KAR!'.'ESH KUMAR SINGH & ORS.

THE STATE OF UTfAR PRADESH

April 15, 1968

[V. RAMASWAMI, J. M. SHELAT AND V. BHARGAVA, JJ.] Indian Penal Code, 1860, ss. 302, 201 and 149-Whether inconsistencies and discrepancies in evidence showed misca"iage of justice-Four out of ten appellants sentenced to death a11d others to life imprisonment- Distinction bared on the four being anned with dangerous weapons-If sustainable on evidence.

Evidence Act, 1872, s. 114(8)-Adver.ve inference when prosecution does not produce some of the eye .. witnesses--When may be drawn.

The ten appellants were convicted under ss. 302 and 20 I both read with s. 149 of the J.P.C. mainly on the evidence of four eye-witnesses who were members of the family di the two murdered persons. Four of the appellants Were sentenced to death and the rest to imprisonment for life.

The High Court confirmed the convictions and sentences.

In appeal to this Court by s)'OCiaJ leave it was contended, inter alia, on behalf of the appellants that (1) there were various discrepancies and inconsistencies in the evidence showing miscarriage of justiC'e; (ii) though two iildepen• dent eye-witnesses were available they were purposely excluded and only the family members were examined as eye-witnesses; and the High Court had wrongly refused to draw !from therr non-examination an adverse inference under s. 114(g) of the Evidence Act; and (iii) the sentences on the appellants were wrongly confirmed by the High Court.

HELD : (i) There was no reason to interfere with the concurrent findings of the trial court and the High Court that !he appellants were responsible for the deaths of the two deceased persons and were guilty di the offences they were charged with. [782 E]

(ii) The prosecutor need not examine witnesses who, in his opinion, have not witnessed the incidem. Normally, he .ought to examine alt the eye-witnesses in support of his case. But in a case where a large number of persons have witnessed the incident, it is open to him to make a selec ti on which must, however, be fair and honest and not with a view to suppress inconvenient witnesses. If it is shown that persons who had witnessed the ino.ident have been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case. [781 G-H; 782 Al

In the present case, the prosecution had explained that the two independent eye-witnesses were not necessary. The defence remained content with that explanation and did not a.Sk the other concerned witnesses any questions to elicit why these two persons were considered unnecessary witnesses.

Furthermore, there was nothing in the evidence to suggest that they were not produced because they would have turned out to be inconvenient witnesses.

It was not therefore possible to say that the prosetion had delibertely withheld these two persons for any oblique motrve or that the High Court ought to have drawn an adverse inference. (782 C-Dl .

(iii) The sentence of death on four o[ the ten appellants must be set aside and the sentence _of rigorous life imprisonment substituted therefor.

KARNESH KUMAR v. STATE (She/at, I.) 775

Jn imposing the sentence of death on four of the appellants the trial court made a distinction between them and the others as three of them \v\lre armed with firearms and the fourth with a hatchet This reason for imposing the extreme penalty on the four appellants could not be sustam ed on the evidence as the others were also armed with equally dangerous weapons. Jn the absence of evidence as to who inflicted the 'fatal blows, the same punishment should have been imposed on all of them. [783 C-Dl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 213 of 1967.

Appeal by special leave from the judgment and order, dated May 19, 1967 of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Appeal No, 118 of 1967 and capital sen tence No. 11 of 1967.

R. K. Garg, S. C. Agarwala, D. P. Singh and A. K. Gupta, for the appellants.

0. P. Rana, for the respondent.

The Judgment of the Court was delivered by

Sbelat, J.-This appeal, by special leave , is directed against the judgment of the High Court of Allahabad which confumed th.e convictions and sentences passed by the Sessions Judge, Hardru, in respect of the murders of Lal Singh and his father Harihar. The ten appellants on being convicted under ss. 302 and 201 read with s. 149 of the Penal Code were awarded various sentences. Four of them, namely, Karnesh Kumar, Krishna Kumar, Kaushal Kumar and Chhetrapal were awarded death sentence and the rest imprisonment for life.

At the material time, the two deceased, along with the metn bers of their family, and the appellants lived in village Nir in District Hardoi, and, except for appellants Jugal Kishore and his brother Kailash Narain, they are close relations, their common ancestor being one Jhabha Singh. The evidence, however, shows a long-standing enmity between the members of the branch of Sobaran Singh, one of the sons of Jhabha Singh, on the one hand and the rest of the descendants of Jhabha Singh on the other. It also shows that since 1950, there has been intermittently civil and criminal litigation between the parties, the last of such litiaation before the incident in question being in respect of an inidcnt which took place on April 3, 1966 when appellant Ram Kumar' charged the deceased Harihar and Lal Singh, and witnesses Jiten dra an!i Virendra and two others with rioting and witness Virendra in tum; filed a cross complaint against the appellants and som~ otbers.

According to the prosecution, at about 1 p.m. on June 5, 1966, Lal Singh was irrigating his field with canal water when appellants L8 Sup. C.1./68-10

776 SUPRBMB COURT llBPOllTS•

(1968] 3 S.C.R.

