh, L11l Singh and Gurmukh Singh have eome to this f'nurt by 11pecial leave.

Befqre dealing wit~ the pomtR t!'\s ~~ before us hy Mr. Sethi on bt-hnlf of the appellants, 1t would l1P rnvenient to Ad out broadly the materi&t facts ),.ading to the prosecution. I>nrbra Singh and the

deceased Ma.look Singh were the sons of one Phula.

It appears that prior to the partition of India, these brothers lived in a village Butra.n which is no'w a pa.rt of West Pakistan. .The appellants also resided in the same village, Sunder Singh, a brother of Phula Singh ha~ mortgaged 20 kilias of agricultural land with possession for Rs. 2,500/- with the appellant Sunder Singh and his brothers, in about

1943. In lieu of this mortgage, the appellant Sunder Singh and his co-mortgagees, had been allotted 40 killas of land in the village Habri in the District of Karna.I. The mortgagor Sunder Singh later died without leaving an issue or a widow.

Phula Singh, his brother, claimed to be the heir of the said mortgagor a.nu as such, he asked for redemption of the land on payment of Rs. 2,500/-.

The appellant Sunder Singh did not recognise Phula Singh as the heir of the mortgagor and so, Phula Singh had to make an application in that behalf on November 29, 1959. By this application made to the Assi11tant Collector, Kaithal, Phula Singh claimed to redeem the mortgage. '.!; his claim was strongly resisted by the appellant Sunder Singh and his co-mortgaees. They disputed the title of Phula Singh and in the alternative, they alleged that they eould not be deprived of the possession of the land expect on payment of Rs. 25,000/·. The proceeding continued for some time but it appears that Phu la Singh was not able to place satisfactory evidence about his title before the Assistant Collector. In the result, his application was dismissed for default.

Thereafter, the deceased Ma.look Singh applied for a

passport to Pakistan; the prosecution case is that he wanted to go to Pakistan to obtain copies of the original mortgage deed and a pedigree-table from the revenue records kept in Pakistan which would have supported the claim of Phula Singh to the heirship of the mortgagor Sunder Singh. An enquiry was made into the antecedents of the deceased Malook Singh by the authorities concerned

1~62

SuoJ.,. SW, h

•• Till St•t• •f PUl!id

"• Ti, .: lot1 .,,_, Piinjab

658 SUPREME C'OUR'l' HEPORTS [ 1962) SUPP.

and on January 11, 1000, his application for paBBport was recommended by tho S.D.O., Kaithal, tO the Punjab UovPrmnent. On January 13, 1960, however, tho incident giving rise to tho present

prosecution occurred and Malook Singh along with his brother Darbara Singh and his relation, Anup Singh were murdered. The prosecution case is that the@e murders were committed by the appellants in furtherance of the common intention because they wanted to thwart Malook Singh'~ efforts to bring satisfactory evidence about the heirship of his father, Phula Singh to the mortgagor Sunder Singh. That, in substance, is the motive alleged by tho prosecution for the eommission of the three murders.

The actual incidents leading to the triple murder lie within a narrow compass. January 13, l!J60, was 'Lohri' day. A couple of days earlier Malook Singh had arranged for an 'Akhandpath' (Non-stop recitation of the holy Granth Sahib). Tho Path came to a close on the forenoon of January 12, 1960, and tho closin~ function was attended by several persons, including Shahbeg Singh who is a relation of Malook Singh. Between IO and 11 A.M. on January 13, l!J60, Malook Singh, accompanied by his wife Amar Kaur, her brother An up Singll and Shahbeg Singh went to the local Gurdwara to pay

their homage on the auspicious day. Darbara Singh, Balkar Singh and Mohinder Singh had preceded them. All of them halted in the Gurdwara for a few minutes and then came out. Malook Singh was carrying a spear because he intended to go to his fields after visiting tho Gurdwara.. As the party reached tho 'ba.ithak' of Tara Singh whfoh was a few paces away from the Gurdwara, Malook Singh and his companions saw the three appellants coming towards

them accompanied by Racbhpal Singh. They also noticed that all of them were armed. The appellant Sunder Singh immcdiat.ely railed a shout at Malook

••,.

Singh and said that he would despatch him to Pakistan where he intended ta go in order to collect proof for the mortgage and heirship of his father to the mortgagor. So saying, he aimed a lathi blow at Malook Singh, but Anup Singh intervened and entreated Sunder Singh not to assault Malook Singh.

As a result, Anup Singh was hit on the head by the lathi of Sunder Singh. The three companions of the appellant Sunder Singh then rushed forward.

Gurmukh Singh gave a lathi blow on one of the

hands of Anup Singh. Malook Singh then stepped forward to save Anup Singh's life and gave a spear below to Sunder Singh. .This blow caused injuries on his chest. Thereupon, Sunder Singh shouted to his companions not to allow Malook Singh and his friends to escape. At that stage, Lal Singh and Rachhpal Singh .used their di:Juble-barrelled guns and fired ; Lal Singh hit Malook Singh and Rachhpal Singh injured one of the knees of Anup Singh Rachhpal Singh then shot at Anup Singh again and Anup Singh fell down. All the companions of Malook Singh, except for his wife Amar Kaur, were frightened and ran for their lives. Lal Ringh then gave a chase to Darbara Singh, overtook him at a short distance and shot him dead. Mohinder Singh and Shahbeg Singh, however, managed to . find the shelter and thus protected themselves. After shooting Darbara Singh dead, Lal Singh returned to the spot and shot at Malook Singh and. Anup Singh again when he found that they were still alive.

Having thus committed three murders, the assailants ran away with their respective weaptins. That, in brief, is the prosecution case.

As we have already pointed out, the learned trial Judge gave the benefit of doubt to Rachhpal Singh and convicted the three appellants of the offence of murder. Before the High Court, it was urged on behalf of the appellants that Gurmukh Singh and Rachhpal Singh had been falsely implicated

196%

Su,, J, r S;,, gh

T1ie 8t•ll of I'..; 1b

s...#rSingh

•• '[,,. 81.U •f /'wUal>

660 SUPREME COURT REPORTS [l 962] SUPP.

by the prosecution witnesses and it was argued that the appellant, Sunder Singh himself was a victim of aggression at the hands of the dOOQased Malook Singh and his comp11nioDR <ind Lal "3?ngh had

8hut at the assailants in ord"r tu sa \ e hio father.

In other words, the contention was t.hat Sundor Singh and Gurmukh Singh were not guilty of any offence at all and that Lal Singh would at the worst be guilty of having exceeded the right of private defence. The case for the defence being based on the assumption that Malook Singh and his friends assaulted Sunder Singh and were themselves the aggressors, the High Court considered the oral evidence given by the four eye-witn<'SS<s, Shahbeg Singh, Balkar Singh, Mohinder Singh and Amar Kaur, the injuries inflicted on the three dect'ased persons, and examined the several points raised before it by tho defence and came to the conclusion that tho appellants and Rachhpal :::>ingh were actuat .. d by the common intention as alleged by the

prosl.'1•11tion.

