April J4

SUPREME COURT REPORTS [196i}

STATE. BY NILRATAN SIRCAR, ENFORCEMENT

OFFICER

LAf91HMI NARAIN RAM NIWAS (M. HIDAYATULLAH AND RAGBUBAll DAYAL, JJ.)

Criminal Trial-Doculnents seized-Period JJTOVided by statute for retention of seized documents-Whether can be extended by Magistrate-Power of Magistrate in respect of retention of documents-Seizure made under special Act-Prot!isioas of Code relating to search whether applicable-Foreign E:l:-

change Regulation Act, 1947, sub-". (3) of s. 19, s. 19-A-Code of; Criminal Procedure, 1898 (Act V of 1898), ss. 5(2), 96, 98. 101, 102, 103.

On May 14, 1959, a number of documents were seized from the possession of the respondent by the Enforcement Officer in execution of a search warrant. The search warrant was issued by the Chief Presidency Magistrate under sub-s. (3) of s. 19 of the Foreign Exchange Regulation Act, 1947. The Dire<>- tor of Enforcement with the permission of the Chief Presidency Magistrate retained those seized documents far a period exceeding four months. On October 5, 1959, the respondent filed an application before the Chief Presidency Magistrate in which he claimed the return of the seized documents on the basis of the provision of s. 19-A of the Foreign Exchange ReguJation Act. On this applic.:tion the Chief Presidency Magistrate directed the return of all the documents to the respondent except those mentioned at items 2 and 7 of the search list. The respondent went up in revision against this order for the continued retention of the two documents, and the High Court allowed the revision and ordered the return of these documents also to the respondent. Against this order appeal was filed in this Court.

Held': (i) The Magistrate has no jurisdiction over the articles seized in execution of the search warrant issued under s. 19(3) of the Foreign Exchange Regulation Act and that he cannot permit the retention of such documents by the Director of Enforcement after the expiry of the period he is entitiE<l to keep them in accordance with the provisions of s. 19-A 0£ the Act. The Enforcement Officer has a right under s. 19-A to retain the articles seized for a period not exceeding four months and it is not necessary for him to obtain permission from the Magistrate for retaining the seized documents within the stlFtutory period. Therefore, the Magistrate issuing the search warrant has nothing to do with the retention or disJ>osal of the documents seized in execution of the search warrant either during the statutory period of four months or after the expiry of that period. Mohammad Serajuddin v. R. C. Mishm, (1962] 1 Supp.

S.C.R. 545, distinguished.

(ii) In view of the specific provision for the issue of a search warrant under sub-s. (3) of s. 19 of the Foreign Exchange Regulation Act, the provisions of ss. 96, 98 and Form No. 8 of Schedule V of the Code would not be applicable to the search

warrants issued under sub-s. (3) of s. 19. The provisions of ss. 101, 102, 103 of the Code will apply to searches under sub-s. (3) of s. 19 of the Act as there is no specific provision in the Act with respect to the conduct of the search.

{iii) The provisions of s. 5(2) of the Code will not apply 1964 to an investigation conducted under the Act because the Act is , . a special Acll and it provides under s.19-A for the necessary in- tale, by N•lratan vestigation into the alleged suspected commission of an offence Si rear' 0;":{orcemtnl

under the Act, by the DirectOr of Enforcement. ,

v. r

(iv) No express provision is necessary in the statute for the return of documents after the expiry of the statutory period.

Provisions .are necessary for retaining documents of others and not for returning them to persons entitled. Therefore the docu ments seized have to be returned to the person from whose

possession they had been seized after the expiry of the statutory period.

(v) Under s.19-A of the Act the Director of Enforcement can justifiably retain with himself the documents seized till the final disposal of the proceedings taken under s.23 of the Act if the proceedings had commenced before the period of four months, during which he could keep the documents. In the present case he could not h1'.ve retained those documents beyond four months because no such p110ceeding had been commenced within 4 months.

In the present case proceedings under s.23 did start prior to the ocder for the return of documents. On the facts of this case it was held that the direction of the Magistrate in regard to the retention of documents was en order giving effect to the spirit behind the provision of s. 19-A.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 83 of 196 I. Appeal from the judgment and order dated June 20. 1960. of the Calcutta High Court in Criminal Revision No. 1525 of 1959. ,.

H. R. Khanna. K. L. Hathi and R. N. Sachthey, for the appellant.

G. S. Pathak, R Datta. J. B. Dadacha11ji, 0. C. Mathur and Ravinder Narain, for the respondent.

April 14. 1964. The judgment of the Court was delivered by

Lakshmi Narain

RamNiwaa

RAGIRJBAll DAYAL, J.-This appeal, on certificate grant-.Ragh!War Dayal, J ed by the Calcutta High Court. is directed against an order of the High Court dated June 20. 1960 reversing the Order of the Chief Presidency Magistrate directing return of certain documents to the respondent. and has arisen in the following circumstances: On April 6. 1959. the Chief Presidency Magistrate, Calcuna. owered the issue of search warrants on the application of the Enforcement Ollicer. Enforcement Directnrate, Ministry of Finance. under sub-s. (3) of s. 19 of the Foreign Exchange Regulation Act. 1947 (Act VII of 1947). The search warrant was issued on May 6, 1959. It required the production of documents seiz.ed. before the Magistrate. In execution of the search warrant. a, number of documents were seized from the possession of the respondent on May 14. 1959. The

Sltrte, by 1iilratJin Sircar, Enforcement

Officer

Laksloni Jtarain

Rani .. Yiuw

llagh11bar Duya.1, J.

Enforcement Officer reported that day that a certaiJ room could not be searched and therefore further action on the search warrant was to be taken. He also noted in his application, for the Chief Presidency Magistrate's information:

"that the seized documents as per enclosed Seizure Memo have been kept with us. for scrutiny and those will be retained till the completion of the enquiry or the adjudication proceeding~ as the case may be and a report will be submitted lo Your Honour tpereafter."

On May 28, 1959, the Enforcement Officer applied to the Chief Presidency Magistrate for permission for the retention of the seized documents for a period of two months for the submission of further report in the matter. The Chief Presidency Magistrate granted the necessary permis; ion.

Similar permission was again granted on applications, by tl1e Chief Presidency Magistrate, on July 28 and September 28, )959.

On October 5, 1959, the respondent applied to the Chief Presidency Magistrate for an order of return of the said documents as the statutory period of 4 months during which the Director of Enforcement could keep the documents had expired, and no proceedings had been commenced against him under s. 23 of the Act. The claim for the return of the docun11mts was based on the provisions of s. 19-A. On October 20, 1959 the Chief Presidency Magistrate ordered the return of the seized files to the respondent. He, however, modified this order the same day, when his attention was drawn to his earlier order dated September 28, 1959 permitting the Enforcement Officer to retain the documents till November 28, 1959. He directed the matter to be heard nn October 26, 1959 and on that day, in view of the Investigating Officer being on leave, adjourned the matter for decision to November 10, 1959.

In his application presented on November 10, 1959 the Enforcement Officer stated that the Director of Enforcement had started adjudication proceedings against the respondent for alleged violation of s. 4(1) of the Act and had issued notice to him to show cause and that in connection with the adjudication proceedings seized files items Nos. 2 and 7 of the Seizure Memo would be required and that he had no objection to the return of the remaining seized files though they might have some distant bearings on those proceedings.

The Chief Presidency Magistrate ordered, on.November 10; 1959, the return of all the documents except those mentioned at items 2 and 7 of the search list. The respondent went up in revision against this order for the continued retention

of the two documents, and the High Court allowed the revi- 1964 sion and ordered the return bf these documents also to the Stai., by Nilratan respondent. It is against this order that this appeal has been Bircar, Enforcem•n• Iii d Officer e . v.

We may first refer to the relevant provisions of ss. 19 Lashmi f.arain. and 19-A of the Act, and later to certain provisions of the am l>i•-1 Code of Criminal Prbcedure, hereinafter called the Code, to R01Jh"h;; Dayal, J. appreciate the contention for the parties.

"19(]). The Central Government may, at any time by notification in the Official Gazette, direct owners, subject to such exceptions, if any, as may be specified in the notification, of such foreign exchange br foreign securities as may be so specified, to make a return thereof to the Reserve Bank within such period, and giving such particulars, as may be so specified.

(2) Where for the purposes of this Act the Central Government or the Reserve Bank considers it necessary or expedient to obtain and examine any informatibn, book or other document in the possession of any person or which in the opinion of the Central Government or the Reserve Bank it is possible for such person to bbtain and furnish, the Central Government or, as the case may be, the Reserve Bank may, by order in writing, require any such person (whose name shall be specified in the order) to furnish, or to obtain and furnish, to the Central Government or the Reserve Bank or any person specified in the brder with such information, book or other document.

(3) If on a representation in writing, made by a person authorised in this behalf by the Central Government br the Reserve Bank, a District Magistrate, Sub-Divisional Magistrale, Presidency Magistrate or Magistrate of the first class, has reason to believe that a contravention of any of the provisions of this A, ct has been, or is being or is about to )le, committed in any place, or that a person to whom an order under sub-section

(2) of this section has.been tir might be addressed, will not or would no' produce the information, book or other document, or where such information, book or other document is not known to the Magistrate to be in the possession of any person,

or where th.e Ma.gistate considers .that the purposes

o~ any mvestigatton or prbceedmg under this Act w 11! be served by a general search or inspection,

State, b.11 .i.V ilratan Sircar, Enforcement

Ojficer

Lalc&hmi Narain

RamNiwas

Raghubar Dayal, J.

he may issue a search warrant and the person to whom such warrant is directed may search er inspect in accordance therewith and seize any book or other document, and the provisions of the Code of Criminal Procedure, 1898 relating to searches under that Code shall, so far as the same are applicable, apply to searches under this sub-section:

Provided that such warrant shall not be issued to any police officer below the rank of sub-inspec:or.

