SAWAL DAS

STAT);: OF BIHAR

January 9, 1974

[M. H. BEG AND P. N. BHAGWATI, JJ.J

Indian Penal Code (Act 45 of 1860), s. 34 and 302-Circun1sta11tial evicknce- Accusedchargedunders. 302/34-When accused1nay be convicted unders. 302, when the others are acquitted under s. 302/34-0./Jence under s. 201-Sentence.

Evidence Act (1 of 1872) Ss. 103and106-Scape of

The appellant is the husband of the deceased. The evidence in the case established that, the relations between .the deceased and her mother-in-law; were very strained; that, on the morning of the murder following a quarrel between them the appellant went with his wife, the deceased, into a room, into which his father and mother then followed; that, immediately thereafter, cries of the murdered woman were heard to save her from being killed; and, that, a little while later, the appellant and his father conveyed the dead body of the deceased and disposed it of: by burning it at the burning ghat without informing the relations of the deceased who were Jiving in the town and without performing any funeral rites.

On this evidence, rejecting the appellant's contention that the deceased died accidentally of injuries caused by fire, the trial court convicted the appeJlant, his father; and mother for offences under s. 302/34 I. P. C. The trial court also con. victed the appellant and his father under s. 201, J, P. C.

On appeal, the High Court acquitted them of the offence under s. 302/34 I. P. C. but found the appellant alone guilty of the oftCnce under s. 302 J. P. C.

The High Court also found the appellant and his father guilty under s. 201 I. P._C. and passed a sentence of three years against the father. No separate sentence on the appellant was passed in view of the sentence of life imprisonment for the offence under s. 302. '

In appeal to this Court,

HELD : (Q The evidence regarding death by burning consisted 1nostly of rumours and beliefs. It was clearly hearsay and was rightly excluded by the lower courts.

(2) Under Ss. 103 and 106, Evidence Act, the burden of proving such a plea specifically set up by an accused, which n1ay absolve hin1 from criminal liability, lies upon him; though, the quantum of evidence by which he may succeed in discharging the burden, may be lower than the burdcil'resting upon the prosecution to establish the guilt of the accused beyond reasonable doubt. The best evidence would have been that of a doctor who could have been called by the appellant on his phone, but no doctor was called. [79BJ

(3) But, neither the application of s. 103 nor of s. 106, Evidence Act, could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. It is only \Vhen the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case that the question arises of considering facts of which the burden of proof may lie upon the accused. [79D]

(4) In the present case, after the acquittal of the appellant's father and 1nother for murder under Ss. 302/34, I. P. C., the individual liability of the appellant has to be established by the prosecution before he could be convicted under s. 302 J.P. C. simp/iciter.- There is nothing in the present case which could fasten or conclusively fix the li:ability for any particular or separate act of the appellant which may be said to have caused his wife's death.

[79H]

K. G. Patilv. State of Maharashtra, [1964] I S.C.R. 678, Solian Lal v. State of U. P., [1971] l S.C, C. 498 and Yashwant anil Ors. v. Stare of Maharashtra, [1973J I S.C; R. 291, followed.

(5) Further, the prosecution has not examined an important witness namely,. the maid servant, who was on the varandah at the time of the occurrence. Her evidence was necessar1 for unfolding the prosecution case and hence, the prosecution should not have withheld her evidence whatever may be its effect upon the ca5e. The appellant could, there ask the Court to give him the benefit of the presumption under s. 114 illus_tration (g), Evidence act and to infer that, if she had been produced, her evidence would have damaged the prosecution case agait the appellant. Her statement under s. 164, Cr. P. C., could only be used as evidence to corroborate or contradict her if she had appeared as a witness at the trial, and could not be relied upoii by the prosecution. [80 G, H]

Stephan Sneviratne v. The King. A.I.R. 1936 P. C. 289, 300, referred to.

(6) Therefore, although it must be held that the deceased was murdered it was not possible to find conclusively that the person who could have throttled or done some other act which actually killed the deceased was the appellant and not his father or mother.

(7) So far as the case of disposal of the body by the appelfant was concerned the circun1stantial evidence \Vas rightly believed and held to be conclusive by both the Courts below. [82G]

(8) As regards sentence, the appeUant deserves the n1aximum sentence that can be imposed under s. 201, I. P. C. A distinction between the case of the appel'- Jant and his father, as regards sentence is justified because; (a) It was the duty of the appellant as a husband to have done something to protect his wife even if fl is assumed for the sake of argument, that the actual death may have been brought about by the acts of others, and, (b) the appellant had taken a leading part in dis~ posing of the body of the murdered woman. [83BJ

CRnUML APPELLATE JURISDICTION : Criminal Appeal No. 70' 1972.

Appeal by Special Leave from the Judgment and Order dated the 16th September, 1971 of the Patna High Court in Criminal Appeal No .. 90 of 1968.

A. N. Mui/a, S. N. Misra, S. S. Jauhar and Sud/la Misra, for the appellant.

R. C. Prasad, for the respondent.

F The Judgment of the Court was delivered by

~-.