Karnesh and A vdesh diverted the water into their field.

There was an exchange of abuses. between them in the course of which appellant Karnesh was said to have threatened that he would not rest until Lal Singb was done to de\th. At about 5.30 that even ing, Jitendra, Virendra and Girendra, P. Ws. 1, 6 and 8 were in the main room of the Chaupal where Lal *ngb lived and Lal Singb was in a room nearby. Fifty paces awat from this house is the house where the deceased Haribar lived. Suddenly, a shout was heard to the effect that Lal Singh shoul~ be dragged out. On hearing the shout; these witnesses and Lal Singb came out. The witnesses saw appellants Krishna and Chhetrapal armed with guns, appellant Karnesh with a pistol, Ram Kumar and Jugal Kishore with spears, appellants Kaushal and Mahendra •with bankas and the rest with Jathis. As soon as Lal Singh came out, appellants Krishna, Chhetrapal and Karnesh simultaneously fired at him whereupon Lal Singh fell on the ground, On being threatened that the witnosses would also be shot, they ran away and stood at some distance. Five of these appellants, namely, Chhetrapal, Kaushal, Mahendra, Kailash and Jugal Kishorc then ran to Hari bar's house where appellant Jugal Kishore struck Harihar with a spear in his face and then appelJants Kaushal an\! 1 ugal Kish ore dragged him to where Lal Singh had fallen. Chhetrapal then fired at Harihar with his gun; J ugal Ki shore gave another blow with his spear in the chest and the rest beat him with bankas and lathis.

Haribar also. died on the spot. Appellants Kailash, Juga) Kishore, Kaushal and Mahendra followed by. Chhetrapal with his gun, lifted Harihar's. body to the field of one Sita Ram where they set fire to it. The other five appellants took Lal Singh's body to the Bathis of P.W. 4, Abdul Bari, and burnt it there on a heap of

cowdung cakes.

Having thus tried to do away with the dead bodies, appellants Kaushal and Mahendra scraped the blood stained earth whete Lal Singh had fallen as also the drops of blood which had fallen on the way.

P. W. 1, Jiteridra, started on cycle to the Kotwali six miles "way and lodged the F.l.R. at about 6.-45 P.M. Inspector Jaswant Singb, P. W. 17, started for the scene of offence f73Ch_!ng there at about 7.45 P, M. The fires were put out but \al Smgb s body had practically been burnt out with the rei.ult that the Inspector could G collect only his bones and ashes. But he was able to recover the half burnt body of Harihar. That nigbt he recorded the statements of P. Ws. 1, 6, 7, 8, 14 an~ of certain other persons. On the 7th and 8th he recorded further statements. On June 20, he recorded the statments of Ragbubar, P. W. 9 and Gopali, P. W. 12. It appears that statements of these witnesses were recorded late 1!5 these and other residents, presumably on account of fear of repn

Sais or to avoid. having to figure as witnesses, had fled from the village.

KARNESH KUMAR v. STATE (Shelat, /.) 777

The evidence on which the prosecution mainly reUed was that of the four eye witnesses. Of these, Jitendra, P. W. l, the son and brother of Harihar and Lal Singh respectively, Virendra, P. W. 6, his cousin, and Girendra, P. W. s, a boy of 14 years of age and the yoimger brother of Lal Singh deposed to the assault by the appellants on both the deceased. Santosh Kumari, P. W. 7, the daughter of Harihar, deposed only to the assault on Harihar in the house. Besides this evidence, the prosecution examined Raghubar, Jeet, Gopali and Surat Singh, P. Ws. 9, 11, 12 and 14, the neighboqrs of the d119eased, who in one part or the other corroborated the eye witnesses. Gopali's evidenee was, however, the only direct evidence as to the scrapping of the blood-stained earth by two of the appellants but that evidence was not relied upon by the High Court on the ground that his name was not mentioned in the F.I.R. and his statement was recorded late. There was, however, the evidence of the eye witnesses that blood had dropped where Lal Singh had fallen and of the Investigating Officer that when he inspected the site that night, though he found no blood

mar~. he noti<:ed that the earth at that plaee had been scrapped.

It is clear that, no one except the assailants, who had burnt of the dead bodies of Harihar and Lal Singh to do away with evidence as to the two murders, would be interested also in doing away with an equally important evidence as to the place where Lal Singh had been killed by scrapping off the blood where he had fallen. Scrapping of blood from that place was thus in line with and part of the strategem of burning the bodies of the victims so as not to leave

any evidence of the killing of the two men. This part of the evidence lends support to Jitendra's case that Lal Singh was fited at and fell at or near the intersection of the toads just outside his house.

It is true that only these four members of the family figured as eye-witnesses.. But that fact alone cannot mean that P. W. 1 or the investigating agency excluded other available independent witnesses. This is clear from the fact that fhe F.I.R. mentions a number of persons whom P. W. l thought to be eye-witnesses.