In its opinion, Sunder 8ingh and his companions were the aggrl'ssurs and Miilook Singh ; end his friends were the victims and so, the learned trial J udgo was right in holdiug the appellants guilty of murder under soction 302 read with section 34, I.P.C. It appears that the High Court

was in<' lined to take thP. view that the trial Judge wa8 not right in giving the Lenefit of doubt to Raehhpal Singh. In the alternativl', tlw High Court came to the conclusion that even if the meeting between the two parties was in the nature of a chanc<' meeting, the circumstances of the ease clearly indieat1 that the common intention to kill tho throe dceeas1il persons developed in the minds of the appcllnuts and R<\chhpal Singh on the apot.

Their conduct leading to the three murders, thought the High Court, irresistibly led to the inft:rence that even if they did not start with the l'ommon intention of killing tho three , idims, that intention developed in t.hcir minds as HOUll :is thPy nut the

opposite party by chance. On these findings, the High Court confirIUed the conviction of the three appellants, upheld the sentence of death aga.inst Sunder Singh and Lal Singh and reduced the eentencil of dath passrd on Gurmukh Singh to one of imprisonment for life. It is the correctness of the findings recorded by the High Court that is challenged before us by Mr. Sethi op behalf of the appellants.

The first point which Mr. Sethi has strenuously urged l>eforn us is that the High Court was in error in wcurding a finding that Rachhpal Singh was present at the scene of the offence, shared the common intention of the three other appellants and, in fact, fired at Anup Singh as alleged by the prosecution.

Mr. Sethi contends that the trial Court had acquitted Rachhpal Singh of the offence charged and thne was no appeal by the State against the said order of acquittal.

Under s. 423 ( l)(a) of the Code of Criminal Procedure, it is only where an appeal from an order of acquittal bas been preferred that the High Court can reverse the said order ii it is sati8fi<'!l that the acquit:al was not justified on the evidence adduced in the case. He, therefore, contends that the High Court should not have considered the propriety or the validity of the order of acquittal in favour of Rachhpal Singh.

Indeed, according to him, the High Court had no authority or jurisdiction to embark upon that enquiry and since the High Court has, in terms, recorded the conoluRion that Rachhpal Singh had taken part in the offence as alleged by the prosecution, that has introduced a serious infirmity in the judgment of the High Court.

In support of his argument, Mr. Sethi has placed strong reliance on the decision in The King

v. Plummer('). In that case, three persons were jointly tried with conspiring togethet. One of them

(I)

(i902) 2 K, B.D, 339,

s,,,.h ..

Thi 81#14 of l'wJob --- Gojend..-.. J.

IHI a..- B;., A ... '1'111 ,,.. •I IVli•b

G ....... ~~1rJ.

662 SUPREME OOURT REPORTS [1962) SUPP.

pleaded guilty and judgment was passed ag"inst him on his plea. The other two pleaded i1ot guilty.

They were tried and acquitted. It was held that the judgment passed against the one who had pleaded guilty was bad and could not stand.

It would he noticed that the indictment in that caso contained five counts charging the obtaining of money by false pretences and also a sixth count alleging a conspiracy betwP.en the three accused tu defraud the prosecutors. The sixth count did not allege that there wore any other or unknown parties to the conspiracy and all the three defendants \ere included in one arraignment. All of thorn pleaded not guilty to tho five counts. Only one pleaded guilty to the sixth count, the others pleaded not guilty even to that count. It was on these factl! that the conviction of the one who had pleaded guilty to one charge was set aside and the decision setting aside the BA.id conviction was based on two grounds. It appears. that at a later stage bf the trail the defendant who had pleaded guilty to the sixth chargo wanted to withdraw his plea and the Court did not. allow him to withdraw that plea on tho ground that it had no jurisdiction to do so.

Tho King's Bench Division for whose opinion the relevant questions were referred held that the trial Court had no doubt a discretion in the matter, but since it had acted upon the erroneous opinion that it had no power to allow the withdrawal of the plea, it had, in fac~, not exercised any discretion. Therefore, if the discretion had been properly exercised and the ploa of guilty had been allmved to bo withdrawn, then clearly the defendant pleading .<?uilty would have bee1! acquitted. That is one r<>ason for the order of acquittal passed by the King's Bench Division. The other r<>ason was that whcrn the indictment charges that A, B and C combined, confederated and agreed together to <lo a certain thing, and A and B are acquitted by the vordiot of the jury from the charge, it is inconsistent with

that finding that there could have been any combination, confederation, and a.greement between them and C ; and unless they combined, confederated, and agreed together with C, C could not be found guilty of the charge. It is on these two grounds tha.t the conviction recorded against one defendant for the sixth count to which he had pleaded guilty was set aside.

It is difficult to see how this decision can asRist Mr. Sethi in the present case. It is not sng-gested by him that the order passed by the trial Court convicting thll three appellants even after acquitting Rachhpal Singh was itself invalid.

Logically, if the decision in the case of Plummer was applicable to the present.case, Mr. Sethi would have been able to attack the validity of the conviction of the three appellants in the trial Court itself. His argument is that the Appeal Court should uot have considered the propriety and the

validit.y of the acquittal of Rachhpal Singh. That is a question with which wa will presently deal; but in deciding that question, the case of Plummer does not appear to afford any material assistance.

Cases sometimes arise where persons are charged with being members of an unlawful assembly and other charges are framed against them in respect of offence committed by such an unlawful assembly. In suc:h ca.sea, if the names of persons constituting the unlawful assembly are specifically and clearly recited in the charge and it is not suggested that any other persons known or unknown also were members of the unlawful assembly, it may be that if one or more persons specifically charged are acquitted, that may introduce a serious infirmity in tiie charge in respect of the others against whom the prose1JUtion ca.ae may be proved.

It is in this class of cases, for instance, that the principle laid down itJ the case of Plummer may have

some relovirnoe. If out of the six persons charge<l

SUlltltiSingA n, s,.,. f Pw!Jd

GaJ""1'6"'1k• j.

1H2

B-'n Bia16

•• n. 1J1111 of P!/14/oi

(J ej,,,.., ... J.

664 SUPREME COURT REPORTS (1962] SUPP.

under sootion 149 of the Indian Penal Code along

with other offencea, two persons are acquitted, the remaining four may not be convicted because the essential requirement of an unlawful assembly might be lacking. In the present case, however, the failure of the prosecution to prove that Raohhpal Singh took part in the commission of t.he offence does not introduce an infirmity in its oas<i against the appellant at a.II.

Even ifRachhpa.l Singh is held not to be presont at the scene of the offence, that, in law, cannot prevent the proseeution from presenting its case against the three appellants if the evidence adduced by it is otherwise satisfactory and cogent. Therefore, we are satisfied that

t.he case of Plummer does not make the conviction of the appellants either unreasonable or illegal.

