196~

.Jl•rch 6

SUPREME COURT REPORTS

RAJA BIRAKISHORE

THE STATE OF ORISSA

' [1964

IP. B. GAJENDRAGADKAR, c. J., K. N. WANCHOO, J. c. SHAH, 4

N. RAJAGOPALA AYYANGAR ANDS. M. SIKRI JJ.] 1 Fundamental rights-Interference with religious affairs of Temple-Constitution of India, Art. 31(2)-Applicability-Shri Jagannath Tempie Ah, 1954 (No. II of 1955), ss. 8, 11, 18, 21, 21A and 3()-Validity-Constitution of India, Arts. 13, 19, 26(d), 27 and 28.

A writ petition was filed in the Orissa High Court by the father of the appellant challenging the validity of Shri Jagannath Temple Act, 1954.

The petition was dismissed by High Court which held that the Act was valid and constitutional except s. 28(2)(f). The High Court struck down that provision and upheld the constitutionality of the rest of the Act. The appellant came to this Court after obtaining a certificate of fitness to appeal to Supreme Court.

The contentions raised b'efore this Court were that the Act was discriminatory. as the Jagannath Temple alone had been singled out for special treatment as compared to other temples in the State of Orissa. The Act took away the sole management of the Temple which had so far .been vested in the appellant or his ancestors. S. 15(1) of the Act interfered with the religious affairs of the temple. The valiclity of ss. 11, 19, 21, 21A and 30 of the Act was also attacked. Dismissing the appeal, Held: There is no violation of Art. 14 af the Constitution.

The J agannath Temple occupies a unique position in the State of Orissa, and is a temple of national importance and no other temple in that State can compare with it. It stands in a class by itself and considering the fact that it attracts pilgrims from all over India in large numbers, it could be the subject of special consideration by the State Government. A law may be constitutional even though it related to a single individual if on account of special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself. .

(ii) There was no violation of Art. 19(1) (f) or Art.. 31(2) of the Constitution. All that the Act has done is that it has taken away the sole right of the appellant to manage the property of the Temple and another body has been set up in its olace with the appellant as its Chairman. Such a process cannot be said to constitute the acquisition of the extinguished office or of the vesting of the rights in the person holding that office. The appellant occupied a dual position as Superintendent and. Adya Sevak. His position as Superintendent has gone and in that place he has become the Chairman of the Committee set up under s. 6.

The position of the applicant as Adya Sevak is safeguarded by s. 8 of the Act inasmuch as the rights and privileges in respect of Gajapati Maharaja Seva a.re protected even though he may cease to be Chairman on account of his minority or on account of some other reason. ·

(iii) S. l5(1) of the Act does not interfere with the religious affairs of the Temple. Sevapuja of the Temple has two aspects.

One aspect is the provision of materials and that is a secular

-, ,

function. The second aspect is the performance of the Sevapuja 1964 and other rights as required by religion. S. 15(1) has nothing -- to do with the second aspect which is the religious aspect of Seva-Raja Birakishore puja. Whiles. 15(1) imposes a duty on the committee to look after , v. . the secular aspect of the Sevapuja, it leave the religious part The State of Or1Bsa entirely untc, uched. -

(iv) Ss. 11, 19 and 21 were valid provisions and could not be attacked as ss. 5 and 6 constitut'ng the committee in place of the Raja, were valid. Ss. 21A and 30 were also valid.

Arts. 27 and 28 had nothing to do with the matter dealt with under Act. It was not open to the appellant to argue that the Act was bad as it was hit by Art. 26(d). No such contention wa• properly raised in the High Court.

Tilkayat, Shri Govindlal ii v. State of Rajasthan, A.I.R. (1963) S.C. 1638, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 135 of 1962.

Appeal from the judgment and order dated April 30, 1958, of the Orissa High Court in O.J.C. No. 321 of 1955.

M. C. Setalvad, Sarjoo Prasad and A. D. Mathur, for the appellant. '

S. V. Gupte, Additional Solicitor-General, M. S. K. Sastri and R. N. Sachthey, for the respondent.

March 5, 1964. The Judgment of the Court was delivered byw ANCHOO, J .--1 his appeal on a certificate gra\lted by Wanc/ioo J. the Orissa High Court raises the question of the constitutionality of the Shri Jagannath Temple Act, 1954, No. II of 1955, (hereinafter referred to as the Act). The challenge to the Act was made by the father of the present appellant by a writ petition filed in the High Court of Orissa. The appellant was substituted for his father on the death of the latter while the writ petition was pending in the High Court. The case put forward in the petition firstly was that the Shri Jagannath Temple (hereinafter referred to as the Temple) was the private property of the petitioner, Raja of Puri, and the Act, which deprived the appellant of his property was unconstitutional in view of Art. 19 of the Constitution. In the alternative it was submitted that the appellant had the sole right -of superintendence and management of the Temple and that that right could not be taken away without payment of compensation, and the Act inasmuch as it took away that right without any compensation was hit by Art. 31 of the Constitution. It was further pleaded that the right of superintendence was property within the meaning of Art. 19 (I) (f) and inasmuch as the appellant had been deprived of that property by the Act, it was an unreasonable provision which was not

L'P(ll)l~CJ-2 ...

Raja Biralcisliore

The Slafe of Orissa

Wanehoo, J.

saved under Art. 19(5). The Act was further attacked on the ground that i~ was discriminatory and was therefore hit by Art. 14 of the Constitution, as the Temple had been singled out for special legislation, though there was a general law in force with respect to Hindu religious endowments, namely, the Orissa Hindu Religious Endowments Act No. II of 1952.

Reliance was placed on Arts. 26, 27 and 28 of the Constitution to invalidate the Act. though the appellant did not indicate in the petition how those Articles hit the Act. Lastly, it was urged that the utilisation of the Temple funds for purposes alien to the interest of the deity as proposed under the Act was illega.1 and ultra vires.

The petition was opposed on behalf of the State and it was urged that the Temple was not the private property of the appellant. The case of the State was that it was a public temple and the State always had the right to see that it was properly administered. Before the British conquered Orissa in 1803, the Temple had for a long time been managed by

Muslim Rulers directly, though through Hindu employees.

After 1803, the Temple began to be managed directly by the British Government, though by Regulation IV of 1809 the management was made over to the Raja of Khurda (who is now known as the Raja of Puri). who was appointed as hereditary superintendent in view of his family's connection in the past with the Temple. Even so, whenever there was mismanagement in the Temple during the course of the last century and a half, the Government always intervened and many a time administered the secular affairs of the Temple directly through one of its officers in whose favour the then Raja was made to execute \l power of attorney divesting himself completely of all powers of management. The case of the State further was that in view of the reported mismanagement of the Temple, the State legislature passed the Puri Shri Jagannath Temple (Administration) Act, (No. XIV of

1952) for the appointment of a Special Officer fer the preparation of a record pertaining to the rights and dutiesof different sevaks" and pujaris and such other persons connected with the seva, puja or management of the Temple and its endowments in order to put the administration of the Temple on a suitable basis. A Special Officer was accordingly appointed who submitted his report on March 15, 1954, which disclosed serious mismanagement of the affairs of the Temple and in consequence the Act was passed in 1955. The Stlte contended that the Act was perfectly valid and constitutional and did not offend any constitutional provision.

When the matter came to be argued before the High Court, the appellant gave up the plea that the Temple was his private property and 1t was conceded that it was a public u:m pie, the properties of which were the properties of the ddty

'1 S.C.R.

SUPREM.F. COURT REPORTS 35

. . fhR' fPur'I' 1964 and not the private properties o t e a1a o

1. n view -- -0f this concession, the attack on the constitutionality of the Raj<! Birakiahore

Act was bas~~ mainl_y on the ground that it took awar theTheSta1e'::1on ...

Ra ja's perqms1tes which had been found to belong to bun m -- the record of rights prepared under the Act of 1952. It may Wanclwo, J. be mentioned that the Raja of Puri had two-fold connection with the Temple. In the first place, the Raja is the adya sevak, i.e., the chief servant of the Temple and in that capacity he has certain rights and privileges. In addition to that, . he was the sole superintendent of the Temple and was incharge of the management of the secular affairs of the Temple.

The main contention of the appellant before the High Court was that the Act not only took away the management of the secular affairs of the Temple from the appellant but also

interfered with his rights as adya sevak and was therefore unconstitutional. The High Court repelled ail the submissions on behalf ot the appellant and held that the Act was valid and constitutional except for one provision contained in s. 28(2)(f) thereof. The High Court therefore struck down that provision and upheld the constitutionality of the rest of the Act. Thereupon the appellant applied for a certificate which was granted; and that is how the appeal has come up before us.

Before we consider the attack on the constitutionality of the Act we should like to indicate briefly what the scheme of the Act is and what it provides with respect to the management of the Temple. Section 1 provides for its commencement. Section 2 provides for certain repeals. Section 3 provides that the Orissa Act XIV of 1952 shall be deemed to be a part of the Act and delegates to the committee constituted under s. 6 of the Act all powers of the State Government under the 1952-Act from such date as the. State Government may notify. Section 4 is the definition section. Section 5 vests the administration and the governance of the Temple and its endowments in a committee called the Shri Jagannath Temple Managing Committee. The Committee shall be a body corporate, having perpetual succession and a common seal and may by the said name sue and be sued. Section 6 provides for the constitution elf the committee with the Raja of Puri as its chairman. No person who does not profess the Hindu religion shall be eligible for membership. Besides providing for some ex officio members. the other members of the committee are all nominated by the State Government, one from among the persons entitled to sit on the mukti-mandap, three from among the sevaks of the Temple recorded as such in the record of rights, and seven from among those who do not belong to the above two classes.