There is evidenee tha\ the incident had created panic in the village and a number of residents. had lied and had stayed away possibly with a view to avoid having to figure as witnesses. It is, therefore, hardly surprising that only the members of the family came forward as eye-witnesses. But as . they were interested witnesses both by

reas~ of their being .m7ffibers of the family and their g the hostility of the tw!> VIClims towards lhe appellants, thenevidence

had to be examined with care and caution. But there was circumstantial evidence to lend support to their account of the incident.

That evidence established the following facts : ( 1) the long standing enmity be!Wcen the parties, (2) the incident having taken place at about 5-~0 P.M., (3) the burning of the two bodies by the appel

778 SUPUMJI COtlaT UtOl.TS

[1968} 3 S.C.R.

lants, ( 4) the scrapping of the earth to wipe out the blood-stains A

(5) P. Ws. 6 and 8 having run to the house of Surat Singh, P. W. 14, the village Pradhan and having informed 1iim of the incidel).t,

(6) P.W. 1 lodging the F.I.R. without any ay and giving themn the details of the incident, thenames of the appellants and of witnesses whom he thought to be eye witncases .and (7) the injuries on Harihar'& body which could still be seen by Dr.

B Srivutava though it had been burnt, indicating three types ef Weapol!S having been deployed against him, namely, a fire-arm, a spear and. a sharp cutting instrument.

The trial court and the High Court found fro)ll this evidence that the account of the incident given by the witnesses was acceptable despite certain discrepancies therein, that it occurred at about C 5-30 P.M., that Lal Singh was shot at and killCJ!I just outside his house, that Harihar was first attacked inside his house and "then dragged to where Lal Singh's body lay and was there killed, that the appellants were responsible for the assault and the consequent deaths of the two victims; that in order to leave no trace of the two assaults they burnt the bodies Of the victims and scrapped the earth D where blood had fallen, that they formed an unlawful assembly of which the common ol?iect was to murder the father and the son and that they attacked and killed both in furtherance of that common obiect and then tried t~ do away wi~ the evidence of t!ieir acts and burnt the two b<)cbes. These being COii.current findings of fact, we would not normally proceed to review tfie evidence unleu it is shown that the trial is vitiated by some illegalitY or irregularity of procedure or that it was held in a manner contrary to rule1 of natural justice or the judgment under appeal has resulted in gross miscarriage of justice : (cf. Kirpal Singh v. State of

U.P.).(1)

Counsel for the appellants, however, contended that such a miscarriago of justice has ted in the present case. He argued that

the trial court and the High Court failed to appiate from the evidence on record that the prosecution had dell'1erately. tried to shift the time of the incident at S-30 that eVeni!J.g though the incideat must have taken place subsequently, in Oider to enable the four witnesses to pose as eye witnesaes. The evidence of Jitendra G and the Investigating Olftcer was that the F.l.R. was lodged at 6-45 P.M. and that Jitendra had started from the village at 6 P.111.0ll cycle for the police station. The evi~ of _the Investi gatiag Officer also is that he reached the spot soon thereafter, that the body of Harihar was not fully burnt out and tliat he could manage to extract the half burnt body ham the lire. T!ie evidence of Dr. Srivastava .supp0rts this evidence in a large measure. It is manife&U that if the incident took place at nigh~ and P. W. 1 had

. (I)· [\964] 3 S.C.R. 992, 996.

XARNESH l:UMA!l V. STATE (She/at, /.) 779

A not seen it, he could not have reported it to the police officer in time to enable the police officer to arrive at the scene and m:act the half burnt body of Harihar from the fiie. ThiS fact clearly supports the prosecution that the incident took place that evening and not at night. But reliance was placed on the fact that postmortem examination on Harihar's body was made by Dr. Srivaatava 1 at 5 P.M. on June 6, 1966. The argument was that il' the~ had been despatched to the mortuary soon after i_t was recovered by the police officer, it would have reached the mortuary earr and the post-mortem examination would have been carried out earlier. But the evidence of Maqbool Khan, P. W. 15, shows that the body was given to him at 10 that night, tha~ he carried it in a C bullock cart, that be started at about 1 A.M. but on the way he

feared that the body might be taken away from him and, theore.

he stopped at an intervening village till sunrise and reached the mortuary at, 6-30 A.M. It is true that the doctor said that be performed the post-mortem examination at 5 P.M. and not at 1 P.M. as the constable deposed.

Obviously, the constable appears to have delayed in his mission and there was a gap Of time tict, reen D the body reaching the mortuary and the time when the postmortem examination was performed. But the delay in the postmortem examination does not mean that the Investigating Officer had not banded over th~ body to the constable that night or tilat the incident did not takt:1 place in the evening of _the 5th of June or that the F.I.R. was not lodged at 6-45 P.M. as testified by P. W.

