BHUPENDRA SINGH

THE STA~ OF PUNJAB

March 5, 1968

(S. M. SllQU, J.M. S!mLAT AND V. BHARGAVA, JJ.] B

Code of Criminal Proctdure, 1898, ss. 375, 376 and 423-Duty of 'J{Jpellate Court to examine entire record in proceedlll//S for con{irmatron of dtath se11te11L:e--if court can acctpt dtf•nct admission of Its CflSt! luzv. inJl no substance or should exG111lnt rec!ird for itself.

Stnttnce-<Jpptal against-when Supreme Court may interfere.

The appellant lived with his father A in a house adjoining that of the deceased G who lived there with his two sons and a daughter. An argument developed one evening between the appellant and one of the sons of G.

When G intervened, the appellant's father A raised a 'lalkara' asking the appellant to finish him off. Thereupon the appellant shot and killed G.

By this time G's two sons, his daughter and one M who lived neaf-by had arrived and witnessed the occurrence. At the trial the appellant's defence was a pica of alibi but the Trial Coun rejected the defence and convicted the appellant of G's murder and sentenced him to death.

In appeal, the High Court did not go into the defence evidence because the counsel appearin~ for the appellant admitted that there was no substance in it.

The High Court accordingly dismilled the•appeal and con' finned the sentence of death.

In appeal to this Court against the conviction and the sentence it was contended that the High Court in not examining the defence evidence for itself, committed an er'ror and did not properly discharge its duties.

HBLD : (i) Although ordinarily, in a criminal appeal against conviction, the appellate Court, under s. 423 of the Code of Criminal Procedure.

can d; smiss the appeal if the Court is of the opinion that theM is no sufficient ground for interference and it is not necessary for the appellate Court to examin<0 the entire record for the purpose of arriving at an in

dependent decision, the position i• different where the appeal is by an F accused who is sentenced to death, so that the High Court dealing with the appeal has before it. simultaneously witb the appeal. a reference for continnation of the capital sentence under s. 374 of the Code. On a reference for confirmation of sen!ence of death, the High Court is requirctl to proceed in occordance witb sections 375 and 376 of the Code Of Cri minal Procedure and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to G see whether the order passed by the Sessions Judge Is correct but to examine the case for itself and even direct a further enauirv or the taking of additional evidence if the Court considers it desirable in order to as certain the guilt or the innocence of the convicted penon. (407 D-0)

. Jummcn and Others v. The State of Punjab, A.I.R. 1957, S.C. 469; . Ram ShGnker Singh & Ors. v. State of West Bengal,

(1962) Supp. 1 . S.C.R. 49 at p. 59; applied.

(ii) (UPon an exarilination of the entiro evidence by tho Court) : No grconds had been made out for intcm.rence with the appellant's con viotion. [409 D-B)

BHUPBNDRA v. PUNJAB (Bhargava, /.)

A Masalti v. State of U.P., [1964] 8 S.C.R, 133 at p. 144; referred to.

(iii) The sentence of death must be set aside and instead the appellant s.entenced to imprisonment for life Although ordinarily this Coiirt, in exercise of its power under Art.. 136 does not interfere with a sentence, in the present case there were som'e special features which had to be taken into account : even according to the proSccution, the murder of G by the appellant was not pn:- meditated; the act Of firing at him appeared to be that of a hot-beaded person who was incited to do so by his father; the murder was not in any way cruel cir brutal. In all these circumstances, tho ends of justice would.

be met if the lesser penalty prescribed by law was awarded to the appellant [413 G•Hl

CRIMINAL AIIPELLATE JURISDICTION : Criminal Appeal 185of 1967.

Appeal by special leave from the judgment and order dated May 18, 1967 of the Punjab and Haryana High Court in Criminal Appeal No. 24 7 of 1967 and Murder Reference No. 23 of

19~. .

D A. S. R. Chari, B. A. Desai, S. C. Agarwal, A. K. Gupta,

Shiva Pujan Singh and Virendra Verma, for the appellant.

Hans Raj Khanna and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

Bbargava, J. Bhupendra Singh has come up to this Court irr appeal by special leave against a judgment of the High Court of Punjab and Haryana confirming the sentence of death awarded to him by the Sessions . Judge of Jullundur for an offence under section 302 of the Indian. Penal Code and dismissing his appeal against the conviction and sentence. The conviction of the appellant was recorded for committing the murder of one Gurdarshan Singh who was living in the same village Birpind as the appellant in the house adjoining the appellant's house.

The appellant's father, Ajit Singh, also lived with the appellant, while, with Gurdarshan Singh, were living his sons, Gurdial Singh and Sarvjit Singh, and his daughter Gian Kaur. According to the prosecution, on the 6th November, 1965, at about 7.45 p.m., the two brothers, Gurdial Singh and Sarvjit Singh, happened to be standing in front of their house talking to each other, when the appellant came out of his house and asked them what they were talking about. Gurdial Singh replied that he and Sarvjit Singh were brothers apd were talking between themselves and it was no business of th~ appellant to interfere. The appellant, thereupon, abused the two brothers and also slapped Sarvjit Singh on the face.

Gurdial Singh asked the appellant why he had beaten his brother and used abusive language against the appellant. The appellant got e.nraged, ran into his house abusing the two boys, and returned with a double-barrel 12 bore gun. When he came out of his house this time, he was accompanied by his father, Ajit Singh.