BEG, J.-The appellant before us by special leave, Sawal Das, hiS' father Jamuna Prasad, and his stepmother Ka!awati Devi, were charged with Offences punishable under Section 302 Indian Penal Code simpliciter on the allegation that they had intentionally caused the

death of Smt. Chanda Devi, the wife of the appellant, on 28-5-1965,. in their house in Mohalla Andi Gola, in Muzaffarpur, in Bihar. The appellant Sawal Das, his father Jamuna Prasad, their motor driver Sita Ram, and eight other persons were charged under Section 20!

Indian Penal Code for having caused the disappearance of the body of Smt.- Chanda Devi with a view to concealing the murder. Furthermore, Smt. Kalawati Devi was charged under Section 302/109 Indian Penal Code for having instigated the murder of Chanda Devi. The Trial Court had amended and converted the charges against the appellant and Jamuna Prasad and Kalawati Devi into those under Sections 302/34 Indian Penal Code and convicted each of them with the aid of Section 34 Indian Penal Code for the offence of murder and sentenced

them to life imprisonment. Jt had also convicted the appellant and his father under Section 201 Indian Penal Code, but it did not pass separate sentences against them for this offence. The driver Site Ram was also convicted under Section 201 Indian Penal Code and sentenced to three years rigorous imprisonment. It acquitted all the other accused persons. On appeal, the High Court of Patna had acquitted the appellant, his father, and his step-mother of offences punishable under Section 302/34 Indian Penal Code, but it found the appellant alone guilty of an offence punishable under Section 302 Indian Penal Code simpliciter and sentenced him to life imprisonment. It had also found the appellant and his father guilty under Section 201 Indian Penal Code, but, while passing a sentence of three years rigorous imprisonment on Jamuna Prasad, it had not passed a separate sentence on the appellant in view of his conviction under Section 302 Indian Penal Code. It had allowed appeals of Kalawati Devi and Sita Ram and acquitted them.

The whole case against the appellant depends upon circumstantial evidence. There is no eye witness of the murder which was alleged to have 'been committed by the appellant, his father, and step-mother conjointly on the morning of 28-5-1965 at about 8.00 a.m. The Sessions Judge had relied upon the following proved facts and circums- D lances to convict the three accused persons of murder under Sections 302/34 Indian Penal Code :

I. The relations between Sm!. Chanda Devi and her step-motherin-law, Smt. Kalawati Devi, who were living in the same house with their respective husbands and children, were strained so that there were

frequent quarrels between them.

2. The appellant as well as his father Jamuna Prasad used to take the side of Smt. Kalawati in the quarrels between the murdered wife and her mother-in-law.

3. On the morning of the murder, there was a particularly sharp quarrel between the deceased and Sm!. Kalawati so that Smt. Kalawati, who was living in a room adjoining that of Smt. Chanda DeYi on the first floor of the house, called out to the appellant that his "rascal wife" was quarrelling with her and informed him as well as Jamuna that either she or Chanda Devi will live in the house henceforth.

4. The appellant and his father Jamuna Prasad went upstairs to the Verandah where the quarrel was taking place and the appellant took or pushed Chanda Devi inside her room followed by the appellant'• father and his step-mother.

5 .. I1nn1ediatc1y after that, cries of atleast "Bachao" ~~Bachao ", were heard from inside the room. No body heard the voice of Smt.

Chanda Devi after that.

5. Immediately after these cries, the children of Chanda Del'i wer eard crying and uttering words. indicating that their mother was either being killed or had been killed.

SAWAL DAS v. BlllAR (Beg, I.) 77

7. A short while after that, the appellant and his father Jamuna Prasad were seen bringing a gunny bag with the help of their driver,

Sita Ram, and another person, and keeping it in the luggage boot of the car which had been brought there by the driver.

8. The car, containing the body of the deceased Chanda Devi, was driven fast and taken to what is known as Pahleza-Ghat, 50 miles away, to be burnt there at night. The car was shown to have crossed

Sonepur Bridge at 9.00 p.m.

9. The relations of the deceased Smt. Chanda Devi, who were Jiving in the town, were not at all informed by the appellant or other members of his family, that she had died either naturally or accidentally.

10. No persons who usually performed the funeral rites in the family were shown to have been informed and there was no funeral procession of the usual kind. But, some of those related to the appellant, who were co-accused for the offence of illegal disposal of the body, were said to have followed in a truck.

11. Some blood, which was said to have distintegrated so much that its origin could not be determined, was shown to have been scraped from the boot of the car as well as from inside the car.

The Trial Court had come to the conclusion that, upon the estab- Jished circumstances listed above, no other inference was left open to the Court except that the appellant and his father and step-mother had conjointly committed the murder of the deceased Smt. Chanda Devi on the morning of 28-5-1965 and that the appellant and his father had then hastily and stealthily disposed of the body in order to oonceal the commission of the offence. It had also taken into account, in coming to this conclusion, the fact that the appellant had unsuccessfully set up a plea, in his written statement, that Smt. Chanda Devi, who was alleged by him to be wearing a Nylon Saree, said to have caught fire accidentally while she was using a Kerosene stove in her room, died of extensive burns on her body and collapsed. The appellant had alleged that Smt. Chanda Devi was debilitated and kept a bad health due to frequent pregnancies and was also sufferini: from Asthma, a weak heart, and abdominal complaints. She had given birth to six children.