Explanation.-In this sub-section, 'place' includes a house, building, tent. vehicle, vessel or aircraft.

• • • • 19-A. Where in pursuance of an order made under sub-section (2) of section 19 or of a search warrant issued under sub-section (3) of the said section, any book or other document is furnished or seized, and the Director of Enforcement has reasons to believe that the said document would be evidence of the contravention of any of the provisions of this Act or of any rule, direction or order made thereunder, and that it would be necessary to retain the document in his custody, he may so retain the said document for a period not exceeding four months or if, before the expiry of the said period of four nfonths, any proceedings under section 23 : -

(a) have been commenced before him, until the disposal of those proceedings, including, the proceedings before the Appellate Board, if any, or

(b) have been commenced before a Court, until the dbcument has been filed in that Court." Chapter VII of the Code provides for processes to compel the production of documents etc. Section 94 empowers the Court to issue a summons to a person in pbssession of the document or whose production is considered necessary or desirable for the purpose of any investigation, inquiry, trial or other prbceeding under the Code to produce the same before it. In certain circumstances mentioned in s. 96 it may issue a search warrant, for conducling the search for such documents or articles as are mentioned in s. 94. The combined effect of the two sections is that the articles seized in execution of the search warrant have to be produced before the Magistrate and the Magistrate thereafter passes suitable orders abbut the custody or return of those documents. Form 8, Schedule V, of the Code gives the form of the search warrant and contains a direction that the articles seized cbe produced forthwith before the Court. Sections 98 and 99-A deal with search

7 S.C.R.

SUPRE::.VIE COURT REPORTS 729

warrants in special circumstances and ss. IO 1 to 103 come under the general provisions relating to searches. s"''' b•t Nilratan Sircar, Enforcemen.f The appellant's main contentions are: Officer I. The provisions of s. 19-A limit the period for retain- L k h v: "arai· . hd "d" . f h t"''""" .• mg t e ocuments seize m execution o a searc warran Ram Niwas issued under s. 19 to 4 months by the Director of Enforce- - ment but does not limit the power of the Court issuing the Raglrubar Dayal, 1• search warrant to pass any orders for the retention of the seized documents or with respect to the disposal of those documents.

2. In the absence of any prescribed procedure for the issue of a search warrant under s. 19, the provisions of ss. 96, 98 and Form 8 of Schedule V of the Code would be applicable to the search warrants issued under s. 19.

3. lihe Court has inherent power to pass proper orders with respect to the retention of the documents seized for the purposes of investigation and proceedings following it.

The respondent contends: I. Section 19 and 19-A are special provisions which provide for special procedure for investigation of the several offences created by the statute and were enacted in order to remove certain difficulties in investigation which led to the keeping of documents of citizens unduly long and thus causing them inconvenience and harassment, and to relieve the Magistrate of his repeatedly dealing with police reports for permission to retain the documents and that therefore when s. 19-A fixes the maximum duration for the retention of the documents by the Director of Enforcement at 4 months and thus prohibits further detention except in certain circumstances by the officer concerned, the Magistrate cannot allow the Director of Enforcement to keep the documents beyond four months.

2. There is no provision in the Act empowering the Court to extend the period for the detention of documents and any such power in the Magistrate will defeat the very object of the Act.

3. The provisions of the Code relating to searches under the Code apply so far as the same be applicable to searches under sub-s. (3) of s. 19 of the Act and therefore the provision of the Code giving jurisdiction to the Magistrate over the property seized in execution of a search warrant issued by him will not fully apply to property seized in execution of the search warrant issued under sub-s. (3) of s. 19.

The first question to determine is whether Magistrate issuing the search warrant has control over the disposal of the articles seized in execution of the warrant. The provisions of the Code relating to searches apply to search warrants issued under sub-s. (3) 'of s. 19 but only in so far as they bi.!

I964 applicable. The provisions dealing with the circumstances State, by Nilratan in which, and the authorities by which, search warrants can Sircar, Enforament be issued cannot apply, in view of the specific provision for

0~'." the issue of a search warrant under the Act in sub-s. (3) of Lakshmi Narain s. 19. Sect10ns 96, 98 and Form 8 of Schedule V, do not Ram NiWM therefore operate in connection with searches under sub-s. 19. - It is therefore the provisions which deal with what is done Raghubar Dayal, J. after the issue of a search warrant which have been made applicable to searches under the Act and such provisions therefore would be the provisions relating to the mode of conducting searches. The object of the aforesaid provision in sub-s. (3) of s. 19 is to provide how the searches are to be conducted as it deals with the issue of search warrant in sub-s. (3) of s. 19. It is only with respect to the intervening stage, that is the stage of actual search that no specific provision is made in the Act. We are therefore of opinion that the provisions relating to searches under the Code which apply to searches under sub-s. (3) of s. 19 are the provisions relating to the conduct of searches and that these provisions are ss. IOI,

102 and 103 of the Code. What is to be done with the articles seized does not strictly come within the expression 'searches'.

It is dealt with in s. 19-A. It is therefore not correct for the appellant to say that the Magistrate can exercise his powers under the Code . in connection with property seized under sub-s. (3) of s. 19 of the Act.

It follows that any further reference to the Magistrate, as made by the Enforcement Officer in this case, for permission to retain the documents seized was not necessary. The Enforcement Officer has a right under s. 19-A to retain the articles seized in accordance with its provision. What course

is to be adopted by the person aggrieved when the Enforcement Officer contravenes the provisions of s. 19-A, is a different matter. The fact that such a contingency may arise does not mean that it is the Magistrate issuing the search warrant who is to be approached and who is competent to deal with the grievance. Any way, such a contingency is insufficient to warrant the finding that the Magistrate issuing the warrant has control and possession over the documents seized and that therefore he can pass any orders with respect to their disposal. He has no such power, in any case, till the period mentioned in s. 19-A has expired. There is no provision in the Act which gives him any power to deal with the situation arising after the expiry of that period.

One should, however, presume that the Director of Enforcement will not by his order act against the provisions of s. 19.

Section l 9A deals with the ci.stody oi documents which come into the possession of t.he Director of Enforcement in two ways. Documents are furnished to the Director of Enforcement in pursuance of an order made under subs. (2) •

7 S.C.R.

SUPREl\IE COURT REPORTS 731

of s. 19 under the directions of the Central Government or 1964 the Rserve Bank. No Magistrate as .such has i.urisdiction over State. by Nilratan the cl1sposal of such documents which come mto the posses- Sircar, ){nforcemen~ sion of the Director of Enforcement in pursuance bf orders Officer under sub-s. (2} of s. 19. The Director of Enforcement also Laksh:,; Narain gets possession of documents in execution of search warrants Ram ll'i"a' under sub-s. (3) of s. 19. The provisions with respect to his R h b n

1 J retaining in his possession the documents which come in his ag " ar aya' • possession are the same, whether they come so one way or the other. It follows that, in the latter case too, the Magistrate issuing the search warrant has nothing to do with the retention or disposal of the documents seized in execution of the search warrant.

It was also urged for the appellant that the provisions of s. 5(2) of the Code apply to the present case in matters which are not provided by the Act. This contention too has no basis. Section 5 provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into,

trving: or otherwise dealing with such offences. The Act is a special Act and it provides under s. 19-A for the necessary investigation into the alleged suspected-commission of an offence under the Act, by the Director of Enforcement. The provisions of the Code of Criminal Procedure therefore will not apply to such investigation by him, assuming that the expression 'investigation' includes the retaining of lhc documents for the purposes of the investigation.

Reliance has also been placed for the appellant on the case reported as Mohammatl Seraiuddin v. R. C. Mishra(') in support of the contention that the Magistrate retains control over the disposal of the articles seized in connection with the search warrant issued by him. In that case the Court was considering the question of the disposal of the documents seized in execution of a search warrant under s. 172 of the Sea Customs Act. The provisions of that section are different from those of sub-s. (3) of s. 19 of the Act. A search warrant issued by a Magistrate under s. 172 of the Sea Customs Act has the same effect as a search warrant i>sued under the Code of Criminal Procedure and thus assumes the character . of a search warrant issued under the Code of Criminal Pro-

. cedure. The same is not the case with respect to the search warrant issued under sub-s: (3) of s. 19. Further, there is no section corresponding to s. 19-A of the Act in the Sea Customs Act. This case, therefore, is not of help to the appellant.

(') (1962] 1 Suppl. S.C.R. 545.

SUPRE:IIE COURT REPORTS [1004]

1964 In this view of the matter, the order of the Magistrate

81 " b N'l 1 with respect to the disposal of the documents was beyol)d

Sira:, J.10:/,':.::, his jurisdiction and the High Court was right in setting aside

Officer his order directing the retaining of certain documents by the

Lokshm"i.Narain Director of Enforcement , Ram :qiwas The question however remains whether the crder of the

Baghubar Dayal, J. High Court. directing the return of the two documents to the respondent 1s a correct order.

It has been urged for the appellant that there is no provision under s. 19-A or any other section of the Act that the documents be returned to the party from whose custody they were seized, without an order from the Ma!!istrate and that therefore no order for their return can be - made by any authority. No such express provision is necessary. Documents seized have to be returned if the Jaw pro'lides that they are not to be retained after a certain period of time. Such a direction under the statute is sufficient justification and authority for the person in possession of the documents to return them to the person from whose possession they had been seized. Provisions are necessary for retaining documents of others and not for returning them to the persons entitled.