Gurdial Singh and Sarvjit Singh then ran into the 'deorhi' of their house. In the meantime, their father, Gurdarshan Singh, and their sister, Gian Kaur, returned to the house from their fields.

When Gurdarshan Singh saw the appellant carrying the gun, he enquired what the matter was. Thereupon, Ajit Singh raised a 'lalkara' asking his son, the appellant, to finish off Gurdarshan Singh. The appellant then fired two shots in quick succession from his gun hitting Gurdarshan Singh on vital parts of his body.

Gurdarshan Singh fell down dead on the ground. One Malkiat Singh, who lived in a house nearby, had arrived and saw this occur. rence, so that the four persons, who witnessed the occurrence, were Malkiat Singh, Gurdial Singh, Sarvjit Singh and Gian Kaur.

Gurdial Singh, leaving others to look after the dead body of his father, went with Lal Singh, Lambardar, to the Police Station which was situated at a distance of about three miles and lodge the }'irst Information Report at about 9.30 p.m. on the same day. The case was then investigated. A post mortem examination on the corpse of Gurdarshan Singh was performed and articles like pellets, blood-stained cardboard pieces lying near the scene of occurrence were taken into their possession by the. Police. Both the appellant and his father, Ajit Singh, were thereafter prosecuted for this murder. The appellant was charged with being the principal offender in committing the murder, while his father, Ajit Singh, was prosecuted for having participated in the murder with the common intention that Gurdarshan Singh should be killed.

However, before the trial could take place in the Court of Sessions, Ajit Singh was murdered and, for that murder, Gurdial Singh was prosecuted.

In the case, at the first stage before the Court of the Commit ting Magistrate, both Ajit Singh and the appellant took the plea that neither of them was responsible for committing the murder of Gurdarshan Singh and contented themselves with denying the correctness of the prosecution case. In the Court of Sessions. when the appellant was examined under section 342 of the Code of Criminal Procedure, he came forward with the plea that it was his father, Ajit Singh, who actually fired and killed Gurdarshan Singh. He pleaded that he himself was not present in this village at all and was, in fact, that day staying at Phillaur. He, thus, put forward the plea of alibi.

The Sessions Judge believed the evidence of the four prosecution witnesses mentioned above, and, after discussing the defence evidence given on behalf of the appellant in support of his pleas. rejected that evidence. He did not accept the defence evidence that Gurdarshan Singh was fired at by Ajit Singh and he also held that the evidence given on behalf of the appellant to prove

bis alibi could not be relied upon. On these findings, the Sessions Judge convicted the appellant and sentenced him to death for committing the murder of Gurdarshan Singh.

When the case came up before the High Court, the High Court briefly examined the evidence of tbe prosecution witnesses and held that their evidence was reliable. The High Court did not, however, go into the defence evidence, because the counsel appearing for the appellant, according to the High Court, frankly admitted that there was no substance in it. On this view, the High Court dismissed the appeal of the appellant and confirnied his sentence of death.

In this appeal, the principal question that was canvassed before us on behalf of the appellant was that the High Court, in not examining the defence evidence for itself on the simple ground that counsel for the appellant admitted that there was no substance in it, committed an error and did not properly discharge its duty.

It appears that there is substance in the submission made on behalf of the appellant. Ordinarily, in a criminal appeal against conviction, .the appellate Court, under s. 423 of the Code of Criminal Procedure, can dismiss the appeal, if the Court is of the opinion that there is no sufficient ground for interference, after examining all the grounds urged before it for challenging the correctness of the decision given by the trial Court. It is not necessary for the appellate Court to examine the entire record for the purpose of arriving at an independent decision of its own whether the conviction of the appellant is fully justified.

The position is, however, different where the appeal is by an accused who is sentenced to death, so that the High Court dealing with the appeal has before it, simultaneously with the appeal, a reference for confirmation of the capital sentence under s. 374 of the Code of Criminal Procedure. On a reference for confirmation of sentence of death, the High Court is required to proceed in accordance with sections 375 and 376 of the Code of Criminal Procedure and the provisions of these sections make it clear that the duty of the High Court, in dealing with the reference, is not only to see whether the order passed by the Sessions Judge is correct. but to examine the case for itself and even direct a further enquiry or the taking of additional evidence if the Court considers it desirable in order to ascertain the guilt or the innocence of the convicted person. It is true that, under the proviso to s. 376, no order of confirmation is to be made until the period allowed for preferring the appeal has expired, or, if an appeal'is presented within such period, until such appeal is disposed of, so that, if an appeal is filed by a condemned prisoner that. appeal has to be disp<ised of_ before any order is made in the reference confirming the sentence of death. In disposing of such an appeal, however, it is necessary that the High Court should keep in view its dutv under s. 375 of the Code of Criminal Procedure and, consequently, the Couri must examine the appeal record for itself,

40~ SUPllBMB COUllT llBPOllTS

(1968) 3 S.C.R.

