RAMNARAIN v.

STATE OF RAJASTHAN January 31, 1973

[A. ALAG!RISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.]

Indian Penal Code-Accused convicted under s. 461 and

120B- Applicalion under s. 561A of the Cr. P. C. not considered-Whether there was grave miscarriage of justice.

The appellant was &llesed to have eintered into a conspiracy with othero, to persuade membern of the public to part with money for purchasing residential plots. in a village, 'Khand Gawadi' and in furtherence of this conspiracy, they we're alleged to have forged sale proceedings PGttas, and the signatures of othe<rs on such pattas and sale proceedings. The appellant himself affixed his signatures as Sarpanch and put the seal of the village pancbayat on the forged documents. 1he trial court held the appellant guilty of the offences of conspiracy under s. 120-B and be was also found guilty of the offences under s. 467 I. P. C.

On appeal the High Court confirmed the appellant's cqirviction on both these counts, but reduced bis sentence. The appellant's grievance before this Court was that non-consideration of his application under s. 561-A Cr. P.C. dated April 7, 1970, which was filed on May 1, 1970, but neither listed nor heard and !ms resulted in grave miscarriage of justice.

On 18th May 1970, the Hon'ble High Court made an order as follows: "Perused application dated 7·4-1970 a, nd 30-4-1970. I have decided the case on 17-4-1970 and there is, therefore, no question of saying anything on the merits now". 'Ibe second point strongly presented by the appellant is that the appellant's conviction was based solely on the testimony of P.W. 1, the approver, \Vhose evide:nce has not been corroborated In material part's.

Allowing the appeal,

HELD: (i) The application under s. 561-A Cr. P.C. should have been disposed of after hearing the appellant's counsel and its disposal without such hea'ring was clearly \Vrong and unjust. The appellant bas a just grievance against the manner in which this application was disposed of. He had a right to be afforded a reasonable opportuuity of being heard in support of his application, and the disposal of this case in the chamber of the learned judge without giving him such opportunity cannot be appreciated [469H]

(ii) Section 133 of the ndian Evidence Act, expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on uncorroborated testimony of an accomplice. But this Section has to read along with illustration (b) to s. 114.

Section 114 empowers the court to presume the existence of certaLr1 facts and the illustrations elucidate what the court may presume. Iliustration (b) in express tertDS says : 'that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute thus p.ermits the conviction of an accused person on the basis of uncorroborated testimony of a:n accomplice. But the rule of prudence embodied in Illustration (b) of s. 114 strikes a note of warning that tbe court will not generally believe an accomplice unless he is corroborated in material parts.

This rule is guided by long experience and has become a rule of prudence for general applic'ation.

[470C.GJ

(iii) So far as the charge u; nder s: 120-B, I.P.C. is concerned, in almost every case of conspiracy, it is generally a matter of inference, direct independent evidence being seldom. Inferences are normally deduced from acts of patties in pursuance of apparent crimin"! purpoe in commo; n between them. In the present case, the only evidence is of the approver and the trial court expressly observed that there is no other direct evidence of conspiracy. Therefore the charge of conspiracy cannot be sustained from the evidence available. [475G-476B] In the pr.esent case, on the existing. evidence, the appellants.' convic tio; ri under s.467 I.P.C. was wholly unsustainable. Therefore, the appellants' conviction must be set aside. [475FJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 105 of 1970.

Appeal by special leave from tl!e judgment and order dated April 17, 1970 of the Rajasthan High Court at Jodhpur in S. B.

Cr. Appeal No. 283 of 1967.

Nuruddin Ahmad V. S. Dave and Subhag Mal Jain, for the appellant.

K. Baldev Mehta, for the respQildent.

The Judgment of the Court was delivered by DuA, J.-In this appeal by special leave from the judgment of the Rajasthan High Court Ram Narain, appellant, challenges his conviction for the offences under ss. 467 and 120B, I.P.C. He, along with three others, had been committed for trial in the court of Sessions Judge, Kota on ten charges for offences under ss. 467, 468, 420 and 120B, I.P.C. It is not necessary to reproduce all the charges and it would suffice if we set out the charges under s. iJ67 and 120B, I.P.C., because by the impugned judgment of the High Court the appellant's conviction was sustained only on charges under these two sections. Those charges are :

"1. That you between the months of November, 1959 to January, 1960, at your house at Dadvada enter- •l ed into a conspiracy with Sarvashri Madan Mohan, Badriprasad and Bakshi Qajpatsingh and others, to com- . mit offences of forgery using forged documents as genuine and of cheating the public, Municipal Board and the Government in respect of the sale of some pieces of land belonging earlier to the G.ram Panchayat Khand-' gawari in favour of Moolsingh, Mukatbeharilal and Surajsingh and that you did some act to wit forged the proceedings of the Pattas in favour of the above said persons and the signatures and the thumb impressions of the Panchas of the defunct Gram Panchayat and made false entries in the Cash Book of the said Panchayat of \he; rear ~957-~8 at pages 42 and 45 and affixed the

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RAMNARAIN v."RAJASTHAN (Dua, J.) 465

A seal of that Gram Panchayat and put your signatures on the Pattas so forged, all in the capacity of the Surpanc.h of that Gram Panchayat besides agreement to commit the offences under sections 457, 468 and 420, of the l.P.C. punishable with rigorous imprisonment for over two years and thereby committed an offence punishable B under section 120B of the I.P.C. and within my cognizance.

(2) That during the same period, you forged Patta proceedings in antedates in respect of the sale of land 30'X35' belonging earlier to the defunct Gram Panchayat Kandgaoilri in favour of Shri Surajsingh and put your own signatures on the forged document purporting to be valuable security to wit, the patta in favour of Surajsingh and gave it to Shri Surajsingh and that you thereby committed an offence punishable under section 467, of the l.P.C. and within my cognizance.

( 5) That during the same period, you forged patta procgs in antedates in respect of the sale of land 50'X 50' belonging earlier to the defunct Gram Panchayat Khandgaonri in favour of Mukat Behari and put your siatures on the forged document purporting to be a valuaijle secm; ity., to wit.the patta in favour of Mukat Beharilal and gave it to Shri Mukat Behari and that you thereby committed an offence punishable under section 467 of the Indian Peiµ! Code and within my cognizance. . .

( 8) That during the same period you forged patta proceedings in antedates in respect of the sale of land

30'X30' belonging earlier to the defunct Gram Panchayat Khandgaonri, in favour of Shri Moolsingh and put your own signatures on the forged document purporting to be valuable security to with the patta in favour of Shri Moolsingh and gave it to Shri Moolsingh and that you thereby committed an offence punishable under section 467 of the I.P.C. and within my cognizance."

Village Khand Gawadi had before October, 1958 a panchayat of which Gangaram (P.W. 3) was the Sarpanch and the aopellant its Up-Sarpanch. In the months of April and May, 1S'58 the appellant officiated for the Sarpanch because the latter (Gangaram) was busy in connection with his daughter's marriai; e. B:t: means of a gazette notification (No. 11288/F.l(a) 48L 59/A/55 dated 16-10-58) the Rajasthan Government extended the limits of the municipal council, Kota, amongst other villages, to Khand

466 SUPREME COURT REJl'"ORTS

[1973] 3 S.C.R.

Gawadi also. The Municipal Council took over charge from the Gram Panchayat of this village on January 7, 1959. According to the prosecution version during the months of November, 1959 to January, 1960, long after the village panchayat had ceased to exist, the appellant entered into a conspiracy with the other accused persons (tried along with him in the sessions court) and Bhanwarlal son of Bapulal (who became an approver and appeared as P.W.

1 in the case) to cheat the members of the public, the Municipal Council, Kota and the Government. The modus operandi for carrying out the object of this conspiracy was to persuade such members of the public as were amenable to their persuasion to part with money for purchasing residential plots in village Khand Gawadi; and in furtherance of this conspiracy they forged sale proceedings and pattas_ by ante-dating them and forging signatures of the other Panchas on such pattas and sale proceedings. The appellant himself affixed his signatures as Sarpanch .and put the seal of the village Panchayat on the forged documents. The trial, as is obvious, from the charges reproduced above, was confined to the sale proceedings and pattas in the names of Moo! Singh, Mukat Beharilal and Suraj Singh. Bhanwarlal (P.W, 1), who was also stated to have been a party to this conspiracy was granted pardon and having become an approver appeared as a witness in support

of the prosecution. The Sessions Judge, after considering the prosecution evidence and the evidence of the defence witnesses, produced by the appellant, upheld the prosecution case against the appellant holding that he and the approver, Bhanwarlal, had joined E hands in forging the sale proceedings and pattas mentioned in the charges and also in forging thereon the signatures of the other Panchas. In fact, according to the trial court, it was the appellant who had dragged Bhanwarlal into the conspiracy and their activities were motivated by a desire to cheat the Municipal Council, Kota, the members of the public and the Government of Rajasthan F by making them part with possession of their valuable land in village Khand Gawadi for nominal price. On this finding the offence of conspiracy under s. 120B was held proved against the appellant. He was also held guilty of the offence under s. 467, I.P.C. Charges under the other sections were held not proved The appellant was accordingly sentenced to rigorous imprisonment for three years and a fine of Rs. 200 under s. 120B and to rigorous imorisonment for two years and a fine of Rs. 200 under s. 467, I.P.C. In default of payment of fine the appellant was directed to undergo six months' further rigorous im1>risonment in each case.

Both the substantive sentences were directed to be concurrent. The

other accused persons Bakshi Gajpat Singh, Madan Mohan and l'ladri Prasad were acquitted.

On ao!>eal the Hie:h Court affirmed the a1>1>ellant's conviction on both these counts but reduced his sentence to rigorous imprisonment for 15 months and a fine of Rs. 200 on each count. The sentences of imprisonment were directed to be concurrent. In default of payment of fine the appellant was directed to undergo further rigorous imprisonment for three months on each count.

In this Court Shri N uruddin Ahmad, the learned counsel for the appellant at the outset pointed out that in the High Court an application had been made on behalf of the appellant on April 7,

1970 to recall Gangaram (P.W. 1) for cross-examining him and also for examining Mukat Beharilal and M. L. Parekh Deputy Superintendent of Police in charge, as court witnesses, but although arguments were addressed on that application at some length the High Court did not care to deal with the matter or even to refer to it in its judgment. In this connection our attention was drawn to Annexure D to the petition for special leave in this Court. Annexure D is said to be a copy of the application filed in the High Court by Shri V. S. Dave, Advocate for the appellant, under s. 540, Cr. P.C. The material part of Annexure D reads :

"1. That in the above noted appeal prosecution examined Ganga Ram P.W. 3 as a witness.