Raja Birakishorl

Tlie Swte of Orisso

Wanckoo. , J,

The Collector of the district of Puri is an ex officio member and is designated as the vice-chairman of the committee.

Section 7 provides for the appointment of a chairman during the minority of the Raja of Puri or during the time when the Raja is suffering from any of the disabilities mentioned in s. 10(1) clauses (a) to (e) and (g) thereof. Section 8 lays down that nothing in s. 7 shall be deemed to affect the rights and privileges of the Raja of Puri in respect of the Gajapati Maharaj Seva merely on the ground that the Raja has ceased to perform the duties of the chairman for the time being.

Section 9 provides for the terms of office of members and s. l 0 gives power to the State Government to remove any mem her of the committee other than the ex officio members on the grounds specified in els. (a) to (g) thereof. No member can be removed from his membership . unless he has been given a reasonable opportunity of showing cause against his: removal. Section 11 provides for dissol'ution -and supersession of the committee in certain contingencies, such as incompetence to perform the duties imposed upon it by' the Act pr making of default in. performing such duties. The committee is given an opportunity to show cause against any such action before it is taken, and provision iS made for continuing the management during .the time the committee is superseded or has been dissolved. Section 12 provides for casual vacancies, s. 13 for the meetings of the committee and s. 14 for allowances to the members of the committee payable from the Temple fund, but no member of the committee other than the administrator is to be paid any salary or other remuneration from the Temple fund except such travelling and daily a.llowances as may be prescribed. Section 15 provides for the duties of the committee and it may be quoted in full as it is the main target of attack: -

"15. Subject to the provisions of this Act and the ruleS' made thereunder, it shall be the duty of the Committee--

(1) to arrange for the proper performance of sevapujah and of the daily and periodical Nitis of the Temple in accordance with the Record-of-Rights~

(2) to provide. facilities for the proper performance of worship by the pilgrims;

(3) to ensure the safe custody of the funds, valuable securities and jewelleries and for 1he p(reserva. tion and management of the properties vested in the Temple; ·

(4) to ensure maintenance of order and discipline and proper hygienic conditions in the Temple and' of proper standard of cleanliness and purity in the offerings made therein;

I 'il

(5) to ensure that funds of the specific and religious

H64 endowments are spent according to the wishes, Raja Bimkithort so far as may be known, of the donors; v.

The State of 0.-iaaa

(6) to make provision for the payment of suitable - emoluments to its salaried staff; and Wanchoo, J.

(7) to do all such things as may be incidental and conducive to the efficient management of the affairs of the Temple and its endowments and the convenience of the pilgrims." Section 16 provides a ban on the alienation of Temple properties subject to certain conditions. ection 17 lays down that the committee shall have no power to borrow money from any person except with the previous sanction of the State Government. Section 18 provides for an annual administration report to be submitted to the Government. Section 18-A gives power to the committee with the prior approval of the State Government to delegate its functions to the Collector of the district or, as the case may be, to the officer who happens to be a member of the committee in place of such Collector.

Section 19 gives power to the State Government to appoint an administrator for the Temple. Section 20 provides for the qualifications and conditions of service of the administrator and s. 21 for the powers and duties of the administrator. As this section is specially attacked we quote it here in full. "S.21. (I) The Administrator shall be Secretary of the Committee and its chief executive officer and shall subject to the control of the committee have powers to carry out its decision in accordance with the provisions of this act.

(2) Notwithstanding anything in sub-section .(1) or in section 5, the Administrator shall be responsible for the custody of all records and properties of the Temple, and shall arrange for proper collections of offerings made in the Temple and shall have power-

(a) to appoint all officers and employees of the Temple;

(b) to lease out for a period not exceeding one year at a time the lands and buildings of the Temple which are ordinarily leased out;

(c) to call for tehders for works or supplies and accept such tenders when the amount or value ,"' thereof does not exceed two thousand rupees; id> to order for emergency repairs;

{e) to specify, by general or special orders, such conditions and safeguards as he deems fit, sul\ ject to which any sevak, office-holder or servant

Raja Birakiahore

Tll< Slat< of Orisaa

Wanclaoo, J.

38 SuPREME COURT REPORTS (1964]

shall have the right to be in possession of jewels or other valuable belongings of the temple;

(f) to decide disputes relating to the collection, distribution or apportionment of offerings, fees and other recepits in cash or in kind received from the members of the public;

(g) to decide disputes relating to the rights, privileges, duties and obligations of sevaks, officeholders and servants in respect of sevapuja antl nitis, whether ordinary or special in nature;

(h) to require rvarious sevaks and other persons to do their legitimate duties in time in accordance with the Recor, d-of-Rights; and

(i) in the absence of any sevak or his substitutes or on the failure on the part of any such person to perform his duties, to get the niti or seva performed in accordance with the record-ofrights by any other person.

(3) The administrator may subject to such conditions, if any, as the committee may, by general or special order impose, afford facilities on payment of fees for special darshan or for any special service, ritual or ceremony, such darshan, service, ritual or ceremony not being inconsistent with the custom and usage of the Temple and he shall have power to determine the portion, if any, of such fees which shall be paid to the sevaks, office-holders or servants of the Temple." Section 21:A provides that all sevaks, office-holders and servants attached to the Temple or in receipt of any emoluments or perquisites therefrom shall, whether such service is hereditary or not, be subject to the control of the administrator who may, subject to the provisions of the Act and the regulations made by the committee in that behalf, after giving the person concerned a reasonable opportunity of being heard withhold the receipt of emoluments or perquisites, impose a fine, suspend or dismiss any of them for breach of trust, incapacity, disobedience of lawful orders, neglect of or wilful absence from duty, disorderly behaviour or conduct derogatory to the discipline or dignity of the temple or for any other sufficient cause: Section 22 provides for extraordinary powers of the administrator who is directed to take action in emergency and report forthwith to the committee the action taken and the reasons therefor. Section 23 provides for the establishment schedule and s. 24 provides for an appeal to the committee against an order of the administrator under s. 21 (2)(f) or (g) ors. 21-A. Sections 25 to 27 provide for the preparation of annual budget and auc\it. Section 28 provides for a Temple fund and how it is to be utilised. Section 29 bars suits against

the State Government or against the committee or the adminis- 1964 trator for anything done or purported to be done by any of Roja Birakisl•>r< them under the provisions of the Act. Section 30 gives power The 1. •· 10 . f 1 . d f h T 1 d 't d ctate

0 '"'" o genera supermten ence o t e emp e an 1 s en ow- _ ments to the State Government which may pass any orders lfonchoo, J. for the proper maintenance or administration of the Temple or its endowments or in the interest of the general public worshipping in the Temple. It also gives power to the State Government to examine the records o( the administrator or of the committee in respect of any proceedings with a view to satisfy itself as to the regularity of such proceeding or the correctness, legality or propriety of any decision or order made therein; and if in any case it appears to the State Government that any such decision or order should be modified, annulled, reversed or remitted, for reconsideration, it may pass orders accordingly. The State Government is also given the power to stay the execution of any such decision or order in the meantime. Section 30-A creates an offence which is punishable on conviction with fine which may extend to Rs. 500 whenever any person having duties to perrorm in respect of the nitis of the Temple or sevapuja of the deity raises any claim or dispute and fails or refuses to perform such duties, knowing or having reasons to believe that the non-perforinance of the said duties would cause delay in the performance of the niti or sevapuja or inconvenience or harassment to the public or any section thereof entitled to worship in the Temple and wilfully disobeys or fails to comply with the orders of the administrator directing him to perform his duties without prejudice to the results of a proper adjudication of such claim or dispute. Section 31 gives power to the committee to frame regulations as to the conditions of service of office bearers and employees of the Temple, procedure for transfer of sevapuja. chuli or panti in the Temple, observance of nitis and other usages in the Temple in the absence of specific mention in the record of rights; and any other matters for which regulations are required to be made for the purposes of the Act. Section

32 gives power to the State Government to frame rules. Section 33 lays down that "the committee shall be entitled to take and be in possession of all movable and immovable properties, including the Ratna Bhandar and funds and jewelleries, records, documents and other assets belonging to the Temple" and also lays down the procedure to be followed in case of resistance in obtaining such possession. Section 34 lays down that "all public officers having custody of any record, register, report or other documents relating to the Temple or anv movable or immovable property threof shall furnish such copies of or extracts from the same as may be required by the administrator". Section 35 lays down that "no act or proceeding of the CO!Jlmittee or of any person acting as a member of the comn.ittee shall be deemed to be invalid by reason only

1964 of a defect in the establishment or constitution of the commit- Ra.i• BirMillore tee or on the ground that any member of the committee was

'" not entitled to hold or continue in such office by reason of any The State•!°""" disqualification or by reason of any irregularity or illegality in w...;;;, J. his appointment or by reason of such act having been done or proceeding taken during the period of any vacancy in the office of member of the committee." Similar protection is given to an act or proceeding of the administrator. Section 36 provides for the removal of difficulties by the Sta.te Government so long as the order passed in that behalf is not inconsistent with the Act or the rules made thereunder.