The Trial Court observed that no Doctor was called in to substantiate the appellant's plea. Furthermore, it pointed out that, as a highly qualified Doctor, Dr. G. B. Sahai, had deposed, normally death would not take place immediately as a result of accidental burning of the kind alleged by the appellant and that there would have been evidence of rolling on the ground or other acts of the deceased in attempts

to save herself in such an event. The Trial Court had also believed the evidence of the relations of .Chanda Devi that she was enjoying good health so that the bare assertions of the appellant that 'he had a weak heart could not be accept<d. It also observed that no burnt pieces of cloth or marks of smoke or soot on the walls or roof of the room in which Smt. Chanda Devi had admittedly died were shown to exist.

Learned Counsel for the appellant drew our attention to a numb" A of pieces of evidence, such as a boil on the finger of Jamuna multiple

irregular areas of suspected burns, varying from l" to 1/3", in length and half inch to 3/4" in width, on the lower third of right fore-arm. ulnar side, of the appellant, when he was examined by Dr. 1. Nath -On 2-6-1965, the statement by a witness that he saw some smoke comine .out of the house at the time of the alleged murder, the rumour of her <leath by burning mentioned by several witnesses, which found a B .Place in the information sent to the Police on 30-5-1965 by Lallu

Prasad, P.W. 28, a relation of the murdered wife, and into another written information given by Hawaldar Gorakhnath Singh, P.W.3, at the Police Station, on 28-5-1965, and other similar bits of information and belief deposed to by witnesses.

So far as the information dated f30-5-1965 (Ex. 17) treated as c F.I.R. by the Police, or the information given by Gorakhnath Singh .on 28-5-1965, which, according to the appellant, ought to be treated .1s a First Information Report, and other pieces of information and belief given by the witnesses are concerned, it is clear that these are based on hear-say which was rightly excluded. The Trial Court pointed out that the appellant and other members of his family were the sources of these false rumou1s circulated by them so as to protect D themselves against an accusation for murder. We, therefore, attach no importance whatsoever either to the document which the prosecution or the one which the appellant placed before us as the First Infor- 1nation Report. These contain nothing more than rumour and hearsay because those who could have reported the commission of an offence were actually the offenders interested in concealing its com- 1nission and misdirecting investigation.

As regards the burns on the body of the appellant, the Trial Court Tightly pointed out that the Doctor had stated on 2-6-1965 that they were 3 or 4 days old. They were not shown to be connected with <iny attempt to extinguish a fire which could have burnt Smt. Chanda Devi. The best evidence in such a case could have been that of a Doctor who, as the High Court pointed out, shCJLi!d have been call<tl }' but was not called despite the fact that there was a telephone in the 'house. ·

We think that the burden of proving the plea that Smt. CI1anJa Devi died in the manner alleged by the appellant lay upon the appellant. This is clear from the provisions of Sections 103 and 106 of the Indian Evidence Act. Both the Trial Court and the High Court had rightly pointed out that the appellant had miserably failed to gi•e G , credible or substantial evidence of any facts or circumstances which .could support the plea that Smt. Chanda Devi met her death because her Nylon Saree had accidentally caught fire from a kerosene stove.

The Trial Court had rightly observed that the mere fact that some witnesses had seen some smoke emerging from the room, with a kitchen nearby at a time when food was likely to be cooked, could not indicate 11 ihat Smt. Chanda Devi's saree had caught fire. Neither the murdered woman nor the appeHant nor any member of his family was shown t0 have run about or called for help against a fire.

A Learned Counsel for the appellant contended that Section 106 o( the Evidenee Act could not be called in aid by the prosecution

because that section applies only where a fact relating to the actual commission of the offence is within the special knowledge of the accused, such as the circumstances in which or the intention with which an accused did a particular act alleged to constitute an offence. The

language of Section 106 Evidence Act does not, in our opinion, warrant putting such a narrow construction upon it. This Court held in Gurcharan Singh v. State of Punjab(!), that the burden of proving a plea specifically set up by an accused, which may absolve him from criminal liability, certainly lies upon him. It is a different matter that the quantum of evidence by which he may succeed in discharging his burden of creating a reasonable belief, that circumstance absolving c him from criminal liability may have existed, is lower than the burden resting upon the prosecution to establish the guilt of an accused beyond reasonable doubt. ·

Neither an application of Section 103 nor of 106 of the Evidence Act could, however, absolve the prosecution from the duty of discharging its general or primary burden of proving the prosecution case beyond reasonable doubt. Tt is only when the prosecution has led evidence which, if believed, will sustain a conviction, or, which makes out a prima facie case, that the question arises of considering facts of which the burden of proof may lie upon the accused. The , crucial question in the case before us is : as the prosecution discharged its initial or general alld primary burden of proving the guilt of the appellant beyond reasonable doubt? ·

E Perhaps the Trial Court had adopted a more logical course upon facts and circumstances indicating that the appellant was one of the three persons whose conjoint actions had, on the morning of 28-5-1965, ..... resulted in the death of Smt. Chanda Devi. It may be that the appe- Hant was the primary or the main actor in the actual commission of the murder after his step-mother had sought his aid in what appeared

F to be an appeal to him by her to teach his wife a lesson so that she may not be trou1>lcd by her any more. But, the effect of the finding that the appellant went into the room from which the cries of the murdered woman, to save her from being killed, came immediately afterwards, is diluted by the evidence that Jamuna Prasad and Smt.