Revertting then to tho argument based •m the provisions of s. 423(1 )(a) of the Criminal Procedure Code, it is obvious that the order of acquittal passed in favour of Rachhpa.! Singh cannot be set asiclc un le~R an apf'cu.I had been duly preferred in that behalf against the said order. But do the provisi0ns of s. 4:!:! (I )(a) create a bar against the High Court iuiliPntally considering the question about

lfachhpal Singh's 11rcsence and conduct at the relevant time while it is dealing with the prosecution cruie aain8t the three appellants before it ?

Whn the High Court in appeal considered the ca.so against the three appellants, it had inevitably to examine the comment made by Mr. Sethi against the reliability of the witnesses on tho ground that

their evidence against H.achhpal Singh had not been accepted Ly the trail Court and that neoeasarily meant that the High Court had to apply its mind to that problem as well. If in dealing with the case

presented Lefore it on behalf of tho appellants it

Lccame necessary for tho High Court to deal indirectly or incidentally with the case against Raehupal Singh. them iH no fogal bar at all. It

may be that in considering the evidence as a whole the High Court may have come to the conclusion that the evidence against Rqchhpal Singh was unsatisfactory and if it had come to such a conclu

si<>n, it would have examined the said evidence in the light of this infirmity. On the othur hand, after considering the evidence, tho High Court may well have com" to the conclusion, as it has, in fact, done in the present case, that the evidence against Rachhpal Singh is also good and need not have been discarded. Iu our opinion, there is no doubt that if in appreciating the points made by the appellants before it the High Court hn, d to consider the whole of the evidence, in respect. of the acoused persons, it was freo to come to one conclusion or the other in respect of the said evidence, so far a.s it related to Hachhpal Singh. Thn, t is why we think that the point made by Mr. Sethi that s. 4:'3(l)(a) precluded the High Court from considering the merits of the order of acquittal even incidentally or indirectly cannot be upheld.

Mr. Sflthi, however, sought to derive assistance from the decision of this Court in the case of Pritam Singh v. Si, awof Punj11b('). In that case, this Court has observed "that the pffect of a verdict of acquittal pronounced by a competent Court on a

lawful charge aud after a lawful trial is not completely stated by saying that tho person acquitted cannot be tried again for the same offence.

To that it must be added that tlie verdict is binding and conclusive in all subsequen¥ proceedings between the parties to t.he adjudication.

The maxim 'res judiratii pro veritate accipitm' is no less applicable to criminal than to civil proceedings." These observations were m'itle wlwn dcspitr the order of acquittal passed against a pcrnon under sections Hl (ft of t.he Amrn Ad in 1rn cmlier proceeding, the same allegation \\a~ 1na.<le aga.iust him in a subRcqu<'nt case where he was charg<'d with

(l) A.1, H .. ll~!JUJ S.C.R. ll.[1.

SWllfrr Si ... ~

•• Th• Sfdle ., f'ttt(jri

,,.,

s .. •Sio&• •• i118 .... •f "'-jol

CorJ.

666 SUPREME COURT REPORTS [l!Hl2] SLl'P. murder. [n other words, the derision of this Court in the case of Prit.am Singh rn<'l'P ly shows that if a person is acquitted of an off.nce on a charg<' frarn('() against him which had heen tried in a court of competent jurisdiction, tho acquittal is conclusive between the said person and the prosc<ution and it cm be challenged or reopened only by an appeal against the said acquittal, not otherwise.

This proposition has no relevance to the present case.

When the High Court considered Mr. Sethi's cri

tioism against the prosecution evidence based on the a.BBumption that the said evidence was found to be unreliable in rn far as Rachhpal Singh is

concerned, it was not appreciating that evidence with a view to reverse the order of acquittal passed in favour of R&chhpal Singh ; it wn.A appreciating that evidence only with a \'iew to decide whetl1er the said evidence shoul<I be believl'd against the appellants before it.

That is wlty we think no assistance c9.D be legitimately claimed by Mr. Sethi from the decision in the case uf Pritam Singh in support of his argum<'nt that the High Court has acted illegally or improperly in <'Xpr<ssin)( its opinion that tho prosecution •vi<lencc against Raohhpal Singh was not unsatisfactory.

Indel'd, as an appellate Court, the High Cvurt has tu consider indirectly and incidentally the evidencu adduced against an accused person who had been acquitted by a trial Court in several roses where it is dealing with the appeals brfore it by the cu. accused persons who had been convicttd at the same trial and in. doing so, the High Court and even this court some times records its indirect conclusion that the evidence against the acquitted persons was not weak or unsatisfactory and that the acquittal may in that sense be regard as unjustified, !'ide Bimbadl111r Pradhrm v. 'l'he State of Oris.<a. (1) Therefore, we do not think tha.t there is any substance in the point ma.du by Mr. Sethi that the judgment of the High Court Ruffers rrom a

\I) [1951i]S.C, R.2W,~19.

2 S.C.R.

SUPREME coerrT REPORTS 667

serious infirmity in that it examined the evidence against Rachhpal Singh and came to the conclusion that the said evidence was not unsatisfactory.

In this connection, we may incidentally poin.t out that even the trial Court which acquitted Rachhpal Singh has expressly observed that it did not say that the eyewitnesses were false in their claim that Rachhpal Singh also took part in the furtherance of the afqresaid common intention, but it thought that the case against him was not proved beyond all reasonable doubt.

In other words, even the finding of the trial Court was not that the prosecution evidence against Rachhpal Singh was false; it only was to the effect that it left room for reasonable donbt. That .is about all.

That takes us to the merits of the case. On the merits, Mr. Sethijias raised some general considerations affecting the credibility of the oral evidence adduced by tho prosecution in support of itR case.

It appears that in the trial Court the prosecution case was that shooting had taken place from n 8hort distance of 9 to 12 inch< s between the assailants and their victims.

This case appears to receive support from the evidence of Dr. (Mrs.) Iqbal Shukla who had conduckd post mortem examinr,'.ina of the three dead bodies.

While giving the details of various gun-shot injuries, she noted that in most cases the wounds l1ad burnt irregular edgts and signs of burning wrre also found in some of the internal or1wns, such as lungs and heart, through whirh the bullet or the pellets passed. It is true that he does not appear h1 have been seriously cross-!':xamined at th<' trial on this part of the evidence ; but it was pointed out to the High Court that if the culprits werr alleged to have fired from the lieens<•d guns, the buming of the edges could take place on!~' if th<• rliManre lwtwe<>n the muzzle of the gun and the bod.v mis not more than nine inchrs, but since the wound8 on the dead

1969 s"""'r sn., i. . " Th• s1a1, of r..v•

J:RSZ hoclies '.plearly showed that , the pellets had n.ot

Sanihr Sinth entered the body en masse but had dispersed, .it v. woul_d be obvious that the deceased persons were.