This review of the provisions of the Act shows that broadly speaking the Act provides for the management of the secular affairs of the Temple and does not interfere, with the religious affairs thereof, which have to be performed according to the record of rights prepared under the Act of 1952 and where there is no such record of rights in accordance with custom and usage obtaining in the Temple. It is in this background that we have to consider the attack on the constitutionality of the Act. We may first dispose of the attack based on Art. 14. It is urged that inasmuch as this special Act has been passed for this Temple and the general Act, namely, the Orissa Hindu Religious Endowments Act No. II of 1952 no longer applies to this Temple, there has been discrimination inasmuch as the Temple has been singled out for special treatment as compared to other temples in the State of Orissa. There is no doubt that the Act is in many respects different from Act II of 1952 and substitutes the committee for the Raja of Puri for the purpose of management of the Temple, and there would prima facie be discrimination unless it can be shown that the Temple stands in a class by itself .and required special treatment. As to that the affidavit on behalf of the State Government is that the Temple is a unique institution in the State of Orissa and is in a class by itself and that there is no comparison between the Temple and other temples in the State. The averment on behalf of, the State is that the Temple has been treated as a special object throughout the centuries because of i!s unique importance and that there is no other temple which occupies the unique place whih this Temple occupies in the whole of India. Also there is no other temple in Orissa with such vast assets or which attracts such a large number of pilgrims which pour into it from the whole of India. It is also averred that it is absolutely incorrect that there are other temples in Orissa which are equal to it from the standpoint of assets or from the standpoint of their all-India character or from the standpoint of the complicated nature of nitis and sevapuja affecting the lives, religious susceptibilities and sentiments of millions of people spread all over India. There can be no doubt after this averment on behalf of the State that the Temple occupies a unique position in the State of Orissa and

• i

is a temple of national importance and no other temple in that State can compare with it. It stands in a class by itself and considering the fact that it attracts pilgrims from all over India in large numbers it must be a subject of special consideration by the State Government. In reply to these averments on behalf of the State, all that the appellant stated in his rejoinder was that these averments were not admitted. There was no denial of the special importance of the Temple as averred on behalf of the State and we have no doubt therefore that this Temple stands in a class by itself in the State of Orissa and therefore requires special treatment. We may in this connection refer to the decision of the Court in Tilkayat Shri Govindlalj/ v. State of Rajasthan(') where in relation to the temple at Nathdwara with respect to which a special Act had been passed by the State of Rajasthan, this Court observed that "a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself". The attack under Art. 14 on the constitutionality of the law with respect to the temple at Nathdwara was repelled on the ground that the temple had a. unique position amongst the Hindu Shrines in the State of Rajasthan and no temple could be regarded as comparable with it. The same reasons in our opinion apply to the Temple in the present case and the Act cannot be struck down under Art. 14 because the Temple in the present case holds a unique position amongst the Hindu temples in the State of Orissa and no other temple can be regarded as comparable with it.

Next we come to the attack on the constitutionality of the Act on the ground that it has taken away the sole management of the temple which had so far been vested in the appellant or his ancestors. The reasons why the Act was passed are to be found in the preamble thereof. The preamble say& that the ancient Temple of Lord Jagannath of Puri has eversince its inception been an institution of unique and national importance, in which millions of Hindu devotees from regions far and wide have reposed their faith and belief and ha.ve re- 5arded it as the epitome of their tradition and culture. It further says that long prior tO' and after the British conquest the superintendence, control and management of the affairs of the Temple have been the direct concern of successive rulers, governments and their officers and of the public exchequer. It then says that by Regulation IV of 1809 and thereafter by other laws and regulations in pursuance of arrangements entered into with the Raja, of Khurda, later designated as the Raja of Puri, the said Raja came to be entrusted hereditarily with the management of the affairs of the Temple and its properties as superintendent subject to the control and supervision of the ruling power. It then goes on to say that in view of grave

('J [1964] 1 S.C.R, 561.

Raja Birakialwre ...

The State of Oriaea

fJ'anchoo, J.

1964 and serious irregularities thereafter the Government had to Raja Birakiahore intervene on various occasions in the past. Finally the pre- . v. . amble says that the administration under the superintendent The Stare•! Om•• has further deteriorated and a situation has arisen rendering it

Wanchoo, expedient to reorganise the scheme of management of the affairs of the Temple and its properties and provide better administration and governance therefor in supersession of all. previous laws, regulations and arrangements, having regard to the ancient customs and usages and the unique and traditional nitis and rituals contained in the record of rights prepared under the 1952 Act. So for all these reasons the appellant was removed from the sole superintendence of the Temple and a committee was appointed by s. 6 of the Act for its management. These statements in the preamble are not seriously in dispute as will be clear from the reports by G.

Grome dated June 10, 1905 and by the Special Officer appointed under the 1952 Act dated March 15, 1954 and the correspondence which passed from time to time between the officers of the Government and the predecessors of the appellant. In these circumstances--if the secular management of the Temple was taken away from the sole coQtrol of the appellant and vested in a committee of which he still remains the chairman, it cannot be said that the provisions contained in the Act for that purpose are hit either by Art. 31 (2) or by Art. l 9(f). There is in our opinion a complete parallel between the provisions of the Act and the Act relating to the temple at Nathdwara in Rajasthan, which came up for consideration before this Court in Tilkayat. Govindlalji's case('). If anything, the case of the appellant is weaker than that of Shri Govindlalji, for the appellant in the present case was conferred with the power of superintendence by Regulation IV of 1809 after the British conquered .Orissa. Whatever may have been his connection prior to 1809 with the Temple, the history of the Temple shows that the Muslim Rulers had removed him and were carrying on the management of the Temple directly through Hindu officers appointed by them. The right of management was conferred on the appellant's ancestor after the British conquest by virtue of the Regulation of 1809 and other laws passed , thereafter. All that the Act has done is to replace his sole right of management by appointing a. committee of which he is tl1e chairman .. Further there can be in the circumstances no question of the application of Art. 31 (2) in the present case. In the first place the right of superintendence is not property in this case for it carried no beneficial enjoyment of any property with it, and in tlie second case, that right has not been acquired by tile State which Art. 31(2) requires. As was pointed out in Tilkayat GovindltiBji's case('), all tllat has happened in the present case is that the sole right of the appellant to

(') [1964] 1 S.C.R. 561.

1964 manage the property ha~ been extinguished and in its place another body for the purpose of the administration of the d I h d h Raja Birnlish.or~ property of the Temple has been create . n ot er war s t e v. office of one functionary is brought to an end and another TA• Sta<e of Ori,.• functionary has come into existence in its place. Such a process cannot be said to constitute the acquisition of the extinguished office or the vesting of the rights in the person holding that office: (see Tilkayat Govindlalji's case(').

As we have already pointed out, the appellant and his predecessors always had two distinct rights with respect to this Temple. In the first place, they were the adya sevaks and as such had. certain rights and privileges and perquisites. fhe rights as adya sevak as we shall show later have not been touched by the Act. The Act has only deprived him of the second right i.e .. the sole management of the Temple which carried no beneficial enjoyment of any property with it and has conferred that management on a committee of which he still remains the chairman. In view of this clear dichotomy in the rights of the appellant al)d his predecessors there is no question of Art. 31(2) applying in the present case at all, insofar as this right of superintendence of the appellant is concerned. The attack on the constitutionality of the Act on the ground that the sole right of superintendence has been taken away from the appellant and th11t is hit by Art. 19(1)(0 or Art. 31 (2) must therefore fail.

This brings us to the other aspect of the rights of the appellant as adya sevak, and it is urged that those rights have been taken away by the Act, and insofar as the Act has done that it is unconstitutional in that the provisions with respect to those rights are unreasonable and cannot be protected under Art. 19(5). Now we have already referred to the provisions of the Act, and if one looks a.t those provisions one finds nothing in them which takes away the rights of the appellant as adya sevak. If anything, there are indications in the Act to show that his rights, other than those of superintendence remain intact. Whn we sa)'. this we are not to b~ understood as saying that any nghts which the appellant might have had in the capacity of adya sevak but which were of the nature of secular management of the Temple would still remain in him.

Because the appellant and his predecessors were holding a dual position of superintendent and adya sevak, there was in the past a mix-up of his rights flowing from being an adya. sevak with his rights as a superintendent. But apart from the rights which vested in him as the sole manager of the Temple with respect to its management and which have only been taken away from him by the Act. we find nothing in the Act which takes away his rights as an adya sevak (i.e. the chief servant) of Lord Jagannath in the matter of sevapuja, nitis etc. These rights flow from his position as adya sevak, they

H'anclwo, J.