2. That Gangaram besides the present complaint Ex. P-19 also lodged a complaint against appellant for offence under sections 409,- 477, l.P.C. and the accused appellant has been acquitted in the said case.

3. That the judgment in case under sections 4~9 l!lld 477, I.P.C. was delivered subsequent to the eicammation

of Gangaram as P.W. 3 and as such he could not be cross-examined in respect of his earlier cpmplaints and fact of enmity and false concention of cases -against the appellant could not be put to him.

4. That appellant has also been convicted for forging the patta alleged to have been given to Mukat Beharilal.

5. That Mukat Behari Lal has been withheld by the prosecution.

6. That the appellant has learnt that Mukat Behari Lal filed a writ petition in this Hon'ble Court in respect of the said patta andsame is said to have been decided in his favour.

7. That since the subject matter of patta of Mukat Behari Lal has been adjudicated upon by this Hon'ble Court his examination in this Hon'ble Court as a witness is essential to the just decision of this case and as also the production of judgment will have important bearing in the case.

8. That the Deputy S. P. who conducted the investigation of this case has also not been produced and same has caused great prejudice to the case of the appellant as the appellant could not bring on record as to from whose custody the documents Ex. P-5, P-6, P-9 and P-12 and Ex. P-1 has been recovered.

9. That the examination of aforesaid three witnesses is essential to the just decision of the case.

It is, therefore, prayed that your lordships would be pleased to accept this application recall Gangaram P .W. 3 for further cross-examination and also. cal.I Mukat Behari Lal and the Investigating Officer as Court witnesses or grant permission to appellant to summon them." Our attention was also invited to Annexures E and F to the Special Leave Petition. Annexure E is a certified copy of a slip of the Court Reader in single Bench Cr. A. No. 283 of 67, Ramnarain v.

State in the High Court of Judicature for Rajasthan at Jodhpur.

That slip reads :

"This application was found lying in the Chamber of Hon'ble Gattani J. How this application was placed and who placed this application there.

B.C.

Sd/- Bansidhar Reader

27-4-70"

Annexure F a certified copy of the order dated April 29, 1970 of Deputy Registrar of the High Court in the saia Criminal Appeal, which was also brought to our notice, reads :

"The application has been shown to Hon'ble Gattani J. and according to the direction of his Lordship the application be kept on the file.

Sd/- G. K. Sharma

Dy. Registrar" G

On April 30, 1970 an application was presented on behalf of the appellant in the High Court under s. 561-A, Cr. P.C. This application, according to the appellant, was filed on May 1, 1970 but it was neither listed nor heard in court. The following order dated May 18, 1970 (as translated into English) was recorded by the learned Judge in Hindi :- H "Perused the applications dated 7-4-70 and 30--4-70 presented on behalf of the appellant.

I have decided the case on 17-4-70 and there is therefore no question of saying anything on the merits now. As far as IreJnember Shri Chiranjilal Agarwal did mention during the course of the arguments on 7-4-70 that he wanted to present an application. Then I had told him that if the application is presented it will also be taken into consideration. Thereafter during the course of the arguments no application was presented before me.

I never saw the application dated 7-4-70 in my Chan1ber, nor anyone said anything to me on 29-4-70 about this application.

Sd/- H. D. GATTANI J." The appellant's grievance before us is that non-consideratior of his application dated April 7, 1970 has resulted in grave miscarriage of justice. Developing this point it has been contended that the manner in which this part of the case was dealt with suggests non-application of judicial mind by the High Court to the case as a whole.

The second point strongly pressed by Shri Nuruddin Ahmed is that the appellant's conviction is based solely on the testimony of Banwari Lal (P.W. 1), the approver, whose evidenee has not been corroborated in material paruculars, connecting the appellant with the alleged offence in question. The appellant's conviction is; therefore, unsustainable.

P.W. 1, according to the appellant's submission, is a wholly unreliable witness and his ,.evidence is so seriously discrepant and unconvincing on vital points that it is highly dangerous to place any reliance on it. The sustenance of the appellant's conviction on the approver's evidence in this case would be a travesty of justice, said the counsel. We were taken througll the relevant record of the evidence by the counsel for both sides on this part of the case.

Now so far as the first grievance is concerned, the appellant's submission cannot be summarily brushed aside as we feel there is pri'."'1 facie_ material calling for a further probe into the matter. But

s m our view even if the first contention were to prevail the quesuon of recording additional evidence, as requested on behalf of the appellant, would have to be considered and since, in our opinion, the appeal has to be allowed on the second point, we deem it unnecessary to express any considered opinion on the first ooint. We would, however, like to point out that the application under s. 561-A, Cr. P.C. should have been disposed of after hearing the appellant's counsel and its disposal without such hearing w~ clearly wrong and unjust. The appellant has a just grievance against the manner in which this application was disposed of. He

had a right to be afforded a reasonable opportunity of being A heard in support of his application and we are unable to appre- , ciate the disposal of this application in the chambers without _giving him such opportunity. The counsel for the State was also

unable to explain the divergence between the order of the Deputy .Registrar dated April 29, 1970 and the learned Judge's oblerva

tion in his order dated May 18, 1970 that no one had said any- 8 thing to him on April 29, 1970 about the application dated, April 7, 1970. This divergence has also left "Oii our minds a somewhat unhappy impression with respect to the whole matter. We need say nothing more on. this point.

Turning to the second point we may first state the legal position relating to the testimony of an approver. Section 133, Indian Evidence Act, which falls in Ch. IX dealing generally with wit- .nesses, expressly provides that an accomplice is a competen:t witness and the conviction is not illegal merely because it proceeds on .uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with illustration (b) to s. 114 which :falls in Ch. VII, dealing with Burden of Proof. Section 114 em- ; powers the court to presu)lle the existence of certain facts and the illustrations elucidate what the court may presume and make clear :by means of examples as to what facts the court shall have regard in considering whether or not the maxims illustrated apply to a given case before it. Illustration (b) in express terms says that-an accomplice is unworthy of credit unless he is corroborated in mate- rial particulars : two examples ate also given to f1,1rther explain this subject. The statute thus permits the conviction of an il.ccused person on the basis of uncorroborated testimony of an accomplice but the rule of prudence embodied in illustration (b) of s. 114 strikes a note of warning cautioning the court that an accomplice does not generally deserve to be believed unless corrborated in material particulars. This rule of caution is traceable to the fact that an accomplice witness from the very nature of his position is a suspec_t. This rule is guided by long human experience and has become a rule of prudence of general application. The courts,

therefore, consider it i;>rudent to look for corroboration in material particulars for sustainmg the conviction of an accused person. An approver who is admittedly guilty of the crime is an accomplice who has betrayed his associates and has apparently sought pardon for saving his own skin. In other words he has purchased complete immunity for his prosecution at the expense of his associated by agreeing to give evidence against them for the prosecution. He is, therefore, presumed not to be a man of hih character or a fair witness. His pardon being conditional, to pleased the prosecution he may well weave some false detail into the true details of the prosecution story and may also falsely involve some innocent perc

son. There is thus a real danger ofhis telling a story true in general outline but containing some untruth which he can easily work into the story. It is for this reason that the courts as a matter of prudence and caution anxiously look for some corroboration to satisfy their conscience that 'the approver's testimony which is clearly admissible is also worthy of belief. One can of course visualise an accomplice who is genuinely repentant for the commission of his crime" and truly desires to make a clean breast of the whole affair by way of pcnetance. But even in such cases the court has to judicially determine the extent to which his uncorroborated testimony can be considered as trustworthy by looking to the other relevant material and the attending circumstances on the basis of which the accused can be safely convicted. The rule which seems to emerge from the foregoing discussion and judicial decisions is that the necessity of corroboration as a matter of prudence except when it is safe to dispense with such corroboration mus' be clearly present to the mind of the judge.

It is in this background that the court is required to determine the nature and extent of corroboration of an approver's evidence nc<:essaey in a given case for sustaining the conviction of the .accused. The corroborating evidence, broadly stated, must connect or tend to connect the accused with the crime charged. This is so because of the danger of the approver introducing some innocent person or persons into an otherwise true prosecution story. Such evidence, however, need not by itself be sufficient for sustaining the conviction of the accuse<r for in that case the evidence of the approver would be wholly unnecessary and mere surplusage.

Before considering the evidence on the record it may be borne in mind that. the court should evaluate the evidence of an approver de hors the corroborating pieces of evidence for if his testimony is it!clf uninspiring and unacceptable justifying its rejtion outright, then, it would be futile and wh6lly unnecessary to look for corroborating evidence. It is only when the approver's evidence is considered otherwise acceptable that the court applies its mind to the rule that his testimony needs corroboration in material particulars connecting or tending to connect each one of the accused with the crime charged. The offences for which the appellant has been convicted, it may be recalled, are of conspiracy with the approver (P.W. 1) as conremplated bys. 120-B, I.P.C., and forgery of valuable security as contemplated by s. 467, l.P.C. Before us the counsel for the State clearly confined his contention to the forgery of valuable security as. the real gravamen of the charge against the appellant, of course, in addition to the charge of conspiracy. We have, therefore, to consider the evidence bearing in mind the ingredients of these two offences.

So far as the charge under s. 120-B, I.P.C. is concerned the A only evidence is of the approver and the trial court expressly observed that there was no other direct evidence of conspiracy. After considering the case with respect to the offence under s. 467, l.P.C. we will tum to the charge of the substanti.ve offence of conspiracy.

Before dealing with the evidence on the offence under s. 467 it may be recalled that the present case was initiated at the instance of Ganga Ram, ex-Sarpanch, (P.W. 3) and SPme others when they presented a complaint (Ex. P-19) on March 18, 1961 to the Collector, Kota, long after the charge of the Panchayat had tal::en over by the Municipal Council. Ganga Ram appears also

to have earlier made some complaints to the other officers but as nothing had come out of those complaints the Collector was ap- C proached with an allegation of misappropriation against Ram Narain in March, 1961. The Municipal Council, it is noteworthy, did not care to initiate the prosecution.