Kalawati had followed him.· The High Court's view could perhaps find some support from the fact that Jamuna Prasad was seen paci

G fying and rebuking the children outside while the appellant may have been dealing with his wife in a manner which brought about her death, But, all this is a matter of conjecture. Lurking but not un-reasonable

.t doubts and suspicions seem to us to envelope and assail the prose . cution case atleast after Jamuna Prasad and Smt. Kalawati have been acquitted. As the learned counsel for. the appellant has rightly pointed out, after the acquittal of Kalawati and Jamuna Prasad for

H murder, by the use of Section 34 Indian Penal Code, the individual and not the conjoint liability of the appellant has to be established by the prosecution before the appellant could be convicted under

(l) A.LR. 19S6 S.C. 460. .. ~

Section 302 Indian Penal Code simpliciter. Beyond the fact that the appellant is the husband of the murdered wife, who might be ordin.arily expected to take te ini'.iative in .teahing her a lesson, especially when Smt. Kalawati had mvoked his aid, and a possibly natural reluctance of a normal father-in-Jaw to take the initiative or a leading role in such a matter, both of which could be matters of conjecture or presumptjon only, there is nothing which could fasten or conclusively fix the liability for any particular or separate act of the appellant which may be mid to have caused his wife's death.

We find that the High Court had not dealt with the question whether a distinction could be made between the case of the appellant on the one hand and his father Jamuna Prasad and his step-mother Kala wati on the other quite satisfactorily, so far as the offence of murder

is concerned. Nevertheless, we may have agreed with its conclusion, C on the evidence on record, that the appellant alone was liable for the murder of his wife Smt. Chanda Devi and we may not have disturbed its finding of fact but for another feature of the case which stares one in the face. We proceed now to deal with this feature.

Even if, as the Trial Court and the High Court had correctly held, there is admissible and credible evidence of five witnesses, Ganesh D Prasod, P.W. 1, Nand Kishore, P.W. 2, Radhey Shyam Sharma, P.W.9, Laxmi Narain, PW. 16, and Basdeo Prasad, P.W. 27, who are said to have heard or watched from outside, from varying distances, Of what was going on in the Verandah, no eye witness was produced who could prove what actually took place inside the room where the murder was committed. The only evidence given of what could have taken place inside the room was the cry of "Bachao Bachao" although there is E some understandable variation between accounts of witnesses as to whether the murdered woman also uttered some more words showing that she was being actually killed. We also agree with the view that the evidence of witnesses about what the children said or did at that time is admissible under Section 6 of the Evidence Act. In view of some evidence in the case that the appellant's children had refrained from revealing any facts against the appellant or his father or his step- F mother, when they were questioned by relations or by the Police, it could be urged that there was no point in producing the children.

The Court could also have rightly decided, in such circumstances. not to exan1ine them under Section 540 Criminal Procedure Code.

But, there is no explanation even attempted to sho\v why the Maid servant, Geeta Kurmini, who, according to the pros:::cution case, was also in the Verandah at the time of the occurrence, was not produced G at the Trial although her statement was recorded under Section 164 Criminal Procedure Code and was brought on the record (Ex. 12).

This tatement could only be used as evidence to corroborate or contradict Geeta Kurmini if she had appeared as a witness at the trial.

The appellant could, therefore, quite reasonably ask the Court to give him the benefit of the optional presumption under Section 114 illustration (g) of the Evidence Act and lo infer that, if she had been pro- H duced, it would have damaged the nrosccution case against the appellant. Her statement, if it had been there as evidence in the case, may very well have shown that it was Jamuna who was taking the leading

'I.'

SAWAL DAS V. BillAR (Beg, /.) 81

part in bringing about the death of Smt. Chanda Devi. There ·is some evidence in the case as to the kind of man Jamuna was. It shows that he was not a naturally kind or gentle or amiable individual liked by people. The normal inhibitions of a father-in-law with regard to his daughter-in-law, which learned Counsel for the State emphasized so much, may not really be there at all in this case. Indeed, we think that, in the circumstances of the case, Geeta Kurmini, the maid servant,. was a witnessessential to the unfolding of the prosecution case. Her evidence could not be withheld by the prosecution whatever may be its effect upon the case.

We think that the principle laid down by Privy --Couneilin Stephen Sneviratne v. the king (1 ), with regard to such a witnes, is applicable here. It was observed there (at page 300):

"Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this was is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but, at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so, confusion is very apt to result and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, .be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution". '

Mr. Mulla, appearing for the appellant, has also drawn our attention to K.G. Patil V. State of Maharashtra (2). This Court held there that, when two out of three accused persons, each having been charged under Section 302 read with Section 34 Indian Panel Code, were acquitted, it must be assumed that the two acquitted persons did not participate in the commission of the offence at all. It is contented that the natural result of this view is that the 'P"rticular act of the individual accused which brought about the death of the murdered person must be established beyond doubt before he is singly and separately convicted under Section 302 Indian Penal Code simpliciter.