E I . Reliance was next placed on the evidence of the Magistrate at Hardoi that he received the special re_\1?I_t about the incident on June 6, 1966. The contention was that if the Investigating Officer

had sent the special report before he started for the scene of the offence, as stated by him, the Magistrate was bound to receive it on the night of the 5th and not on the 6th of June. But the Magistrate admitted that he had not noted the time when he F received it on the 6th. He also adIµitted that he could not say whether he was in Hardoi on the 5th of June, it being a Sunday, and that it was possible that his peon might have received it in the evening of the 5th and placed it before him on the fith of June when he noted the date of its receipt There is also evidence of

the Reader to the Superintendent of Police, Hardoi that his office G had received the General Diary of the 5th ou the 6th and of the 6th on the 7th June. This controversy is set at rest by the evidence of the Head Constable, P.W. 13, that he had sent constable Abdul Hafi.2' at 7-30 P.M. on the 5th June to tl!e Magistrate with the special report and that Abdul Hafiz had returned to the police station at 9-30 that night after delivering 8 it and that this fact was noted by him in Ext. Ka-6. This evidence establishes that the Investigating Officer had sent the special report on the 5th of June and that that report was carried to Hardoi that very night. Consequently, it must be held that the incident took

780 [1968] 3 S.C.ll.

place in the evening of the 5th of June and that P, W. 1 was right A when he claimed that he bad given the F.I.R. at 6-45 P.M'..

The next contention was that the place of attac_k on Lal Singh was not on the road but in Harihar's house. We find llO' basis for this contention. The evidence. of witnesses on the other hand, is clear and there no reason to disbelieve it. That eviilence is sup- B ported by the evidence of the Police Officer that he found signs of scrapping of the earth at the place where, according to tJi, c prosecution, Lal Singh bad fallen.

The next contention was that witnesses Jitendra and Smtosh Kumari bad tried to ml!ke improvements in their evidence, the former by stating that the three accused who were armed with fire. arms bad shot simultaneously at Lal Singh though in the F.I.R. he bad only said that three shots were fired without stating who had fired them, and the latter by stating that Jugal Kisbore bad struck his spear in the eye of Haribar, which allegation was not borne out by the medical testimony. These infirmities, no doubt, are in their evidence. But they were considered by the High Court and yet on an examination of the entire evidence, it accepted their evidence as reliable.

That three shots were fired was stated by witness Jitendra both in the F.I.R. and in evidence. It may be l!hat from that fact coupled with the fact that the three appellants were anned with fiN>-aims, he might have inferred that all the three had fired. For a witness like him, it was ible not to be able to distinguish between a fact seen by him and an inference drawn by him. Failure to appreciate such a distinction cannot mean that

he was deliberately improving upon his original version. As regards Santosh Kumari, a spear injury was inflicted on Harihar's face and that injury must have covered his face with blood. It is p06Sible that she mistook that injury to be one in the eye, especially as it in her evidence that appellant Jugal Kisbore had at that time F said that Harihar should be struck in his eyes. These infinnities, even if they can rightly be so tenned, cannot discredit their testimony so as to render it unacceptable.

Counsel then argued that though P. Ws. 9 and 11 were referred to in the F.I.R. as eye witnesses, they did not come out in their G evidence as eye witnesses and that that fact showed that P. W; 1 had tried to introduce them falsely as eye witnesses. He forgets, b<>Wever, that there are two distinct alternatives, ( l) that be saw them at the scene of the offence after the incident and believed they had seen it and ( 2) that thoug!i the witnesses had seen it, like the other neighbours, they preferred not to figure as eye witnesses H and circumscribed the scope of thcir evidence to what . they had seen after the assault. In either event, P. W. 1 cannot be said to have falsely tried to usher them in the F.I.R. as eye witnesses.

KARNESH KUMAR v. STATE (Shelat, J.) 781

The argument which counsel strenuously .urged was that though independent .eye witnesses were available, they were purposely excluded and only the family members were examined as eye witnesses. In this connection he relied on the F.I.R. where P. Ws. 9 and 11, one Chhuta Bhurji, Alha Singh, Lakhan Singh, Paragu, Parsadi, Sishupal, Girdhari Kachhi and "some other men" were said to be witnesses. In his evidence also P. W. 1 has mentioned that these persons and a few others were present at the time f the incident. And yet these persons were not examined. The prosecution, however, did explain that these persons were not examined either because they had been won over by the opposite side or because some of them had failed to identify the appellants from the identification parades held for them, which, according to the prosecution, indicated that they had been won over. The explanation, however, does not apply to two persons, viz., Parsadi and Paragu, for whose non-exrumnation the only explanation given was that they were not necessary witnesses. The High Court does not appear to have been satisfied with this explanation and, therefore, hasobserved that it would have been better if these twopersons

had been examined. At the same time it refused to draw from their non-examination an adverse inference under s. 114(g) of the Evidence Act.