T7rt sr.zr, •/ Pulij•b shot from a: distance of not less than 20 or 25 •feet i

GaJmkrirt..Zkn .-, The High Court was impresse':l: by this argument and so examined Dr. (Mrs.) Shukla and Dr. K.S.

Rai who is a Professor of Forensic Medicines.

Dr. (Mrs.) Iqbal Shukla adhered to the opinion already given py her but Dr. Rai's evidence completely destroyed the evidence giyen by Dr. (Mrs.) Shukla. Besides, the clothes of, the deceased which were examined by Dr. Rai should that there were no marks of burning on them.

Jn the result, the High C9urt"<!ame to the conclusion th11, t it wns diffiC:vlt to accept Dr. (Mrs.) Shnkla's evidence that thii gun-shot injuries on the deceased had burnt

edges and it also held that the shooting must have taken pface from q. distace of 20 to 25 feet. 'Fhis findihg of the. High Court is not disput, ed , before us by Mr. Chari wpo appeared for the l::itate.

Mr,. Sethi contends that the finding as to the

dist.anc~ fro~ whfoh shooting took place introduces, a Sl'ri<;>us infirmity in the prosecution evidence in as such as the eye-witnesAes suppo_rteq the. proAccution case .as priginally. set out al, Joqt the cjistanc!l; t)Jey said that the firing took place from a distance

- of '9•...

Tp.e .Ft; igl). Cour.t tliought that this , infirmity was. true only in the C\le of .;:ihahbeg S, ingh. '.!'.hat,. ho.wever, i.s clearly erron.e'ous. '.l'hat injirm.it.y is presept evep in the easy .of B!i-lkar j3ingh., n.nd .A, ma, r Kaur, th9ugh Amar J(anr put the clistance , at 2 to 4 fee~. ' Tb, e .High Court _d, oes not appear to have

nptied the fact that ev!ln B.\tlkar Singh like Sh&hbeg_ :Singh dyscribed the clisnce from whi.ch firing. too!f P, lace as' .being 9 inches, t rt , i~ true that Mohinqer ingh d_oes no~ give. (l.nyl <wjdenco ahout,

tliis.ilitanoo.,, ,'

Therefor'c;:Mr. Setl)i js right ip con~(\ndiNg' tjlat thet hree e:v.c.witheslles have clriposetl to Lho distnace

from which" firing t.ook p1acc \\'hich is demonstrated .

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to be wholly inaccurate, Incidentally, we would like to add that in dealing with the evidence of Amar Kaur, the High Court has referred to her 8tatement in the committal court and erroneously treated it as substantial evidence in the present case. Thus, it may be conceded in favou; of the defence that three out of the four eye-witnessas have deposed to the distance in terms of the theory propounded by Dr. (Mrs.) Iqbal Shukla and that, no doubt, is an infirmity in the evidence.

Then, Mr. Sethi contends that the prosecution story as to how the incident occurred is not consis tent with its case that the appellants ca.me to the scene of the offence pre-determined to assault Ma.look Singh and his companions. If the common intention of the appellants wa.e to attack Ma.look Singh and his companions, they would not have allowed the appellant Sunder Singh to gu ahead armed with a lathi, particularly when his son, La.I Singh was armed with a. gun. Sunder Singh was an old man of 65 and seeing that Ma.look Singh has a spear in his hand, it is very unlikely that Sunder Singh's son would have allowed him to go a.head with a lathi to assault Malook Singh and his com pa.nions. Therefore, the sequence of events as it is described by the prosecution witnesses, it is urged, is not consistent with the story of a pre-concerted plan on the part of the appellants. In our opinion, this contention. cannot be rejected as wholly un reasonable.

On the other hand, it appears to be fairly clear that Sunder Singh attempted to attack Ma.look Singh before he received the injury himself. As the High Court has pointed out, having regard to the real nature of the injury inflicted on Sunder Singh by Malook Singh, it is very unlikely that Sunder Singh attacked Anup Singh after he himself was assaulted by l\falook Singh. Therefore, it oan be taken to be established on probabilities that when Sunder Singh

1/1112

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67<> SUPREME COUHT REl'OR'.l'S [1962J SUP.I:' .

.IHI and his sons met Malook SiT1gh and his com- ..., .tirfA {!anions, Sunder. Singh must have attempted to .,...,,,, v;, 1"o#iJoJ dllll&Ult Malook Smgh and in the process, injury was

_ cauaed to Anup Singh . ............ ,.

The fact that Sunder Singh assaulted Malook Singh does not, however, show a pre-concerted plan in the minds of Sunder Singh and his sons. In our opinion, it was a chance encounter which, iD all probability, led to an exchange of words and Sunder Singh took the aggressive and wanted to aasault Malook Singh. Tho oral evidence given by the four eye-witnesses describes the incident as though Sunder Singh and his companions came armed determined tO attack Malook :Singh ; but that evidence appears to us to be artificial and as we have just indicated, Sunder Sinizh could not have been left

1.lone to tackle Malook Singh and hi11 companions if his 11on and he had decided to attack Malook Singh even before they mat.

It is, however, urged that Lal Singh who had deposited the gun with the Police when proceedings had been commenced against his father and the members of hi1 party under s. I 07 of the Criminal Procedure Code, took the gun back on January 9,

1960, and the argument is that Lal Singh took the gun back because he and his father had decided toaasaultMalook Singh. The High Court appears to have attached considerable importance to this circum stance. Unfortunately, this circumstance h88 not been put to Lal Singh when he was examined under s. 342 of the Code in the trial Court. If it was thought that the conduct of Lal Singh in taking back his gun on .January 9, 1960, was an incriminating circumetanoo, the trial Judge should have given an opportunity to Lal Singh to explain that ciroumstance. In the absence of any question put to him in that behalf, it would, we think, not be fair w press this circumstance very much against Lal

Singh and in support of the theory of the common

intention of Lal Singh, his father and his brother.

Besides, even the High Court has observed that going about with a gun in that part of the oountry and amongst the class to whom the parties belong is not such an unusual circumstance at a.IL Just as Malook Singh was going about with a spear, so Lal Singh may be going about with a gun for which he had a licence. 'l'herefore, the fact that Lal Singh was armed with a gun which he had taken ha.ck from the Police custody on January 9, would not, in o.ur opinion, support tho theory of a pre-oonoerted plan.