Bhanwar Lal, the approver, appearing as P. W. I has deposed that in June, 1958 he wanted to buy a plot of land for building his own house at Kota where he had been transferred from Udaipur as Train Clerk, Ko ta Junction. He was introduced to the appellant through one Kanhaiyalal. He gave to the appellant an application for that purpOSe and also paid Rs. 40 towards the price of the land and the appellant gave him a patta for a piece of land measuring 30'X45' without showing him its exact location. Inspite of repeate<I requests the appellant .did not show him the plot on certain pretexts for about four or five months. And then he showed him a plot measuring only 30'X35'. On objection being raised the appellant promised to give to P.W. l some more land elsewhere.

It appears that the approver and the appellant had by then become quite intimate. The approver gave to the appellant a contract for filling up the foundation for a house and also paid him about Rs. 8 or 9 hundred for which he took no receipt The approver also

started teaching the appellant's children as a private tutor without charging anything. It was due to this intimacy that the appellant is said to have asked the approver to help him in completing the proceedings of some incomplete patta cases of the Gram l'anchayat. Bhanwar Lal, approver, who ultimately agreed to do this work went to the appellant's house where he found one Mehta, secretary of the Mandi Committee, Madan Mohan Vijay and Badri Prasad.

The appellant introduced the approver to Mehta and Madan Mohan and asked them to complete the Panchayat records according to his directions. According to the approver he had prepared about 200 pattas and order sheets in about eight or ten days' time.

It is unnecessary to go into the remaining evidence of the approver at this stage. Suffice it to say that from his evidence it is not at all clear as to what interest the approver had in helping the appel-

!ant in what is described as the forgery of the various documents.

His evidence, therefore, seems, prima facie, to be unimpressive and hardly trustworthy. The charge under s. 467, as already observed, is confined to four pattas issu¢. in favour of Suraj Singh, fool

Singh and Mukat Behari. Two pattas issued in favour of Suraj Singh are Exs. P5 and P6 and one ptil'ta each in favour of Moo!

Singh and Mukat Behari are Exs. P 9 and P 12 respectively. Before taking up these instances and scrutinising this evidence we may point out that there is no evidence worth the name and no argument was urged before us to attempt to show that in the case of the patta in question either the consideration received was less than th.e market value or the amount realised had been misappropriated and not duly deposited and credited in the appropriate account.

There is thus no question of unlawful gain or loss by cheating anybody. Now s. 467 provides for punishment for forging a document which purports to be a v.aluable security or a will etc. We are concerned with the offence of forging a valuable security.

Forgery is defined ins. 463, I.P.C. according to which whoever makes a false document or part of a document with intent to cause damage or injury to the public or to any person or. to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery. SCction 30, I.P.C., defines "valuable security" to be a document which purports to be a document whereby any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal liability or has not a certain legal right. We are, therefore, concerned only With forgery of valuable security. The fact that the pattas were granted in favour of the three persons mentioned above irregularly or contrary to any rules or direCtions applicable to such pattas would be wholly immaterial except to the extent it supports the case of forgery against the appellant.

In so far as the case of Suraj Singh is concerned there are two pattas Exs. P S and P 6, both dated May 5, 1958. The two plots measuring about 100 sq. yds. each were allotted to Suraj Singh for a consideration of Rs. 37.50 each with an additional sum of Rs. 2 each as plan fee. The consideration money has been described in these pattas to be "Bhaint". It is expressly recited in these pattas that the requisite fee of Rs. 30.50 has been deposited vide Rokarpanna. These pat/as are signed by the appellant and clearly there can be no question of forging anybody's signatures, so far as these two documents are concerned. Exhibit P-4 is the order-sheet With 'espect to Suraj Singh. According to tl1e approver he, the appellant and Badri Prasad, had fabricated the signatures of Ghasi and Babula! and the thumb impression of Panch Bhanwarlal (P.W. 8) on Ex. P-4. Except for the approver's bald statement there is no

other evidence in support of this assertion. Babula! who was produced as P.W. 5 expressed his inability to say either way whther Ex. P-4 bore his signatures. He is illiterate and, according to his own evidence, can only put his signatures which also he is unable to identify. Ghasi was not produced by the prosecution. He was, however, produced in defence as D.W. 2 for admitting hfs signafures on Ex. P-11, the order sheet relating to Mukat Behari's case.

But when he appeared as a defence witness neither the prosecution nor the defence asked him any questions with respect to Ex. P-4.

The omission on the part of the prosecution to question him about Ex. P-4 in the absence of any cogent explanation is, in our opinion. quite significant. Some evidence has been led with respect to entries in Ex. P-1, the cash bpok of the Gram Panchayat but since the charges we are concerned with are under s. 467, and 120B, I.P.C. it is unnecessary, as indeed, irrelevant, to refer to that evi-· dence. Before us the counsel for the State expressly confined his case to the forgery of the patws which, according to him, c0nstitute valuable security within the contemplation of s. 467. With respect to Suraj Singh, therefore, we do not have any reliable evidenc•: which can be said to corroborate the approver, assuming the approver's evidence to be acceptable which we are not inclined to hold.

We now turn to Moo! Singh's patta Ex. P-9. This patta relates to an area measuring 100 sq. yds. and the consideration is stated to be Rs. 30 with an additional sum of Rs. 2 as plan fee.

Here again, the consideration is described as "Bliaint". Exhibit P-9 also contains an assertion that the requisite amount of Rs. 32 had been deposited vide Rokarpf!!!a. This patta is also signed by Ram Narain and there is no question of forging any one else's signatures.

The order sheet relating to this patta is Ex. P-8 which is signed by the appellant and also purports to be signed by Onkar and Ghasi.

The position of this patta is no better than that of Ex. P-5 which is in favour of Suraj Singh.

Mukat Behari's patta is Ex. P-12 and is for an area measuring 227 sq. yds. and 7 sq. ft.

The consideration is stated to be Rs. 100, inclusive of Rs. 2 as plan fee. Here also the amount is statt:<l to have been deposited as per Rokarpana and the receipt is signed by one M. B. Sharma. The order sheet relating to this patta is Ex.

P-11 which purports t6 bear the signatures of Ghasi and Madan Lal, Ghasi (D.W. 2) has deposed about his signatures on Ex. P-

11, as already noticed.

Mukat Behari's case, if anything, becomes more doubtful because of the evidence of Ghasi.

Su raj Singli was produced as P. W. 2 but he did not support the prosecution and was allowea to be cross-examined by the public prosecutor. Quite clearly his evidence does not show that he was in any way cheated by the appellant. Shri Ganga Ram, the original complainant, has appeared as P.W. 3.

According to him he

A had taken over charge from the appellant on August 31, 1958 and continued to work as Sarpanch till the charge was hal!ded over to the Municipal Council or the Municipal Board. When he want to the office of the Municipal Board to hand over charge, according to his own statement, the appellant had .also gone with him, . It was after the abolition of the.Panchayat that he learnt that the appellant was selling land and issuing pattas and it was then that he made the complaint Ex. P-19. Before handing over charge also he had made certain complaints against the appellant on which Shri Mehta, the Division Panchayat Officer had made enquiries but those complaints were not substantiated. From his evidence it seems clear that the relations between him and the appellant were far from cordial. Indeed, the appellant had also complained against this witness of keeping some money belonging to the Pan charat. Even otherwise his evidence is wholly unimpressive and is d1filcult to accept on its face value.

Again, .when we consider the evidence of Madan Lal (D. W. 1) and Ghasi son of Ramlal (D.W. 2) both Panchas of the Panchayat in question upto 1958 and the evidence of Ganesh Ram (P.W. 4) the evidence of the approver becomes still more unacceptable.

Madan Lal has stated that he was a Panch of Khand Gawarl Panchayat upto 1959 and a piece of land was sold to Mukat Behari in 1958 when he was present in the meting of the Panchayat.

Signatures on Ex. P-11 were identified. by him. The Panchayat alsn sold pieces of land to Moo! Singh and Suraj Singh. On his evidence Ex. P 11 is clearly a genuine document. Ghasi (D.W.

2) also admits his signatures on Ex. P-11. In face of his evidence it is not understood how his signatures can be held to be forged.

Ganga Ram (P.W. 4) has deposed that he was not literate and could only sign his name. After so deposing he expressTy stated that he was unable to identify his own signatures. His evidence, therefore, also losses its importance. In face of this materia~ we find that the appellant's conviction under s. 467. I.P.C. is wholly unsustainable on the existing evidence. The approver's testimony is most uninspiring and there is no corroboration worth the name.

We now turn to the charge of criminal conspiracy under s. 120-B, I.P.C. as a separate and distinct offence independent of the offience under s. 467, l.P.C. No doubt in almost every case of

copiracy it is generally a matter of inference, direct independent evidence being soldom, if ever, forthcoming.

But inferences are nonnally deduced from a\)ts of parties in pursuance of apparent criminal purpose in common between them. Of such criminal acts the evidence in the case under appeal has not been accepted by us.

The evidence of tile approver (P.W. 1) who would of course.be competent to prove the substantive charge of conspiracy, which has n6t been believed by us with respect to forgery is not easy to accept with respect to the charge of conspiracy. His version with regard 15-L796Sup.C.I. 173

to it is far from convincing. Though he claims to have prepared 200 pattas and "roer sheets, evidence regarding only four was led and that too not trustworthy. For the first time he disclosed the story to the police after arrest in expectation of help from them. On his evidence uncorroborated as it is, the charge of conspiracy as framed cannot be sustained. We have, therefore, no option but to allow this appeal, quash the appellant's conviction and acquit him.

G.C.

Appeal allowed.