Our attention was also invited to Soha11 Lal v. State of U.P.,(3} where it was held by this Court that in the absence of evidence to show which act of the accused caused the death of the murdered man, it would neither be proper to convict the accused person. under Seciion 302 Indian Penal Code simpliciter nor under Section 302 read with Section 34 Indian Penal Code, when the High Court bad acquitted the co-accused of charges under Section 302 read with Section .34 Indian Penal Code, and the State had not appealed against the acquittal.

(I) A1R 1936 P. C. 289 @ 300. (2)

[1964] (I) SCR 678.

(3)

[1971] (I) S. C. C. 491.

In the case before us, the High Court had actually altered the con-

A .. , viction of the appellant from one under Sections 302/34 I.P.C. to one under Section 302 I.P.C. thereby implying that he was not guilty of any offence under Section 302/34 I.P.C.

It is true that this Court explained, in Yashwant & Ors. V. State of Maharashtra, (1) that the appli •. cability of Section 34 I.P.C. to a case depends upon the particular facts and circumstances <lf the case. Therefore, we have to scrutinize and pronounce upon the particular facts of the case before us.

We think that, upon the facts of this case, there could be a reason able doubt as to whether Section 34 l.P.C. could be applied to conrict any of the three accused persons of murder. After excluding the application of Section 34 I.P.C. to the case, the evidence does not also appear to us to prove conclusively that the appellant must have either throttled the deceased or done some other act, quite apart c from the acts of his father and step-mother, which brought about the death. This result follows from the totality of evidence and the pre-

umption from the non-production of Geeta Kurmini whiclt destroys the value of the evidence which weighed so much with the High Court, that the appellant was doing something like pushing or taking the murdered woman inside her room at the time when she was last seen alive.

The Trial Court and the High Court relying on the evidence of some bleeding of the body of the deceased, admitted by the appellant to have been carried in the car to the burning ghat, and the absence of evidence of death caused by burning, came to the condusion that the appellant must have throttled the deceased. This was pure conjecture after eliminating the defence case of burning by E accident. If it had been a case of throttling only, it would be difficult to explain the cries of murdered woman for help which were heard by wit

nesses on the road unless we assume that the murdered woman cried out, as she may have done, before the hands which choked her were -..._j placed on her throat. Therefore, although we may hold, as we do, that this must be a case of murder, it is not possible for us to find condusively that it was a case of throttling and of nothing else or that the F person who could have throttled or done some other act which actually .killed the deceased was the appellant and not his father or step-mother.

So far as the case of quick disposal of the body by the appellant is concerned, the circumstancial evidence was rightly believed and held to be conclusive by both the Courts below. This evidence was too damaging to admit of any doubt that the appellant took the leading G part in doing away with the remains of the body of his wife after site had been murdered. The Trial Court and the High Court, while maintaining the appellant's conviction under Section 201 Indian Penal Code, \ had not fixed l>is sentence. It was urged by Mr. Mulla before us that the appellant should not be given more than three years rigorous imprisonment just as his father Jamuna had been sentenced to three years rigorous imprisonment only under Section 201 Indian Penal Code. l!

It may be mentioned here that, while special leave to appeal was granted to the appellant against the judgment of the High Court, this Court

(I) [197311 SCR 291.

had refused to grant any leave to his father Jamuna to appeal against his conviction under Section 201 Indian Penal Code. We, however, think that a distinction between the ease of the appellant and his father is justified on two grounds mainly; firstly, it was the duty of the appellant, as the husband, to have done something to protect his wife/even if we assume, for the sake of argument, that the actual death may have been brought about by the acts of others ; and secondly, the appli- Iant had tal::en a leading part in disposing of the murdered woman. We thinl:: that the maximum sentence which can be passed under Section 201 Indian Penal Code is deserved by the appellant upon facts and circumstances of this case. Accordingly; we allow this appeal!<> the extent that we set aside the conviction of the appellant under Section

302 I. P. C., but we maintain his conviction under Section 201 I. P. C. and sentence him to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1,000/- and, in default of payment offine, to undergo further rigorous imprisonment for a term of six months.

V.P.S.

Appeal allowed.