It is also urged that whatever may be said against the evidence of Shahbeg Singh, Balkar Singh and Amar Kaur, Mohinder. Singh is an independent witness and since he has given evidence in support of the prosecution case of a pre-concerted

plan, there is no reason why that evidence should not be believed. Apart from the fa.ct that the probabilities do not support the prosecution case of a pre-concerted plan, we are not satisfied that Mohinder Singh can claim to be an absolutely independent witness as the High 'Court seems to have thought. Mohinder Singh was •asked in cross-examination whether he was not related to Malook Singh and in order to establish his relationship, it was put to him that Gehna Singh was his grandfather and that Gehna Singh was the cousin of Phula Singh. Mohinder Singh replied that he did not know the name of his grandfaher because he had not seen him and he had not enquired from any relation about the name of his

grandfa.~er either: The High Court thought that this explanat10n was genuine. We are not satjrdied that.the view taken by the High Court is right. In our . opinion, the trend of the answers given by Mohinder cingh in hiE cross examination clearly suggests that he was evading to give truthful replies in respect of his relationship with Phula Singh

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672 Sl:PBEME COl:RT REPORTS [1962) SUPP.

Besides, it appears in evidnnce that proceedings had been taken against whom lllalook Singh and his friends amongst l\Iohindcr Singh was included, under HS. I 07 and 150 of the Code of Criminal Procedur1" Hazur Singh was the person who had made the complaint in that behalf. The allegations made hy Hazur Singh clearly point to the fact that disputes were going on between two groups-one led by the appellant Sunder Singh and the other led by Malook Singh. The High Court thought that there was nothing on the record to show. that Sunder Singh or members of his party were witnesses in those proceedings. That, however, is not decisiv<'.

What is important is tho fact that disputes were going on between two rival groups to one of which Mohinder Singh belonged and that was the point of the croBB-examination to which Mohindor Singh was s11 hjccted at the trial. Therefore, we are not incline< I to hold that l\Iohinder Singh

ia an absolutely independent witnss. Like the other eye-witnosrs, he also must be characterised as the partisan witness. That is wh.)' the argument based on the unimpcu.chable character of the evidence given by .Mohindcr Singh in support of the theory of the common intention of the appellants cannot be accepted. We must, therefore, hold that the prosecution evidem c fails to establish its CMe that the appellants case on the scene of the offence determined to attack Malook Singh.

On the other hand, it appear to have been a chance meeting which bP.gan with an exchange of hot words between Sur.der Singh and Malook Singh and the verbal exchange was followed by an attack by Sunder Singh on Malook Singh. That means

Sunder Singh was the a.ggreesor and so La.I Singh could claim no right of private defence.

Indeed, in the present appeal, Mr. Sethi's arguments were, in 1111betance, confined to the case ofGurmukh Singh.

Sunder Singh who had been ordered to be hanged

died in jail pending the present appeal, and the case of Lal Singh, as Mr. Sethi himself fairly conceded, is difficult to defend. It is on the case of Gurmukh Singh that Mr. Sethi naturally concentrated, and it is to Gurmukh Singh's case that we must now turn.

If the prosecution case about the pre-concerted plan does not succeed and if it is held that Sunder Singh began the assault against Malook Singh and was followed by Lal Singh who fired at Malook Singh and his companions, there can be no doubt that Sunder Singh and Lal Singh can be held to have been actuated by the common intention of murdering Malook Singh and his companions.

Sunder Singh knew that La.I Singh was armed with a gun and when he deliberately provoked a controversy with Malook Singh and proceeded. to assault him, he musi; have known that Lal Singb was behind him, he would follow up the attack and do the rest of the work. That is why we are inclined to a0cept the conclusion of the High Court that the common intention to murder Malook Singh arid his companions must have developed in the minds of Sunder Singh and Lal Singh soon after they met Malook Singh and his companions and Sunder Singh attacked Malook Singh.

But can we reasonably hold that Gurmukh Singh also developed the same common intention?

And that must take us to the evidence which implicates Gurmukh Singh. As we have already pointed out, Gurmukh Singh is alleged to have caused an injury to Anup Singh on his knee and an injury to Amar Kaur. It is, however, significant that none of the prosecution witnesses has refarrred to Gurmukh Singh attacking Anup Singh until they gave evidence in the Sessions Court. An omission to refer to this part of Gurmukh Singh's conduct, therefore, assumes considerable significance.

The detailed manner in which the incident has been described suggests that the omission to

Sund<• Sin1h

v. .

T/io Stot1 of Po'fid

GaJeridragadl.M J.

IHI

5"""' Silw.I

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<Jw.,...,. J.

674 SUPREME COURT REPORTS [1962) SUPP.

refer to Gurmukh Singh's aseult on Anup Singh ia in the nature of a contradiction and so, it cannot be lightly brushed aside.

As to the injury alleged to have been caused by Gurmukh Singh on Amar Kaur, the evidence is not very satisfactory. It is

true that Amar Kaur has deposed to this injury but the manner In which she has given this .evidence does not strike us as reliable. Besides, this injury is outside tho scope of the common intention charged and it is not the subject-matter of a sepa. rate charge. We haye carefully considered the whole of the evidenoo adduced by the prosecution in this case and we are not satisfied that it would be safe to hold that Gurmukh Singh was present at the soene of the offence and that he took part in attacking either Anup Singh or Amar Kaur from which it could be reasonably inferred that like his father and his brother, he also developed a common intention to attack Malook Singh and his compa nions. That is why, having examined the probabilities in the caae and bearing in mind the infirmities from which the evidence suffers, we are disposed to differ from the High Court when it came to the conclusion that Gunnukh Singh was also guilty under eection 302 read with section 34 of the I. P. C. in our opinion, the case against Gurmukh Singh is not established beyond a reasonable doubt and so, he is entitled to the benefit of doubt.

In the result, the order of conviction and sentence pa888d against Sunder Singh and Lal Singh

is confirm.ed, where&!> the order of conviction and sentence passed against Gurmukh Singh is set aside, and he is ordered to be acquitted and discharged.

Apptnl parl.ly allowed.

Allowed.

ONDER SINGH AND OTHERS

K. C. DAS GUPTA

RAGHUBAR DAYAL, JJ.

Code of Criminal Procedure 1898

s. 423

s. 302

s. 34

Indian Penal Code

s. 302

s. 34

section 34

I.P.C

s. 423

Code of Criminal Procedure

Indian Penal Code

s. 423(1 )(a)

s. 4

s 11

s. 4

s. 342

section 34


2 S.C.R.

SUPREME COURT REPORTS 675

VIJAY PRATAP SINGH

DUKH HARAN NATH SINGH AND ANOTHER

(And Connected Appeal) (S. K. DAs, M. HIDAYATULLAH and J. C. SHAH, JJ.)

Suit-Application to sue in forma pauperia-Courts jurisdiction-Application for bei"9 tranaposed as plaintiff-If could be rejected on the ground that the claim made in original petition ia perBOnal-Oodt of Civil Procedure, 1908: (V of 1908) 0. J. rr. 1, JO, 0, SS, r. S(a).

The Estate of Maharaja Man Singh of Ayodhya Raj devolved on his death successively on his two widows and thereafter, according to V the plaintiff a minor on his grandfather G, who died in 1942. Respondent claimed the estate as adopted son of the junior.widow of the Maharaja. V filed a petition for leave to sue in forma pauperis for declaration of title to the estate making his father R a party. The plaintiff's petition was rtjected by the Subordinate Judge, on the ground that it disclosed no cause of action. R's application to be transposed as petitioner was also rejected. V and R preferred revision applications to the High Court of Allahabad.