RAMNARAIN

STATE OF RAJASTHAN

I. D. DUA

Indian Penal Code

s. 461 and

120B

s. 561A

s. 120

s. 467

s. 561

April 7, 1970

May 1, 1970

18th May 1970

s. 561

Section 133

s. 114

Section 114

s. 114

I.P.C

I.P.C

Nuruddin Ahmad V. S. Dave

Subhag Mal Jain

K. Baldev Mehta

DuA

Ram Narain

ss. 467 and 120B

I.P.C

Sessions Judge, Kota

ss. 467, 468, 420 and 120B

I.P.C

I.P.C

Dadvada

Sarvashri Madan Mohan

Badriprasad

Bakshi Qajpatsingh

Moolsingh

Mukatbeharilal

Surajsingh

sections 457, 468 and 420

section 120B

I.P.C

section 467

Mukat Behari

Mukat Beharilal

section 467

section 467

I.P.C

Gangaram

Rajasthan Government

Kota

January 7, 1959

Bhanwarlal

Bapulal

Municipal Council, Kota

Khand Gawadi

Moo! Singh

Mukat Beharilal

Suraj Singh. Bhanwarlal

Bhanwarlal

Government of Rajasthan F

s. 120B

s. 467

I.P.C

s. 120B

s. 467

I.P.C

Bakshi Gajpat Singh

Madan Mohan

l'ladri Prasad

N uruddin Ahmad

April 7,

1970

M. L. Parekh

V. S. Dave

s. 540

Ganga Ram

sections 409

sections 4

I.P.C

of Gangaram

Mukat Behari Lal

Mukat Behari Lal

Gattani

G. K. Sharma

s. 561

May 18, 1970

Chiranjilal Agarwal

H. D. GATTANI

Nuruddin Ahmed

Banwari Lal

s. 561

April 29, 1970

Section 133

Indian Evidence Act

s. 114

Section 114

s. 114

I.P.C

s. 467

s. 120

I.P.C

s. 467

s. 467

March 18, 1961

Ram Narain

Bhanwar Lal

Udaipur

Kanhaiyalal

Bhanwar Lal

Mehta

Madan Mohan Vijay

Badri Prasad

s. 467

Suraj Singh

Singh

s. 467

I.P.C

I.P.C

May 5, 1958

Ghasi

Babula

Panch Bhanwarlal

Babula

Ghasi

s. 467

I.P.C

s. 467

Onkar

M. B. Sharma

Madan Lal

Mukat Behari

Su raj Singli

August 31, 1958

Ramlal

Ganesh Ram

Madan Lal

s. 467

I.P.C

s. 120

I.P.C

s. 467


I . ~

A.C. SHARMA

DELHI ADMINISTRATION

February .5, 1973

[A. ALAGIRISWAM~, I. D. ~UA AND C. A. VAIDIALINGAM, JJ.]

11 . Special Pobce Estc.bbsllment Act 25 of 1946--Notification B De "3 of Act, being notification No. 7 /5155-A.V.D. dated Nol'emunde(, 5i966 conferring jurisdiction Oil Delhi Special Police Establislzbtr 'to inl'; stigate inter alia offences under 161, 165 1B5A Indian Penal mtdl!t nd o{}ences under the Prevention of Corruption Act 2 of 19~7- Co e 0

A C t' D

I . J . dction o/ the 1111orrup zon epartment o De/lu Administration

ft~ltr completely disp!aced-Sclte'!u; s o~ Ac_r 25 of 19~6 and Act 2 C of 1947-Pasuasta vlue f!l dmrrllstrllltve tnsfrullons m interpreting

sroJure-Defect Ill znve.rllgatton. effect of-!~ ord 'elsewhere' ' in r.SA(l)(d) of Act 2 of 1947, meaning of.

The appellant was the dealing clerk in the labour office Delhi in April 1965. He v.-as tried and convicted by the Special Judge D~!lhi under s. 5(2) of Prevention of Corruptio.ll Act and section 161 of the Indian Penal Code. His appeal to the High Court of Delhi was dis- D mis>ed by the Single Judge.

In appeal by sp.ccial leave to this Cotrrt it was contended that the Delhi Special Police Establishment Act, 19-U>, ; u amended, prescribes spcciul powers and procedure for inn:stigation of ofTnccs of bribery and co'rruptio.r; and as the appellant was an emploree of the Central Puhlic Work Department offences against him rould only he invtigatd by the Special Police Establishment. His

P~-ution based on investigation by the Deputy Superintendent of the [ Anu-corruptio.r, Department of the Delhi Administration was therefore,