.arrive at a view whether a further enquiry-or taking of additional .evidence is desirable or not, and then come to its own conclusion on the entire material on record whether conviction of the condemned prisoner is justified and the sentence of death should be confirmed. In Jumman and Others v. The State of Punjab(1 ), 1his Court explained this position in the following words :-

" . . . . . ..... but there is a difference when a reference is made under s. 374, Criminal Procedure Code, and when, disposing of an appeal under s. 423, Criminal Procedure Code, and that is t:pat the High Court has to satisfy itself as to whether a case beyoRd reasonable doubt has been made out against the accused persons for the infliction of the penalty of death. In fact the proceedings before the High Court are a reappraisal and the reassessment of the entire facts and law in order that th,~ High Court should be satisfied on the materials about the guilt or innocence of the accused persons. Such being the case, it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions fodge. In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the Jaw above-men!ioned it is for the High Court to come to an independent conclusion of its

own""

The same principle was recognised in Ram Shankar Singh and -Others v. State of We.s<t Bengal(2) :-

" ... .. .. . . . The High Court had also to consider what order should be passed on the reference under s. 374, and to decide on an appraisal of the evidence whether the order of conviction for the offences for which the accused were convicted was justified and whether, having regard to the circumstances. the sentence of death was the appropriate sentence."

Jn Masalti v. State of U.P.(3) this Court was dealing with an appeal under Article 136 of the Constitution and, in that appeal, on behaJf of the persons who were under sentence of death, a point was sought to be urged which was taken before the trial Court and was rejected by it, but was not repeated before the High Court. This Court held :-

" .... . ...... . . .it may, in a proper case, be permissible to the appellants to ask this Court to consider

(l) A.J.R. 1957 S.C. 469.

(2) (1962) Supp. 1S.C.R. 49 at p. S9.

(3) (196418 S.C.R. 133 at p. 144.

that point in an appeal under Artice 136 of _the Constitution; after all in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material plas of fact and law only on the ground that they were not urged before the High Court. If it is shown that the pleas were actually urged before the High Court and had not been considered by it, then, of course the party is entitled as a matter of right to

obtain a decision on those pleas from this Court. But zven otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under Art. 136."

In view of these principles indicated by us above, and in view of the fact that, in this case, the High Court did not properly examine the defence evidence on the ground that the counsel for the appellant in that Court admitted that there was no substance in it, we permitted learned counsel for the appellant in this appeal to take us through the entire evidence on the record given by the prosecution and the defence so as to enable us to form our own judgment about the correctness of the conviction and sentence of the appellant.

We, however, find that, after examining the entire cv'idence, we are unable to hold that any grounds are made out for interference with the conviction.

The prosecution case, as already mentioned by us above, is supported by the evidence of four eye-witnesses, Gurdial Singh,

Sarvjit Singh, Gian Kaur and Malkiat Singh.

Three of these witnesses, Gurdial Singh, Sarvjit Singh and Gian Kaur are the

sons and daughter of the deceased Gurdarshan Singh, but this circumstance, in our opinion, does not detract from the value to be attached to their evidence, because, naturally enough, , they

are interested in seeing that the real murderer of their father is convicted of te offence. and they cannot be expected to adopt a course by which some mnocent person would be substituted for the person really guilty of the murder. None of these witnesses hd any such enmity with the appellant as could induce him to give false evidence and to substitute him as the murderer in place of the perso!1 really guilty. n fact, their feelings would be strongest agamst. the real culprit and, consequently, their evid~

mce cannot be discarded on the mere ground of their close interest m the deceaed. "fyf alkiat Singh has been held both by the Sessions Judge and the High Court to be an independent witness and we find no reason to differ from the view taken by the two Courts O.n behalf of the appellant.' it w~~ so.ught to be urged that Malkiat

Singh. bore a grudge agamst AJtt Smgh, because Ajit Singh had been instrumental in the adoption of a son by Malkiat Singh's real uncJe, Veer ingh, with the result that Malkiat Singh was

deprived of the succession to the property of his uncle. Malkiat Singh denied that he had any grievance against Ajit Singh on such a ground. In support of the plea put forward on behalf of the appellant, one defence witness, Niranjan Singh was examined who claimed to be the son of another' real uncle of Malkiat Singh.

Niranjan Singh came to depose that his son, Sadha Singh, had been adopted by Veer Singh and this adoption took place because Ajit Singh had asked Veer Singh to take Sadhu Singh in adoption.

Niranjan Singh had, however, to admit that, in the deed of adoption, the person adopted is described as Mukhtiar Singh and not Sadhu Singh. To explain this discrepancy, Niranjan Singh came forward with the assertion that his son, Sadhu Singh, bore an alias Mukhtiar Singh. If Sadhu Singh was the real and principal name of the boy adopted by Veer Singh, there is no reason why that name was not mentioned in the deed of adoption and why the person adopted was described only as Mukhtiar Singh.

There is further the circumstance that, even according to Niran jan Singh, Malkiat Singh, witness, did not try to challenge the adoption, even though the adoption had taken place in April 1965, seven months before this incident. Malkiat Singh had stated that he had no grievance against Ajit Singh and was in fact not interest cd in challenging the adoption.

In these circumstances, we do not think that Malkiat Singh can be said to be an interested wit ness and must hold that his evidence has been rightly relied upon.

The time of the murder was not only J?roved by the evidence E of these four witnesses, but is also borne out by the circumstance that the First lnfonnation Report was lodged at the Police 9tation three miles away at about 9.30 p.m. without any undue delay.

On behalf of the appellant, it was urged that the First Wormation Report was in fact recorded much later and not at 9.30 p.m. the same day, on the basis that the copy of that report sent to F the Ilaqa Magistrate was received by him at 10.30 a.m. on 8th November, 1965. The argument was that, if the report had been lodged at 9.30 p.m. on 6th No:vember 1965, the copy should have reached the Magistrate the same night or early on the 7th November and not as late as 8th November. We are unable to accept this submission. The evidence of Gurdial Singh was perfectly clear that he reached the police station and lodged the G report that very night at 9.30 p.m. and there is no reason to disbelieve him. It appears that in this case, the investigating officer, Sub-Inspector Ram Saran Dass was, to some extent, negligent.