Section 19-A authorises the Director o[ Enforcement to retain a document for a period of not exceeding 4 months. or, if before the expiry of the said period of 4 months, any proceedings under s. 23(i) have been commence.:! before him. until the disposal of those proceedings, including the proceedings before the Appellate Board, if any, or (ii) if such proceedings have been commenced before a Court. until the document has been Ii led in that Court. This means that the Director of Enforcement can justifiably retain with himself the document seized till the final disposal of the proceedings taken under s. 23 of the Act if the proceedings had commenced before the period of 4 months, during which he could keep the documents. In the present case such proceedings had not been commenced within the period of 4 months of the Director of Enforcement getting possession of the documents. He could not have therefore, on his own. retained those documents after the expiry of the fourth month. He could have taken legal steps for the retention of those documents. He did not keep those documents with himself on his own. He had been obtaining the permission of the Chief Presidency Magistrate for retaining the documents from the time of their seizure under the impression that the Magistrate -:ould legally order the retention of the documents, presumably as the warrant had directed the production of documents seized, before him.

Proceedings under s. 23 did start prior to the order for the return of the documents. Considering the real intention

I .

of s. 19-A tn be that the Director of Enforcement can retain 1964

the doct!ments seized till the final disposal of proceedings State., b;; Nilratan

under s. 23 of the Act. the Magistrate's order, even if he had Sircar, 0 Enf0"""'"' not the authority to pass orders for the retention of the docu- 'ff!,'." ments by the Director of Enforcement, till the final disposal Lakshmi Narain of the proceedings under s. 23, was an order giving effect Ram N•WM to the spirit behind the provisions of s. 19-A. The order of Raghu1mr Dayal, J. the High Court directing the return of the documents to the respondent therefore appears to us to be unjustified in the special circumstances of the case.

It is not necessary for us to consider in this case what legal steps the Director of Enforcement could take for retaining p<>ssession (If the 'documents seized on the expiry of the 4 months' period in case his investigation in connection with those documents is not complete within that period.

One of the methods possibly can be his applying to the Central Government to make an order under sub-s. (2) of s. 19 directing the owner of those documents to furnish them to the Director of Enforcement. Such an order will be legal justification for the Director of Enforcement to retain in

possession any of the documents which notionally he would be deemed to have returned to the owner on the expiry of the four months and to have got fresh possession over those doct•ments not by virtue of a search warrant but by virtue of ;;:1 order of the Central Government under sub-s. (2) of s. 19.

We therefore hold that the Magistrate has no jurisdiction over the articles seized in execution of the search warrant issued under s. 19(3) of the Act and that he cannot permit the retention of such documents by the Director of Enforcement after the expiry of the period he is entitled to keep them in accordance with the provisions of s. 19-A. In the special circumstances of the case, we allow the appeal, set aside the order of the High Court and order that the docurbents men-

!ioned at items Nos. 2 and. 7 of the Seizure Memo can be retained by the Director of Enforcement till the final conclusion of the pnx--eedings commenced under s. 23 of the Act.

Appeal allowed.

STATE. BY NILRATAN SIRCAR, ENFORCEMENT

RAGBUBAll DAYAL, JJ.

Regulation Act, 1947

s. 19

s. 19

ss. 5(2), 96, 98

May 14, 1959

s. 19

Foreign Exchange Regulation Act, 1947

Chief Presidency Magistrate

October 5, 1959

s. 19

s. 19(3)

s. 19

s. 19

s. 19

ss. 96, 98

Schedule V of the Code

s. 19

ss. 101, 102, 103

s. 19

s. 5(2)

s. 19

June 20. 1960

Calcutta High Court

H. R. Khanna

K. L. Hathi

R. N. Sachthey

G. S. Pathak

R Datta

B. Dadacha11ji

C. Mathur

Ravinder Narain

Lakshmi Narain

RamNiwaa

RAGIRJBAll DAYAL

April 6. 1959

Chief Presidency Magistrate, Calcuna

s. 19

May 6, 1959

1iilratJin Sircar

Laksloni Jtarain

Rani .. Yiuw

llagh11bar Duya.1

May 28, 1959

July 28 and September 28, )

s. 23

s. 19

October 20, 1959

September 28, 1959

November 28, 1959

October 26, 1959

November 10, 1959

s. 4(1)

.November 10; 1959

Nilratan

ss. 19

R01Jh"h;; Dayal

Central Government

Reserve Bank

V ilratan Sircar, Enforcement

Raghubar Dayal

Code of Criminal Procedure, 1898

section 19

section 23

Chapter VII of the Code

Section 94

s. 96

s. 94

Schedule V

Sections 98 and 99

Nilratan Sircar

s. 19

s. 19 to 4

s. 19

ss. 96, 98

Schedule V of the Code

s. 19

Section 19 and 19

s. 19

s. 19

s. 19

s. 19

Lakshmi Narain

s. 19

Schedule V

s. 19

s. 19

s. 19

s. 19

s. 19

s. 19

s. 19

s. 19

s. 19

s. 19

s. 19

s. 19

Narain

s. 19

s. 5(2)

Section 5

Indian Penal Code

Code of Criminal Procedure

s. 19

Code of Criminal Procedure

s. 172

Customs Act

s. 19

s. 172

Customs Act

Code of Criminal Procedure

s. 19

s. 19

Customs Act

Baghubar Dayal

s. 19

Section 19

s. 23(i)

s. 23

s. 23

s. 19

s. 23

Sircar

s. 23

s. 19

Raghu1mr Dayal

s. 19

s. 19

s. 19(3)

s. 19

s. 23


April z, j

SUPREME COURT REPORTS [1964}

STATE OF U.P. v.

COL. SUJAN SINGH AND ORS. [K. SuBBA RAO, K .. C. DAS GUPTA AND RAGHUBAR DAYAL,

JJ.]

Criminal Trial-Sanction by Central Government-Proceeding pending before special Judge-Accused asking for production of document fr"m the Union Government-Privilege claimed by Government-Special Judge and High Coort in revision reiccting the claim of privilege~Order if a "fina.! order',. -Petition for grant of certificate-Maintainability-Petition for special !eave barred by !imitation-Petition for excusing delay on wrong legal advice-If a sufficient ground-Constituticn of India, Art. 134(1)(c)-Supreme Court Rules, 1959, 0.21. r. 1(1) .

. The respondents were prosecuted in the court of the special Judge after obtaining the sanction of the Central Government,. for an offence under s. 6(l)(a) of the Prevention of Corruption Act. They put an objection that the sanctioning authority did not apply his mind properly when sanction was granted. One of the respondents asked the Court to summon the concerned record of the Home Department for, it would substantiate his assertion that the concerned officer did not apply his mind earliar in according sanction for his prosecution. The Secretary Ministry of Home Affairs, claimed privilege. The Special Judge and the High Court in revision rejected the claim of privilege of the Union Government. The appellant then filed a petition in the High Court for grant of a certificate. The High Court held that the order sought to be appealed against was an interlocutory one and, therefore, the petition nas not maintainable under Art. 134(l)(c) of the Constitution. Against the order of the High Court in revision the appell'ant filed a petition for special leave to appeal stating that he apolied for a certificate to the High Court but it was refused. The appellant did not bring tothe notice of this Court that the petition for special leave was out of time. The Registry could not point out the defect as in the petition it was stated that the application under Art. 134(1)(c) was dismissed by the High Court without indicating on what ground it did and this Court assumed that it was in time and granted special leave. However after obtaining the perrrJission of this Court the apdlant filed a petition for excusing the delay on the ground that the Law Officer, who was at the relevant time in charge of the matter in the High Court, advised the Government that the order under appeal was a final order and that an application should be filed under Art. 134(1)(c) of the Constitution and that the appellant acted bonafide. The appellant contended 0) that the o"der of the High Court in the criminal revision was a final order within the meaning of Art. 134 (lJ(c) of the Constitution and (2) that the rule 1(1) of 0. XX! of the Supreme Court Rules does not say in express terms that the order of refusal to give a certificate must be on an annlication which is maintainable and, therefore, if in fact the High Court refused to give a certificate. whether on merits or on the ground that it was not maintainable, the party could take advantage of the said rnle.

Hdd (per K. Subba Rao and K. C. Das Guota, JJ): (i) The order under appeal was not a final order \\, ithin the meaning of Art. 134(1) of the Constitution. It did not purport to decide

the rights of the parties. namely. the State U.P. and the accused.

Assuming that it decided some right of the Union Government. the Union Government was neither a party to the criminal proceedings nor was it a party either before the High Court .or before this Court. The indirect effect of the order of a third party to the proceedings, who did not seek to question that order, did not deprive the order of dts interlocutory character.

Col. Su.jan Singh

ando:lwr

Seth Premchand Satramdas v. State of Bihar f1950] S.C.R. 799, relied on.

(ii) Rule 1(1) of 0. XXI presupposes that the application for the certificate is maintainable and the Court refuses to give it on the ground that the condition laid down in Art. 134(1) of the Constitution have not been complied with. On a reasonable dnterpretation of the rule, it could only mean that the refusal of the certificate must be in an application maintainable under the said Article.

(iii) The order ex facie was an interlocutory order and so far as the Government of U.P. was concerned it could not possibly be held that any of its rights had been affected by that order. In the circumstances, it must be held that a wrong legal advice is not a sufficient ground for excusing the delay, and the appeal therefore must be dismissed as barred by limitation.

Per Raghubar Dayal, J. (dissenti)nq:): The appellant should te given the advantage of the opinion of its legal advisers as the error, if any, could not be said to be of such a character which a legal adviser could not have poss; bly given.