DAS

STAT);: OF BIHAR

January 9, 1974

M. H. BEG

P. N. BHAGWATI, JJ

Indian Penal Code

s. 34 and 302

s. 302

s. 201

Ss. 103

s. 302

s. 201

s. 302

s. 302

s. 201

s. 302

Ss. 103 and 106

s. 103

s. 106

Ss. 302

s. 302

s. 114

s. 164

s. 201

CRnUML APPELLATE JURISDICTION

Patna High Court

A. N. Mui

S. N. Misra

S. S. Jauhar

Sud/la Misra

R. C. Prasad

BEG

Sawal Das

Jamuna Prasad

Ka!awati Devi

Section 302

Indian Penal Code

Chanda Devi

Sawal Das

Sita Ram

Section 20

Indian Penal Code

Kalawati Devi

Section 302

Indian Penal Code

Sections 302

Indian Penal Code

Section 34

Indian Penal Code

Section 201

Indian Penal Code

Site Ram

Section 201

Indian Penal Code

High Court of Patna

Section 302

Indian Penal Code

Section 302

Indian Penal Code

Section 201

Indian Penal Code

Section 302

Indian Penal Code

Sections 302

Indian Penal Code

Kalawati

Chanda DeYi

Jamuna

Chanda Del'i

G. B. Sahai

.Chanda Devi

Nath

Lallu

Prasad

Hawaldar Gorakhnath Singh

Gorakhnath Singh

CI1anJa Devi

Sections 103 and 106

Indian Evidence Act

Section 106

Section 106

Section 103

Section 34

Indian Penal Code

Section 302

Indian Penal Code

Kala wati

Ganesh D Prasod

Nand Kishore

Radhey Shyam Sharma

Laxmi Narain

Basdeo Prasad

Verandah

Bachao Bachao

Section 6

Section 540

Criminal Procedure Code

Geeta Kurmini

Section 164

Criminal Procedure Code

Section 114

SAWAL DAS V. BillAR

Geeta Kurmini

Mulla

Section 302

Section 34

Indian Panel Code

Section 302

Indian Penal Code

Indian Penal Code

Section 302

Section 34

Indian Penal Code

Section 302

Indian Penal Code

Sections 302

I.P.C

Section 302

I.P.C

Section 302

I.P.C

Section 34

I.P.C

Section 34

Section 34

I.P.C

Section 201

Indian Penal Code

Section 201

Indian Penal Code

Section 201

Indian Penal Code

Section 201

Indian Penal Code

Section

302

Section 201


R. S. SIAL

THE STATE OF U.P. & ORS.·.

March 25, 1974

[H. R. KHANNA AND P. K. GOSWAMI, JJ.)

Constitution of India, Art. 311(2)-Reversion from _an officiating higher post to substantive post-If attracts Art. 311(2)

. B:

_The appellant wh~ was Assist. General Manager in the State Transport Department was appointed as offic1at:J.ng General ianager in the same departmei; tt: During the period of his .officiating appointment he was reverted.

At the llme of the appellant's reversion there were two letters from the Vigilance Department making certain allegations against the appellant. These letters show that the authorities concerned came to the conclusion that pending the enquiry.

C the appllant should not be allowed to officiate in a higher post. His writ petition challenging the order of reversion was dismissed by the High Court.

 !t was contellded in this court that the order of reveion -was by way of punishment and since it had been made without complying with the requirements of Art. 311 of the Constitution the same was liable to b~ quashed.

Dismissing the appeal,

HELD :-The test for attracting Art. 311(2) of the Constitution is whetli.er D the misconduct or negligence is a mere motive for the order of reversion or termination of service of the temporary employee. The form of the order ho\'; ever, is not conclusive of its true nature.

The entirety of circumstances preceding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order.

[757E]

A perusal of the order showed that it contained no adverse remarks against r~. the appellant nor could it be said that any stigma attached to the appellant i:... because of that order. The post of General itanager which was held by the appeIIant was only in an officiating capacity. The appellant had no vested right to retain that post.

In case the author_ities concerned came to the conclusion that the appellant should not b~ allowed to retain the post. of which he was officiating they could pass an order for his reversion without complyin~ with the requirements of Art. 311 provided the order was not by way of punishment.

[756H) Parshotam Lai Dhi11gra v. Union of India, [1958] S.C.R. 828, Union of India & Anr. v. Gajendra Singh etc. etc .• [1972] 3 S.C.R. 660 and State of Bihar & Ors. y. Shi~'a Bhik.shuk-Mishra, [1971) 2 S.C.R. 191, followed.

The same rule would bold good if the order passed is not for termination of service but for reversion '?f a Government servant from. a higher post to a lower post \\"-hich he holds tn a substantive capcity.

CIVIL APPELLANT JURISDICTION: Civil Appeal No. 1062 of 1971.

Appeal by Special Leave from the Judgment and Order dated the 12th January, 1971 of the Allahahad High Court (Lucknow Bench)

t Luck; now in Writ Petition No. 1073 of 1968.

G :.

S. V. Gupte, I. P. Goyal and G. S. Chatterjee, for the appellant.

C. N. Dikshit, and R. Ba11a for the respondents.

The Judgment of the Court was delivered by

KHANNA, J.-This appeal by special leave is directed against a Full Bench decision of the Allahabad High Court . whereby petition under article 226 of the Constitution onndia filed by the appellant was dismissed.

The appellant was appointed Traffic Manager in the transpnrt organization of the State of Uttar. Pradesh on July 21, 1948. The office of Traffic Manager was subsequently designated a~ Assistant General Manager and the appellant continued to work as such.

On December 1, 1955 tl)e appellant was confirmed as Assistant General Manager with effect from April 1, 1955. On July 5, 1963 the appellant was appointed Officiating General Manager in the Gorakhpur region of the Transport Department The appellant continued to officiate as General Manager of Government Roadways till September 7, 1967 when he.was reverted to the post of Assistant General Manager. The appellant filed writ petition No. 3167 of 1967 in the Allahabad High Cqurt challenging the order of his reversion but the same was summarily dismissed by a Division Bench of that court as per order dated Se?tember 12, 1967. Representation was made by the appellant against the order of his reversion but the representation too was rejected by the State Government as per letter dated October 7, 1968.