In the report lodged by Gurdial Singh, the facts given clearly made out an offence of murder, and yet the Sub-Inspector chose to register .the case wrongly as for an offence under section 304 H read with section 34. of the Indian Penal C<><te. It may be that, having wrongly put down the offenc.e as under .304 .J.P.C. instead of section 302, the Sub-Inspector did not consider 1t 1lecesarv to

send the report to the Ilaqa Magistrate the same night and delay eJ sending it, so that it was received at 10-30 a.m. on 8th November, 1965 by the Magistrate. It is also not clear from the evidence whether, apart from the copy of the First Information Reporl sent to the Ilaqa Magistrate, any special report was also

ent to the Magistrate by the Sub-Inspector. In any case, we do not think that this late receipt of the copy of t.lte First Information Report by the Magistrate can lead to the infere1ice that Gurdial Singh is not right in saying that he had the report recorded the s:une night at 9 .30 p.m.

The evidence of the doctor who performed the post mortem examination and of the ballistic expert clearly estabfish that Gurdarshan Singh had died as a result of gun shot injury received by him from a gun. The guri which the appellant passesscd under a licence issued to him was examined by the ballistic expert and his evidence proved that the shots, which killed the deceased, were tired from that very gun. In these circumstances, the Sessions Judge and the High Court were right in recording the conviction of the appellant for the murder of Gurdarshan Singh on the basis of this prosecution evidence.

So far as the defence put forward on behalf of the appellant is concerned, the first point to be noticed is that the plea that the shots. which killed Gurdarshan Singh, were fired by Ajit Singh, was not taken by the appellant until his father, Ajit Singh, had already died. It seems to be clear that this plea, which was put forward for the first time in the Court of Sessions, was an afterthought which could be taken safely by the appellant after Ajit Singh had died and he could not be convicted for the murder.

When the appellant was examined in the court of the Committing Magistrate while Ajit Singh was alive, he did not make any such statement. This is an important circumstance that militates against the plea put forward in defence.

The appellant relied upon the evidence of two witnesses in support of the p~a hat the shots '.-"hich killed Gurdarshan Singh were fired by A11t Smgh and not by the appeltant. The first of these witnesses is Uggar Singh who stated that he was in his house situated opposite to the house of the appellant and, when he c?mc out on earing the noise, he saw Ajit Singh quarelling with

(1rdashan Singh deceased and exchanging abuses. Thereafter,

~.11t .Smgh fired the gun shots towards Gurdarshan Singh killing

h.1111 instantaneously. Acco\ding to him, neither MaJkiat Singh nor tnc sons of Gurdarshan Singh were present at that time. Even Shrimati Giano. according to him, was not there. TI1e evidence of this witness cannot be relied upon for several reasons. According to this witness, his statement was recorded by the Police at about 10 a.m. the next day, i.e., the 7th November, 1965; but L7Sup.C.1:61!- -:?

the investigating officer's statement is clear that no person residing ih the neighbourhood had been examined by him or had come forward to give any statement to him. Uggar Singh, thus, made a wrong statement that he was examined by the Police the next day.

It also appears that he was prosecuted in a murder case in which he was acquitted and Ajit Singh had assisted him in that trial. The answers given by him in the cross-examination also show that, in fact, his house is not in front of the house of the appellant but is situated in the same line as the house of the appellant and the deceased and at some distance. He tried to get over this difficulty by stating that he has another house which is opposite to the house of the appellant, but it appears that that house belongs to his cousin, Ujagar Singh, and that is how the house is described in the site plan also. In all these circumstances, the evidence of Uggar Singh cannot be accepted.

The second witness is Niranjan Singh, whose evidence we have noticed above, and he also partially supported this part of th'! defence case by saying that he came rus!ling to the spot after the incident and found Gurdarshan Singh lying dead, while Ajit Singh . D was standing outside his house with something which appeared to be a gun. It is clear that this is an, another attempt by Niran jan Singh to help the appellant and on this point also reliance cannot be placed on his evidence.

. There remains to be considered the evidence given ori behalf of the appellant to establish his plea of alibi. One defence wit- E ness Kirpal Singh was examined to prove that the accused was on deputation in the Seed Corporation at Phillaur and was attached to the Tehsildar, Phillaur and that he was not suspended until

11th November, 1965. His evidence is of no help, because it is obvious that the appellant could be suspended only after he surrendered in connectlon with this charge which happened on F 11th November 1965. The fact that be was in service on 6th November, 1965, does not necessarily prove that he could not have been present at the place of occurrence.

The-_witness, on whose evidence relince is primarily placed is Bunta Ram, Patwari. Bunta Ram stated that on 6th November, 1965 he had come to the office of the Corporation at Phillaur G in order to collect his pay and he also brought some files from Nakodar in order to consign those files. In that connection, he remained in the office of the Corporation throughout the day. He .saw the appellant also working in the said office throughout the day. According to him, at about 6.30 p.m., he and the appellant went to the house of Inderjit Singh, Patwari and spent the H night at his house.

It, however, appears that this witness is a direct subordinate of the appellant and that is the reason why he has come forward to support the appellant's case. In this connection, Jagdish Rai Batta, Tehsildar in the Seed Corporation, was examined as a court witness by the Sessions Judge and his evidence shows that Bunta Ram was one of the Patwaris working as a subordinate of the appellant who was a kanoongo in the Corporation.