The rule does not expressly state that limitation would be counted from the date of refusal of the certificate only when an application for a certificate under Art. 134 would be maintainable. It is true that an application under Art. 134 is cmltenipilated to be an application against the judgment, final order or sentence in a criminal proceeding and that refusal of a certificate under Art. 134, for purpases of ru, le 1(1) of 0. XXI, refers to the refusal of an application for certificate against the judgment, final order or sentence in a criminal proceeding. But this does not necessarily mean that the rule will not be applicable in cases of refusal of a certificate when one applied for it on the ground that the ordef sought to be appealed against amounted to a judgment, final order or sentence while'the High Court

came to a different opmion. The rule does not specifically shte that the date of the refusal of'the certificate would be taken to be the starting point of limitation only when the High Court :iefuses ce:rtificate on the ground that it was not a fit case for appeal to the Supreme Court. If it were so, the rule would have

bee11 limited to those cases.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 71 of 1963. Appeal by special leave from the judgment and order dated November 23, 1962 of the Allahabad High Court (Lucknow Bench at Lucknow) in Criminal Revision No. 251 of 1962.

S T. Desai, 0. P. Rana, Atiqur Rahman and C. P. Lal, for the appellant.

C. B. Agarwala, Ravinder Narain, 0. C. Mathur and J. B. Dadachanji, for respondents nos. 1 and 2.

April 15, 1964. The Judgment of SuBBA RAO and DAS GUPTA JJ. was delivered by SUB BA RAO J. RAG HUB AR DAYAL J. delivered a dissenting Opinion.

an~ Otller

Subba Rao, J.

SUBBA RAo, J.-This appeal by special leave raises the question of the privilege raised by the Government of fodia in respect of certain documents called for from i!S Home Department in a criminal proceeding pending in the Court of the Special Judge, Anti-Corruption (East), U.P., Lucknow.

The respondents were prosecuted in the said Court, after obtaining the sanction of the Central Government under s. 197 of the Code of Criminal Procedure, for an offence under s. 6(1)(a) of the Prevention of Corruption Act, 1947 (Act 11 of 1947). An objection was taken before the said court on behalf of the respondents that the sanctioning authority did not apply his mind properly when sanction for the prosecution was granted. It was stated on behalf of the respondents that on a representation made by one of the accused, Col. Sujan Singh, for reconsideration of the order of his prosecution, the Deputy Secretary in the Home Department reconsidered the matter and made notings on his application to the effect that the sanction accorded earlier for his prosecution was given on insufficient data. He

filed a petition before the Special Judge to summon the concerned record of the Home Department on the ground that the said record would substantiate his a5sertion that the concerned officer did not apply his mind earlier in according sanction for his prosecution. The Secretary, Ministry of Home.

Affairs, claimed privilege on the ground that the production of the record containing the said notings of the Deputy Secretary would not be in the interests of the State. The Special Judge in the first instance and the High Court in revision rejected the claim of privilege raised by the Union Govern meat. The State of U.P. has preferred the present appeal by special leave against the order of the High Court.

The respondents filed criminal petition No. 149 of 19Ti4 for condonation of delay in filing appearance and the statement of case. The facts relevant to this application are briefly as follows. Respondents 1 and 2 received the notice granting special leave by this Court on January 16. 1964. After the receipt of the notice they conta.cted their local advocate at Lucknow and, on his advice, the !st respondent. along with his local advocate, came to Delhi on January 28, 1964, and made necessary arrangements with Messrs. J. B. Dadachanji & Co., Advocates. On January 16, 1964, respondents 1 and 2 received a notice from the High Court intimatin~ them that the records of the case had been despatched to the Supreme Court. On February 11, 1964, they filed their appearance and on February 18, 1964, their statement of case. If January 16, 1964, was the date of service on them, there would not be any delay in making their appearartce or filing their statement of case. But the notice of the despatch of the records

was served on the learned counsel for respondents 1 and 2 on November 4, 1963. Under Ch. V, r. 4(l)(c), read with r. 2, of the Rules of the High Court, Allahabad, where a party is represented by an advocate, a service of notice of despatch of record on such advocate is deemed to be sufficient service.

As the present appeal arises out of an interlocutory order it may be said. that the advocate representing the respondents in the High Court still continues to represent them. We assume for the purpose of this case that the rule is valid and the notice was duly served on the advocate. If that be so, the respondents should have filed their appearance and lodged their statement of case within a month from the said date.

But they filed their appearance on February 11, i 964, which is clearly beyond time. It will be seen from the said facts that the respondents had filed their appearance within one month from the date of service of notice on them, but beyond time from the da(e the notice was served on their advocate. The said delay is not in the presentation of any appeal but only in following the procedural steps for making the case ready for disposal. We are satisfied by perusing the record that the delay was not due to negligence on the part of the respondents. It is not suggested that the appellant is in any way prejudiced by this delay. In the circumstances we thlnk that this is a fit case for excusing the delay. We excuse the delay in filing respondents' appearance and also in lodging the statement of case. Whether the delay of the respondents in entering appearance is excused or not, we are at the outset confronted with the situation that this Court gave special leave when the appeal was prima facie barred by limitation without the appellant filing an application for excusing the delay and the Court excusing the same. A few facts would make the position clear. The Judgment of the High Court in the criminal revision is dated November 23, 1962. A certified copy of the Judgment was delivered to the appellant on December 5, 1962.

On December 19. 1962, the appellant filed a petition in the High Court of Judicature at Allahabad for a certificate that the case was a fit one for appeal to the Supreme Court. On February 18, 1963, the High Court held that the order sought to be appealed against was an interlocutory one and, therefore, the petition was not maintainable under Art. 134 (l)(c)

of the Constitution of India. On April 16, 1963 the appellant filed a petition in this Court for special leave to appeal against the order of the High Court in the criminal revision. In para. 19 of that petition it was stated that the appellant applied to the High Court for a certificate for leave to appeal to the Supreme Court but the High Court by order dated February 18, 1963, refused to grant the certificate applied for. The appeal J,•r(l')ISCT-24

81, ateof U. P.

and Othera

Subba Rao, J,

1964 would be in time if that application was maintainable in Stale of U.P. the High Court, but would be out of time if that application

001• 8::.,. Si"flh was not maintanable there, for in the latter event the time

and 3,,.,,, would have exp!fed on March 5, 1963, and the appeal would have been out of time by 42 days.

Suboo Rao, J.

Learned counsel for the appellant contends that special leave was granted on May 10, 1963, and that, as the respondents have not taken objection on the ground that it was barred by limitation till they filed their petition in this Court on February 26, 1964, we shall not permit them to raise this plea at this very late stage. We are not impressed by this argument. This is not a case where the Supreme Court excmed the delay in filing the petition for special leave and the respondents with the knowledge of that fact permitted the appellant to incur heavy expenditure and after a long delay raised the objection at the time of hearing of the appeal that the delay should not have been excused. But this is a case where the appellant did not bring to the notice of the Court that the petition for special leave was out of time. The Registry could not point out the defect as in the petition it was stated that the application under Art. 134(1)(c) of the Constitution of India was dismissed by the High Court without indicating on what ground it did and this Court assumed that the petition for special leave was in tirhe and gave special leave. Order XXI, r. 2, of the Supreme Court Rules reads:

"Where the period of limitation is claimed from the date of refusal of a certificate, it shall not be necessary to file the order refusing a certificate, but the petition for special leave shall be accompanied by an affidavit stating the date of the judgment sought to be appealed from, the date on which the application for a certificate was made to the High Court, the date of the order refusing the certificate and the ground or grounds on which the certificate was refused and in particular whether the application for a certificate was dismissed as being out of time." Under the said rule it is incumbent upon the petitioner to state in the affidavit filed in support of the petition the date of the order of the High Court refusing the certificate and the ground or grounds on which the certificate was refused.

If the appe!Jant had complied with this rule, the Registry of this Court would have noticed the delay in filing the special leave petition and brought that to the notice of the Court.

In the circumstances there are two courses open to us: one is to dimiss the appeal on the ground that it was barred by limitation, and the other is to permit the appellant to file

a petition at this very late stage for excusing the delay in filing the special leave petition and consider that petition on merits. Ordinarily no indulgence should be given to a party when the said party with open eyes filed a petition for special leave without disclosing a material circumstance in the affidavit on the basis of a wrong view of law that the appeal was in time. With some hesitation we gave liberty to the appellant to file a petition for excusing the delay and they have done so.

We shall now consider the petition for excusing the delay on merits, as this Court would have done if that application had been filed along with the special leave petition.

Two reasons are given in the application for excusing the delay, namely, (1) the Law Officer, who was at the relevant time in charge of the matter in the High Court, advised the Government that the order under appeal was a final order and that an application should be filed under Art.

I 34(l)(c) of the Constitution in the first instance so that the other side might not contend that the appellant did not approach the High Court for a certificate, and that the said advice was accepted by the Government; and (2) the appellant acted bona fide, as it believed on legal advice that the perio:I of limitation would be counll'.d from February 18, 1963, i.e .. the date of the order of the High Court refusing to give certificate and that the order was also filed along with the petition in this Court. The respondents filed a counteraffidavit denying that the order was a final order and stating that there was not sufficient reason for excusing the delay.

The learned counsel for the appellant contended that the order of .the High Court dated November 23, 1962, in the criminal revision was a final order within the meaning of Art. 134(1) of the Constitution. The material part of the said article reads :

"An appeal shall lie to the Supreme Court from any rudgment. final order or sentence in a criminal proceeding of a High Court in the territory of India .................. ".