Raja Biraki&hore

Te Slate of Orissa

WanchOo, J.

are religious in character and are refernble to his status and obligations as sevak. We may in this connection refer to s. s of the Act which lays down that nothing ins. 7 shall be deemed to affect the rights and privileges of the Raja in respect of Gajapati Mahaaja Seva merely on the ground that the Raja has ceased to perform the duties of the chairman for the time being. This provision clearly shows that even though the appellant may not be able to act as chairman of the committee because of his minority or because of certain disqualifications mentioned in s. 7 read with s. 10()), his rights and privileges in respect of the Gajapati Maharaja Seva (i.e., the daily sevapuja of Lord Jaganna.th) remain unaffected, and these were the Iights which he had as adya sevak. Therefore s. 8 preserves by the clearest implication the rights of the appellant as adya sevak in connection with the sevapuja of Lord Jagannath. In this connection our attention was drawn to s. 14 of the Act, which provides tha.t it shall be within the power of the State vernment by order to direct from time to time the payment from out of the Temple fund to the chairman of such allowances at times and in such manner as the State Government may consider reasonable and proper.

It is said that in view of s. 14, the appellants rights and privileges as adya sevak have gone. We are of opinion that this is not so. As we have already said, the position of the superintendent and of adya sevak were two different positions, which the appellant and his predecessors held in this Temple. His position as a Superintendent has gone and in place of it he has become the chairman of the committee constituted under s. 6.

When s. 14 speaks of allowances to him, it refers to his position as a chairman, which replaces his position as superintendent before the Act. It has nothing to do with his position as an adya sevak, which is safeguarded by s. 8 of the Act inasmuch as rights and privileges in respect of the Gajapati Maha-· raja Seva are protected, even though he may cease to be the chairman on account of his minority or on account of some other reason. Therefore. the provisions of s. 14 refer to allowances on! y as a chairman and have nothing to do with the rights, privileges and perquisites as an adya sevak. for he remains as adya sevak even though he may not for certain reasons remain a chairman. His rights, privileges and perquisites as adya sevak will remain protected under s. 8 even though he may not be entitled to anything under s. 14 if he ceases to be the chairman in view of s. 7. No provision in the Act has been pointed out to us, which expressly takes away his rights, privileges and perquisites as adya sevak; on the other hand there are other provisions which seem to indicate that even the rights and privileges of sevaks have not been affected by the Act. If so it is hardly likely in the absence of any specific provision, that the Act would affect the privileges of the appellant as adya sevak. For example, s. 21 (2) .(g) gives power to the

administrator to decide disputes relating to . the rights, privileges, duties and obligations of sevaks, office-holders and servants in respect of sevapuja and nitis, whether ordinary or special in nature. This clearly postulates that the rights and privileges of sevaks remain intact, and if there is any dispute about them, the administrator has to decide it. Again s. 21(2)(f) provides that the administrator shall have power to decide disputes relating ta the collection, distribution or apportionment of offerings, fees and other receipts in cash or in kind received from the members of the public. This again postulates a right in some persons who could only be sevaks etc. to a share of the offerings, fees and other receipts, and if there is any dispute about its distribution or apportionment, the administrator has been given the power to decide it. Reading these two clauses together, there can be no manner of doubt that the Act does not affect even the rights, privileges and perquisites of sevakas.

If so, in the absence of express provision, it cannot possibly be argue:! that the Act affects rights, privileges and perquisites of adya sevak. As we have already indicated, those rights, privileges and perquisities of adya sevak have also been safe guarded under s. 8 of the Act. Then we may refer to s. 21 (3) which provides that "the administrator may subject to such conditions, if any, as the committee may, by general or special order impose, afford facilities on payment of fees for special darshan or for any special service, ritual or ceremony such darshan, service, ritual or ceremony not being inconsistent with the custom and usage of the Temple and he shall have power to determine the portion, if any, of such fees which shall paid to the sevakas, office-holders or servants of the Temple" This again postulates that the rights, privileges and perquisites of the sevaks a:e not to be affected by the Act but have to be governed by the record of rights or, as the case may be. by the order of the committee. The argument that the Act is ultra vires because it takes awa, y the rights, privileges and perquisites of the appellant as adya sevak, some of which may be property must therefore fail in view of the specific provision in s. 8 and indications in other provisions of the Act to which we have referred.

Clause (I) of s. 15 of the Act is however specially attacked as interfering with the religious affairs of the Temple. The rest of the provisions of that section deal so obviously with secular

atters tht they have not been challenged. This clanse provides that 1t shall be the duty of the committee to arrange for the proper performance of sevapuja and of the daily and periodical nitis of the Temple in accordance with the record of rights. As we read this clause we see no invasion of the religious affairs of the Temple therein. All that it provides is that it shall be the duty of e committee to arrai; ige for the proper performance of sevapuia etc. of the Temple m accordance with

Raja Birakiskore

v. 'J'!te State of Oris8Cl

lVanclwo, J.

1'64

 Raja Birakialwre ...

The State of Orisaa

ff'anchoo, J.

the record of rights. Sevapuja etc. have always two aspects.

One aspect is the provision of materials and so on for the purpose of the sevapuja. This is a secular function. The other aspect is that after materials etc. have been provided, the sevaks

o~ other persons who may be entitled to do so, perform the sevapuja and other rites as required by the dictates of religion.

Clause (I) of s. 15 has nothing to do with the second aspect. which is the religious aspect of sevapuja; it deals with the secular aspect of the sevapuja and enjoins upon the committee the duty to provide for the proper performance of sevapujd and that is also in accordance with the record of rights. Sr> that the committee cannot deny materials for sevapuja if the record of rights says that certain materials are necessary. We are clearly of the opinion that cl. (I) imposes a duty on the committee to look after the secular part of the sevapuja and leaves the religious part thereof entirely untouched. Further under this clause it will be the duty of the committee to see that those who are to carry out the religious part of the duty do their duties properly. But this again is a secular function to see that sevaks and other servants carry out their duties properly; it does not interfere with the performance of religious duties themselves. The attack on this provision that it interferes with the religious affairs of the Temple must therefore fail.

We may now briefly refer to some other sections of the AcL which were attacked. Apart from the main sections 5 and 6 by which the appellant was divested of the sole management, the first section so attacked is s. 11 which deals with the dissolution and supersession of the committee. We have not been abk to understand how this section can be attacked once it is held that ss. 5 and 6, constituting the committee in place of the Raja, are valid, as we have held tha.t they are for they are the main provisions by which the management has been transferred from the sole control of the Raja to the control of the committee. The next section in this group is s. 19. That section provides for the appointment of an administrator to carry on the day to day administration of the secular part of the affairs of the Temple .. We cannot see how this provision is liable to attack once ss. 5 and 6 are held good, for the committee must have some officer under it to carry on the day to day administration. The next provision that is attacked in this group is s. 21, which deals with powers and duties of the administrator.

Again we cannot see how this provision can be attacked once it is held that the appointment of the administrator under s. 19 is good, for s. 21 only delimits the powers and duties of the administrator, and all powers and duties therein specified are with respect to the secular affairs of the Temple, and have no direct impact on the religious affairs thereof. The next section in this group is s. 21-A. That section is clearly concerned with the secular management of the Templl'. for the disciplinary

'1 S.C.R.

SUPRE:\IE COURT REJ.'ORTS 47

powers conferred thereby on the administrator are necessary in order to carry on the administration of the secular affairs of the Temple. lhe next section which is attacked is s. 30, which gives over all supervisory power to the State Government. We cannot see how the control which the State Government is authorised to exercise by s. 30 over the committee can be attacked once the appcintment of the committee is held to be good. The last section under this group is s. 30A, which creates a criminal offence and makes sevaks etc. liable to a fine on conviction. We think it unnecessary for present purposes t0 consider the validity of this section. The matter can be decided if and when :i case of prosecution under that section ever arises.

This brings us to the contention relating to Arts. 26, 27 and 28 of 1;1e Conslil QJion, which were referred to in the petition.

Articles 27 and 28 in our opinion have nothing to do with the matters dealt with under the Act. The main reliance has however been placed on Art. 26(d) which Jays down that subject to public order, monjlity and health, every religious denomination or any section thereof shall have the right to administer its property in accordance with law. In the first place besides saying in the petition that the Act was hit by Art. 26 there was no indication anywhere therein as to which was the denomination which was concerned with the Temple and whose rights to administer the Temple have been taken away. As a matter of fact the petition was filed on the basis that the appellant was the owner of the Temple which was his private property. There was no claim put forward on behalf of any denomination in the petition. Under these circumstances we are of opinion that it is not open to the appellant to argue that the Act is bad as it is hit by Art. 26(d). The argument addressed before the High Court in this connection was that the worshippers of Lord Jagannath constitute a distinct religious denomination within the meaning of Art. 26 and that they had a right to administer the Temple and its endowments in accordance with la.w and that such administration should be only through the Raja of Puri as superintendent of the Temple assisted by the innumerable sevaks attached thereto. But inasmuch as. te Act has ake_n away this right of management from the rehgmus denommatmn, i.e., the worshippers of Lord Jagannath, and entrusted it to the nominees of the State Government, there had been a contravention of the fundamental rights guaranteed under cl. (d) of Art 26. This argument was met on behalf of the State with the contention that the Temple did not pertain to any particular sect, cult. or creed of Hindus but was a public temple above all sects, cults and, creeds, therefore, as the temple was not the temple of any particular domination no question arose of the breach of cl.(d) of Art. 26. The foundation for all this argument which was

Raja BirakishOrf.