Bunta Ram had stated that on that day he had himself appeared before the Tehsildar in connection with the consignment of the files and the Tehsildar had given him some directions in that behalf.

Jagdish Rai Batta stated that on that day Bunta Ram, Patwari did not appear before him nor did he produce any files.

He went further and stated that' he did not point out any defects to Bunta Ram Patwari either orally or in writing. Thus, Bunta Ram is proved to be an untruthful witness by the evidence of Jagdish Rai Batta, Tehsildar. Bunta Ram, in his cross-examination, purported to state that the appellant was living in a part of the house of Inderjit Singh at.Phillaur.

On the face of it, it cannot be correct because the appellant did not belong to Phillaur and was not even posted there in connection with his employment.

His headquarters, according to Jagdish Rai Batta, was Nakodar and not Phillaur. The evidence of Jagdish Rai Batta only shows that he saw the appellant working in his office at Phillaur on that day until about 5 p.m. Phillaur is connected with Nakodar by a metalled road along with which there is a bus service, and village Birpind, where the murder took place, is only three miles from Nakodar; It is quite clear that the appellant could easily reach Birpind well before 7.45 p.m. even if he worked at Phillaur till 5 p.m. on that day.

It is also significant that the murder was committed with the gun belonging to the appellant.

If the appellant himself had not been at Birpind and had been at Phillaur or Nakodar, the gun should have been with. him at one of these places and not at Birpind.

The gun could not, therefore, have been available for use by Ajit Singh, his father, in his absence. Considering all these circumstances and the nature of the evidence, we are unable to accept that there is any force in the defence plea of alibi put forward by the appellant, so that the conviction based on the prosecution evidence must be upheld .

. A plea was put in for reduction of sentence. Ordinarily, this Court, in exercise of its powers under Art. 136 of the Constitution, does not interfere with a sentence . awarded by a Sessions Judge and upheld by the High Court; but, in this case, there are some special features which we cannot ignore. Even according to the prosecution, the murder of Gurdarshan Singh by the appellant was not pre-meditated. The act of firing at him appears to be that of a hot-headed person who was incited to do .so by his father. The murder was not in any way cruel or brutal. In all these circumstances, we think that the ends of justice would be met if the lesser penalty prescribed by law is awarded to the appellant.

Consequently, while upholding the conviction, we allow the ap- '- peal to the extent that the sentence of death is set aside, and, instead, the appellant is sentenced to imprisonment for life.

R.K.P.S.

Appeal allowed.

BHUPENDRA SINGH

THE STA~ OF PUNJAB

March

V. BHARGAVA, JJ.

Code of Criminal Proctdure, 1898

ss. 375, 376 and 423

G.

s. 423

Code of Criminal Procedure

s. 374

sections 375 and 376

S. R. Chari

B. A. Desai

S. C. Agarwal

A. K. Gupta

Shiva Pujan Singh

Virendra Verma

Hans Raj Khanna

R. N. Sachthey

Bbargava

Bhupendra Singh

High Court of Punjab and Haryana

section 302

Penal Code

Gurdarshan Singh

Birpind

Ajit Singh

Gurdial Singh

Sarvjit Singh

Gian Kaur

6th November, 1965

Malkiat Singh

Lal Singh

Lambardar

section 342

Code of Criminal Procedure

Phillaur

s. 423

Code of Criminal Procedure

s. 374

Code of Criminal Procedure

sections 375 and 376

Code of Criminal Procedure

s. 376

s. 375

Code of Criminal Procedure

s. 374

Criminal Procedure Code

s. 423

Criminal Procedure Code

s. 374

Article 136

Art. 136

Gurdial Singh

Sarvjit Singh

Gian Kaur

Malkiat Singh

fyf alkiat Singh

Malkiat

Singh

Veer ingh

Niranjan Singh

Niranjan Singh

Sadha Singh

Veer Singh

Sadhu Singh

Mukhtiar Singh

Niran jan Singh

8th November, 1965

Ram Saran Dass

section 304

section 34

section 302

Uggar Singh

1rdashan Singh

MaJkiat Singh

Shrimati Giano

7th November, 1965

Uggar Singh

Ujagar Singh

E ness Kirpal Singh

Bunta Ram

Patwari

Phillaur G

Nakodar

Inderjit Singh

Jagdish Rai Batta

Bunta Ram

Bunta Ram Patwari

Jagdish Rai Batta

Nakodar

Art. 136


NIRANJANLALL AGARWALLA

UNION OF INDIA

March 7, 1968 B

[J.C. SHAH, V. RAMASWAMI AND G. K. MITTER, JJ.]

Indian Rai11rays Act (9 o/ 1890), ss. 3(6), 77 and 14Q (before a111e1il-

111t•111 by Act 39 of 1961)-StatC-olvned Railway-Service of s. 77 notice

<'111 Cilil'f Co1111nercial Managt•r (Claiin.v aud Refunds)-!/ sufficient co111p/iauce.

Indian Li111italio11 Act (9 of l 908), s. 14-Appliccbility.

The appellant booke<l goods at Scaldah, which is on the border of the 1crritoria1 limits of the Original Jurisdiction of the Calcutta High Court, to be tr:tnsported by the Bengal and Assam Railway, owned by the State

and having its head office at Calcutta. There was short de1ivcry of the goo<ls and ti1c n1ihvay authorities issued the ncccssarv c..:rt:fk:atcs uf hort agc.