The plaintiff's application was rejected by the High Court holding inter alia that there was nothing in the petition to show that G succeeded to the estate as the nearest male reversioner of the last male holder. R's application was rejected by the High Court on the ground that relief in a11 application to sue in Jorma fl'.lupt, ria is personal to the applicant and nobody else can be made a co-applicant, because I, R. JO of the Code of Civil Procedure does. not apply to a proceeding for permisoion to sue as a pauper.

Ht Id, that 0. XXXIII of the Code of Civil Procedure lays down the procedure . for institution of a suit by pauper.

By cl. 5 (d) the court is required to ascertain whether the allegation made in the petition show a cause of action , but it does not enter upon a trial of the issues affecting the merits of th.e claim made by the petitioner. .By the statute, the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown : the jurisdiction does not extended to trial of issues which must fairly be left for decision at the hearing of the suit.

n application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper

ithout payment o~ C'!t fee ; and there is nothing personal m such an application. The suit commences from the

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moment an application for permission to sue in forma pauper is as required by 0. 33 of the Code is presented, and 0. I r. 10. of the Code would be aS much applicable in such a suit as in a suit in which Court fee had been duly paid. A person who claims to join a petitioner praying .for leave to sue in forma pauperis must himself be a pauper. Claim to join Ly transposition as an applicant must be investigated ; it is not liable to be rejected on the ground that the claim made by the original applicant is personal to himself.

Crvu, APPELLATE JURISDICTION : Civil Appeals Noe. 253 and 254 of 1961.

Appeals by special leave from the judgment and order dated May 2, 1955, of the Allahabad High Court in Civil Revision Nos. 881 and 882 of 1952.

S. F. Andley, R<l'fM.Yhtcar Nath and P. L. Jl'ohra, for the appellant in C. A. No. 253 of 1961 and

respondent No. 2 in C. A. No. 254 of 1961.

8. P. Varma, for the appellant in C.A. No. 254 of 61 and respondent No. 2 in C.A. No. 253 of 1961.

C. B. Aggarwal<I and C. P. Lal,, for the respon dent No. I in both the appeals.

19!i2. January 19. The Judgment of the Court was delivered by

Sa.ur, J.-Vijay PratapSingh(hereinafter ealled the plaintiff) a minor-by his next friend Pandit Brij Mohan llfisir filed a petition in the Court of the

Subordinate Judge. Fa.izabad for leave to sue in for111a pauperi8 for declaration of title to the Ajodhya. Raj and accretions thereto and for p011868sion and mesne profits for three yea.rs prior to the suit. The petition was rejected by the Subordinate Judge because, in his view, it disclosed no ca.me of action. An application by Ramjiwa.n Misir father of the plaintiff who was impeaded as the second defendant, to be transposed as a petitiouer was also rejected by the Subordinate Judge. The plaintiff and Ra.mjiwan Misir applied to the High Court of Judicature at Allahabad in the exercise of it.I revisiona.1 jurisdiction against the orders rejecting

28.C.R.

SUPREME COURT REPGRTS 677

their respective petitions but without success. They have with special leave appealed to this Court against the orders passed by the High Court,

The case set up by the plaintiff in his pet.ition was briefly this. Maharaja Sir Man Singh bolder of the Ajodhya Raj was a Taluqdar in lists I, II and V of the Oudh states set I of 1869. He died in 1870 and the Raj devolved upon his daughter's son M:iharaja Pratap Narain Singh, who died on Novemhrr \J, 1!106, leaving him surviving two widows Suraj Kumari and Jagdamba Devi and no line111 desc"udant. A will alleged to be executed by Maharaja Pratap Narain Singh on July 20, 1891, was set up but. it was void and ineffective bPcause, firstly, it was procnn>d by undue influence, coercion and frau<l practised upon the tes'tater, and, secondly it created a line of successi.; m contrary to law.

Accordingly on the death ot M:iharaja Pratap Narain tlingh th<< Raj devolved upon Maharani Suraj Kumari the senior widow aud on her death in

19:!7 upon ,\!nharani Jugdamba Devi, and on the death of the latter on June 18, 1928 upon Ganga Dutt Misir, rand father of the plaintiff Ganga Dutt Misir died in 1942 and the estate devolved upon his son Ramjiwan and his grandson, the plaintiff as co-parceners in a Hindu joint family. Even if the will was valid and effective "the terms thereof alongwith Mabaraja Pratap Singh's other acts and declarations" had the effect of taking the estate out of the purview of Act I of 1869 with the result that Maharani Jagdama Devi enjoyed the propertyin suit with a life estate therein, and on her death on , June 18, 1938, the entire property in suit v11sted in Ganga Dlltt on whose death the plaintiff and defendant No. 2 became owners of the entire property in suit aR their joint ancestral property". Defendant No.I Dukh Haran Singh claimed to be adopted as a son by Jagdamba Devi on February 12, 1909 but, the claim was ''utterly false, fictitious and untrue" for the reasons set out in the partition, and the

196'

Vija_, Pr .. SO., A

Dulllr H.,.,. N••A s;,, p

Shah J.

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Raj was in the wrongful possession of the firdt defendant Dukh Haran Singh.

The plaintiff alleged that his father Ramjiwan Misir was "detained and confined" by the first defendant and was unable to join the plaintiff in the petition.

The finit defendant Dukh Haran Singh resisted the petition inter alia contending that it did not discloee a caUBe of action and that, in any event, the claim made by the plaintiff was barred by law of limitation.

Initially Ram Jiwan Misir supported the will and the plea of adoption set up by the first defendant, but by an application dated April ;!l, 1951, prayod that he be transposed as a ptitioner submitting that his previous statement was procured by coercion and co?ll, aincd avermenta which were untrue. Ramjiwan was directed to pay the court fee payable on the phint within ten days and in default or payment, his application wa.a to stand tlismilllle<l.

Ramjiwan did not pay the oourt fee as directed hut 011 July 23, 1051, he again applied for being transposed n.s a petitioner in the petition for leave to sue in fornui pauperis filed by tne plaintiff.

Holding that it di,! not disclose a cause of action the Subordinate Judge rejccte<i the petition of the plaintiff.

The Subordinate Judge observed that there wa~ nothing in the petition to show how the disputed estate came to be governed

by the rule of inheritance under tho Hindu Law and, in any event, there was nothing in the petition to support the pica that the estate had lost its irn ·

prtible character, and that even if in view of the allegations contained in para 12 of the petition it be hold that the estato came to be governed by the ordinary Hindu Law, it did not become a pnr

tible eBtatc which tho plantiff could inherit, so long at his father Ra.mjiwan we.s alive. The petition filed hy Hamjiwan Misir was then taken np for

hearing and was also rejected because, in the view of the learned Judge, "no useful purpose would be served" by transposing Ram Jiwan Misir as coplantiff when the application filed by the plantift' was held to be defective and liable to be rejected under 0. 3-3, r. 5( d), of the Code of Civil Procedure.