The writ petition which has given rise to this appeal was thereafter filed by the petitioner praying for quashing the ordei by which he had been reverted from the post of Officiating General .Manager to that of Assistant General Manager as well as the orders whereby his representation had been rejected.

A number of grounds were set out in the petition for assailing the impugned orders, but at the hearing of the appeal only one ground has been pressed and it is only that ground with which we are concerned. According to 1the appellant, the order of his reversion was by way of p\mishment and as it had been made wiihout complying with requirements of article 311 of the Constitution, the same was liable to be quashed.

The petition. was resisted by the State of Uttar Pradesh and the affidavit of Shri Bhagwan Sarup Sl\Xena, Deputy Secretary to the Government in the Transport Department was filed in opposition to the petition. Objection was; taken that the present petition was barred because of the dismissal of the earlier petition.

On merits it was stated that the appellant was merely , officiating as a General Manager and bad no right to that post. According to the respondent-State, the appellant could be reverted to his substantive post of Assistant Gneral Manager withO\lt the State takipg any disciplinary action or assigning anv reason.

When the petition can1e up for hearing fore a single Judge the learned Judge referred the matter to a farger Bench. Ultimately, the matter was heard by a Full Bench of the High Court. The learned Judges held that the present l;>etition was barred because of the dis- JDissal of lhe appellant's earlier petition. On merits also, the learned

Judges did not accept the contention advanced on behalf of the appel- A ·)ant and held that as he was only officiating as General Manager, he did not have any lien on that post. The reversion was held to.be not by way of punishment. The Government, in the opinion of the High: Court, was entitled in exerci~ of its power to revert a person who was: officiating in a higher post. Contention was also raised that the order of reversion was violative of the principles of natural justice but this contention was repelled.

In the result the petition of the appellant B was dismissed.

In appeal before us Mr. Gupte on behalf of the appellant has argued that as the previous petition No. 3167 of 1967 filed by the appellant had been dismissed summarily by means of a non-speaking order, it cannot

b~ said that the dismissal of that petition was on merits. As such, according to the learned counsel, the present petition was not barred C because of the dismissal of the pre; ious petition. The second conten tion of Mr. Gupte is that the reversion. of the appellant from the post of Officiating General Manager to that of Assistant General Manager was by way of punishment and as the same had been ordered without complying with article 311 of the Constitution, the order of reversion was liable to be quashed.

The above contentions have been controverted by Mr. Dikshit on behalf of the respondent-State. It is, in our opinion, D not necessary to go into the first contention of Mr. Guptc because we find that the order of reversion of the appellant cannot be said to have been made by way of punishment.

The material part of the order of reversion reads as under :

"OFFICE OF THE TRANSPORT COMMISSIONER E

UTT AR PRADESH

No. 714/PAVS/67 Dated Lucknow, September 7, 1967

ORDER

In pursuance of Government's instructions contained is Deputy Secretary, Trausport's D.0. letter No. 13060 S/XXXA-10/18/i'vl/59, dated September 5, 1967 the F folJowing reversion~, transfers and postings arc hereby crdcred :-

(1) Sri R. S. Sial, officiating General Manager, U.P.

Government Roadways, Aligarh, is reverted to his substantive post of Assistant General Manager, and posted at Lucknow as Assistant General Manager (Rural) vice Sri V. P.

G Gupta transferred."

Perusal of the above order shows that it contains no adverse remarks against the appellant, nor can it be said that any stigma attaches to the appellant because of that order. At the time the above order was made the substantive rank of the appellant was that of Assistant General Manager.

The post of General Manager which was held by H the appdlant was only in an officiating capacity. The appellant had no vcst., d right to retain that post. In case the authorities concerned came to the conclusion that the appellant should not be allowed to

retain the post in which he was officiating, they could pass an order for his reversion without complying with the requirements of article 311 provided the ordr was not by way of punishment.

Appointment to a post on an officiating basis is, from the nature of employment, itseH of a transitory character and in the absenee of any contract or specific rule regulating the conditions of service to the contrary, the implied term of such an appointment is that it is terminable at any time.

The Government servant so appointed acquires no right to the post. But if the order entails or provides for forfeiture of bis pay or allowance or the loss of his seniority in the substantive rank or the stoppage or postponement of bis future chances of promotion, then that circumstance may indicate that though, in form, the Government had purported to exercise its undoubted right to terminate the employment, in truth and reality, the termination was by way of penalty [see Parshotam Lal Dhingra v. Union of India (I) and Union of India & Anr. v. Gajendra Singh, etc. etc.( 2 )].

Officiating and temporary Government sevants are also entitled to the protection of article 311 as permanent Government servants if the Government takes action against them by meting out one of the punishments, i.e. dismissal, removal or reduction in rank [see Parshotam Lal Dhingra v. Union of India, (supra), Champaklal Chimanlal Shah v.

Union of India(') and Appar Apar Singh v. The State of Punjab & Ors.(<)].

The test for attracting article 311 (2) of the Co1istitution is whether the miscpnduct or negligence is a mere motive for the order of reversion or termination of service or whether it is the very foundation of the order of termination of service cif the temi;><>rary employee.