The appellant \Vrote a letter to the Chief Commercial tanager (Clain1s and Rcfun<ls) of the R.aihvay within six months from th.? <late of delivery of goods fOr carriage as required by s. 77 of the Act before ils amendment by Act 39 of 1961, claiming the value of the goods short deliv-cred.

Failing to get any rcdrcs.~. lie filed a suit on the Original Side of the High Court at Cnlcutta in 1946. within the period of limitation.

In 1954. the sui1 \Vas disn1issed on the ground that the Court had no iu'risdiction to try the suit. lbcn the appellant filed a second suit in the Subordinate Judge's Court havinl! jurisdiction, and prayed for exclusion of the time tnkcn between the i.latcs of institution and dismissal of th"c earlier suit. under s. J 4 of the Limitation Act, 1908.

The trial Court dismissed the suit.

The High Court in appeal, held against the appellant on the ground that the appc11ant's letter addresed

to the Chief Commercial Man:.tgcr (Claims and Refunds) could not he t'ri:atcd as th-.:: notice required under s. 77 of the Railways Act, 1890. as that officer \vas not the authority to receive the notice -un<lcr the si:ction.

ln appeal to this Court,

HELD: (1) The rcquircn1ent of compliance \\-'ith the tcrn1s of s. 77 should be liberally construed as the object of the notice , vas only to enable the railway n<lministration to n1ak~ an enquiry and investigate into lhc cause of the loss of the goods consigned to it. S:ction 140, bcfor\! its

.imendment by Act 39 of 1961 provided that a notice required to he served on a State-owned Raily.ay Adn1inistration may he served on the Mannger.

The Bc11gal and Assam Railway Administration did not have an authority known as the Mnnagcr. It hall a General M'anagcr in •JVer all charge hut its Chief Commercial ~Ianagcr (Claims and Kefunds) \l.1as a high ranking officer specially engaged in enquiring into claims hY consignors and consignees against the Rnilway administration . .He was therefore an officer con1pctcnt to deal \\•ith such claims and the requirements of s. 77 arc satisfied hy serving a notice on him: and it docs not behove the S!nte to contest a good claim on unsubstantial technical picas. [418 D-

E; 419 C-D, FH; 421 DJ

Gol'ernor-.General i11 Council v . .lf11satldi Lal. [_1961] 3 S.C.R. 647, 651 an<l Je11111tl/ Bhojraj v. The Darjt•c/ing Hi111ala~'<111 Railnay Co. LttT. 11963] 2 S.C.R. 83~. 845, followed.

Governor-General in Co1111cil v. G .. S. Mills Ltd, 1.L.R. 28 Pat. 178 A (F.B.) approved,

(2) On the facts, tho appellant was entitled to the benefit of s. 14 of the Limitation Act, because, he was prosecuting the earlier suit v.ith due diligence and the mistake in choosing the Original Side of tl>o High Court for filing the first suit was made bona fide. [421 Al

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 577 of B 1965.

Appeal from the judgment and decree dated June 9, 1961 of the Calcutta High Court in Appeal from Original Decree No. 133 of 1956.

B. C. Misra and S. S. Shukla for the appellant.

V. A. Seyid Muhammad, K. L. Hathi and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by Mitter, J. This is an appeal by certificate under Art. 133(l)(c)

0f the Constitution of India from a judgment and decree of the High Court of Calcutta confirming a decree of dismissal of the I> suit of the appellant herein instituted in the court of the Subordinate Judge, 8th Court at Alipore, District 24 Parganas, West Bengal.

The only two points .canvassed in the appeal to this Court are: (I) whether notices under section 77 of the Indian Railways Act were properly served on the Railway Administration in this case, and (2) whether the suit was barred by limitation ?

The relevant facts are as follows. The appellant was entitled to delivery of two lots of goods booked at Sealdah, Calcutta on June 9, 1945 and September 24, 1945 respectively. The goods were for delivery at Cooch Behar. They were to be transported by Bengal and Assam Railway owned by the State and having its Head Office at the relevant time at No. 3 Koilaghat Street, Calcutta. In respect of the first lot, there was a short delivery of 104 umbrellas and a certificate of shortage was issued to the plaintiff on July 20, 1945.

The appellant wrote a letter to the Chief Commercial Manager (Claims and Refunds) of the Bengal and Assam Railway at No. 3 Koilaghat Street on August 11, 1945 claiming the value _of the goods short delivered i.e. Rs. 1,284/- as per bill enclosed and the short delivery certificate issued to him.

On November 12, 1945 the plaintiff sent a letter to the Governor- General in Council representing the Bengal and Assam Railway through the Secretary, Govrnment of India, New Delhi giving full particulars of the claim and stating that the Chief Commercial Manager had already been approached for payment.

This letter was replied to by the Secretary, Railway Board on November 27, 1945 to the effect that the plaintiff's Jetter had been forwarded for disposal to the General Manager, Bengal and Assam Railway. In respect of the second lot of goods, the plaintiff made a similar claim to the Chief Commercial Manager of Rs. 12,742'7-4 as per the short delivery certificate of October 10,

1945. The plaintiff also wrote a letter to the Governor-General in Council on February 14, 1946 giving full particulars about the two invoices and the railway receipts covering the consignments despatched on September 24, 1945 and mentioning further that a claim had been preferred on October 24, 1945 enclosing the plaintiff's bill. It was stated expressly in this letter that notice to the Chief Commercial Man!lger had been given under s. 77 of the Railways Act. It does nQt appear that this particular claim of the plaintiff was referred to the General Manager, Bengal and Assam Railway by the Secretary to the Railway Board .as in the previous case . ....