Tin. State of OrisJa

Wanchoo, J.

48 SUPREl\IE COURT REPORTS [1964}

1981 urged before the High Court was not laid in the writ petition.

Raja Birafi, hore In these circumstances we think it was unnecessary for the T v. .

High Court to enter into this question on a writ petition of he State of Or"'"' this kind. The High Court however went into the matter and

Wanckoo, J. repelled the argument on the ground that the Temple in the present case was meant for .all Hindus, even if all Hindus were treated as a denomination for purposes of Art. 26, the management still remains with Hindus, for the committee of management consists entirely of Hindus, even though a nominated committee. In view of the defective state of pleadings however we are not prepared to allow the argument under Art. 26(d) to be raised before us and must reject it on the sole ground that no such contention was properly raised in the.High Couot.

For these reasons we find there is no force in this appeal and it is hereby dismissed with costs.

A ppea/ dismissed.

RAJA BIRAKISHORE

THE STATE OF ORISSA

IP. B. GAJENDRAGADKAR

K. N. WANCHOO, J.

c. SHAH

Constitution of India

Art. 31(2)

Jagannath Tempie Ah

ss. 8, 11, 18, 21, 21A and 3()

Constitution of India

Arts. 13, 19, 26(d), 27 and 28

s. 28(2)(f)

Supreme Court

Orissa

S. 15(1)

ss. 11, 19, 21, 21A and 30

Art. 14

India

Art. 19(1)

Adya Sevak

s. 6

Adya Sevak

s. 8

Gajapati Maharaja Seva

S. 15(1)

Seva-Raja Birakishore puja

State of Or1Bsa

Ss. 11, 19 and 21

ss. 5 and 6

Ss. 21A and 30

Arts. 27 and 28

Art. 26(d)

Tilkayat

CIVIL APPELLATE JURISDICTION

M. C. Setalvad

Sarjoo Prasad

A. D. Mathur

S. V. Gupte

M. S. K. Sastri

R. N. Sachthey

High Court of Orissa

Art. 19

Art. 31

Art. 19

Raja Biralcisliore

Wanehoo

Art. 19(5)

Art. 14

Religious Endowments Act

Arts. 26, 27 and 28

British Government

Khurda

Puri

March 15, 1954

Wanclwo

s. 28(2)(f)

Section 1

Section 2

Section 3

Orissa Act XIV of 1952

s. 6

Section 4

Section 5

Jagannath Temple Managing Committee

Section 6

Raja Birakishorl

Section 7

s. 10(1)

Section 8

s. 7

Section 9

Section 11

Section 12

s. 13

s. 14

Section 15

Raja Bimkithort

State of 0.-iaaa

Wanchoo

Section 16

Section 18

Section 18

Section 19

Section 20

s. 21

section 5

Raja Birakiahore

Wanclaoo

Section 21

Section 22

Section 23

s. 24

s. 21

Sections 25 to 27

Section 28

Section 29

Roja Birakisl•>r

Section 30

lfonchoo

Section 30

Section 31

Section

32

Section 33

Section 34

Section 35

Section 36

Art. 14

Religious Endowments Act

Rajasthan

Nathdwara

Art. 14

Art. 14

Jagannath

Raja Birakialwre

State of Oriaea

fJ'anchoo

s. 6

G.

Grome

June 10, 1905

Art. 31

Tilkayat. Govindlalji

Govindlalji

Art. 31

Art. 31(2)

Tilkayat GovindltiBji's

[1964] 1 S.C.R. 561

Tilkayat Govindlalji

Art. 31(2)

Art. 19(1)(0 or Art. 31 (2)

Art. 19(5)

H'anclwo

Raja Biraki&hore

WanchOo

Gajapati Mahaaja Seva

s. 7

s. 10()

s. 8

s. 14

s. 14

s. 6

s. 14

s. 8

s. 14

s. 8

s. 14

s. 7

s. 21

s. 21(2)(f)

s. 8

s. 21

s. 8

s. 15

Raja Birakiskore

State of Oris8Cl

lVanclwo

State of Orisaa

ff'anchoo,

s. 15

sections 5 and 6

s. 11

ss. 5 and 6

s. 19

ss. 5 and 6

s. 21

s. 19

s. 21

s. 21

s. 30

s. 30

s. 30A

Arts. 26, 27 and 28

Articles 27 and 28

Art. 26(d)

Art. 26

Art. 26(d)

Art. 26

Art 26

Art. 26

Raja BirakishOrf

State of OrisJa

Raja Birafi

Wanckoo

Art. 26

Art. 26(d)


7 S.C.R.

SUPREME COURT REPORTS 361

DAHY ABHAI CHHAGANBHAI THAKKER v.

STATE OF GUJARAT

[K. SUBBA RAO, K. C. DAS GUPTA AND RAGHUBAR DAYAL, JJ.J

Criminal Law-Burden of proof of guilt-Genera! and special burdens, if in conflict-Plea of insanity-Mode of proof enumerated-Questions under s. 154 of Evidence Act-When court can permit-Indian Pena! Code, 1860 (Act 45 of 1860), ss. 80, 84, 299-Indian Evidence Act, 1872 (1 of 1872), ss. 105, 137, 154.

The appellant was charged with murdering his wife. Before the Sessions Judge a defence was set up that the appellant was insane when the incident took place and was not capable of understanding the nature of his act. The Sessions Judge rejected the plea of insanity and convicted him under s. 302 of the Indian Penal Code. On appeal the High Court confirmed the conviction.

He!d-(i) There is no conflict between the general burden to prove the guilt beyond reasonable doubt, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.

(ii) The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1). The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite 1THns rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by s. 84 of the Indian Penal Code: the accused may rebut it by placing before the court all the relevant evidenc€'-{Jral, documentary or circumstantial, but the burden of proof upon him is no higher than that which rests upon a party to civil proceedings. (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regard.~ one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden <if proof resting on the prosecution was not discharged.

K. M. Nanavati v. State of Maharashtra, [1962) Supp, 1 S.C.R. 567, followed.

Ramhitram v. State. A.I.R. 1956 Nag. 187, disapproved .

. Kamla Singh v. State, A.I.R. 1955 Pat. 209, approved.

H. M. Advocate v. Fraser, (1878)4 Couper 70. referred to.

(iii) The court can permit a person, who calls a witness, to put questions to him which might be put in cr<>&s-€xamination, at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examina- ,, tion-in-chief.

Marchl~

' '

~ Section 137 of the Evidence Act, gives only the three stages DaAyobliai 0111taga,.. in the examination of a witness, and it has no relevance to the

bliai TWa< ques~10n whe~ a party calling a witness can be permitted to put T. to him quest10ns under s. 154 of the Evidence Act: that is Stale of Gujaral governed by the provisions of s. 154 of the said Act, which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

Tahsildar Singh v. The State of U.P., 11959] Supp. 2 S.C.R. 875, followed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 58 of 1962. Appeal by special leave from the judgment and order dated June 27, 1961 of the Gujarat High Court in Criminal Appeal No. 656I1960.

B. K. Banerjee, for the appellant.

D. R. Prem, 'R. H. Dhebar and B. R. G. K. Achar, for the respondent.

March 19, 1964. The Judgment of the Court was delivered by

SUBBA RAO, J.-This appeal raises the question of the defence of insanity for an offence under s. 302 of the Indian Penal Code.

The appellant was the husband of the deceased Kalavati.

She was married to the appellant in the year 1958. On the night of April 9, 1959, as usual, the appellant and his wife slept in their bed-room and the doors leading to that room were bolted from inside. At about 3 or 3.30 a.m. on the next day Kalavati cried that she was being killed. The neighbours collected in front of the said room and called upon the accused to open the door. When the door was opened they found Kalavati dead with a number of wounds on her body.

The accused was sent up for trial to the sessions on the charge Of murder. Before the Additional Sessions Judge, Kaira, a defence was set up that tf.e accused was insane when the incident was alleged to have taken place and was not capable of understanding the nature of his act.

The learned Additional Sessions Judge considered the entire evidence placed before him, and came to the conclusion that the accused had failed to satisfy him that when he committed the murder of his wife he was not capable to knowing the nature of the act and that what he was doing was either wrong or contrary to law. Having rejected his plea of insanity, the learned Additicmal Sessions Judge convicted him under s. 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life. On appeal

the High Court agreed with that finding, though for different reasons, and confirmed the conviction and sentence of the Dahyablw.i OMaga.- accused. Hence the present appeal. bhai Tlw.kkt• v.

Learned counsel for the appellant contended that the State ofGujara1 High Court, having believed the evidence of the prosecution subba Rao, J. witnesses, should have held that the accused had discharged the burden placed on him of proving that at the time he killed his wife he was incapable of knowing the nature of his act or what he was doing was either wrong or contrary to law. He further contended that even if he had failed to establish that fact conclusively, the evidence adduced was such as to raise a reasonable doubt in the mind of the Judge as regards one of the ingredients of the offence, namely, criminal intention, and, therefore, the court should have acquitted him for the reason that the prosecution had not prov ed the case beyond reasonable doubt.