We find it difficult to hold that the order under appeal i5 a final order within the meaning of the said article. In Seth Premchand Satramdas v. The State of Bihar(') it was held that an order of the Patna High Court dismissing an application under s. 21(3) of the Bihar Sales Tax Act, 1944. to direct the • Board of Revenue, Bihar, to state a case and to refer it to the

(') [1950] S.C.R. 799, 804.

L/P(D)ISCI-24(a)

State of U.P. v.

Coi Svjan Singl

aM Otkesa

Subba Rao, J.

196'

and Othe.ra

Subba RM, J.

SUPRE:.IIE COURT REPORTS [1964]

High Court was not a "final ordec". This Court, speaking through Faz! Ali, J., defined the expression 'final order" thus:

"It seems to us that the order appealed against in this case. cannot be regarded as a final order, because it does not of its own force bind or affect the rights of the parties".

Though this definition is given in a different context, it will equally apply to that expression in Art. 134 of the Constitution.

Can it be said that the Special Judge in allowing the petition of the respondents to call for the production of a document from the Union Government is a final order in the criminal proceeding? The criminal proceeding>. were taken against the respondents for an offence under s. 6(l)(a) of the Prevention of Corruption Act, 1947. The proceedings are now pending in the court of the Special Judge.

In the course of those proceedings the respondents filed an application .for the production of a document by the Union Government and that was allowed by the court. The said order is only an interlocutory order pending the proceedings. It does not purport to decide the rights of the parties, namely, the State of U.P. and the accused. It enables the accused to have the said document duly proved and exhibited in the case. It relates only to a procedural step for adducing evidence. The High Court confirmed that order in revision. But the learned counsel contents that it negatives the claim of prjvilege made by the Union Government and, therefore, it decides against the right ot the Union Government to withhold the production of the document.

Assuming that the order decides some right of the Union Government, on which we do not express any opinion, the Union Government is neither a party to the criminal proceedings nor fa it a party either before the High Court or before us. The indirect effect of that order on a third party to the proceedings, who does not seek to question that order, does not deprive the order of .its interlocutory character. We, therefore, hold that the order made by the High Court is not a final order within the meaning of Art. 134(1) of the Constitution.

That apart the order of the High Court holding that the order sought to be appealed from was not a final order within the meaning of Art. 134(1) of the Constitution has become final. The appellant has not filed any appeal against that order. It cannot ignore that order for the purpose of special leave and contend that the application before the High Court was maintainable and the order made by the High Court must be deemed to have been made on merits, though in express terms it rejected the petition for the reason that it was not maintainable. In either view the period of limitation for filing the special leave petition could not be computed from

the date of the order of the High Court refusing to give a certificate to appeal to the Supreme Court. It is then contended that the rule does not say in express terms that the said order of refusal to give a certificate must be on an application which is maintainable and, therefore, if in fact the High Court refused to give a certificate, whether on merits or on the ground that it was not maintainable, the party can take advantage of the said rule. We cannot accede to this argument. The rule presupposes that the application for the certificate is maintainable, and the court refuses to give it on the ground that the conditions laid down in Art. 134(1) of the Constitution have not been complied with. If the construction put forth by the appellant be accepted, it will give room for fraud and evasion of the rule.

A party whose appeal has become barred can file a petition with the knowledge that it is not maintainable, get an order of dismissal and then seek to take advantage of the additional period of limitation provided by the ruie. The rule, therefore, must be interpreted reasonably and if so interpreted. it could only mean that the refusal of the certificate must be in an application maintainable under the said Article.

Now we shall proceed to consider the application for excusing delay on its merits. The reason for the delay given in the affidavit is that the Law Officer was of the opinion that the application for a certificate was maintainable under Art. 134(1) of the Constitution. We do not see any justification for this opinion. There is no conflict of judicial opinion on this question. The only question that was before the Law Officer was whether the order sought to be appealed from was a final order. The order ex facie was an interlocutory order and so far as the Government of U.P. was concerned it could not possibly be held that any of its rights had been affected by that order. In the circumstances we cannot hold that a wrong legal advice is a sufficient ground for excusing the delay. What • is more, on February 18, 1963, the High Court in a considered order held that the order sought to be appealed from was not a final order and, therefore, an application under Art. 134(1) of the Constitution was not maintainable. The time for preferring an appeal from the main order of the High Court would expire only on March 5. 1963, that is to say, the appellant had 15 days time more for taking steps for preferring the appeal. Even so no steps were taken to file the appeal and instead an appeal was filed on the basis of the original opinion of the Law officer that the time can be computed from the date of the order refusing to issue the certificate. From the information supplied by the counsel for the appellant it appears that the Government decided to file the appeal only on March 8, 1963, i.e., after the time for filing the appeal had

Stole of U.P. v.

Col. Sujan Si1197'

and Others

Bubba Rao, J.

Col. Buja" Singh

and 01/lera

742 SUPREl\IE COURT REPORTS [1964]

expired. After further correspgndence between the Government of U.P. and the counsel representing it in the Supreme Court the special leave petition was filed only on April 16. 1963, completely ignoring the reasons given by the High Court in dismissing the application for certificate of fitness.

On the said facts we do not see any justification for excusing the long delay of 42 days. So, the appeal is clearly barred by limitation and should be dismissed. Accorcfmgly the appeal is 'dismissed .

.Bagkubar Dayal, J.

RAGHUBAR DAYAL, J.-1 agree that the delay in filing the respondents' appearance and also in lodging the statement of case be excused.

I am, however, of opinion that the appellant's application for excming the delay in the presentation of the petition for special leave to appeal be allowed. '

It has to be assumed, for the purposes of disposing of this application, that the order under appeal was not a final order within the meaning of Iha t expression in art. 134(1) of the Constitution. The High Court held so and refused the certificate. The appellant has neither preferred an appeal against that order nor questioned its correctness in its petition for special leave. The reason urged for condoning the delay is that the legal advisers of the appellant were of opinion that limitation for the presentation of the petition for pecial leave would be governed by the provisions of r. 1(1) of 0. XXI,

Supreme Court Rules, hereinafter called the rules, and that in accordance with those provisions the period of limitation would be 60 days from the date of refusal of the certificate by the High Court. If that rule applied, the petition for special leave would be in time. The certificate was refused on February 18, 1963, and the special leave petition was filed on April 16. The question then is whether the appellant can • take advantage of the opinion of its legal advisers, assuming that this opinion was erroneous. I am of opinion that it should be given that advantage, as the error, if any, cannot be said to be of such a character which a legal adviser could not have possibly given.

The rule does not expressly state that limitation would be counted from the date of refusal of the certificate only when an application for a certificate under Art. 134 would be maintainable as an application against an order which is held by the High Court to be a 'judgment, final order or sentence in a criminal proceeding'. It is true that an application under art. 134 is contemplated to be an application .against the judgment, final order or sentence in a criminal proceeding, and that refusal of a certificate under art. 134, for purposes of rule I( D of O.XXI. refers to the refusal of an application

for certificate against the judgment, final order or sentence in 1964 a crimmai proceeding. But this does not necessarily mean that Stal• of u. P. the rule will not be applicable in cases of refusal of a certifi v. cate when one applied for it on the ground that the order Col. Sujan Singh

....., ancZ Othera sought to be appealed against amounted to a judgment, final order or sentence while the High Court came to a differentRaghubar Dayal, J. opinion. The rule does not specifically state that the date of the refusal of the certificate would be taken to be the starting point of limitation only when the High Court refuses certi jicate on the ground that it was not a fit case for appeal to the Supreme Court. If it were so, the rule would have been limite:I to those cases.

Further, there is indication in sub-r. (2) itself that such was not contemplated by sub-r. (!) of r. 1. Sub-rule (2) of r. 1 requires the petitioner, in case he desires limitation to be counted from the date of refusal of the certificate, to mention the grounds for the refusal of the certificate and, in particular, whether the application for certificate was rejected as being out of time.

An application presented after the expiry of limitation is not maintainable till the Court allows the application for the condonation of delay. There must be a reason for providing, in sub-r. (2), that the fact of the refusal of the certificate on ground of limitation mmt be expressed. The reason is that proviso (iii) to sub-r. (!) of r. 1 provides that when an application for a certificate is dismissed on the ground of its being out of time. limitation for the petition for special leave to appeal will not be counted from the date of the dismissal of the application. There is no corresponding provision with respect to the limitation being not counted from the date of refusal, if the refusal be on the ground that the order sought to be appealed against did not amount to a 'judgment, final .order or sentence' in a criminal proceedings.

In view of these considerations, the advice of the appellant's coumel, even if it be erroneous, should not go against the appellant to the extent that the delay in filing of the special leave petition be not condoned. I do not think that the omission to state the ground of refusal in the petition for special leave was deliberate in order to keep back from the Court that the application had been presented after the expiry of the period of limitation.

It would not be irrelevant to consider the nature of the point sought to be urged in the appeal. The question is whether the High Court was right in considering the order of the trial Court rejecting the claim of privilege raised by the Union Government in accordance with s. 123 of the Evidence Act with respect to the production of certain documents summoned, on the ground that the disclosure would not be in public

1964 interest. If the view of the Courts below is wrong, the result Bleile of u.P. of refusing to condone the delay would be that public interest v. will suffer and that consideration should, in my opinion, out- Ool. Sujan Singh weigh the lapse on the part of the appellant in not filing the and Others petition for special leave to appeal within time and that too, in llaghubar Dayal, J. view of the wrong advice or opinion given by its legal advisers.

I would therefore allow the application and condone the appellant's delay in presentation of the petition for special leave.

ORDER

In accordance with the opinion of the majority, the delay in filing the special leave petition is not condoned. The appeal is barred by limitation and is dismissed.