Failing to get any redress the plaintiff served a notice under s. 80 of the Code of Civil Procedure onFebruary 14, 1946 on the Governor-General .in Council through the Secretary to the Railway Board and on the 14th August 1946 filed a suit on the Original Side of the High Court at Calcutta for recovery of the two sums of money for non-delivery of the goods and alternatively for damages for wrongful conversion or detention of the said goods. It was defended by the Governor-General in Council and one of the pleas taken was that the Court had no jurisdiction to entertain the suit as no -part of the cause of action for the suit had arisen within the said jurisdiction. On July 16, 1954, the suit was dismissed on the ground that the Court had no jurisdiction to try the same.

Thereupon the appellant filed a suit out of which the present appeal arises on August 5, 1954. In the plaint of the second suit, it was stated that the earlier suit had been filed on the Original Side of the High Court on a bona fide mistake on the part of the plaintiff's solicitor and prosecuted with due diligence by the plaintiff till it was dismissed on July 16, 1954. The plaintiff prayed for exclusion of the time taken between the date of the institution of the earlier suit and the dismissal thereof under s. 14 of the Limitation Act.

A defence similar to that taken in the High Court suit was put up by the Union of India, the defendant in the later suit.

The Subordinate Judge who tried the suit dismissed it on various grounds, inter alia that the notice served upon the Chief Commercial Manager was not in terms of the Railways Act and that the first suit had not been pursued bona fide and with diligence on the Original Side of the Calcutta High Court.

In appe~I to the High Court, it was argued that (a) no notice under s. 77 was necessary in the case of non-delivery of goods (b) alternatively, notice in terms of the said section had been served by the appellant and ( c) the plaintiff was entitled to

the benefit of s. 14 of the Limitation Act. The greater part of the judgment of the High Court was devoted to the first question which was answered against the appellant.

The second contention was summarily turned down by the observation that there was nothing on the record to show that the Chief Commercial Manager had been held out as the authority comtent to receive notice under s. 77 of the Act. The question of lunitation was not decided in view of the above although the learned Judges felt inclined to allow the appellant the benefit of s. 14 of the Limitation Act. ·

The relevant portion of s. 77 of the Indian Railways Act (IX of 1890) provided that

"a person shall not be entitled to ... .'compensation for the loss, destruction or deterioration of animals or goods delivered to be .... carried unless his claim to the refund or compensation has been preferred in writing by him or on his behalf to the railway administration within six months from the date. of the delivery of the animals or goods for carrige by railway."

Section 140 of the Act provided that "any notice or other document required or authorised by the Act to be served on a railway administraiion may be served, in the case of a railway administered by Government .... on the Manager ..... by delivering the notice or olher documents to the Manager ... or by leaving it at his office or by forwarding it by post in a pre-paid Jetter addressed to the Manager .... at his office." Under s. 3

cl. (6) of the Act, unless there is something repugnant in the subject or context "railway administration" or "administration" in the case of a railway administered by the Government means "the manager of the railway and includes the Government. .... "

In this case, there can be no dispute that if notices to the Chief Commercial Manager (Claims and Refunds) complied with the terms of section 77 of. the Act 'the most serious obstacle to the appellant's success in this appeal would be overcome.

It therefore becomes necessary to consider the ambit and effect of the said section.

The scope of section 77 has come up for consideration bv various High Courts at different times.

It is not necessary to refer to the same; put we may refer to a decision of this Court in Gol'emor General i11 Co1111cil v. Musaddi Lal('). It was there observed that :

"Section 77 of the Railways Act is enacted with a view to enable the railway administration to make en-

(1) (1951) 3 S.C.R. 647, 651.

!<IRANJAN LALL I'. UNION (Mitter,.].)

quiries and if possible to recover the goods and to deliver them to the consignee and to prevent stale claims.

It imposes a restriction on the enforcement of liability declared by s. 72. The liability declared by s. 72 is for loss, destruction or deterioration.

Failure to deliver is the consequence of loss or destruction of goods; it does not furnish a cause of action on which a suit may lie against the railway administration, distinct from a cause of action for loss or destruction."

This aspect of s. 77 was again referred to in Jetmull Bhojraj v.

The Darjeeling Himalayan Railway Co. Ltd.('). There it was observed that the object of service of notice under s. 77 being essentially to enable the railway administration to make an enquiry and investigation as to whether the ls. destruction etc. was due to the consignor's ]aches or to the wilful neglect of the railway administration and its servants, the notice under s. 77 should be liberally construed. To quote the words of the judg ment of the majority Judges :

"In enacting the section the intention of the legislature must have been, to afford only a protection to the railway administration against fraud and not to provide a means for depriving the consignors of their legitilnate claims for compensation for the loss or damage caused to their consignments during the course of transit on the railways." Jn the light of section 3(6) there would be sufficient compliance with section 77 if the notice was served on the Manager of the

State owned railway.