Before we address ourselves to the facts of the case and the findings arrived at by the High Court, it would be convenient to notice the relevant aspects of the law of the plea of insanity. At the outset let us consider the material provisions without reference to decided cases. The said provisions are :

INDIAN PENAL CODE

Section 199-Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Section 84-Nothing is an offence which is done by

a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

INDIAN EVIDENCE ACT

Section 105-When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XL V of

1860) or within any special exception or proviso contained in any other part of the same Code, or in anv law defining the offence, is upon him,. and the Court shall presume the absence of such circumstances.

196'

yab/UJi OMagan.

biai TW/ar

SlaJe of Gujarat

Suba Rao, J.

Section 4-"Shall presume": Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such facts as proved unless and until it is disproved. • "Pnved"-A fact is said to be "proved" when after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. "Disproved"-A fact is said to be disproved' when, after considering the matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case. to act upon the supposition that it does not exist.

Section IOI-Whoever desires any Court to give judg

ment as to any legal right or liability dependent on the existence of fact which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. "

It is a fundamental principle of criminal jurisprudence that an accused is presumed to be innocent 'and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in s., 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, as s. 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that act, by reason of unsoundness of mind was incapable of knowing the nature of his act or what be was doing was either wrong or contrary to law. This being an exception, under s. 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused; and the court shall presume the absence of such circumstances.

Under s. 105 of the Evidence Act, read with the definition of "shall presume" in s. 4 thereof, the court shall regard the ; absence of such 1.:lrcumstances as prj)Ved unless,, , after considering the ma.tters before it, it believes that said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist To put

'7 S.C.R.

SUPREl\IE COURT REPORTS 365

it in other words, the accused will have to rebut 1964 the presumption that such circumstanc:es did not exist, by Dahyah;;;;; oMaq ... placing material before the court sufficient to make it conbooi T/uJU.. sider the existence of the said circumstances so probable that v.

State of G1<jaml a prudent man would act upon them. The accused has to satisfy the standard of a "prudent man". If the material placed Subba Rao, J. before the court, such as, oral and documentary evidence, presumptions, admissions or even the prosecution evidence, satisfies the test of "prudent man", the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under s. 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in s. 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to prove conclusively the guilt of the accused. There is no conflict between the gene

ral burden, which is always on the prosecution and which never shifts, and the special burden that rests on the accused to make out his defence of insanity.

The textbooks placed before us and the decisions cited at the Bar lead to the same conclusion. In Halsbury's Laws of England, 3rd edn., Vol. 10, at p. 288, it is stated thus:

"The onus of establishing insanity is on the accused.

The burden of proof upon him is no higher than which rests upon a party to civil proceedings."

Glanville Williams in his book 'Criminal Law", The General Part, 2nd Edn., places the relevant dspect in the correct pers pective thus, at p. 516:

"As stated before, to find that the accused did not know the nature and quality of his act is, in part, only another way of finding that he was ignorant as to some fact constituting an ingredient of the crime; and if the crime is one requiring intention or recklessness he must, on the view advanced in this book, be innocent of mens rea. Since the persuasive burden of proof of mens rea is on the prose

cution, on question of defence, or of disease of the mind, arises, except in so far as tpe prisoner is called upon for his own safety to neutralise the evidence of the prosecution. No persuasive burden of proof rests on him, and if the jury are uncertain whether the allegation of mens rea is made out ................................. the benefit of the doubt . must be given to the prisoner, for, in 'the words

Dahyabhai Chltaganbhai TkaJ..:l<tr

State of Oiijar.1l

S11b~ Rao, J.

of Lord Reading in another context, "the Crown would then have failed to discharge the burden imposed on it by our law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner." This Court in K. M. Nanavati v. State of Maharashtra(') had to consider the question of burden of proof in the context of a defence based on the exception embodied in s. 80 of the Indian Penal Code. In that context the law is summarized thus:

"The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under s. 105 of the Evidence Act is more imaginary than real. Indeed. there is no conflict at all. There may arise three different situations: (!) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception, if proved, affecting the proof of all or some of the ingredients of the offence: (see s. 80 of the Indian Penal Code) . . . . . . . . . . . . . . . . . . . . . . . . : ....... '.......... In the third case. though the burden lies on the accused to bring his case within the exception the facts proved may .not discharge the said burden, but may affect the proof of the ingredients of the offence." !After giving an illustration, this Court proceeded to state:

"That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any inten- . ti on or requisite state of mind, which is, the essence of the offence, within the meaning of s. 300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder .................. In this view it might be said that the general burden to prove the ingredients of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused." (') [1962] Supp. 1 S:C'R. 567, 597, 598.

What is said of s. 80 of the Indian Penal Code will equally ~".!_ apply to s. 84 thereof. A Division Bench of the Patna High D<ihybhai Oh1-

Court in Kam/a Singh v. The State (') invoked the same princibha• Thakker pie when the plea of insanity was raised. A Division Bench of state :j GvJaral tlie Nagpur High Court in Ramhitram v. State(') has struck a different note inasmuch as it held that the benefit of doubt Subba Rao, 1 • which the law gives on the presumption of innocence is available only where the prosecution had not been able to connect the accused with the occurrence and that it had nothing to do with the mental state of the accused. With great respect, we cannot agree with this view. If this view weie correct, the court would be helpless and would be.legally bound to convict an accused even though there was 'genuine and reasonable doubt in its mind that the accused had not the requisite intention when he did the act for which he was charged. This view is also inconsistent with that expressed in Nanavati's case('). A Scottish case, H.M. Advocate v. Fraser('), noticed in Glanville Williams' "Criminal Law", The General Part, 2nd Edn., at p. 517, pinpoints the distinction between these two categories of burden of proof. There, a man killed his baby while he was asleep; he was dreaming that he was struggling with a wild beast. The learned author elaborates the problem thus:

"When the Crown proved that the accused had killed his baby what may be called an evidential presumption or presumption of fact arose that the killing was murder. Had no evidence been adduced for the defence the jury could have convicted of murder, and their verdict would have been upheld on appeal. The burden of adducing evidence of the delusion therefore lay on the accused. Suppose that, when all the evidence was in, the jury did not know what to make of the matter. They might suspect the accused to be inventing a tale to cover his guilt, and yet not be reasonably certain about it. In that event the accused would be entitled to an acquittal. The prosecution must prove beyond reasonable doubt not only the actus reus but the mens rea." '.The octrine of burden of proof in the context of the plea of msamty ay be stated in the following propositions: (I) The prosecut10n must prove beyond reasonable doubt that the accused had committed te offence with the requisite mens rea; and the burde~ o~ provmg that always rests on the prosecution from the begmmng. to the end of the trial. (2) There is a rebuttabl7 presumpton tat the accused was not insane, when he committed the crune, m the sense laid down by s. 84 of the

I') A.I.R. 1955 Pat. 209.

I') A.I.R. 1956 Nag 187 (') [1962] Supp. 1 S.C!R. 5,67. (') (1878) 4 Coupr 70:

196' Indian Penal Code: the accused may reblit it by placing be- Dah bit ; Oh.!aga _fore the court all the relevant evidence-oral, documentary or

If,..;" Tkaker n circumstantial, but the burden of proof upon him is no higher v. than that rests upon a party to civil proceedings. (3) Even if the 81•1• of Gojara< accused was not able to establish conclusively that he was

Bub/Ja Rao, J. insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.

Now we come to ihe merits of the case. Ordinarily this Court in exercise of its jurisd_iction under Art. 136 of the Constitution accepts the findings of fact arrived at by the High Court. But, after having gone through the judgments of the learned Additional Sessions Judge and tht" High Court, we are satisfied that this is an exceptional case to depart from the said practice. The learned Additional Sessions Judge rejected the evidence of the prosecution witnesses on the ground that their version was a subsequent development designed to help the accused. The learned Judges of the High Court accepted their evidence for two different reasons. Raju, .l., held that a court can permit a party calling a witness to put questions under s. 154 of the Evidence Act only in the examination-inchief of the witness; for this conclusion, he has given the following two reasons: (!) the wording of ss. 137 and 154 of the Evidence Act indicates it,-and (2) if he is permitted to put questions in the nature of cross-examination at the stage of re-examination by the adverse party, the adverse party will have no chance of cross-examining the witness with reference io the answers given to the said questions. Neither of the two reasons, in our view, is tenable. Section 137 of the Evidence Act gives only the three stages in the examination of a witness, namely, examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. This has no relevance to the question when a party calling , a witness can be permitted to put to him questions under s. 154 of ihe Evidence Act: that is governed by the provisions of s. 154 of the said Act, which confers a discretionary power on the court to permit a person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Section 154 does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstancs demand. To confine this power to the stage of examination-in-chief is to make

7 S.C.R.

SUPRE!IIE COURT HEPORTS 369

it ineffeCtive in practice. A clever witness in his examination 1901 in-chief faithfully conforms to what he stated earlier to the Dahyah/.a; Ghfia!l""- police or in the committing court, but in the cross-examina- Mai 1'1.akk" tion introduces statements in a subtle way contradicting in sia•e 0/(;,,, i,, ra•. effect what he stated in the examinationin-chief. If his design is obvious, we do not see why the court cannot, during the S1tbba Rao, J. course of his cross-examination, permit the person calling him as a witness to put questions to him which might be put in cross.examination by the adverse party. To confine the operation of s. 154 of the Evidence Act to a particular stage in the examination of a witness is to read words in the section which are not there. We cannot also agree with the High Court th2t if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the court certainly, in exercise of its discretion, will permit the adverse party to crossexamine the witness on the answers elicited by such questions.