Counsel argued that the High Court erred in declining to do so and relied on Habeeb Mohammed v. State of Hyderabad('), where it has been observed that it is the bounden duty of the prosecution to examine a material witness particularly when no allegation has been made that, if produced, he would not speak the truth. The decision further observes that not only does an adverse inference arise against the prosecution case from his nonproduction as a witness in view of illustration (g) to section 114, but that the circumstance of his being withheld from the court would cast a serious reflection on the fairness of the trial. In Darya Singh v. State of Punjab (2) also this Court has observed that a. prosecutor should never adopt the dvice of keeping back eye w1tnesse:" only because their evidence is likely to go against the prosecution and that the duty of the prosecutor is to assist the

Caurt in reaching a proper conclusion. It is open, however, to the secutor not. to. examine witnesses who in his opinion have not w1tnes.sed the !nc1dent, but nrmally, he ought to examine all the eye witnesses m support of his case. But in a case where a

lrge number of perons have witnesed the incident, it is open to him to make a seltJon. The selection must, however, be fair and honest and. n.ot. with a view to suppress inconvenient witnesses.

Therefore, 1f 1t 1s shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an

(I) A. I. R. 1'54 S.C. 51.

\2) {1964] 3 S.C.R. 397, 408.

782 SUPJ.U!MB COU&T &BPOllTS

[1968] 3 S.C.R.

adverse inference and in a proper case record such failure as con- A stituting a serious infirmity in the proof of the prosecution cas~.

As stated earlier, it appears that the persons mentioned by P. W. I were not examined either because the prosecution believed that they had been won over by the opposite side or because in the parades held for them they had not identified the appellants or committed errors. If that was so, it is manifest that no useful pur- B pose would have been served by examining the persons who had failed to identify the appellants. But then neither Parsad nor Paragu falls in this category of persons for the explanation given in regard to them was that they were not necessary. For one reason or the other the defence seems to have remained content with that explanation, for they asked no question either to P.W. I • c or to the Investigating Officer to elicit why these two pe:i:sons were considered unnecessary witnesses. It may be that if a clarification had been demanded, they would have given some explanation.

Besides, there is nothing in the evidence to suggest that they were not produced because they would have turned out to be inconvenient witnesses. The High Coun on an examination of the evidence held that it was not possible to say that the prosecution had delibe- D rately withheld these two persons for any oblique motive. In these circumstances it is difficult to persuade ourselves to take the view pressed upon us by counsel that the High Court ought to have drawn an adverse inference.

For the reasons aforesaid, the contentions of Mr. Garg cannot be sustained. Consequently, we do not find any reason to inre_rfere with the concurrent findings of the trial court and the High Court that the appellants were responsible for the deaths of Lal Singh and Harihar and were guilty of the offences charged against them.

As regards the sentence of death imposed on appellants Kamesh, Krishna, Kaushal and Clihetrapal, it is difficult for us to agree with that order passed by the trial court and confinned by the High Court. In imposing the sentence of death on these four appellants, the trial court made a distinction between them on the one hand and the rest of the appeliants on the other. The distinction was made on the ground that three of them were armed with fire-arms and that they all fired at Lal Singh simultaneously, that appellant Chhetrapal had shot at Harihar also and finally, that appellant Kaushal had given a hatchet blow to Harihar. In our view, the evidence on which this distinction was made cannot be said to be fully satisfactory. It is true that P. W. 1 while giving evidence stated that the three appellants had fired simultaneously at Lal Singh, that Chhetrapal had also fired at Harihar and that Kaushal had given a hatchet bl()W to him. But the F.I.R. merely

states that three shots were fired at Lal Singh but does not state that they were fired by the three appellants simultaneously, nor does it state that Chhetrapal had fired at Harihar after he had been

KARNESH KUMAR v. STATE (She/at, /.) 78 3

dragged out on the road. It is hardly conceivable that if P. W. l had seen these appellants firing either at Lal Singh or at Harihar. he would have forgotten 10 make a positive statement about it in the F.I.R. In view of this omission, it is difficult to build the conclusion with any certainty on his subsequent statement that the three appellants had simultaneously fired at Lal Singh and that Chhetrapal had shot at Harihar after he had been brought out of the house. The possibility of any one or two of them having fired the three shots in quick succession cannot, therefore, be ruled out.

In that case the distinction made on tlie basis that all the three of them. had fired at Lal Singh cannot be sustained. Therefore, the reason given by the trial judge for imposing the extreme penalty on four appellants as against the rest becomes difficult to sustain. It is true that these four appellants were armed with firearms and a hatchet. But the others also were armed with equally dangerous weapons, such as spears and bankas. The said distinction being not sustainable, the proper pWiishment that should have been awarded to the four appellants in the absence of clear evice as. to who inflicted the fatal blows, should have been the same punish- D ment as imposed on the rest. We have. therefore, to set aside the sentence of death imposed on the aforesaid four appellants and impose on them the sentence of rigorous imprisonment for life.

Except for this modification the appeal fails and is dismiss.ed.

R.K.P.S.