Appeal dismissed.

STATE OF U.P

COL. SUJAN SINGH AND ORS

K. SuBBA RAO

K .. C. DAS GUPTA

RAGHUBAR DAYAL,

JJ.

Art. 134(1)(c)

Supreme Court Rules, 1959

s. 6(l)(a)

Prevention of Corruption Act

Secretary Ministry of Home Affairs

Art. 134(l)(c)

Art. 134(1)(c)

Art. 134(1)(c)

Art. 134

Supreme Court

K. Subba Rao

K. C. Das Guota

Art. 134(1)

Su.jan Singh

Art. 134(1)

Government of U.P.

Raghubar Dayal

Art. 134

Art. 134

Art. 134

P. Rana

Atiqur Rahman

C. P. Lal

C. B. Agarwala

Ravinder Narain

C. Mathur

J. B. Dadachanji

SuBBA RAO

DAS GUPTA

SUB BA RAO

RAG HUB AR DAYAL

Subba Rao

SUBBA RAo

Central Government

s. 197

Code of Criminal Procedure

s. 6(1)(a)

Prevention of Corruption Act, 1947

Sujan Singh

State of U.P.

January 16. 1964

Lucknow

Delhi

January 28, 1964

J. B. Dadachanji

January 16, 1964

February 11, 1964

February 18, 1964

November 4, 1963

High Court, Allahabad

February 11, i 964

November 23, 1962

December 5, 1962

High Court of Judicature at Allahabad

February 18, 1963

Art. 134

Constitution of India

April 16, 1963

Suboo Rao

May 10, 1963

February 26, 1964

Art. 134(1)(c)

Constitution of India

Supreme Court Rules

Art. 134(1)

India

Patna High Court

s. 21(3)

Bihar Sales Tax Act, 1944

Subba

Faz! Ali

Art. 134

s. 6(l)(a)

Prevention of Corruption Act, 1947

Union Government

Art. 134(1)

Art. 134(1)

Art. 134(1)

Art. 134(1)

Art. 134(1)

March 5. 1963

Bubba Rao

Buja" Singh

.Bagkubar Dayal

art. 134(1)

Supreme Court Rules

Art. 134

art. 134

art. 134

differentRaghubar Dayal

s. 123

llaghubar Dayal


7 S.C.R.

SUPREME COURT REPORTS 745

OUSEPH POULO AND THREE OTHERS

CATHOLIC UNION BANK LTD. AND ORS.

IP. B. GAJENDRAGADKAR, C. J., K. N. WANCHOO AND DAS

GUPTA, JJ.]

Contract-Documents executed in favour of Bank as secu.

Tity for debts-Withdrawal.' of criminal complaint by Bank- Documents, if executed for stifling prosecution-Test-Indian Contract Act, 1872 (9 of 1872), s. 23.

Two of the defendants in the two suits out of which the present appeals arose borrowed a sum of Rs. 80,024-4-9 from the respondent Bank in course of their tusiness by pledging their goods. The Bank discovered that there was shortage in the goods deposited and through its Secretary lodged a com plaintwith the police that the said defendants, their father and brother had in collusion with the local agent of the Bank fraudulently removed part of the goods or, in the alternative, had made a grossly inadequate deposit to cheat the Bank. The Police restered the case and started investigation. The parties, thereafter settled their differences by a transaction which con sisted, among others, of a hypothecation bond for Rs. 30,000/·

covering immovable property and a Karar for Rs. 35,000/-, which were executed in favour of the Bank by the parent of the said defendants, by the said defendants themselves and their brother and his wife. On the Secretary of the Bank stating to the Police that the Bank's claim had be'€n settled and any further action would be unnecessary the criminal proceeding was dropped. Thereafter the said relatives of the two defendants who had executed the hvpothecation bond and the Karar brought a suit for the cancellation of the said documents on the ground that they had been executed to stifle the criminal prosecution and were as such unenforceable under s. 23 of the Indian Contract Act. The Bank sued for recovery of the amount due on the Karar which was resisted on the same ground that the document was unenforceable under s. 23 of the Contract Act.

The said defendant-debtors did not examine themselves.

They did not raise the plea of unenforceabibty in respect of a hire-purchase agreement which formed a part of the transaction in question and on which the Bank brought a suit against them and got a decree. After the sa.id settl<ement these defendants applied for further loan from the Bank. There was evidence to show that an agreement to furnish addiltional security had been reached between the said defendants and the Bank even before the complaint was filed.

The trial Court held that both .the documents fell within th~ mISch:ef of s. 23 of the Contract Act and decreed the first suit and dism1s.sed the second. The High Court on appeal took the cotrary view and reversed the decision of the tri<al Court accordmgly. The plamt1ffs m the first suit appealed to this Court.

Held: It was well settled that agreements made with the sole pupose of stifling prosecution were opposed to nublic

pohc>: smce th~ consideration which supported such agreements was itself agamst public policy and could not, thernfore, be

April16

0...ph Poulo and

30thm

Catholic Union Bank LW.. and

Otherr,

enforced. In India however this doctrine was not applicable either to compoundable offences or to offences which could be compounded with the leave of the Court.

The onus was strictly on the party that impugned the transaction to prove that it was based on an agreement to stifle the prosecution. It must be able to show that on a certain consideration proceeding from it the complainant in return promised to discontinue the criminal proceeding and then alone the transaction would be one against public policy.

V. Narasimha Raju v. V. Gurumurthy Raju, [1963] 3 S.C.R. 687 Maharaja Srish Chandra Nandy v. Sapravat Chandra A.LR. 1940 Cal. 337 Sudhindra Kumar Ray Chaudhuri v. Ganesh Chandra Gaguli, 1939 I.L.R. 1 Cal. 241 and Kamini Kumar Basu v. Birendra Nath Basu, A.LR. 1930 P.C. 100, referred to.

Bhowanipur Banking Corporation Ltd. v. Duresh Nandini Dasi, (1942) I.L.R. 1 Cal. 1, c0nsidered.

But in judging a particular agreement distinction must be made between the motive for the agreement and the consideration for it and subsequent events should not be allowed to confuse the issue.

It was clear in the present case that the plaintiffs had failed to discharge the onus that lay on them and the decision of the High Court was, therefore, correct.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 51 and 52 of 1962.

Appeals from the judgment and order dated June 12, 1959 of the Kerala High Court in A.S. Nos. 538 and 539 of 1954. '

V. A. Seyid Muhammad. for the appellants.

S. T. Desai and A.G. Pudissery, for the respondent No. L April 15, 1964. The Judgment of the Court was delivered by

<Jajen-lra9adkar, OJ.

GAJENDRAGADKAR, C. J.-These two appeals arise from two suits Nos. 5 of 1947 and 32 of 1951; and the main point which they raise for our decision is whether the two documents executed by the appellants and two of the respondents are unenforceable as being opposed to public policy under section 23 of the Indian Contract Act (hereinafter called 'the Act). The trial Court has answered this question in the affirmative; while the High Court of Kera la has ta ken a contrary view.

Poulo Varghese and Poulo Thommi who are the sons of Ouseph Poulo were carrying on trade in hill produce at Alwaye and in the course of their business, they nad borrowed from the branch of the Catholic Union Bank Ltd. at Alwaye large amounts. In that connection, they had pledged goods with the Bank as security for the loan and the same had been deposited in a godown the key of which remained with the Bank. It appears that on the 10th February, 1947.

the Officers of the Head Office of the Bank inspected the 1964

_godown and it was discovered that there was considerable OUS£ph Poulo and

shortage of the goods pledged. Thereupon, the Secretary of 3 Othm 1he Bank lodged a complaint with the Police that Ouseph Oatltoli:union

Poulo and his two sons who had dealings with the Bank as Bank Lid. and well as Poulo Joseph, another son of Ouseph Poulo, had col- Othe~ luded with the local Agent of the Bank and had fraudulently Gajendragadkar, 0.1. 'femove:I a substantial part of the pledged articles from the godown. The complaint also alleged alternatively that if the goods had not been fraudulently removed, then the security offered by Poulo Varghese and Poulo Thommi was grossly inadequate to cover the large amounts advanced to them, and that was the result of cheating. The Police registered this <:ase and investigations began. At that time the parties settled their diffetences and the two documents in question were executed.

The criminal complaint was filed on the 13th February and the First Information Report was made on the 16th February, 1947. On the 22nd February, a hypothecation bond (Ext. 26) was executed by Ouseph Poulo, his wife, his three sons and the wife of another son in favour of the Bank for Rs. 30,000 /-.

This bound covered immovable properties belonging to the executants.

On the 27th February, 1947, another document was executed by the same parties in favour of the Bank for Rs. 35,000/-; this document was called Kollappirivu Karar (Ext. B.). On the fiame day a receipt was executed by Poulo Varghese and Poulo Thommi which showed that the goods in the godown were valued at Rs. 10,000 /- and were surrendered to the Bank in partial satisfaction of the debts due from them to the Bank.

This was followed by a hire-purchase agreement by which the car owned by Poulo Thommi was transferred to the Bank and the same was conveyed back to him on a hire-purchar, e aree

ment, the value of this car was taken to be Rs. 5,000/-. The total amount due from Poulo Varghese and Poulo Thommi to the Bank was Rs. 80,024-5-9. As a result of the transactions in which the parties entered, Rs. 10,000 /- were made good by surrendering to the Bank the goods in the godown; Rs. 5,000 /- by trall6ferring the car; Rs. 30,000 /- and Rs. 35.000/- by the hypothecation deed and the Karar respectively; that left a balance of Rs. 24-5-9 which was paid in cash. After this transaction had thus been concluded, on the 28th February the Secretary of the Bank made a statement before the police that the Bank's claim had been settled and that he and the Managing Director of the Bank was satisfied that no goods had been removed from the godown as alleged in the complaint and that in co!Iur; ion with the Agent of the Bank, the debtors Poulo Varghese and Poulo Thommi had

Otutph Paulo and

3 Others

OaUiolie Union

Bank Ltd. and

Others

cheated the Bank by over-valuing the goods pledg.ed, but that no further action was necessary to be taken in that behalf. In consequence, the crhninal proceedings were dropped. That. in substance, is the nature of the transactions,. the character of which falls to be detennined in the present appeals.