acwrding to the appell:wt, illegal. This contention, raised for the

~~~ tunc in this Court. was allowed to be urged in view of the di!ci-

SIO!J of this court in Allllluwalia's case. •

! F

l~ELD : (i) Statement of object~ and reasons for introducing . a !ill 1n the leghlature is not admissibl<! ;1~ a; ll uiJ to the C?nstrucllon . the statute as enacted far )es<; can it control the meanmg of the

ctll',,.lwords used in the Act: Jt can only be referred to for the limited ~tse of ascertaining the circumstances which actuateJ the spons..'t ( 1 B11J to introduce H nnd the purpose for doin!! so. [4840-H}

to fii) The preamble f n statute, which is ofte-n decribd ns a key amhile. undmtanding f it, may Jcgitimatc.ly be consult~J t~. solve nn llh. S0'1Y or to artam nnd fix the mcamng of word~ 10 thctr cookxt ',· ~,)c othcrwhe hc:ir more mcmin"~ than one. It mav alford useful '' ., Ita nee ll t • " B if th • nactruent i• ,1· s o Wh;1t the tatutc inknJs to reach. ut ':' e ' .

Wt lc<r a!J unambiguous in itself thn fhl pn:mbl<! can yary Its mean mg. u e cont · J th • presnmplin0 th nJJn~:t a statute one has aho to hear 10 mm " . 1 a

tio~ in t thi! .lei\lature dol'~ m)t inhmd to m:1kc nnv sut>st:t!l1'_31 a tee 1fllmcui'; e exttlng law hcvond v.h:lt it expresslv !!ed11re$ or be)ond , "e \Cope unJ object of the statute. [485:\-Bl f

(iii) Th . hi' h ent Act does 11 !ll)f fither e Kheme or the Ddhi Special olt:e Esta. '!t mIre r~!!lllar

lklli~ aulh e~resly or by necr<;~:!'rv imnl•cntlon (hv;_tcnce to invP.ti ~!e ;1110 C>ffrthet of their iurisdiction. rc-wer nod com A~ i!POI"rnl r11te II Would ro '-'ces under nnv other comne•en• Ia~. fvPT/ exclude "• a llli<tter of ~~litre clear anti e1Ct'lfe~• 1:'""~ 1" 1!"" 10 e, P.C ~!fence~ mr>tinncd

aw the JX>Wer of investtgat1on for t ~£

~~;

i \: .,. ...

. 1

;·,

!. ..

? •'

' ft .

L '

r .

SUPREME COURT REPORTS

(1973) 3 S.C.R.

in the notification dated November 6, 1956, under s. 3 of the Act, from the jurisdiction and competence of-the regular police authorities

conferred on them by the Cr. P.C. and other laws and to vest this power exclusively in the D. S. P. E.

The D. S. P ~E. Act seems to be only pern; lissive or empowering, intended merely to enable the D.S.P.E.

also to investigate into the offences specified as -contemplated by section 3 without impairing any other law empowering police authorities to 'investigate offences. [486B-F]

(iv) The plain meaning of sub-section (1) of _'S. 5A of the Prevention of Corruption Act 1947 appears to be that I.nspectors of Police of D. S. P. E. in all places, Assistant Commissioners of Police i; n te Presidency towns of Calcutta and Madras, Superintendent_ of Police in the. Presidency town of Bombay, and Deputy Superintendents of Police in all places other tha; n Prtsidency towns of Calcutta, .· Madras and Bombay are authorised to investigate into the offences mentioned therein. The word 'elsewhere' in cl.{d) does not indicate that a Deputy Superintendent of Police in debarred from investigating offe.nces m.en tioned in . this clause even when so ordered by a Magistrate First Class in the areas in which D. S. P. E. is also , empowered to function. The word 'elsewhere' in clause (d) appears to refer only to the three Presidency tow, ns mentioned in cl_auses (b) and (c). This sub-section th, ei'efore does not confer sole power on D.S.P.E. to investigate into the offences mentioned therein to the complete exclusion of the regular police force . . It is merely concerned with the object of making provision for safeguarding against arbitrary use of power of investigation by officers bdow certain ranks so that public servants concerned are aved from frivolous harassment at the hands of disgruntled persons. It is also noteworthy that apart from the restrictions in s. SA( 1) the appli~ cability of the provisions of the Cr.P.C. to the proceediniS in relation to the offences mentioned. in that sub-sections, is, subject to certain modifications contained in s. 7A, expressly recognised.

[488IJ-:G]

(v) The schemes of the two enactments, namely, the D.S.P .E. Act, 1946 and Prevention of Corruption Act, 1947 suggest that they are intended to serve as supplementary provisions of law designed to !unction harmoniously in aid of each other and of the existing regular police

imestigating agencies for effectively achieving the object of successful investigatio!l into the serious offences mentioned in s. SA without unreasonably exposing the public servant concerned to frivolou' and vexatious proceedings. [488<; J-H; 489A]

 (vi) The above interpretation is supported by D.O. No. 21(8)63- GD dated October S, 1963 addressed by the Central Bureau of Investi gation, Ministry of Home Affairs, Government of India, to the llll5pectors General of Police. No doubt the Jetter contains only administrative instructions but it clearly show the construction pl1l.ced during all these_ years by the administrative officers concerned. If the view stated in this letter is not clearly against the language and scheme of the Act in question then it is entitled to due consideration and has some persuasive value. Reference to th~ State Police in the

D.O. includes the police force of the Union Territory of Delhi. [489F-H; 490A]

{vii_) In the present case the investigati<YJ by the Deputy Suj, erintendent of Pohce could not be considered to be in any way unauthorised or

co?trary to law. The function of investigation is merely to collect evtdence and any irregularity or even illegality in the course of collection of ei.dence can scarce!y be considered by itself to affect the legality of the tnal by an otherwtse competent court of the offence so investigated.

[490A-CJ

A .• 1~{.

B ~··

D •

F )

A. C. SHARMA v. DELHI ADMN. (Dua, J.) 479

(viii) It was toot possible to find any infirmity in judgment of the High Court upholding the prosecution story and convicting the appellant and there was no cogent ground for reappraising the evidence. re was absolutely no extraordinary reason for departing from the nor; ffial rule of practice accordi:ng t0 which this Court accepts the conclusions of facts arrived at by the High Court t() final. There was no grave injustice as a result of any irregularity or other infirmity either in the trial or in the judgments of the trial court and the High Court. [491D-F]

H. N. Bishabud & lnder Singh v. Stc.te of Delhi, [1955] 1 S.C.R. 1150, Munna Lal v. The State of U.P. Crl. A. Nos. 102-104 of 1961 d/April 17, 1963, State of Madhya Pradesh v. Mubarak Ali, A.J.R. 1959 S.C. 707, State of Andhra Pradesh v.

Venugopal, [1964] 3 S. C. R. 743 and Khandu Sonu Dhabi v, State of Maharashtra, Crl.

A. No. 105 of 1969 d'IFebruary 15, 1972, applied.

C .

R. J. Singh Ahuluwalia v':-The State of Delhi, [1970] S.C.R. 451, Abdul Halim v. State of West Bengal, A.l.R. 1961 Cal. 257, Om Prakash y, State, A.I.R. 1964 Punjab 407, Labh Shankar v.

Stc.:te of Saurashtra, A.I.R. 1955 Saurashtra 42 Kharati Lal v. State, 1965, D.L .. T 362 and Kartar Singh v. State, Crl. A. No. 42 of 1971 decided on October 13, 1971, referred to.

D CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 28 of 1973.

Appeal by special leave from the judgment and order dated 29th October 1969 of the Delhi High Court at New Delhi in Cr.

A. No. 1 of 1966.

Frank Anthony and K. B. Rohatgi, for the appellant.

Gobind Das and R. N_. Sachthey, for the respondent.

F. S. Narimanf Additional Solicitor-General of India, and B. D. Sharma, for the Attorney-General for India.

The Judgment of the Court was delivered by

DuA, J.-The appellant was the dealing clerk in the Labour Office, Delhi, in April, 1965. He was convicted by the Special

Judge, Delhi under s. 5~2) of the Prevention of Corruption Act and sentenced to one year's rigorous imprisonment and fine of Rs. 200/- with two months further rigorous imprisonment in case of default. He was also found guilty and convicted of an offence under s. 161, I.P.C. and sentenced to rigorous imprisonment for one year. The two--suantive sentences were directed to be concurrent. His appeal to the High Court of Delhi was dismissed by a learned single Judge. He appeals to this Court by special leave.

His application for leave is dated December 20; 1969. In that' application one of the grounds taken by him questioned the legality of the investigation into the offences against him by the Deputy Superintendent of the Anti-Corruption Department of the Delhi Administration. According to this ground the Delhi Special

[1973) 3 S.C.R.

Police Establishment Act as amended prescribes special powers A and procedure for investigation of offences of bribery and corrup tion in the departments of the Central Government and as the appellant was an employee of the Central Public Works Department, offences against him could only be investigated by the Special Police Establishment. The investigation_ having not been done by 'the D.S.P.E., according to the appellant, his trial is B vltiated. In support of this ground the appellant presented in this Court an application dated January 13, 1970 seeking permission to place on the record a letrter dated February 10, 1966 purporting to have been written by the S.P. AntiCorruption Branch, Delhi and addressed to the appellant stating rthat the anti-corruption branch of Delhi Administration was not competent to make an c enquiry into the allegations levelled against C.P.W.D. employee being a Central Government employee. This Court, while grant ing special leave, also permitted the appellant to urge additional grounds.

We now turn to the facts giving rise to this case. One Bakht Ram, a labour supplier had to get about Rs. 3,500/- from one D Umrao Singh, a contractor, who was evading this payment.

Bakht Ram moved the Labour Officer for relief.

The Labour Officer stopped payment to the contractor to the extent of the amount claimed by Bakht Ram but as the case was not being

dalt with as expeditiously as Bakht Ram ex]Jected or desired, he approached 1the appellant who was the dealing clerk for expe- E ditious disposal of the case. The appellant demanded Rs. 100/- by way of bribe for using his good offices. The matter was ultimately settled at Rs. 50/- and the amount was to be paid on April 27, 1965 at 1the Labour Office or at the house:of the appellant.

Bakht Ram thereupon reported the matter to the Deputy Superintendent of Police (Anti-Corruption Branch) and produced three currency notes of the denomination of Rs. 10/- each which he

F proposed to pay to the appellant. The numbers of these currency notes were nofed by !(:be Deputy Superintendent of Police in the pre, sence of two witnesses and Bakht Ram was instructed to make the payment in the presence of those witnesses. Bakht Ram then proceeded to the office of the Labour Officer along with the said two witnesses followed by the police party headed by the Deputy G Supe'rintendent of Police.

A~ the appellant was not present in the office of the Labour Officer the party proceeded to his house.

Bakht Ram called the appellant out from his house 'and they both went to a tea shop nearby. The two witnesses followed 'them.

Within their hearing Bakht Ram told the appellant that he had brought Rs. 30/- with him and that he would pay the balance H later. He requested the appellant to see that the Labour Officer passed requisite orders on Bakht Ram's application claiming Rs .. 3,500/-. The appellant agreed to see that the Labour Officer

A. C. SHARMA V. DELHI ADMN. (Dua. }. ) 481

passed the necessary orders. He received Rs. 30/- from Hakht Ram and put the currency notes in his pocket. One of the two witnesses at this stage gave a signal and the D.S.P. came to the spot. The currency notes in question were recovered from the appellant's possession. They bore the same numbers as had been noted by the D.S.P.

At the trial the appellant's plea was that Bakht Ram had borrowed from him Rs. 40/- on April 1, 1965 and the amount recovered from him by the D.S.P. was the amount paid by Bakht Ram towards the discharge of that loan. He also produced four witnesses in support of his version. The learned Special Judge considered the prosecution evidence and held that the receipt of money having been admitted by the appellant, the onus lay on him to rebut the presumption raised by s. 4 oi the Prevention of Corruption Act.

After considering the appellant's plea and

appraisin~ the evidence produced by him in support thereof, the learned Special Judge concluded that the burden had not been discharged. In his view, the defence witnesses were interested in the appellant and one of them, being the General Secretary of the Congress Mandai, Lajpatnagar, New Delhi and in that capacity wielding some infouence, had also tried to help the appellant. The testimony of these witnesses did not impress the Special

Judge. Holding the appellant guilty he convicted him and imposed the sentence, as already noticed.

On appeal the High Court agreed with the view taken by the trial court. According to the High Court also the appellant having admitted receipt of a sum of Rs. 30/- from P.W. 1 Bakht Ram on the date of the offence, under s. 4 of the Prevention of Corruption Act, the burden lay upon him to prove that this amount had been received otherwise than by way of illegal gratification. The testimony of the defl?pce witnesses was not considered acceptable and the order of the trial court was affirmed.

In this Court Mr .. Anthony _questioned the legality of the in~ vestigation by submitting that the only police agency having jurisdiction to investigate into the allegations against the appellant