The form of the order, however, is not conclusive of its true nature.

The entirety of circumstances preeding or attendant on the impugned order must be examined by the court and the overriding test will always be whether the misconduct is a mere motive or is the very foundation of the order [sec State of Bihar & Ors. v. Shira Bhikshuk Mishra(')].

In the case of State of Punjab v. Shri Sukh Raj Bahadur(6) this Court enunciated the following propositions which have to be borne in mind:

"(!) The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Art. 311 of the Constitution.

(2) The circumstances preceding or attendant on the. order of termination of service have to be examined in each case, the motive behind it being immaterial.

(3) lf the order visits the public servant with any evil consequences or casts an aspersion against his

(I) [1958] SCR 828.

(2) [1972] 3 SCR 660.

(3) [196415SCR190.

(4) [1971] 2 SCR 890.

(5) [1971] 2 SCR 191. (6)

[19681 3 SCR 2J4.

character or integrity, it must re considered to be one A

(4)

(5)

by way of punishment, no matter whether he was a mere probationer or a temporary servant.

An oruer of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Art. 311 of the Constitution.

If there be a full-scale departmental enquiry envisaged by Art. 311 i.e. an Enquiry Officer is appointed, a charge sheet subm; tted, .explanation called (or and considered, any order of termination of service made thereafter will attract the operation of the said article." -

Keeping in view the principles enunciated above, we ha\-C looked at the facts of the case and are not satisfied that the order of reversion of the appellant was by way of punishment. It has already been mentioned above that no aspersion was cast on the appellant in the order of reversion and as a result of toot order no stigma attaches to his name: The appellant was merely officiating in a higher post and the impugned order had the effect of reverting him to his substantive post.

The attendant circumstances to which our attention has been invited with a view to show that the order of reversion was by way of punishment are two letters dated July 12, 1967.

One of these letters was addressed by the Deputy Secretary, Vigilance Department to the Director of Vigilance wherein reference was made to the report of the officers of the Intelligence and Evaluation Cell.

It was requested that an open enquiry might be made into the allegations of involvement of the appellant in a matter relating to the supply of non-genuine and substandard motor parts by a Delhi dealer. In the other letter addressed to the Secretary to Uttar Pradesh Government, Transport Department a request was made by the Deputy Secretary, Vigilance Department that in case .the appellant was n6t confirmed on the post of General Manager, he might be reverted since an enquiry made by the CID into the allegations of corruption against the appellant had rewalcd that there was substance in those allegations.

The above kiters would show that the authorities concerned came to the conclusion that, pending the holding of an open enquiry into the charges of corruption against the appellant, he should not be allowed to officiate in a higher post. It cannot, in our opinion, be inferred therefrom that the reversion of the appellant was by way of punishment. All that c:i.n be said is that the contemplated enquiry into the charges of corruption against the appellant provided the motive for the reversion of the appellant.

The existence of such a motive cannot, in our opinion, vltiale the order for the reversion of the appellant.

It may be taken to l>o well settled that even though misconduct, negligence, inefficiency or other disqualifications may be the motive or the inducing factor which influence the Government to take action under the express or implied terms of the contract of employment or under the statutory rule, nevertheless if a right exists, under the contract or the rules to terminate the services the

motive operating on the mind of the Government is whoUy immaterial [see Union of India v. R. S. Dhaba( 1) .]. The same rule would hold good if-the order passed is not for termination of service but for reversion of a Government servant from a higher post to a lower post which he holds in a substantive capacity.

Application was filed .during the pendency of the appoal on behalf of the appellant that this Court might take into account additional documents.

These documents were in existence at the time the appellant filed the petition in the High Court.

The petition in the High Court remained pending for more than a year.

We are not impressed by the plea taken on behalf of the appellant that he coulct not trace these documents with due diligence and has been able to trace them now. 1be documents in question are not of such a nature as arc

needod to enable us to pronounce this judgment. In the circumtances, the application filed by the appellant for taking on record additional documents in appeal is rejected.

The appeal fails and is dismissed with costs .

P.B.R. ,4ppeal dismissed.

(I) [1969] 3 SCR 603.

R. S. SIAL

THE STATE OF U.P. & ORS

March 25, 1974

H. R. KHANNA

P. K. GOSWAMI, JJ.

Constitution of India

Art. 311(2)

Art. 311(2)

Art. 311

Art. 311(2)

Art. 311

[1972] 3 S.C.R. 660

State of Bihar

[1971) 2 S.C.R. 191

S. V. Gupte

I. P. Goyal

G. S. Chatterjee

C. N. Dikshit

R. Ba11a

KHANNA

Allahabad High Court

article 226

December 1, 1955

July 5, 1963

Gorakhpur

Allahabad High Cqurt

Se?tember 12, 1967

October 7, 1968

article 311

State of Uttar Pradesh

Bhagwan Sarup Sl\Xena

Gupte

article 311

Dikshit

Guptc

R. S. Sial

V. P.

G Gupta

article 311

article 311

article 311

Art. 311

[1972] 3 SCR 660

[1971] 2 SCR 890

[1971] 2 SCR 191

Art. 311

Art. 311

July 12, 1967

Delhi

Uttar Pradesh Government

[1969] 3 SCR 603