Against the two orders pa.sed by the subordinate Judge the plaintiff preferred Revision Application No. 881 of 1952 and Ram Jiwan preferred Revision Petition 882 of_ 1952. The High Court rejected the petition of the plaintiff holding that on the death of Ganga Dutt in 1942 the estate would devolve upon Ram Ji wan ; Misir alone according to the rule of impartibility whi'oh governed the devolution of the estate. The High Covrt also observed that there was nothing in the petition to show that Ganga Dutt succeeded to the estate "on the basis of his being th9 nearest male reversioner under the Ordinary Hindu Law", and that it was unnecessary to consider whether the will by Maha.ra.ja Pratap .\a.rain took out the estate from the operation of the Act, "because the plaintiff did not rely upon the will and whatever the plaintiff had stated in the petition in connection with the will was simply by way of answer to what might be _ contended by the defendant in the suit." Dealing with the petition of Ram Jiwan Misir the High Court observed that "By an application to BUe in forrrw. pauperis the applicant prays for a relief personal to himself and therefore nobody else ean

be properly made a co-applicant. There is no direct provision which provides that a court should transpose a party from one side to the other. Order I, r. 10, gives the power to the court to strike out or add the names of parties when it appears that he has been improperly j'lined or that he ought to have been joined or his presence beore the court would be neoelll!ary in order to enfl.ble , the court effectively and completely to adjudicate upon and settle all the questions involved in the suit, The provisions of

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B;,,; t

Slutlt J.

- r,7., ,.,_, .~;.,• ...

DoMB-lfdA

5'qlo

Sholl J,

this rule will not apply to the procet1dings on an application for permission to sue as a pauper''.

We are unable to agree with the view of the High Court that the petition filed by the plaintiff did not disclose a cause of action, or that 0. I, r. IO of the Codo of Civil Procedure cannot properly be resorted Lo for transposing a party in a petition for leave to sue in forma pauperis. The plaintiff had by his plaint set up an alternative C&Be. In the first instance, he pleaded that the will alleged to be executed by Maharaja Pratap Narain on July 20, 1891, was "void and ineffective" and the estate devolved upon Ram Jiwan and the plaintiff as mombers of a copareenary: alternatively, he ploaded that Aven if the will was valid, by the terms thereof and by the other acts and declaration of Maharaja Pratap Narain Singh, the estate was taken out "of the purview uf Act I of 1869" and on the death of Maharani JagJnmha Devi the property devolved upon Ganga Dut.t, the nearest reversioner under tho Hindu lnw and on his death it devolved upon the plaintiff and upon his father Ram Jiwan Misir.

Order XXXIII of the Code of Civil Pro<'A>elure prescribcH thtJ procedure for indtitutio11 of •Uitri by paupers. ltule 2 provides that particulal's a petition for permission to sue infvrmc1pauperi-<I shall contain aud r.3 sets out the mode of presentation of, the petition. Rule 4 authorises the Court to examine the applicant or his agcnt regarding the merits of the case and the property oft.he applicant. ltulc 5 provides:

"Thc Court he.II rejeet an appli1atio11 for pnmission to siw ns a pauper-

(a) where it is not. framt'<l ancl prcsentcd in the ruannn 111•H•'ril1rd hy rulos and :i, or

(b) whcro the applirant iH nut a pauper, or

~ i'.l.C.R.

SUPREME COURT REPORTS 681

( e) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or ( d) where his allegations do not show a cause of action, or ( e) where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in 1mch subject matter." Where the appli('ation is not rejected on the grounds set out in r. :i, the Court has under r. 6, to proceed, after giving notire to the c•pposite party and the Government pleader, to receive evidence as the applicant may adduce in proof of his pauperiam. By r. 7 the Court is authorised to consider where the applicant is not subjcct to any of the prohibitions specified in r. 5. The Court is enjoined to reject a

petition wht're the prohibitions mentioned in els. (a) to ( e) of r. 5. exist. Even if the petition is not so rejrcted ttt the hearing of the petition, if the court is satisfied as to the existence of these prohibitions it m1iy be dismissed under r. 7.

It does not appear that any objection was raised as to the existence of prohibitions (c) and (d) set out in r. 5, and the Subordinate Judge disallowed the oujection that the petition was not framed and presented as prescribed by r. 2 and 3.

He did not consider the question whether the plaintiff was a pauper.. He rejectd the application only on the ground that it did not show a cause of action, and the High Court onfirmed the order also on that ground. By the express terms of r. 5 cl. ( d), the court is concerned to ascertain whether the allc•gntions made in the petition show a cause of action.

Tho court has not to see whether the claim made by the petitioner is likely to

l96B

Yij•y Prll¥ SifwA

Ddli Hor., N•llo

oiinth

Shdl

JM2

Vfl<p l'rat¥ s;.,~

DwM B..u N.ilr.

Silltl

BWJ.

succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If &coepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in aaoertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the courJ; competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause or action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him.

By the Statute, the jurisdiction of the Court is estrictcd to ascertaining whether on the allegations a cause of action is shown: the jurisdiction doPJJ not extend to trial of issues which must fairly he left for decision at the boa.ring of the suit.

We do not propose to expr088 any opinion on the question whether on the doath of Jagdamba Devi the estate devolved under H. 22( I 0) of Act I of 18G9 upon Ramjiwan Misir and the plaintiff as members of a coparcena.ry.

Even if that claim is inconsist,.nt with the words of s. 22(101 of Act I of 18G9 on which the plaintiff himcolf rrlics, the plaintiff bad an altcrnativ" claim that the estate had become nontalnq<lari by virtue of the will and "the

acts and declaration" nf !\faharnja Pratap Narain.