wa~ the Delhi Special Police Establishment. The investigation by t.he anti-corruption branch, Delhi, being !thus. without jurisdiction, it '.Vas contended that the appe11ant's trial lind conviction were, en this ground alone, wholly illegal. Mr. Anthony relied on R. I. Singh Ahuluwalia y. The State of DelhW) in sustaining his right to raise this point for the first time in this appeal, as according to his submission, it goes to the root of the validity of the investigation.

If the investigation is unauthorised the trial springing from it cannot be considered lawful, said the counsel. The app.el

. (1) (1970) 3 S.C.R. 451.

SUPREME COURT REPORTS [1973] 3 S.C, ll.

lant having been permi(ted to urge additional ground and there A being no objection by the other side, iii the interest of justice we heard the parties on the new objection. As the point raised related to the validity of central laws we directed notice to the Attorney General and pursuant to that notice heard Mr. Nariman, Additional Solicitor General on the point.

The-short but important questionwith far-reaching effect, if the appellant's contention were to prevail, requirin~ our decision is, whether with the setting up of the Delhi Special Pol.ice Establishment, the anti-corruption QI'anch of the Delhi Police had been completely deprived of its power to investigate into the offences. like the present or whether both the S.P.E. and the anti-corruption branch had power to investigate, it being a matter of internal administrative arrangement for , the appropriate authorities to regulate the assignment of investigation of cases according to the exigencies of 1he situation.

Mr. Anthony relied on the preamble of the Delhi Special Police Establishment AC't, 25 of 1946. Mr. Nariman produced befor~ us a copy of its objects and reasons for showing the background in which this Act was enacted. Both sides referred to the background of this enactment for the purpose of supporting their rival contentions about its scope and effect. The objects and reasons for its enactment show that in 1943 the Government of India had set up a police staff called the Delhi Police Establishment (War Department) under the Special Police Establishment (War Department)

Ordinance No. XXII of 1943 for the purpose of investigating offences of bribery and corruption connected with the Departments of Central Government. As this organisation proved useful it was decided to retain its police staff on permanent basis by means of: legislation. Ordinance No. XXII of 19431apsed on September 30,

1946. In order to avoid a break in continuity, Ordinance No. XXII of 1946 was promulgated on September 25, 1946 to remain ill force till March 25, 194 7. The object of this Aot is to retain the said special police staff as a permanent organisation to en 4 able it to conduct investigation in all provinces of India with their consent, Its preamble reads :

"An Act to make provision for the constitution of a special police force in Delhi for the investigation of certain offences in the Union territories for the superintendence and administration of the said force and for the extension to other areas of the powers and jurisdic 4 tion of members of the said force in regard to the investigation of the said offences.'' Section 3 of the Act on which principal reliance was placed by Mr. Anthony reads :

A. C. SHARMA V. DELHI ADMN. (Dua, J.) 483

A "3. Offences to be investigated by special police es-tablishment : The Central Government may, by noti fication in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment." Reference to s. 3 of both the Ordinances of 1943 and 1946 B would show that apart from lthe category of offences, the power of the establishment to investigate into the offences mentioned therein is expressed in language similar to that used in the two Acts Section 3 of the 1943 Ordinance reads :

"3. Offences 1o be investigated by necial Police Establishment: The .Central Government may by general or special order c,., cify the offences or class~ o.f offences committed in connection with Departments of the Central Government which are to be investigated by the Special Police Establishment (War Department) or may direct any particular offence .committed in con nectio.s. wnh a Department of the Central Government to Qe so investhrated." Section 3 of the 1946 Ordinance reads :

"3. Offences. to be investigated by special police establishment : The Central Government may, by notification in the official gazette, specify the . offences or classes of offences committed in connection with matters concerning Departments of rthe Central Government which are to be investigated by the Delhi special police establishment."

It was contended that section 3 of this Act•- confers on D.S.P; E. exclusive jurisdiotion for investigating d1e offences specified by the Central Government b!Y notification in the Gazette. Stress in this connection was laid on the words "which are to be investigated'' as dfsclosing the mandatory character of the legislative intention.

Our attention was also drawn to the notification no. 7/5/55-AVD dated November 6, 1956 in exercise of the powers conferred by s. 3 in which offences, inter alia, under s. 161, 165, 165A, I.P.C. and offences punishable under the Preveirt:ion of Corruption Act ( 2 of 194 7) are specified.

According to the learned Advocate the Special Establishment is a very efficient investigating agency and it utilises officers and not clerks for assistance in its investigation. IUs apparently for this reason, said the learned counsel, that cases of corruption against employees of Central Government are entrusted to it.

Mr. Anthony in the course of arguments conceded that if in s. 3 instead of the word "are" the legislature had used the words

[197 3] 3 S.C.R.

"may" or "can" then the section would noa prima facze convey a mandatory direction clothing the D.S.P.E. alone with the power of investigation 'to the exclusion of the other investigating agencies, including the regular police force.

Our attention was also drawn to the resolution of the Government of India (No. 4/31/61-T da-ted April I, 1963 ), reproduced at p. 681 of the Anti-Corruption Laws of India by P. V. Ramakrishna, by means of which it was decided 'to set up a Central Bure.au of Investigation at Delhi with six divisions one of which was described as 'investigation and anti-corruption divisions (Delhi Special Police Establishment)'.

According to the argument the Government

had designed to set up a special investigating agency for investigating cases o.f corruption and bribery to the exclusion of an other , investigating agencies. Our attention was specifically in C vited to the letter (No. 593/ AC Br. dated February 10, 1966) from the Superintendent of Police, Anti-Corruption Branch, to the appellant in reply to an application of his. In that leitter it was stated :

"Shri L. Swarup, Labour Officer, Jurisdiction No. 5, C.P.W.D. Delhi is a Central Government employee.

Therefore, Anti-Corruption Branch of Delhi Administration is not competent to make enquiry into the allegations levelled against him." This letter fortifies his submission, said Mr. Anthony. Support for his contention was also sought from Abdul Halim vs. State

of West Bengal(l), Om Prakash vs. State( 2), Labh Shankar vs.

State of Saurashtra( 8 ) and Kharaifi Lal vs. State('). These decisions do not seem to have any direct bearing on the point which concerns us.

Mr. Anthony also produced before us a copy of an unreport~ ed decision of a single Judge of the Delhi High Court in Kartar

Singh vs. State( 5 ) rejecting a similar contention raised by the learned counsel.

But the correctness of this decision was questioned by Mr. Anthony.

We now proceed to examine the legal position.

Statement of objects and reasons for introducing a Bill iu the Legislature is not admissible as an aid to the construction of the statute as enacted : far less can it control the meaning of the actual words used in the Act. It can only be referred to for the limited purpse of ascertaining the circumstances which actuated the sponsor of the Bill to introduce it and the purpose for doing so. The preamble of a statute which is often described as a key to the understa:nding of it may legitimately be consulted to solve

(1) A.T.R. 1961 Cat 257.

(2) A.I.R. 1964 Punjal> 407.

(3) A.l.R. 1965 Saurashtra 42.

(4) 1965 D.L.T. 362.

(5) Crl. A. No. 42 of 1971 decided on October 13, 1971.

A. C. SHARMA V. DELHI ADMN, (Dua, /.)

an ambiguity or to ascertain and fix the meaning of words in their context which otherwise .bear more meanings than one. It may afford use.ful assistance as to what the statute intends to reach, but ]f the enactment is clear and unambiguous iri itself then no preamble can vary its meaning. While construing a statute one has also to bear in mind the presumption that the Legislature does not intend to make any subs'tantial alteration in the existing law beyond what it expressly declares or beyond the immediate scope and object of the statute.

Turning to •the D.S.P.E. Act it extends to the whole of India.

For the constitution and powers of the establishment we have to turn to s. 2 of this Act which reads :-

"2. Constitution and powers of special police establishment : ( 1) Notwithstanding! anything in the police Act, 1861, the Central Government may constitute a special police force to be called the Delhi Special P_olice Establishment for the investigation in any Union territory Of offences notified undeJ" section 3.

(2) Subject to any orders which the Central Gov- / errunent may make in this half, members of the said police establishment shall have throughout any Union territory in relation to the investigation of such offences and arrest of persons concerned in such offences, all the powers, duties, privileges and liabilities which police officers of that Union territory have in connction with the investigation of offences committed therein. ( 3) Any member of the said police establishment of or above the rank of Sub-Inspector may, subject to any orders which the Central Government may make in this behalf, exercise in any Union territory any of the powers of the officer in charge of a police station in the area in which he is for the time being and when so

exercisin~ such powers shall, subject to any such orders as aforesaid, be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station." Section 3 which empowers the Central Government to specify the offences to be investigated ttr the D.S.P.E. has already beenset ?Ut.

Te notification dated November 6, 1956 referred to earlier specdies numerous offences under various enactments including a large number of ordinary offences under I.P.C. Clauses

(a) to (J) of this notification take within their fold offences under a number Of statute& specified therein. Clause (k) extends the sweep of this notification by including in its 'scope attempts,

SUPREME COURT REPORTS [1973] 3 S.C.ll.

abetments and conspiracies in re:l_ation to r in connection with the ofienQes mentioned in ell. (a) to (h) and also any other offence committed in the course of those transactions arising out of the same facts. It may also be stared that after 1956 iri a number of further notifications the list of tho offences specified under s. 3 has increased manifold. We consider it unecessary to refer to them in detail. According to s. 4 t~ superintendence of D.S.P.E. vests

in the Central Government and s. 5 empowers the Central Government to extend to any area in a State not being a Union territory the powers and jurisdiction of, members of this establish ment for the investigation of any offences or classes of offences specified under s. 3. Subject to the orders of the Central Government the members of such Establishmerl.t exercising such extended powers and jurisdiction are to be deemed to be members of the police force of that area for the purpose of powers, functions, pri vileges and liabilities.

But the power and jurisdiction of a mem bet of D.S.P.E. in such State is to be exercised only with the con sent :Of the Government of the State concerned. The scheme of this Act does not either expressly or by necessary implication divest the regular police authorities of their jurisdiction, power and com petence to investigate into.offences under any other comptent law.

As a general rule, it would require clear and express language to effectively exclude as a matter of law the power of investigation of all the offences mentioned in this notification from the jurisdiction and competence of the regular police authorities conferred on them by Cr. P.C. and other laws and to vest this power exclusivefy in the D.S.P.E. The D.S.P.E. Act seems to be only permissiVe or empowering, intended merely to enable the D.S.P.E. also to investi gate into the offences specified as contemplated by, s. 3 without impairing any other law empowering the regular police authorities to investigate offences.

Turning now to the Prevention of Corruption Act (2 of 1947), we find that this Act was enacted in March, 194 7 several months after the enactment of the D.S.P.E. Act for the more effective pre vention of brivery and corruption. By virtue of s. 3 of the Act an offence under s. 165A, I.P.C. was made a cognizable offence for 1he purposes of Cr. P.C. notwithstanding anything to the contrary

contained in that Code. Section 4 provides for presumptions in certain cases. Section '5 defines criminal misconduct and also provides for punishment for such offences. It further proVides for punishment for habitual commission of offences under ss. 162, 163