The court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the crossexamination at any stage of the examinaiion of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief. In the present case what happened was .that some of the witnesses faithfully repeated what they had stated before the police in the examination-inchief, but in the cross-examination they came out with the story of insanity of the accused. The court, at the request of the Advocate for the prosecution: permitted him to crossexamine the said witnesses. It is not suggested that the Advc- • cate appearing for the accused asked for a further opportunity to cross-examine the witnesses and was denied of it by the court. The procedure followed by the learned Judge does not conflict with the express provisions of s. 154 of the Evidence Act. Mehta, J., accepted the evidence of the witnesses on the ground that the earlier statements .made by them before the police did not contradict their evidence in the court as the non-mention of the mental state of the accused in th~ earlier statements was only an omission. This reason given by the learned Judge is also not sound. This CQUrt in Tahsildar Singh

v., he Stare of U.P.(') laid down the following test for ascertammg under what circumstances an alleged omission can be relied upon to contradict the positive evidence in court:

" ............... (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used

(')(1959] Supp. 2 $.C.R. 875, 903.

DahJll/Jllai Ohliagan.

bhai TAak.l:er

for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is v.

State of Gujarat

Sobba Rao, J,

permissible by construction only in the following three cases: (i) when a recital is necessarily implied from the recital or recitals found in the statement .................. , ... ; (ii) a negative aspect of a positive recital in a statement ........................ ; and (iii) when the statement before the police and that before the Court cannot stand together ............... ".

Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder, but before the court they stated that the accused was insane and, therefore, he committed the murder. In the circumstances it was necessarily implied in the previous statements of the witnesses before the police that the accused was not insane at the time he committed the murder. In this view the previous statements of the witnesses before the police can be used to contradict their version in the court. The judgment of the High Court, therefore, in relying upon some of the important prosecution witnesses was vitiated by the said errors of law. We would, there- . fore, proceed to consider the entire evidence for ourselves.

When a plea of legal insanity is set up, the court has to considet whether at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of kn9wing the nature of the act or that he was doing what was either wrong or contrary to law. The crucial point of time for ascertaining the state of mind of the accused is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit of s. 84 of the Indian Penal Code can only be established from the circumstances which preceded, attended and followed the crime.

The first question is, what is the motive for the appellant to kill his wife in the ghastly manner he did by inflicting 44 knife injuries on her body? Natverlal Atmaram, the father of the deceased Kalavati, was examined as P.W. 13. He said that about 20 days before his daughter was murdered he received a letter from the accused asking him to take away his daughter on the ground that he did not11ike her, that he went to Bherai with that letter, showed it to Chhaganbhai, the father of the accused, and had a talk with him about it; that Chhaganbhai took that letter from him and promised to persuade the accused not to discard his wife; that, after a week he again went to Bherai and asked the accused why he did not like the deceased and the accused replied that he did not like her as she was not working properly; and that thereafter he went back to his village and sent a message through someone that.he would go

7 S.C.R.

SUPREllIE COURT REPORTS 371

to Bherai to take his daughter on Chitra Sudi 1. The murder 1964 took pla~ on the n}ght before C!mitra Sudi L In. the cross- Dohya1>h:i0hhai7a•· exammation he admitted that he did not tell the pohce that he bhai Thakter " had given the letter to the father of the accused, but he told si.u

0jG.u al the Sub-Inspector that he had shown the letter to him. ~·· Chhaganlal, the father of the accused, as P.W. 7, no doubt Bubba Rao, J. denied that Natverlal gave him the letter written by the accused, but he admitted that Natverlal came to his village 10 or 15 days before the inddent to take his daughter away. The evidence of Natverlal that he went to the village of the accused is corroborated by the evidence of P.W. 7. It is, therefore, likely that the accused wrote a letter to .Natverlal to take away Kalavati and it is also likely that Natverlal gave that letter to . P.W. 7 to persuade his son not to discard his wife. P.W.s 2 to 7 said in the cross-examination that the accused and his wife were on cordial terms, but, as we will indicate later in our judgment, all these witnesses turned hostile in the -sessions court and made a sustained attempt to support the case of insanity. That apart, their evidence does not disclose what opportunities they had to notice the cordial relation that exist- _ ed between the ac:Cused and the deceased. Thelearned Additional Sessions Judge rightly disbelieved. their evidence; The learned Additional Sessions Judge, who had seen Natverlal in the witness-box, has accepted his evidence; We, having gone through his evidence, see no reason to differ from the opinion of the learned Additional Sessions J udge .. lt is also not denied that though the accused _was in Ahmedabad for ten. months, he did not take his wife with him: We accept the evidence of Natverlal and hold that the accused did not like his wife and. therefore, wanted his father-in-law to' take her. away to his home and that his father-in-law promised to do so before Chaitra Sudi 1. · -

The next question is, what was the previous history of the mental condition of the accused? Here again, the prosecution witnesses, P.W.s. 2 to 7, deposed for the first time in the sessions court that 4 or 5 years before the incident the accused was getting fits of. insanity. But all these witnesses stated before the police that the accused had committed the murder of his wife, indicating thereby that he was sane at that time. Further, their evidence is inconsistent with the facts established in the case. During this period, it was admitted by P.W. 7, the accused was not treated by any doctor. Prior to the incident he was serving in Ahmedabad in Monogram Mills for about a year and a half. Though the father of the deceased was staying in a village only a few miles away from the village of the accused and though . the betrothal was fixed -5 years· before the marriage, he did not know that the accused was insane, for if he had known that such was the mental condition of the accused he would no! have given his daughter in marriage to

SUPHEME COURT HEPOHTS •

(1964]

1964 him. It is impossible to conceive that he would not have known JJahy®l•a' Chhan••· that th_e ccused was insane if he was really so, and particularly

Mai Thakker when 1t 1s the case of the accused that 1t was not kept scret v. but was well known to many people and lo some of the wit- 'ta1, e of Gujarat nesses, who. came to depose for him. A month and a half prior Suhba Rao, J. to the incident Chhaganlal had gone to Ahmedabad for medical treatment and during that period the accused came from Ahmedabad to manage his fathers shop in his absence. The fact that he was recalled from Ahmedabad was not disputed: but, while Natverlal said that the accused was recalled ih order to manage Chhaganlal's shop in his absence. Chhaganlal sa'd that he was recalled because he was getting insane. The best evidence would have been that of the relative in whose house the accused was residing in Ahmedabad. But the relative was not examined. Jt appears to us that the accused was serving in Ahmedabad in Monogram Mills and he was asked to come to the village of his father to attend to the latter's business a month and a half before the incident, as the father was leaving for Ahmedabad for medical treatment. Before the commencement of the trial in the sessions court on June 27, 1959, an application was filed on behalf of the accused, supported by an affidavit field by the father of the accused. praying tha.t, as the accused had become i.nsane, he should be sent for proper medical treatment and observation. In that affidavit it was not stated that the accused was getting fits of insanity for the last 4 or 5 years and that he had one such fit at that time. If that was a fact, one would expect the father to allege prominently the said fact in his affidavit. These facts lead to a reasonable inference that the case of the accused that he had periodical fits of insanity was an afterthought. The general statements of witnesses, P.W.s I to 6 that he had such fits must, therefore, necessarily be false.

We. therefore. hold that the accused had no antecedent history of insanity.

Now coming to the date when the incident took place, P.W. 7, the father of the accused, said that the accused was insane for 2 or 3 days prior to the incident. His evidence further discloses that he and his wife had gone to Ahmedabad on the date of the incident and returned in the same evening. If really the accused had a fit of insanity a day or two before the incident, is it likely that both the parents would have left him and gone to Ahmedabad? To get over this incongruity P.W. 7 said that he went to Ahmedabad to see a bridegroom for his daughter and also to get medicine for the accused. But he did not '3Y which doctor he consulted and wherefrom he purchased the medicines or whether in fact he bought any medicines at all. lf the accused had a fit of insanity. is it likely that the wife would have slept with him in the same room? We must, therefore, hold that it had not been established that 2 or 3 days before the incident the accused had a fit of insanity.