Gajendrol,/adlt:M, o.J.

On the 15th December, 1947, Ouseph Poulo, the father. his son Joseph, Poulo's wife Aelia and Joseph's wife Thressia filed a suit in forma pauperis seeking cancellation of the two documents in question on the ground that they had been executed to stifle criminal prosecution and that they were also vitiated by undue influence. coercion and threat. The first defendant to this suit was the Bank and defendants 2 and J were the two debtors Poulo Varghese and Poulo Thommi, the sons of OU6eph Poulo. This was suit No. 5/ 1947.

While this suit was pending, the Bank instituted suit No. 32 of 1951 on the 26th February, 1951 and claimed to recover the amount due on the Karar from all its executants.

The persons who had filed suit No. 5 /1947 were defendants

l. 2. 5 & 6 in this suit and defendants 3 & 4 were the debtors Poulo Varghei; c and Poulo Thommi. These two sets of defendants filed two separate written statements; but the common plea raised by them was that the document on which the Bank's suit was based was unenforceable under s. 23 of the Act. The trial Court substantially upheld this defence with the result that suit No. 5/1947 was decreed and suit No. 3211951 was dismissed. The Bank took this matter before the High Court by preferring two appeals Nos. 538 & 539 of

1954. The Hil!h Court has reversed the conclusion of the trial Court in regard to the character of the impugned transaction and in consequence. suit No. 5 /1947 has been dismised and suit No. 32/1951 has been decreed. That is how the plaintiffs in suit No. 5/1947 have come to this Court with a certificate issued by the High Court. During the course of this judgment, we will refer to the Bank as the Bank. the versons who brought 1mit No. 5 /J 947 as the plaintiffs and the two debtors as defendants 2 & 3.

13efore dealing with the merits of the controversy between the parties, it is necessary to state briefly the true legal position in regard to the agreements which are held to be unenforceable on the ground that the consideration for which they are made is opposed to public policy. It is well-settled th:!! agreement~ which are made for stifling prosecution are opposed to public policy and as such, they cannot be enforced.

The basis for this position is that the consideration which sup ports such agreements is itself opposed to public policy. In J ndia. this doctrine is not applicable to compoundable offences, nor to offences which are compoundable with the leave of the

court where the agreement in respect of such offences is entered 1964 into by the parties with the leave of the Court. With regard Omeph Poulo and to non-compoundable offences, however, the position is clear 3 Other• that no court of law can allow a private party to take the ad- Oatholi:union ministration of law in its own hands and settle the question Bank Ltd. and as to whether a particular offence has been committed or not, Other• for itself. It is obvious that if such a course is allowed to be Gajendragadkar, o.J. adopted and agreements made between the parties based solely on the consideration of stifling criminal prosecutions are sustained, the basic purpose of criminal law would be defeated; such agreements may enable the guilty persons to escape punishment and in some others they may conceivably impose an unconscionable burden on an innocent party under the coercive process of a threat of the criminal prosecution. In substance, where an agreement of this kind is made, it really means that the complainant chooses to decide the fate of the complaint which he has filed in a criminal court and that is clearly opposed to public policy.

In dealing with such agreements, it is, however, necessary to bear in mind the distinction between the motive which may operate in the mind of the complainant and the accused and which may indirectly be responsible for the agreement and the consideration for such an agreement. It is only where the agreement is supported by the prohibited consideration that it falls within the mischief of the principle that agreements which intend to stifle criminal prosecutions are invalid. The sequence of events, no doubt, has relevance in dealing with this question; but from mere sequence it would not be safe to infer the existence of the prohibited consideration. If in order to put an end to criminal proceedings, an agreement is made in the execution of which persons other than those who are charged in a criminal court join, that may afford a piece of evidence that the agreement is supported by the consider.ation that the criminal proceedings should be terminated. n the nature of the liability imposed upon a debtor by a previoUB dealing is substantially altered with a view to terminate the criminal proceedings, that itself may be another factor which the Court may take into account in deciding whether the agreement is supported by the prohibited consideration.

But in weighing the different relevant considerations in such a case, courts must inevitably enquire: did one party to the transaction make his promiBe in exchange or part exchange of pro- . mise of the other "not to prosecute or continue prosecuting"?

As Lord Atkin observed in Blrowanipur Banking Corporation Lftl. v. Durgeslr Nandini Desi('). "In all criminal cases reparation where possible is the duty of the offender, and is to be encouraged. It would be a public mischief if on reparation

f') (1942) I.L.R. I Cal. 1.

1964 being made or promised by the offender or his frienm or rela- °'"'Ph Pouw and tives mercy shown by the injured party should be used as a 3 Other! pretext for avoiding the reparation promised". That, however, ·

Oatlwli~Union is not to say that if reparation is made as a consideration for Bank Ltd. and a promise to give up criminal proceedings, it would not Ou.era amount to an abuse of the right of private prosecution and Gajendragadkar, o.J. would not attract the provisions of s. 23 of the Act. The main point to remembyr is that the party challenging the validity of the impugned transaction must show that it was based upon an agreement to stifle prosecution. If it is shown that there was an agreement between the parties that a certain consideration should proceed from the accused person to the complainant in return for the promise of the complainant to discontinue the criminal proceedings, that clearly is a transaction w'1ich is opposed to public policy (vide V. Narasimha Raju v. V.

Gurumurthy Raju('), Maharaja Srish Chandra Nandy v.

Supravat Chandra('), Sudhindra Kumar Ray Chaudhuri v.

Ganesh Chandra Ganguli('); and Kamini Kumar Basu, v.

Birendra Nath Basu(').

What then are the facts in this case on which the plaintiffs seek to challenge the correctness of the conclusion of the High Court that the impugned transactions are not invalid?

Dr. Seyid Muhammed for the plaintiffs has urged that in dealing with the present dispute between the parties, it is essential to remember that the complaint filed by the Bank against defendants 2 & 3 is found to be not a bonafide complaint and that, according to him, shows the true complexion of the impugned transactions. It is true that the trial Court has found that the complaint made by the Bank was not bonafide and the High Court has not in terms reversed that finding because the High Court disbelieved the direct evidence led by the plaintiffs and held that the agreement alleged by them was not proved. Dr. Seyid Muhammed, therefore, contends that there is a finding recorded by the trial Court which has not been reversed in appeal, and so, we should deal with the main point in the light of this finding. If we had been satisfied that the complaint filed by the Bank was deliberately and dishon.estly filed, that no doubt would have assisted the plaintiffs to a very large extent; but after carefully considering the material evidence on this point, we are satisfied that the trial Court was in error in coming to the conclusion that the Bank had filed the complaint ma/afide. The complaint in terms made three material allegations. It alleged that though the goods pledged by defendants 2 and 3 were of a very low value, they were

(') A.I.R 1930 P.C. 100.

entered in the godown and in the relevant books as being 1961 worth a much larger amount. It also alleged that the goods, Ousepk Paula a.d though of a cheap quality, were described as a very superior 3 Otker• quality; and it also said that substantial part of the goods Oatlioli!'unio• pledged had been removed from the godowns for the purpose Bank Ltd. of causing loss to the Bank and for making unlawful profit. ou..r, 1:his complaint was filed against defendants 2 and 3 an.d plain-Gajendr;,;; ikar, o.J, ttffs 1 and 2, and another son Ouseph Poulo who 1s not a party to the present litigation. In regard to thi~ last allegation of theft, the complaint also averred that the key of the godown used to be with the agent of the Bank at Alwaye and the 6aid agent had absconded. The complaint mentioned that the lorry in which the goods were removed bore the registration No. 2923 and it belonged to the Qunani Motor Service.

When the Secretary of the Bank gave evidence he stated that on an enquiry being made on the spot, it was learnt that the goods had been removed in the particular lorry; but, later, no evidence was forthcoming to support that report. He, however, adhered to the case of the Bank that the goods which were found in the godown were hopelessly inadequate to serve as a security for the advance made to defendants 2 and 3. The .. argument ;; that the allegation as to theft was dishonesty made by the Bank in its complaint in order to apply coercive pressure against defendants 2 and 3 and the members of their family.

Prima facie, this argument does appear to be attractive, and if it had been sustained, it might have helped the plaintiffs a good deal.

There is, however, clear evidence on the record which negatives this contention. As we have already seen, a receipt was poosed in favour of the Bank surrendering the goods which were found in the godown to the Bank and these goods have been priced at Rs. 10,000 I-. It is common ground that the goods which were pledged with the Bank were intended to serve as a security for as much as Rs. 80,000 and odd; and so, there can be no doubt whatever that the goods found did not satisfy that requirement. The number of bags which were mentioned in the receipt is 534; that again does not represent the total bags of goods pledged with the Bank. So, it is absolutely clear that the Bank realised on inspection of the godown that the security offered was wholly in-adequate and it may well be that on the spot some people reported that the pledged goods had been removed.