and 165, I.P.C. and also renderers punishable attempts to commit some offences. Section S is expressly stated to operate in addition an~ nodn derogation of other laws. Section SA which is of importance may here be set out : . ., SA. Investigation into cases under this Act:

A. C. SHARMA v. DELHI ADMN. (Dua, /.)

( 1) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, no police officer below the rank,- ( a) in the case of the Delhi Special Police Establishment, of an Inspector of Police;

(b) in the presidency-towns of Calcutta and Madras, of an Assistant Commissioner of Police;

(c) in the presidency-town of Bombay, of a Superintendent of Police; and

(d) elsewhere, of a Deputy Superintendent of Police, shall investigate any offence punishable under section 161, section 165 or section 165A of the Indian Penal Code or under section 5 of this Act without the order of a Presidency Magistrate or a Magistrate of the first class; as the case may be, or make any arrest therefor without a warrant : Provided that if a police officer not below the rank of an Inspector of Police iL authorised by the State Government in this behalf by general or special order, he

may also investigate any such offence without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make arrest therefor without a warrant: Provided further that an offence referred to in clause

(e) of sub-section ( 1) of section 5 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police.

(2) If, from information received or otherwise, a police officer has reason to .suspect the commission of an offence which he is empowered to investigate under subliection ( 1 ) and considers that for the purpose of investigation or inquiry into such offence, it is necessary to ins* pect any bankers' books, then, notwitllstanding anything contained in any law for the time being in force, he may inspect any bankers' books in so far as they relate to the accounts of the person sspected to have committed that offence or of any other person suspected to be holding money on behalf of such person, and take or cause to be taken certified copies of the relevant entries therefrom, and the bank concerned shall be bound to assist the police officer in the exercise of his powers under this sub-section : Provided that no power under this sub-section in relation to the accounts of any person shall be exercised

[1973) 3 S.C.R.

by a poliee officer below the rank of a Superintendent of Police, unless he is specially authorised in this behalf by a police officer of or above the rank of a Superintendent of Police.

Explanation:-ln . this sub-section, the expressions 'bank' arid 'bankers' books' shall have the meanings assigned to them in the Bankers' Books Evidence Act, 1891."

Sub-section ( 1) of this section, while regulating the competence of the officers both of D.S.P.E. and of the regular police force to investigate offences to the extent considered necessary, over-rides the provisions of Cr. P.C. It expressly prohibits police officers, including those of the D.S.P.E., below certain ranks, from investigating

into offences, under ss. 161, 165 and 165A, I.P.C. and under s. 5 of Prevention of Corruption Act, withOut orders of Magistrates specified therein and from effecting arrests for those offences without a warrant. The plain meaning of this sub-section appears to be that Inspectors of Pollee of D.S.P .E. In all places, Assistant Commissioners of Police in the Presidency Towns ol Calcutta and Madras, Superintendents of Police in the Presidency Town - of Bombay, and Deputy Superintendents of Police in all places, other than Presidency Towns of Calcutta, Madras and Bombay, are authorised to investigate into the offences mentioned therein. The word "elsewhere" incl. (d) does not indicate, as was contended by Mr. Anthony that a Deputy Superintendent of Police is debarred from investigating offences mentioned in this clause even when so ordered by a Magistrate of the First Class in the areas in which D.S.P.E. is also empowered to function. The word "elsewhere" in

cl. (d) appears to us to refer only to the three Presidency towns

mentioned in ell. (b) and (c). This sub-section, therefore, does not confer sole power on D.S.P.E. to investigate into the offences mentioned therein to the complete exclusion of the regular police force. It is merely concerned with the object of making provision for safeguarding against arbitrary use of power of investigation by officers below certain ranks, so that public servants concerned are

saved from frivolous harassment at the hands of disgruntled persons. In this connection it is also noteworthy that apart from the

triction contained in s. SA. ( 1) the aoPlicability of the provisions of Cr. P.C. to the. proceedinl!s in relation to the aforesaid offences is, subject to eertain modifications contained in s. 7 A, expressly recognised.- The schemes of the two enactments, namely, the D.S.P.E. Act. 1946 and the Prevention of Corruption Act,

1947. suggest that they are intended to serve as supolementa:ry provisions of law .desi20ed to function harmoniouslv in aid of each other and of the eXisting rel!lllar pollee investi2atinll alleocies for

ffectively achieving the object of successful investigation into the

I .

Jr. C. SHARMA v. DELHI ADMN, (Dua, J.) 489

A serious offences mentioned in s. SA without unreasonably exposing the public servant concernerl to frivolous ad vexatious proceedings. Mr. Nariman also drew our attention to D.O. No. 21/8/63- GD dated October 5, 1963, .addressed by the Central Bureau of Investigation, Ministry of .Home Affairs, Government of India to the Inspectors General of Poli_ce inviting their attention to . the B Government of India Resolution No. 4/31/61-T dated Apnl lJ 1963 establishing the Central Bureau of Investigation consisting of six Divisions to assist the State Police Forces. The authority of Central Bureau is stated therein to have been derived from the

D.S.P.E. Act. In this letter para 6 reads :

"6. In this connection it may also be mentioned that, on account of inadequacy of staff, it is not possible for the S.P.E. Division to take up every one of the cases which might fall under the categories mentioned in the Annexure to the Government of India Resolution and which might be considered sUitable for investigation by the S.P.E. Division. A certain ill.scretion has, therefore, to be exercised in taking up cases for investigation. In some instances it may not be possible for it to take up even those cases which are committed by Central Government servants, e.g., petty cases of theft, misappropriation, cheating. Such cases could be dealt with more easily and more expeditiously by the local police which has concurrent jurisdiction over these cases also."

In para 7 it is stated that for successful investigation of cases it is most essential that a quick decision is taken about the Agency which has to investigate them. One of the Agencies mentioned therein is S.P.E. Division of the C.B.I. In para 8 it is stated that in respect of cases involving Public Servants or Public Concerns there is an administrative arrangement and understanding between tho S.P.E. and the State Police about the manner in which they are to be dealt with so as to avoid difficulties and delays. This para then refers to the existing procedure and practice which, it is

suggested, should continue to be valid in future. No doubt. this letter contains onlv administrative instru.ctions but it clearly shows the construction olaced during all these years by the administrative officers concerned with administering this law on the provisions of the S.P.E. and the Prevention of Cprruotion Act.

If the v1ews stated in this letter' is not clearly a2ainst the lanruage and scheme of these Acts then it i~ entitled to due consideration and has s('lrne

persuasive value.

The contention raic; ed bv Mr. Anthonv at Delhi not beine a State but onlv a Union territorv. the directions

contained in D 0. No 21/ll/t;~.nn are inannlicabl~ and that i, n Delhi it is ontv the D.S.P.E. whiC'h has e:tcluc; ive authoritv to investigate into the offences mentioned ins. 5A is not easy to'accept.

SUPREME COURT REPORTS (1973] 3 S.C, Il,

Reference to the State Police force in that D.O. in our view in A eludes the police force of the Union territory of Delhi.

As the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be considered to be in any way unauthorised or contrary to law. In 1his connection it may not be out of place alo to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself to affect the legality of the trial by an otherwise competent court of the offence so investigated. In H. N. Rishabud & Inder Singh v. State of Delhi(l) it was held tht an i11egality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where c(ll, gn.izance of the case has in fact been taken and the case has proceeded to termination the invalidity of the preceding investiga tion does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to investigation is brought to the notice of the coun at an .early stage of the trial the court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer as it consider appropriate with reference to the requirements of s. SA of the Prevention of Corruption Act, 1952. This decision

was followed in Munna Lal v. The State of U.P.(2) where the decision in State of Madhya Pradesh v. Mubarak A.li(8) was distin E guished. The same view was taken in the State of Andhfa Pradesh

v. M. Venugopal( 4 ) and more recently in Khllndu Sonu Dhobi v.

State of Maharashtra('). The decisions of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr. Anthony deal with different points : in any event to the extent they contain any observations against the view expressed by this Court in the decision just cited those observations cannot be considered good law.

This takes us to the merits of the case. Mr. Anthony referred us to the evidence of Bakht Ram, the complainant (P.W. 1) and <Submitted that this witness has told lies in the witness box. P.W. 4 D.C. Srivastava who was also a party to the trap and appeared as a witness to the acceptance of the bn'be was also subjected to criticism by the learned counsel. According to this criticism his evidence is equally untrustworthy. It was emphasised that the prosecution witnesses were tied down by the Investigating Agency. by taking their statements under s. 164, Cr. P.C. The learned codnsel submitted that resort to s. 164, Cr. P.C. must put the oourt on guard against implicit reliance on sucli evidence because resort

(1) [1955) 1 S.C.R. HSO.

(2) Crl. A. Nos. 102-104 of 1961 d/April17, 1963.

(3) A.I.R. 1959 S.C. 707.

(5) Crl. A. No. lOS of 1969 d/February IS, 1972.

A. C. SHARMA V. DELin ADMN. (Dua, /.) 491

to this section suggests that the witnesses are being compelled to stick to the statement st!Cured from them during investigation. The counsel further drew our attention to the defenee version which, according to him, was put forth at the earliest opportunity. This version, according to him, should have been accepted. The story of demand of bribe by the appellant, argued Mr. Anthony, was not trustworthy. Finally, it was pointed out that Wazir Chand who was stated to be pre5en.t when the appellant is alleged to have de-- manded the bribe should have been produced by the prosecution and failure to do so has seriously prejudiced the appellant's case.

The plea that he had been won Ol'cr and was. therefore, not produced, did not justify his non-production. The counsel also drew our attention to the evidence of the three witnesses produced in defence.

In the High Court all these contentions were raised and after a detailed consideration repelled for reasons which we think are !Ound. The appellant had in the present case, as observed by the High Court, admitted receipt of Rs. 30 from P.W. 1 on the date of the offence and his explanation was considered to be unconvincing.

The defence evidence was also considered by the High Court to be unimpressive and unacceptable.

In our view, it is not possible to find any infirmity in the judgment of the High Court upholding tho prosecution story and convicting the appellant and indeed we are unable to find any cogent ground for re-appraising the evidence for ourselves in this appeal.

There is absolutely no extraordinary reason for departing from the normal rule of practice according to which this Court accepts the conclusions of facts arrived at by the High Court to be final. There is no grave injustice as a result of any irregularity or other infirmity either in the trial or in the judgments of the trial court and the High Court.

The result, therefore, is that the appeal fails and is dismissed.

G.C.

Appeal dismissed.

16- L796SCJI73

A.C. SHARMA

DELHI ADMINISTRATION

Prevention of Corruption Act

s. 5(2)

section 161

Indian Penal Code

High Court of Delhi

Allllluwalia

s. 3

section 3

S. 5A

Prevention of Corruption Act 1947

Calcutta

486B-F]

(iv) The plain meaning of sub-section (1) of 'S. 5A of the Prevention of Corruption Act 1947 appears to be that I.nspectors of Police of D. S. P. E. in all places, Assistant Commissioners of Police i; n te Presidency towns of Calcutta and Madras, Superintendent of Police in the.

Madras

Bombay

D.S.P.E.

Cr.P.C

s. 7A

Prevention of Corruption Act, 1947

Central Bureau of Investi gation

Delhi

Pohce

[1955] 1 S.C.R. 1150

[1964] 3 S. C. R. 743

Frank Anthony

K. B. Rohatgi

Gobind Das

R. N_. Sachthey

F. S. Narimanf

B. D. Sharma

DuA

s. 5

Prevention of Corruption Act

s. 161

I.P.C

December 20; 1969

Police Establishment Act

Central Government

Central Public Works Department