Appeal dismissed_

KAR!'.'ESH KUMAR SINGH & ORS

THE STATE OF UTfAR PRADESH

April 15, 1968

V. RAMASWAMI, J.

M. SHELAT

V. BHARGAVA, JJ.

Indian Penal Code, 1860

ss. 302, 201 and 149

Evidence Act, 1872

s. 114(8)

ss. 302 and 20

s. 149

s. 114(g)

May 19, 1967

R. K. Garg

S. C. Agarwala

D. P. Singh

A. K. Gupta

P. Rana

Sbelat

High Court of Allahabad

Lal Singh

Harihar

ss. 302 and 201

s. 149

Penal Code

Karnesh Kumar

Krishna Kumar

Kaushal Kumar

Chhetrapal

Nir

Hardoi

Jugal Kishore

Kailash Narain

Jhabha Singh

Sobaran Singh

April 3, 1966

Ram Kumar

Jiten

Virendra

Karnesh

Lal Singb

Jitendra

Girendra

Lal *ngb

Haribar

Krishna

Ram Kumar

Kaushal

Mahendra

Jathis

Kailash

Jugal Kishorc

Hari

Chhetrapal

J ugal Ki shore

Haribar

Juga

Kishore

Sita Ram

Abdul Bari

Jiteridra

Kotwali

Jaswant Singb

Ragbubar

Gopali

Santosh Kumari

Raghubar

Jeet

Surat Singh

Jitendra

B Srivutava

Jitendra G

Srivastava

XARNESH l:UMA!l V. STATE

Srivaatava

June 6, 1966

Maqbool Khan

Abdul Hafi.2

Abdul Hafiz

Smtosh Kumari

Jugal Kisbore

Santosh Kumari

Jugal Kisbore

Chhuta Bhurji

Alha Singh

Lakhan Singh

Paragu

Parsadi

Sishupal

Girdhari Kachhi

s. 114(g)

section 114

1964] 3 S.C.R. 397

Parsad

Paragu

Garg

Harihar

Kamesh

Clihetrapal

Kaushal

Harihar


UNION OF INDIA

MIS. KHAS KARANAPURA COLLIERY LTD.

April 15, 1968

;.,,_ [R. S. BACHAWAT AND K. S." HEGDll, JJ.]

• '.: 9"< . CiiJlstitu:ion of India, 1950, Art. 226--Jurisdiction of court to deal .. With _-qUsiign not specifically raised in writ petition-Land of lesttl for

wjnnfog-coo1 notified under s. 4(1) of Coal Bearing Areas (Acquisition .ami Development) Act (20 of 1957)-lf lessee aggriev.d-Wri• petition

filed; ifllltput 5 months after issue of notifiCation-lf amounts to /aches.

Tiit'¥espondent was a lessee of 1401 bighas of land and was carrying C -oil mining operations on the land for winning coal.

On 9th October 1963, the appellant-Government issued a notification under s. 4( 1) of the Coal Bearing Areas (Acquisition and Development) Act, 1957, giving notice of the Government's intention to prospect for coal in f200 bighas .<Jf the leasehold land. These 1200 bighas covered land, on which, amongst other buildings, a railway siding, boiler roos, office rooois1 fan house and air shaft premises were situate.

On 23rd March 1964, the D respondent filed a writ petition in the High Court challenging the notification as contravening s. 4( 4) of the Act. and the High Court quashed the notification.

In appeal to this Court,

HELD : (1) In the premises notified, processes ancillary to the getting, dressing or preparation for sale of coal obtained as a result di the mining operations were being carried on, and therefore the impugned E notification violated the second limb of s. 4( 4) and was invalid.

[787 D-EJ .

(2) Though no specific case under the second part of. s. 4(4) was pleaded in the writ petition, all the facts neces5ary for determining the question were before the Court and the matter was fully argued in the High Court without any objection. Therefore, it could. not he urgood that it was open to this Court to consider that aspect of the case.

F [787 F: 788 Al

(3) Under s. 5 of the Act the effect of the notification was to require the respondent to bring to a halt all his operations in the notified area till action was taken under s. 7 or till the period prescribed in that section came to an end. Therefore, the respondent was aggrieved by the impugned notification. !787 BJ ( 4) The delay in filing the writ petition was not sufficient to refuse G relief to the respondent [786 Gl ( 5) J.lf the notification was invalid, it is not for this Court to decide whether any other area of the leasehold could have been notified. [788 Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 332 of 1965.

Appeal from the judgment and decree, dated October 30, 1964 H <Jf the Patna High Court in Misc. Judi. Case No. 643 of 1!164.

Syed Mohammed and S. P. Nayar, for the appellant.

...

UNION v. K: K. COLLIEllY (Htgde, !,) 785

A A. K. Sen, S. C. Banerjee and A. K. Nag, for the respondent.

The Judgment of the Court was delivered by

Hegde, J.-In this appeal by certificate the question for decision is whether the Higl]. Court of Patna was-correct in its conclusion that the notification No. S. 0. 29_91 issued by the Union B Government on October 9, 1963 under s. 4(1)* of the Coal Bearing Areas (Acquisition and Development) Act, 1957, (No.

20 of 1957 )-hereinafter called "the Act" is violative of sub-s.

(4) of that section.

The facts of the case fall within a narrow compass. The respondent, Khas Karanpura Colliery Limited, tooT on lease 1401 bighas of land in mouza sale in the district of Hazaribagh as per a registered lease deed of July 8, 1949, for the purpose of winning coal. Thereafter it commenced working the colliery in 1952.