That is why the Bank stated aJ.l the material facts and alleged that either the substantial part of the goods which had been pledged had been removed, or the goods which had been pledged were not at all enough to cover the amount advanced. In any case, the agent of the Bank may have colluded with the debtors. Now, in the view of the receipt passed by the debtors and the members of their family in favour of the Bank in which the value

1961 of the goods found in the godown has been determined at Ousepll. Paulo awl Rs. 10,000 /-, it would be unreasonable to suggest that the

i: Others complaint made by the Bank was not bonafide. v.

OatbAJlie Union.

Baal: Lid. and ou.e,.,

Gajewlragadkar, 0.

Besides, in dealing with this dispute, it essential to remember that defendants 2 and 3 have not entered the witness-box at all. They have left it to their father, mother, "brothers and sister-in-law to fight this litigation. At every stage of the proceedings in both the suits, we come across poinlB of dispute on which defendants 2 and 3 alone could have given evidence. Did they pledge goods worth the amount advanced to them? If yes, did the Agent remove them, or were the goods which were originally pledged not of enough value and by collusion with the Agent, representation was made and accepted that they were valuable? On all these matters, it was necessary that defendants 2 and 3 should have taken the oath to support the case made by the plaintiffs when they challeng .. ed the validity of the transactions in question. The High Court has seriously commented on the fact that defendants 2 and 3 have deliberately avoided to face the witness-box. In our opinion, in the circumstances of this case, this comment is fully justified.

There is another piece of evidence which is equally material and which is in favour of the Bank and that evidence relates to the subsequent conduct of defendants 2 and 3.

We have already noticed that a motor car belonging to one of the debtors was sold to the Bank for Rs. 5 ,000 I - and taken back on hire-purchase agreement. Indeed, this hire-purchase agreement is a part of the transaction which settled the dispute between the parties. It appears that the debtors failed to pay the instalments under the hire-purchase agreement and that led to a suit by the Bank. In this suit, the debtors filed an elaborate written statement containing 21 paragraphs; but we do not see any allegation that the hire-purchase agreement was a part of a transaction which was invalid and as such, the claim made by the Bank was not sustainable. In fact, this suit was decreed in favour of the Bank. The conduct of defendants 2 and 3 in not raising a plea agaimt the validity of the hire-purchase agreement is not without significance.

Similarly, it appears that after the impugned transaction took place between the parties, defendants 2 and 3 applied to the Bank for further advance on the 11th April, 1947 and Mr. Ramakrishna Nair who is the principal witness for the plaintiffs in the present litigation and who was the Legal Adviser of the Bank, 1mpported the debtor's request for advance.

This request was, however, turned down and it is obvfous that the failure of the Bank to accommodate the debtors ultimately led to the present plea that the transactions in question are

invalid. Therefore, we are satisfied that the subsequent con- duct of defendants 2 and 3 clearly showrs that they are not O....pA Paulo •nil prepared to take the risk of facing cross-examination and that a Otlier• is the reason that they have left it to their relatives to fight the aalllol:-union Present litigation.

Balli: Lid. anli

OtTier.

It is in the light of this background that we have to consi-aenclragadkar, O.I, der the oral evidence in the case. The main witnesses on whose teritimony Dr. Seyid Muhammed has relied are Mr. Nair P.W. I and Mr. Pillai P.W. 3. Mr. Nair is a practising lawyer and was at the relevant time the Municipal Chairman of Alwaye, whereas Mr. Pillai was a Municipal Councillor at that time.

According to Mr. Nair, he took part in the execution of the relevant documents and advised the Bank. He stated that the documents were so executed for settling the criminal case. He also added that he told defendants 2 and 3 that if the mortgage deed and the agreement were got executed, the criminal case could be dropped and his explanation wars that he made that statement because the Managing Director and the Bank's Secretary Joseph had told him to that effect.

It appears that for assisting the Bank in filing the criminal complaint, this lawyer had claimed Rs. 500 /-, but the Bank paid him only Rs. 200 /-. That was one reason why he was dissatisfied. It also appears that he recommended to the Bank to give a loan to some persons including defendants 2 and 3 and his recommendation letters were ignored by the Bank. That was another reason why he was not feeling happy with the Bank. The High Court has taken the view that the statements made by this witness cannot be regarded as reliable or trustworthy; and we are not prepared to hold that the view taken by the High Court is so erroneous that we should reverse it.

In any case, reading the evidence of this witness ars a whole, we would be reluctant to come to the conclusion that there was an agreement between the Bank and defendants 2 and 3 at the relevant time which would attract the provisions of s. 23 of the Act. Our reluctance is based on the somewhat unsatisfactory character of the evidence given by this witness as well as on the fact that defendants 2 and 3 ho could .have given evidence on this point have not stepped mto the witness-box. The onus to prove the illegal character of the transactions was obviously on the plaintiffs and their failure to examine defendants 2 and 3 must largely contribute to the final decision on the issue .

. ~· Pillai who is the other witness on whose evidence the plamtiffs rely has been characterised by the High Court as !-mtrustw?rth}'.; but the infirmity in the evidence of this witness 1s that !tis eV!dence does not clearly or expreS6ly lead to the C10nclus1on that there was an agreement between the parties

011aeph Poulo and 3 Other&

that the document should be executed by the debtors in consideration for the Bank withdrawing the criminal proceedings.

The answers which he gave are somewhat vague and indefinite, and it would be unsafe to make the said answers the basis of a definite finding against the Bank.

Oarlwlic Union

Banl Llci. and

Otllera . - The last witness on whose evidence Dr. Seyid Muham- Gajendragadkar, C.J. med has relied is plaintiff No. I, the father, P.W. 7.

His evidence is obviously interested and the fact that he has taken upon himself to speak to a traw, action when di; fendants 2 and 3 who were directly concerned in the transaction did not come to give evidence, considerably detracts from the value of his statements. Therefore, having carefully considered the evidence in the light of criticism made by the High Court, we are not prepared to accept Dr. Seyid Muhammad's argument that he has made out a case for reversing the conclusion of the High Court.

In this connection, we ought to mention another point w4icl:i is not irrelevant. The evidence given by the Secretary of the Bank, Joseph, shows that soon after the godown w:is im; pected and before the complaint was filed, defendants 2 and 3 offered to the Bank to make up for the deficiency in the value of the pledged goods. They appealed to the Bank that the discovery made by the bank on inspection of the godown should not be disclosed to anybody and that they would immediately furnish sufficient additional security. In order . .-to carry out this promise, they in fact delivered to the Bank certain documents of title in respect of the property which was ultimately mortgaged to the Bank; but all the documents of title were not handed over and that is where the matter stood when the complaint was filed.

Later, the two impugned documents were executed and the complaint was withdrawn. The point on which Mr. Desai for the Bank has relied is that the evidence of the Secretary shows that an agreement to furnish additional security had been reached between defendants 2 and 3 on the one hand and the Bank on the other even before the complaint was filed, and so, it would be unreasonable to suggest merely from the sequence of subsequent events that the impugned documents were executed with the object, and for the consideration, of stifling the criminal prosecution. Mr. Desai argues, and we think rightly, that where the validity of an agreement is impeached on the ground that it is opposed to public policy under s. 23 of the Act, the party setting up the plea must be called upon to prove that plea by clear and satisfactory evidence. Reliance on a mere r, equence of events may tend to obliterate the real difference between the motive for the agreement and the consideration for it. Did the parties offer to give security and execute the documents in consideration for the withdrawal of the criminal complaint by the Bank?-that is the question which has to be decided in the present appeals,

.... ...

. u;·

and in proving their case, the plaintifis are expected to lead 1964 satisfactory evidence; and in our opinion, the High Court is, Otueph Paulo and on the whole, right when it came to the conclusion, that the a Other• evidence led by the plaintiffs iJS far from satisfactory. Thereh 1 .v.u . fore, we are satisfied that the view taken by the High Court CiJ..:k~14~::,, is right and cannot be reversed. 0111ers

The result is, the appeals fail and are dismissed with costsGojerwlragadkar, C.J. one set of hearing fees.

The appellants have been allowed to file their appeals in forma pauperis, and so, we direct that they should pay court-fees which they would have had to pay if they had not been allowed to appeal as paupers.

Appeals dismissed .

745

OUSEPH POULO AND THREE OTHERS

CATHOLIC UNION BANK LTD. AND ORS

IP. B. GAJENDRAGADKAR

K. N. WANCHOO

GUPTA, JJ.

Test-Indian Contract Act, 1872

s. 23

s. 23

Indian Contract Act

s. 23

s. 23

Catholic Union Bank

India

[1963] 3 S.C.R. 687

CIVIL APPELLATE JURISDICTION

Kerala High Court

V. A. Seyid Muhammad

S. T. Desai

A.G. Pudissery

GAJENDRAGADKAR

section 23

Indian Contract Act

High Court of Kera la

Poulo Varghese

Poulo Thommi

Ouseph Poulo

Alwaye

Catholic Union Bank Ltd.

10th February, 1947

Ouseph Oatltoli

Poulo

Poulo Joseph

Gajendragadkar

Poulo Varghese

16th February, 1947

27th February, 1947

Otutph Paulo

OaUiolie Union

Bank Ltd.

15th December, 1947

Ouseph Poulo

Joseph

Aelia

Thressia

26th February, 1951

Poulo Varghei

s. 23

Omeph Poulo

Atkin

Gajendragadkar

s. 23

Seyid Muhammed

Qunani Motor Service

Ousepll. Paulo

Gajewlragadkar

11th April, 1947

Ramakrishna Nair

Seyid Muhammed

Nair

Pillai

Pillai

Nair

s. 23

011aeph Poulo

Oarlwlic Union

Banl Llci.

Seyid Muham- Gajendragadkar

Seyid Muhammad

Desai

s. 23

costsGojerwlragadkar