Section 140 only provides for the man ncr of service of notice. The Bengal and Assm Railway administration did not have an authority known as the Manager. It had a General Manager as also another high ranking officer i.e. the Chief Commercial Manager (Claims and Refunds) working in the head office of the company at Calcutta. As the said statu tory Qrovisions do not make it obligatory to serve a notice under s. 77. on the General Manager of a State-owned Railway, it is difficult to see why a notice served on the Chief Commercial Manager (Claims and Refunds) would not be a proper notice under the said section. The General Manager is in overall charge of many departments of the railway administration and is not particularly or immediately concerned with dealing with claims against the ranway administration. The Chief Commercial Manager (Claims and Refunds) is the authority specially engaged in the _ enquiry into such claims and would therefore prlma facfe appe_ar to be competent to deal with the claims by consignors or consignees against the railway administration envisaged by s. 77

ro [196312 s.c.R. sn, R4~.

SUPRBME COURT RBPORTS

[1968] 3 S.C.R.

of the Act.

He is not a person of such inferior status that it can be said that a claim preferred as regards non-delivery would not be properly investigated or looked into for finding out the truth or falsity of the claim preferred. Apart from any authority it seems to us that a notice on the Chief Commercial Manager (Claims and Refunds) of a State-owned railway administration would be in terms of s. 77.

The question came up for consideration before a Full Bench of the Patna High Court in Governor-General in Council v.

G. S. MilLf Ltd.('). There are learned Judges of the Patna High Court examined the various aut.horities of the High. Courts of Madras, Lahore, Bombay, Allahabad and Calcutta.

On a conspectus of all the authorities referred to, the answer to the question posed before the Full Bench was as follows :

"The requirements of section 77 read with s. 140, Railways Act, 1890 are satisfied by serving a notice within the prescribed time on the Chief Commercial Manager or any other subordinate officer of a Railway owned by the Government of India, provided it is established as a fact that the Railway Company by its course of business or the terms of the contract between the parties has hel.d out a particular official as competent to deal with the claims on receipt of a notice to him."

There is a current of authority in the Calcutta High Court which is in line with the above Patna decision. We are in complete agreement with the view expressed by the Full Bench of the Patna High Court. In our opinion, it is only in the case of an authority subordinate or inferior in rank to the Chief Commercial Manager that proof of competence to deal with the claims would be called for.

The question has now become academic in view of the recent amendment of the Railways Act.

The second point about limitation is not of any substance.

The appellant had filed a suit in the Calcutta High Court on its Original Side for recovery of compensation within time. The despatch of the goods had taken place from Sealdah which is on the border of the territorial limits of the jurisdiction of the Calcutta High Court.

It would appear from the plaint that the plaintiff was under the impression that the head office of the Bengal and Assam Railway administration being situated within the said limits. his suit could properly be instituted in the High Court. The Subordinate Judge was not right in holding that the suit had not been proceeded with bona fide. The learned Judes of the Division Bench of the High Court were disposed to give

(I) 1.L.R. 28 Patna 17S.

' j

the plaintiff the benefit of s. 14 of the Limitation Act and nothing has been shown to induce us to take a different view.

The judgment and decree of the High Court are therefore reversed.

The appeal is allowed with costs throughout and the plaintiff's suit decreed for the amount claimed and interest pendellle lite at 6% per annum.

Before parting with the case, we however wish to make a remark against the conduct of the authorities of the railway administration concerned in the disposal of claims like the one in the present appeal. There is no suggestion anywhere that the plaintiff's claim was not genuine.

The railway authorities had promptly issued certificates of shortage in respect of the consignments.

There is nothing to show that the Chief Commercial Manager found any defect in the plaintiff's claim. If the claim had been settled in good time, the public exchequer would have been spared not only of its own costs of litigation which will be considerable but the costs which will have to be paid to the appellant. It does not behove the State to contest a good claim on the off-chance of success on some unsubstantial technical plea.

V.P.S.

Appeal allowed;.

NIRANJANLALL AGARWALLA

UNION OF INDIA

March 7, 1968

C. SHAH

V. RAMASWAMI

G. K. MITTER, JJ.

ss. 3(6), 77 and 14Q

s. 77

s. 14

Calcutta

s. 77

Limitation Act, 1908

s. 77

Railways Act, 1890

s. 77

s. 77

1961] 3 S.C.R. 647

1963] 2 S.C.R. 83

s. 14

Limitation Act

Calcutta High Court

B. C. Misra

S. S. Shukla

V. A. Seyid Muhammad

K. L. Hathi

R. N. Sachthey

Mitter

Art. 133(l)(c)

Constitution of India

West Bengal

section 77

Railways Act

Sealdah

June 9, 1945

September 24, 1945

Cooch Behar

Bengal and Assam Railway

July 20, 1945

August 11, 1945

November 12, 1945

New Delhi

November 27, 1945

Bengal

Assam Railway

October 10,

1945

February 14, 1946

October 24, 1945

s. 77

Railways Act

s. 80

the Code of Civil Procedure

14, 1946

14th August 1946

July 16, 1954

August 5, 1954

s. 14

Limitation Act

Union of India

Railways Act

s. 77

s. 14

Limitation Act

s. 77

s. 14

Limitation Act

s. 77

Railways Act

Section 140

s. 3

section 77

section 77

Section 77

Railways Act

(1951) 3 S.C.R. 647

s. 72

s. 72

s. 77

s. 77

s. 77

section 3(6)

section 77

Section 140

Bengal and Assm Railway administration

s. 77

s. 77

SUPRBME COURT RBPORTS

[1968] 3 S.C.R.

s. 77

Patna High Court

High. Courts of Madras, Lahore

Bombay

Allahabad

section 77

s. 140

Railways Act, 1890

Government of India

Patna

Railways Act

s. 14

Limitation Act