Delhi Administration

Bakht Ram

D Umrao Singh

April 27, 1965

G Supe'rintendent

A. C. SHARMA V. DELHI ADMN

Hakht Ram

D.S.P.

April 1, 1965

s. 4

Prevention of Corruption Act

Congress Mandai

Lajpatnagar

New Delhi

Bakht Ram

s. 4

Prevention of Corruption Act

Anthony

R. I. Singh Ahuluwalia

(1970) 3 S.C.R. 451

SUPREME COURT REPORTS [1973] 3 S.C

Nariman

S.P.E.

Government of India

September 30,

1946

September 25, 1946

March 25, 194

India

Section 3

Dua

s. 3

Section 3

Section 3

section 3

November 6, 1956

s. 3

s. 161, 165, 165A

I.P.C

s. 3

P. V. Ramakrishna

L. Swarup

Delhi High Court

A. C. SHARMA V. DELHI ADMN

s. 2

police Act, 1861

section 3

Section 3

I.P.C

SUPREME COURT REPORTS [1973] 3 S.C.ll

s. 3

s. 4

s. 5

s. 3

s. 3

s. 3

s. 165A

I.P.C

Section 4

ss. 162, 163

and 165

I.P.C

Code of Criminal Procedure, 1898

section 161

section 165

section 165A

Indian Penal Code

section 5

section 5

Books Evidence Act, 1891

ss. 161, 165 and 165A

I.P.C

s. 5

Prevention of Corruption Act

s. 7

Prevention of Corruption Act

Central Bureau of Investigation

Anthonv

SUPREME COURT REPORTS (1973] 3 S.C, Il

D.C. Srivastava

s. 164

s. 164

Wazir Chand


BOARD OF REVENUE, MADRAS

M/S. RAJ BROTHERS AGENCIES ETC.

February 6, 1973

[K. S. HEGDE, P. JAGANMOHAN REDDY AND H. R. KHANNA, JJ.]

Madras General Sales Tax A.ct 1959-S. 34(1)-Meaning of Ifie ll'ords "Subject of an cippepl to the appellate .Tribunal"-Whetlter an appeal against a time-barred order can be considered as an order lV/iich :!rad been made the subject of an appeal.

The respondent was assessed to Sales Tax during the assessment years 1960-61 and 1961·62. Against the said orders of assessment, the' respondent went up in appeal to the Appellate Assistant Commissioner., who dismissed the appeals. 011 a second appeal to the Sales Tax Appellate Tribunal, these appeals were also dismissed as being time barred. Thereafter, the assessee moved the Board of Revenue under s. 34(1) of the Madras Sales Tax Act, 1959 to revise the assessmenil orders.

The Board came to the conclusion that it had no jurisdiction. to entertain those petitions. On a writ petition, the High Court held that the Board has jurisdiction to cntcrtahl those appeals aod therefore, issued a writ of mandamus to the Boa'rd, to entertain the .revision peti tions and to consider them on merits. The State against that decision, has come up in appeal before this Court.

The main question in these appeals was for determination of the true scope of s. 34.

Section 34(1) gives power to the Board of Revenuo suo 1noto to call for and examine an order passeaby the appropriate authorities under some of the provisions df the Act. Section 34(2) pro vides that the Board of Revenue shall not pass any order under sub section (I), if the time for appeal against that order has not expired cor that the order has been made the subject of an appeal to the Appellate Tribunal, or of a revision before the High Court, or that n1ore than 4 years have expired after the passing of the order.

The question for consideration was whether an appeal against an ord4:r which was dismissed as time barred can be considered as an order hich had been made the subject of an appeal.

Dismissing the appeal, HELD: (i) The sCope of s. 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State of .Madras in which it was held by the High Court of Madras that before the jurisdiction of the Board to exercise its power under s. 34 is taken away, the appeal filed before the Tribunal must have been an effective appeal, and that an appeal which was dismissed on the ground of limitation, is not a'1 effective appeal.

That decision has stood the test of time and till no\\· it is good law.

After that decision of the High Cour~ the Act has been sub jected to several amendments, the Legislature not thought fit to amend s. 34. Therefore, it would. not be proper to upset that decision at this late stage and disturb the settled position in law. If the State wants to change the law, it is open to it to move the Legislature for making the necessary amendments.

[49, B-EJ Erodt Yarn Storts v. State of Madras, 14 S.T.C .. 734, referred to.

(ii) The second contention of the appellant that the assessc'e had no right to invoke the jurisdiction of the Board to exercise its revision al

REVENUE BOARD v. RAJ BROS. (Hegde, J.) 493

A power has also no force. The power is conferred on the Board to remedy an injustice.

It is open to an a&SCMee or the revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board to consider whether the case is fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under s. 34, then in absence of any vitiating circumstances, the High B Court would not interfere with the discretion of the Board. [49-5EG]

(iii) In the present case, the decision of the Board was vitiated by an error apparent on the face of the record. The Board had refused to exercise its jurisdiction under an erroneous view that the assessee's appeal was dismissed and therefore, it was not competent to entertain the petition. In the circumstances, the High Court was justified in interfering with that decision.

[4950-H]

C Mis. Melara1n & Sons v. The Co1n1nissioner of Inco1ne 4 tax, Punjab, [1956] S.C.R. 1966, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 492 to 493 of 1970.

Appeals by certificate from the Judgment and order dated December 9, 1968 of the Madras High Court in W. Petition Nos. 4628 and 4630 of 1965.

A. V. Rangam and A. Subhashini, for the appellant.

Respondent did not appear.

The Judgment of the Court.was delivered by

HEGDE, J. These appeals are by certificate. They are directed against the Order of the Madras High Court in two writ petitions in which Mandamus was issued to the Board of Revenue to consider and decide the revision petitions filed by the assessee--respondent under S. 34(1) of the Madras General Sales Tax Act, 1959

(1of1959) (hereinafter called the 'ACT').

The fjlcts of the case lie within a narrow compass. The res' ponC!ent-assessee was assessed to sales tax during the assessnient years 1960-61 and 1961-62. Aggrieved by the orders of the assessing authorities, he went up in appeal to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner dismissed his appeals. Thereafter, he filed second appeal to the Sales Tax Appellate Tribunal, Madras. Tiiose appeals were dismissed as having been time.barred. After the Tribunal dismissed the appeals theassessee moved the Board Of Revenue under S. 34(1) to revis& the a8sessment orders. The Board came to the conclusion tllat it had no jurisdiction to entertain those petitions. The High

Court. in the writ petitions filed held that the Board had jurisdiction to entertain those appeals and consequently issued a writ of mandamus to the Board to entertain the revision petitions and oonsider them on merits. It is against that decision the State of Tamil Nadu has come up in ajlpeal.

In these appeals we are called upon to detennine the true scope of s. 34.

S. 34(1) confers on the Board of Revenue uo motu power to call for and examine an order passed or proceeding recorded by the appropriate authorities under some of the provisions of the Act.

S. 34(2) reads thus : "The Board of Revenue shall not pass any order under sub-section ( 1) if. .....

(a) the time for appeal against that order has not expired; or

(b) the order has been made the subject of an appeal to the Appellate Tribunal or of a revision in the High Court; or ( c) more than four years have expired after the passing of the order."

The question for consideration is as to what is the meaning of the expression "the order has been made the subject of an appeal ? Whether an appeal against an order which wa~ dismissed as having been barred by time can be considered as an order which had been made the subject of an appeal ?" This question does present some difficulty.

But in view of the circumstances, which we shall presently set out, we will not be justified in examining the correctness of the conclusion reached by the High Court.

As far back as 1963 the scope of s. 34 came up for consideration before the Madras High Court in Erode Yarn Stores v. State o.f Madras('). Therein the assessee contended that once an appeal is filed before a Tribunal, the Board is precluded from invoking its power under s. 34. The State of Madras controverted that position. Therein the State contended that before the jurisdiction of the Board to exercise its power under s. 34 can be held to be taken away, the appeal filed before the Tribunal must have been an effective appeal and that an appeal which was dismissed on the ground of limitation is not an effective appeal. The High Court of Madras accepted that contentton and decided the case in favour of the State. In arriving at the conclusion that the words "subject of an appeal" mean subject of an "effective apoeal" High Court took into consideration the mischief that would otherwise arise namely, all that an assessee. who wants to stifle the Board's suo motu power of revision, has to do is to file a time-barred appeal and get it dismissed. It was because of that difficultv the Hieb Court in Erode Yarn Stores' case came to the conclusion that exnression the order which has been the subject of an an"l', al

as meaning "subject of an effective appeal". In arriving at that decision. the Hil?h Court did take into consideration the decision of this Court in Messrs. Mela Ram & Sons v. The Commissioner

(I) 14 S.T.C. n4.

REVENUE BOARD v. RAJ Ell.OS. (Hegde, J.) 495

of Incqme-tax, Punjab(') wherein this Court ruled tbatanappeal presented out of time is an appeal and an order dismissing it as lime-barred is one passed in an appeal. That was a decision rendered under the provisions of the Indian Income 'J)x Act, 1922.

The question for decision in that case was whether an appeal lay against an order of the Appellate Assistant Commissioner dismissing an appeal as time-barred.

In the circumstances of the present case it is not necessary for us to consider whether the decision of the High Court in Erode Yarn Stores' case was correctly decided. That decision was rendered in respect of a provision in a State Act. It was rendered as far back as 1963. In that case the High Court accepted the contention of the State. That decision has stood the field till now.

It must have governed several cases, decided thereafter.

After that decision was rendered, the Act had been subjected to several amendments.

The Legislature has not thought fit to amend s. 34.

To put it differently the State had prayed for and obtained a particular interpretation of s. 34. It has accepted that interpretation to be correct ever since 1963. Under these circumstances it is not proper for this Court to upset that decision at this late stage and disturb a settled position in law. If the State wants to change the law it is open to it to move the Legislature for making the necessary amendments. We find it difficult to appreciate the State conduct in taking inconsistent positions.

Yet another contention was taken on behalf of the State. rt was contended on behalf of the State that the assessee had no right to invoke the jurisdiction of the Board to eiercise its revi, sional power. This contention too has to be rejected. The power is conferred on the Board to remedy any injustice. It is open to an assessee or the Revenue to bring to the notice of the Board any error made by the subordinate authorities. It is up to the Board 'to consider whether the case is a fit case for exercising its revisional jurisdiction. If the Board had gone into the case and come to the conclusion that there was no justification for exercising its jurisdiction under s. 34, then in the absence ()f any vitiating circumstance recognised by law the High Court would not have interferred with the discretion of the Board. But what has happened in this case is that the Board had refused to exercise its jurisdiction under the erroneous view that in view of the dismissal of the assessee's appeal it was not competent to entertain the petition. The decision of the Board was vitiated by an error apparent on the face of the r&:ord. Hence the High Court was justified in interfering with that decision. Whether the case is a fit one for exercising jurisdiction of the Board or not is entirely a matter for the Board to consider and decide. Mr. Rangam drew our atten-

(1) (1956] S.C.R. !66.

tion to two decisions of the Andhra Pradesh High Court where the High Court held that no appeal lay against the order of the Andhra Pradesh Revenue Board under s. 20 (1) of the Andhra. Pradesh General Sales Tax Act, 1957, which provision is similar to s. 34 of the Act. Those deCisions lend no assistance to the appellants' case.

In the result these appeals fail and they are dismissed. The respondents are absent and hence there will be no order as to costs. ·

S.N.C.

Appeals dismissed.

BOARD OF REVENUE, MADRAS

S. RAJ BROTHERS AGENCIES ETC.

February 6, 1973

K. S. HEGDE

P. JAGANMOHAN REDDY

H. R. KHANNA, JJ.

S. 34(1)

Sales Tax Appellate Tribunal

s. 34(1)

Madras Sales Tax Act, 1959

s. 34

Section 34(1)

Section 34(2)

s. 34

Madras High Court

High Court of Madras

s. 34

s. 34

s. 34

A. V. Rangam

A. Subhashini

HEGDE

S. 34(1)

Madras General Sales Tax Act, 1959

Sales Tax Appellate Tribunal, Madras

S. 34(1)

State of Tamil Nadu

s. 34

S. 34(1)

S. 34(2)

s. 34

s. 34

State of Madras

s. 34

Erode Yarn Stores

s. 34

s. 34

s. 34

Rangam

Andhra Pradesh High Court

Andhra Pradesh Revenue Board

s. 20

Pradesh General Sales Tax Act, 1957

s. 34