Certain seams were opened up. Electric transmission lines were put up, staff quarters, office quarters, houses for labourers, hospital,

school etc. were built. _ For the purpose of despatching the oal. a separate railway track was constructed and a railway siding 6uilt.

These works were completed long before the impugned notification was issued. Under the notification in question 1 ZOO bighas of land were notified with a view to acquisition, which included areas on which the railway siding, staff quarters, boiler house, houses for labourers etc. were constructed.

The respondent challenged the validity of the said notification in MJC No. 643 of 1964---'an application unaer _Art. 226 of the Constitution-before the High Court. The main contention taken in the writ petition was that the notification in question contravenes sub-s. ( 4) of s. 4. The High Court accepted that contention and quashed the notification.

. The. aterial facts are more or less admitted. Along with its wnt petit10n the respondent produced a plan of the colliery showing therein the railway tr11_ck, the railway siding, labour quarters, office premises and various other buildini:s 'put up on the laad.

I~- had also shwn therein the actual places where mining operations were earned on. The correctness of t!lls plan has not been !' "4 (!) Wbe_, it appean to the Central Government that coal is likely to he ~10C4 from}aJ'!d in c_my locality, it may, by notification in the Official Gazette, g1vc notice of rts 1ntcnt1on to prospect for coal therein. ,~

(2) ., ............... _ ..... .

(3) ...................... ..

(4) In issuing a notificat!on under this section, the Central Government shall exclude from that portion of any land in which coal mining operations are

ctually being carried on in conformity with the provisions of any enactment rule or o~. for tbc. time being in force or any premises on which any process aiuarY to the dq <!r prepara!ion for sale of coal obtained as a result of such opera. tions is bc1nacarricd on are situate."

786 SUPUMB eotJJ.T UPaa'll [1968] 3 s.c.R.

disputed. From that plan it is seen tllat in a considerable po_rtion of the land notified under s. 4 ( I) there are prmiiises on wliich processes ancillary to the. getting, diessing or preparation for sale of coal obtained as a result of the mining operation arc beiDg carried on. There is. also no doubr that if the respondent is deprived of the benefit of those ses it would be. difficult, if not impossible for it, to continue to work the colliery.

The High Court has come to the conclusion tllat in determining the area in which coal mining operations is being actually carried on, one is not to take into consideration merely those spots where actual digging is going on, but also areas which are sufficient to constitute a commercial or economic urut, and if so viewed, the entire leasehold may be justifiably considered as areas on whidl coal mining operations are actually bci.Jlg carried on. Alternatively, it held that the entire notified area had to be excluded bccalllC in parts of that area mining operations arc actually being carried on and in the remainin~ parts there are j>remises on whfoh procesaes ancillary to the getting, dressing or preparation fot''sale of coal obtained as a result of the mining operations are being carried. In other words the entire area is' exempt from being notified wider s. 4(1) either because it is protected by the first part of s. 4(4) or by its second part. These conclusions were ch8llenged before us.. It was urged on fiehalf of the appellant that the words "any land in which coal mining operations are actually carried on" found in the first part of s. 4 ( 4) do not permit of a liberal interpretation so as to bring in the conception of a commercial or economic unit; they merely mean the actual area where mining is talcing place. As regards tlfo alternative conclusion based on the second part of s. 4 ( 4) it wasi urged that on the pleadings. t)l6re was no occasion for the High Court to consider whether the requirements of that part are satisfied.

Jn additioo, two other contentions were advanced on behalf of the appellant. They are '

( i) no relief under Art. 226 should have been given as - the rndent was guilty of !aches, and (ii) the writ petition was premature. We are in agreeriient with the High Court that there is no substance in the last twO contentions advanced on behalf of the appellant.

As seen earlier, the impugned notification was issued on October 9, 1963 and the writ petition was filed on March 23, 1964, well within Six months of the date of the notification.

This delay is not sufficient to refuse the relief prayed for.

In support of the contention that the petition was premature, Dr. Syed Mohemmad, learned counsel for the appellant, uraed that the respondent has no real grievance yet, as only a notification under s. 4(1) had been issued; further proceedings are yet to take place, and the respondent can be aggrieved only when a notifica-

.__

.. UNION v. K. K. COLLIERY (Hegde, l.) 787

. tion under section 7t is issued.