In support of this claim, s. Hi. of Act I of 1869, before it wa.11 nm<'nclNl by U. P. Act ITI of l!l!O, is relied upon. At the timewhen l\Taharaja Pratap Narain died, s. 15 of the Act stood ; is follows:-

"If nnv taluqdar or grantee Hhall heretobefore ha.ve transferred or bequeathed, or if

any taluqdar or grantee or his heir or legatee shall hereafter transfer or bequeath, to any person not being a taluqdar or grantee the whole or any portion of his estate, and such person would not have succeeded according to the provisions of this Act to the estate or to a portion thereof if the transferor or testator had died without 'having made the transfer and intestate, the transfer of and succession to the property so transferred or bequeathed shall be regulated by the rules which would have governed the transfer of and succession to such property ifthe transferree or legatee had brought the same from a person not being a taluqdar or grantee." It is true that bys. 8 of Act III of 1910, the section has been substantially modified and reads as follows:-

"If any taluqdar or grantee, or his heir or legatee, shall heretofore have transferred or bequeathed, or if any taluqdar or grantee, or his heir or legatee, shall hereafter transfer or bequeath the whole or any portion of his estate to any person who did not at the time when the transfer or bequest took effect belong to any of the classes specified in section 14, the transfer of and succession to the property so trarn1ferred or bequeathP.d shall be regulated by the rules which would have governed the transfer of and succession to such property if the transferee or legatee had bought the same from a person not being a taluqdar or grantee, heir or legatee." , By s. 21 of the Amending Act III of 1910 a partial retrospective operation was given to the amended section. The retrospective operation was limited by the proviso which enacted that nothing contained in tho amending section hall affect suits pending 11t the commencement of the amending

l'ijay Prol•P Singh

Dukh H.,..,. Hoth

Sinfli

Shah J,

lfll2

rifa.7 l'r~ Singh

y, lltMi H•• Noth

BitrcA

SMA 1.

Act, or shall bo deemed to vest in or confer upon any yorsun any right or title to any rstate. or an:i; P.ort1on thereof, or any intcrrst therein, which 1s, at the commencement of the Amending Act, vest<id in any other person who would have been entitled to rntain the same if the amending Act had not been passed, and the right or title of such other person shall not be affected by anything contained in the said section.

Mr. Agarwalla, appearing on behalf of tho first dcfendrnt Oukh Haran Ringh, has contended that in vit1w of the retrospective oporation given to s. lei, as amende1l, the claim of the plaintiff that the taluqdari character of the 8tate is 1lestroyed

has no force and he ha.H invit<'d our attention to two decisions of tho Oudh Chief Court in Kmu Nage.•har Salwi v.

Shiam Rrilw/"Ur (') and .l1o/u1mmud Ali /\/urn v . .\'i.mr Ali /\/um(').

But we m•Pd express no opinion on tho correetnesH or otherwiHo of these decisionH.

An enquiry whothor by virtue of certain

provision~ of the statute on which th<' first defendant rolies, tlw plaintiff mll.y not. be entitled to t.ho estate i~. ,., already observed, not cont<'m.J?latcd to be mach in considering >\ petition for !Pave to sue

in fnr111a 1ifmpcri.•.

The trne cffect. of thn amrnded section Iii of the Oudh Estat.<'S Aet I of l 869 is a complioatcd question of law which the Court will not proceed to determine in ascertaining whether the petition for leavt' tu sue discloses 11. cause of action.

The High Court, in our judgment, was in error in observing that t.h<'re WM nothing in the

plaint to show that Oanga Dutt succcec!Nl to the estate bec,'l.use he was th<' nell.rcst malo revnrsioncr under the or<iinary Hin<iu law. Thr plaintiff has emphntically mnde that assertion: whether the claim to relief on the• b1iois of that :\ssertion was justified must be adjudicated at the trial of tho suit,

f.!) A.l.R. Jli:!t: <h1Jh. ti7.

and not in deciding whether the plaintiff should be permitted to sue in fomw pauperis.

We are also of the view that the High Court was in error in holding that by an application to sue in Jorrn11 pauper-is, the applicant prays for relief personal to himself. An application to sue in Jorrnn pauperis. is but a method prescribed by the

Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act.

If the claim made by the applicant that he is a

pauper is not establish the application may fail.

But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pa'l), peris as required by 0. 33 of the Code of Civil Procedure is presented, and O. l, r. 10, of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which oourt fee had been duly paid. It is true that a person who claims to join a petitioner praying for leave to sue in forma pauperis must himself be a pauper. But his claim to join by transposition as an applicant must be investigated ; it is not liable to be rejected on the ground that the claim made by the original applicable is personal to himself. In our view, the orders passed by the High Court in both the revision applications must be set aside.

Before parting with the case, we must take notice of the unsatisfactory progress this litigation has made since it was instituted nearly twelve years ago. We regret to observe that the petition filed in July 1950 for leave to sue informa pauperis was not disposed of by the Subordinate Judge for two years and it took the High Court three years to dispose of the revision petitions against the orders of the Subordinate Judge. The proceedings wore further heYd up even after special leave was granted by this Court in March, 1957 for nearly five yea.rs before the appeal could be heard.

Thill

Vij41 Pr•l•P Sillgh

v •.

NA Haran lf.U.

Bingli

Shah J,

1'U

l'tJ 'f1 l'r•l.P BU.th

•• Dtoli H•"" Na/A

SU., A

sui. J.

Court had ordered that the hearing of the appeals be expedited and heard on cyclostyled record but the record was not made ready for a long time. We also .find that a large number of documents were included in the books prepared for ueo of tJrn court to \vhich no reference was ma.de at the Bar during the course of the hearing. Wo trust that the oaee will bo taken up for hearing with the least practicable delay a.nd disposed of according to law.

The appellants in the two appeals will be entitled to their costs both in this Court and the High Court. The costs of tho trial court will be the cost in the cause.

Appeals allowed. Cases remitted.

THE LODNA COLLIERY CO. LTD. v.

BHOLA.NATH ROY (B. P. SINH.4, c. J., P. B. GAJENDRA.GA.D.KA.R

and RAGilUJIAR DAYAL, JJ.) Lalthraj lan&--Permanently selt/., J,-Owmra' rigll lo ,<Ub-soil mintrai..

The question arising for decision was whether a pcnon with whom a re1umed invalid Lakhraj (revenue free) land was permanently 11ttfled had rights in the sub-soil minerals or not.

Held, that the right of property of the persons with whom resumed invalid Lakhraj land had been settled, being the same as of the Zamindars, extended to the sub-soil min era ls of the land held by them.

Ranjit Singlo v. Kali DMi Dt.bi (1917) L.R.44 I.A. 117, referred to.

Bari Narain Singh v. Sri Ram Chakrabarli (1910) L. R. 37 I.A. 136, DurgaPrasad Singh v. Braja Nath Boae (1912) L.R. 39 I.A. 133. Sashi Bhuaan Mwa v. Jyoti Prasad Singlo Deo, (1916)L.R.44 I.A.46 and Raghtmath Roy Marwari v. Raja of Jhms, (1919) L.R. 46 I.A. 158, held not applicable.

CrvIL APPELLATE JURISDICTION: Civil Appeal No. 405 of 1966.

675

VIJAY PRATAP SINGH

DUKH HARAN NATH SINGH AND ANOTHER

Connected Appeal) (S. K. DAs

M. HIDAYATULLAH

C. SHAH, JJ.

the Code of Civil Procedure

the Code of Civil Procedure

cl. 5

the Code of Civil Procedure

Order XXXIII of the Code

Court Fees Act

the Code of Civil Procedure

the Code of Civil Procedure

(1910) L. R. 37 I.A. 136

(1912) L.R. 39 I.A. 133

(1919) L.R. 46 I.A. 158