7 S.C.R.

SUPRE~IE COURT REPORTS 373

Now we come to the evidence of what happened on the 1964 night of the incident. Nobody except the accused knows what Dahyabhai Ohhagan happened in the bed-room. P.W.s 2 to 7 deposed that on the Ma; Wmkkcr 10th April, 1959, corresponding to Chaitra Sudi I, between 3 Slak ;/Gujarat and 4 a.m. they heard shouts of the deceased Kalavati to the effect that she was being killed; that they all went to the room Subba Raa, J. but found it locked from inside; that when the accused was asked to open the door, he said that he would open it only 'after the Mukhi (P.W. ]) was called; that after the Mukhi came there, the accused opened the door and came out of the room with a blood-stained knife in his hand; that the accused began

talking irrelevantly and was speaking "why, you killed my mother?" "why, you burnt my father's house?"; that afterwards the accused sat down and threw dust and mud at the person.s gathered there; and that he was also laughing without any cause. In short, all the witnesses in one voice suggested that the accused was under a hallucination that the deceased had murdered his mother and burnt his father's house and, therefore, he killed her in that state of mind without knowing. what he was doing. But none of these witnesses had described the condition of the accused immediately when he came out of the room, which they did so graphically in the sessions court, at the time when they made statements , before the police. In effect they stated before the police that the accused came out of the room with a blood-stained knife in his hand and admitted that he had murdered his wife; but in the witness-box they said that when the accused came out of the room he was behaving like a mad man and giving imaginary reasons for killing his wife. The statements made in the depositions are really inconsistent with the earlier statements made before the police and they are, therefore, contradictions within the meaning of s. 162 of the Code of Criminal Procedure. We cannot place any reliance on the evidence of these witnesses: it is an obvious development to help the accused.

The subsequent events leading up to the trial make it abundantly clear that the plea of insanity was a belated afterthought and a false case. After the accused came out of the room, he was taken to the chora and was confined in a room in the chora. P.W. 16, the police sub-inspector, reached Bherai at about 9.30 ; i.m. He interrogated the accused, recorded his s1!1tement and arrested him at about 10.30 a.m. According to

him, as the accused was willing to make a confession, he was

sn.t to the judicial magistrate. This witness described the cond1tmn of the accused when he met him thus:

"When I went in the Chara he had saluted me and he

; vas cmpleely sane. There was absolutely no

~1gn of msamty and he was not behaving as an msane man. He was not abusing. He had replied to

Dahyabhai Ohhaganbhai Thakker

my questions understanding them and was giving relevant replies. And therefore 1 had sent him to the Magistrate for confession as he wanted to confess." T.

Stal• of Gujarat

Suboa Rao, J.

There is no reason to disbelieve this evidence, particularly when this is consistent with the subsequent conduct of the accused. But P.W. 9, who attested the panchnama, Ex. 19, recording the condition of the accused"s body and his clothes, deposed that the accused was murmuring and laughing. But no mention of his condition was described in the panchnama.

Thereafter, the accused was sent to the Medical Officer, Mater, for examination and treatment of his injuries. The doctor examined the accused at 9.30 p.m. and gave his evidence as P. W. 1 I. He proved the certificate issued by him, Ex. 23.

Nothing about the mental condition of the accused was noted in that certificate. Not a single question was put to this witness in the cross-examination about the mental condition of the ac- . cused. On the same day. the accused was sent to the judicial Magistrate, First Class, for making a confession. On the next day he was produced before the said Magistrate, who sked him the necessary questions and gave him the warning that his confession would be used against him at the trial. The accused was given time for reflection and was produced before the Magistrate on April 13, 1959. On that date he refused to make the confession. His .conduct before the Magistrate, as recorded in Ex. 31, indicates that he was in a fit condition to appreciate the questions put to him and finaUy to make np his mind not to make the confesion which he had earlier offered to do. During the enquiry proceedings under Ch. XVIII of the Code of Criminal Procedure, no suggestion was made on behalf of the accused that he was insane. For the first time on June 27, 1959, at the commencement of the trial in the-'l'lessions court an application.was filed on behalf of the accused aUeging that he was suffering from an attack of insanity. On June 29, 1959, the Sessions Judge sent the accused to the Civil Surgeon, Khaira, for observation. On receiving his report, the learned Sessions Judge, by his order dated July 13, 1959, found the accused insane and incapable of making his defence. On August 28, 1959, the court directed the accused to be sent to the Superintendent of Mental Hospital, Barpda, for keeping him under.observation with a direction to send his report on or before September 18, 1959. The said Superintendent sent his report on August 27, 1960, to the effect that the accused was capable of understanding the proceedings of the court and of making his defence in the court. On enquiry the court heid that the accused could understand the proceedings of the case and was capable of making his defence. At the commencement of the trial, the pleader for the accused stated that the accused could understand the proceedings. The proceedings before the

Sessions Judge only show that for a short time after the case 1964 had commenced befor.e him the accused was insane_. Rnt !hat Dal, yahliai O/lhagq.

fact would not estabhsh that the accused was havms Ills of Mai 1'1'akker insanity for 4 or 5 years before the incident and that at the v. time he killed his wife he had such a fit of insanity as to give State of Oojarai him the benefit of s. 84 of the Indian Penal Code. The said Subba Rao, J. entire conduct of the accused from the time he killed his wife upto the time the sessions proceedings commenced is inconsist

ent with the fact that he had a fit of insanity when he killed his wife.

It is said that the situation in the room supports the version that the accused did not know what he was doing. It is asked, why the accused should have given so many stabs to kill an unarmed and undefended woman? It is said that it discloses that the accused was doing the act under some hallucination. On the other hand the existence of the weapons in the room, the closing of the door from inside, his reluctance to come out of the room till the Mukhi came, even if that fact is true, would indicate that it was a premeditated murder and that he knew that if he came out of the room before the Mukhi came he might be manhandled. Many sane men give more than the necessary stabs to their victims. The number of blows given might perhaps reflect his vengeful mood or his determination to see that the victim had no escape. One does not count his strokes when he commits murder. We, therefore, do not see any indication of insanity from the materials found in the room; on the other hand they support the case of premeditated murder.

To summarize: the accused did not like his wife; even though he was employed in Ahmedabad and stayed there for about IO months, he did not take his wife with him; he wrote a letter to his father-in-law to the effect that the accused did not like her and that he should take her away to his house; the father-in-law promised to come on Chaitra Sudhi 1; the accused obviously expected him to come on April 9. 1959 and tolerated the presence of his wife in his house till then; as his father-in-law did not come on' or before April 9, 1959, the accused in anger or frustration killed his wife. It has not been established that he was insane; nor the evidence is sufficient even to throw a reasonable doubt in our mind that the act might have been committed when the accused was in a fit of insanity. We, therefore, though for different reasons, agree with the conclusion arrived at by the High Court and dismiss the appeal.

'Appeal dismissed.

361

DAHY ABHAI CHHAGANBHAI THAKKER

STATE OF GUJARAT

K. SUBBA RAO

K. C. DAS GUPTA

RAGHUBAR DAYAL, JJ

s. 154

ss. 80, 84, 299

Indian Evidence Act, 1872

ss. 105, 137, 154

s. 302

Indian Penal Code

s. 84

Indian Penal Code

Section 137

s. 154

s. 154

Gujarat High Court

B. K. Banerjee

D. R. Prem

R. H. Dhebar

B. R. G. K. Achar

SUBBA RAO

s. 302

Indian Penal Code

Kalavati

Additional Sessions Judge, Kaira

s. 302

Indian Penal Code

Dahyablw.i OMaga.-

State ofGujara1 High Court

subba Rao

INDIAN PENAL CODE

Section 199

Section 84

INDIAN EVIDENCE ACT

Section 105

Indian Penal Code

biai

Suba Rao

Section 4

Indian Penal Code

s. 84

Indian Penal Code

s. 105

s. 105

s. 4

State of G1

Subba Rao

s. 105

s. 299

Indian Penal Code

Halsbury

Glanville Williams

Dahyabhai Chltaganbhai TkaJ

s. 80

Indian Penal Code

s. 105

ss. 4 and 5

Prevention of Corruption Act

ss. 77, 78, 79, 81 and 88

Indian Penal Code

s. 80

Indian Penal Code

s. 80

Indian Penal Code

s. 300

Indian Penal Code

s. 80

Indian Penal Code

s. 84

Patna High D<ihybhai Oh1-

Subba Rao

Nanavati

s. 84

Indian Penal Code

Gojara

Bub/Ja Rao

Art. 136

Raju

s. 154

ss. 137 and 154

Section 137

s. 154

s. 154

Section 154

s. 154

s. 154

Mehta

State of Gujarat

Sobba Rao

s. 84

Indian Penal Code

Natverlal Atmaram

Bherai

Chhaganbhai

Bubba Rao

Natverlal

Natverlal

.Natverlal

s 2 to 7

Ahmedabad

their evidence; The learned Additional Sessions Judge, who had seen Natverlal in the witness-box, has accepted his evidence; We, having gone through his evidence, see no reason to differ from the opinion of the learned Additional Sessions J udge .. lt is also not denied that though the accused was in Ahmedabad for ten.

Chaitra Sudi

s. 2 to 7

JJahy®l•a' Chhan••

Mai Thakker

Gujarat

Suhba Rao

Chhaganlal

June 27, 1959

Dahyabhai Ohhagan

s 2 to 7

Chaitra Sudi I

Subba Raa

Mukhi

s. 162

Code of Criminal Procedure

Dahyabhai Ohhaganbhai Thakker

Suboa Rao

April 13, 1959

Code of Criminal Procedure

June 29, 1959

Khaira

July 13, 1959

August 28, 1959

Barpda

September 18, 1959

August 27, 1960

State of Oojarai

s. 84

Indian Penal Code

April 9. 1959

April 9, 1959