We think'that ihis contention is misconceived. As soon as the notification under s. 4 ( 1) was issued, in view of s. S:j: the mining lease granted in favour of the respondent ceased to have effect for so long as that notification was in force._ Too effect of thaCiiotificatiOn was to require the respondent to bring to a halt all his operations in the area not!fied

till action was taken under s. 7 or till the-period prescribed in that section came to an end. Hence it cannot denied that the respondent was seriously aggrieved by the fmpiigneu notification. -

___ This takes us to the remaining two conteiiuons noticed earlier. ---It was strenuollsly argued by Dr. Syed Mohammed _-that s. 4(1) empowers the Government to notify al! lands excepting those in c which coal mining operations are actually being carried_ on; the notification in question has excluded 201 bighas in which mining was actually carried on; hence there is nothing illegal in that notification. He wanted us to construe the words "any land in which coal mining operations are being actulilly carried" strictly. The High Court has rejected this contention after taking into considera- D tion the purposes of the Act, its preamble and the various provisions therein. But we have not thought it necessary to go into that controversy :is in our opinion the impugned notification definitely _ violates the second limb of s. 4 ( 4) and hence it is invalid. It covers land on. which amongst other buildings, railway siding, boiler-rooms, office room, fan house and air shaft premises are situate. It cannot be denied that in these premises processes ancil- E lary to the getting, dressing or preparation for sale of coal obtained as a result of the mining operations are being carried on. This conclusion of ours is resisted on the _plea that in the writ petition no .specific case is pleaded under the second part of sub-s. ( 4) of s. 4 and therefore it is not open for us to consider that aspect of

the case. We are unable to accept this contention. It is true that

(t) .. 7. (1) If the Central Govemmfnt is satisfied that coal is obtainable in the whole or any part of the land notified under sub-section (1) of section 4, it may, within a period of two years from the date of the said notification or within such further period not exceeding one year in the aggreate as the Central_ Government may specify in this behalf, by notification in the Official Gazette, give notice of its intention to acquire the v,.hole or any part of th~ 1and or of any : rights nor over such land, as the case may be. . ·

(2) If no notice to acquire the land or any rights in or over such land is given under sub-section (1) \\i.thin the period allowed thereunder, the notification issued under sul:rsection (1) of section 4 shall cease to have effect on the expiration of three years from the date thereof."

Ct) "'5. On the issue of a notific.ition under sub--section (1) of section 4 in respect of any land-

(a) any prospecting licence which authorises any person to prospect for coal or any other mineral in the land shall cease to have effect; and ,

(b) any mining lease in so far as it authorises the lessee or any person claiming through him to undertake any operation in the land, cease to have effect for so long as the notification under that sub-section is in force."

788 SuPIUIMB COU&T IU!PO&TS

[1968] 3 S.C.R.

the pleadings on this J, X>int are rath"'r vague; but all thefacts necessary for determimng that question are before the court. That aspect of the case appear& to have been fully argued before the High Court without any objection. The High Court has considered

and decided that question. Hence the appellant cannot now be pennitted to contend that for want of nessary pleadings . that q_uestion cannot be gone into. If areas in which those premises are situate could not have been notified under s. 4 ( 1 )-as in our judg ment they could not have been-it is not for us to decide whether any of the other areas included in the lease-hold could have been notified; we cannot make out a new notification for the appellant.

One other contention was vaguely touched at the hearing of the appeal, and that was that though there are ten seams m the colliery only four seams are at present worked after obtaining the necessary permission, the remaining sii seams are not yet opened up for the working; hence those seams cannot be said to-have been wiirked on the date of the notification. Mr. A. K. Sen, learned counsel for the _respondent, urged that ~I! the ten seams were being W<>rkoo. in contormity with the provisions . of law: According to him, once permission is obtained for grading the coal in a seam and he says that suh permission had been obtained in respect -Of ail the seams, in law it means that those seams are being actually worked. . We need not go inio this question in view of our earlier

oonclusion~ At the hearing reference was made to the decision of this Court in Messrs. B11rrakur Coal Co. Ltd. v. Union of lndia( 1).

Therule laid down in that case does not bear on any of the issues arising for. decision in this appeal.

For the reasons mentioned alY>ve, this appeal fails and is dismissed . with costs.

V.P.S.

Appeal dismissed.

(1) (196211 s.c.R. 44.

...

UNION OF INDIA

MIS. KHAS KARANAPURA COLLIERY LTD

R. S. BACHAWAT

Art. 226

s. 4(1)

9th October 1963

s. 4( 1)

23rd March 1964

s. 4( 4)

s. 4( 4)

s. 4(4)

s. 5

s. 7

October 30, 1964

Patna High Court

Syed Mohammed

S. P. Nayar

A A. K. Sen

S. C. Banerjee

A. K. Nag

Hegde

S. 0

s. 4(1)

Khas Karanpura Colliery Limited

Hazaribagh

July 8, 1949

s. 4

Central Government

Wbe, it appean to the Central Government that coal is likely to he ~10C4 from}aJ'!d in cmy locality, it may, by notification in the Official Gazette, g1vc notice of rts 1ntcnt1on to prospect for coal therein. ,

s. 4

s. 4(1)

s. 4(4)

s. 4

s. 4

Art. 226

October 9, 1963

Syed Mohemmad

s. 4(1)

section 7

s. 4

s. 7

Syed Mohammed

---It was strenuollsly argued by Dr. Syed Mohammed -that s. 4(1) empowers the Government to notify al!

s. 4(1)

s. 4

s. 4

section 4

Central_ Government

section 4

section 4

s. 4

A. K. Sen