PURXOMOMA

RAMANATA

QUENIN

MAKAN KALYAN TANDEL & ORS.

January 9, 1974

[H. R. KHANNA, V. R. KRISHNA !YER AND R. S. SAR.KARIA, JJ.]

Constiturio11 of India, Art. 14-Contracts with' the Government-Uast of distillery owned by the State to. members of public by tenckr-Government reser; ingright to select any tender or re,,1ect a/I te11ders without assigning any reason-No vlolaJiolt of Art. 14.

Words and phrases-" Auction" and "Jnvliation to tender"-Distinction betwein- Legislative dip/01na No. 1761, Art. 9 para 2 frame~ by Portuguese Governnt. C

The Union territory of (Joa; Daman and Diu invited tenders on behalf of the President of India from the public for the lease pf the Daman distillery for a period of three years. Clause 7 of the tenns and conditions of the tender appended to the notice provided that the highest iender shall ordinarily accepted but the Government reserved the right to select any tender or reject all tenders without assigning any reason therefor. The appellant tendered Rs. 3,25,000/· while respondent No. I offered Rs. 3,51,545/· The le1s: of th~ distillery was granted to appellant for Rs. 3,52,545/· Rs. 1000/- more than th~ amount mentioned. in the tender of respondent No. I, .On challenge to the legality of the grant of lease by Respondent No. 1 thourgh a writ petition, the Judicial Commissioner of Goa set aside the lease in favour of appellant No. 1 and directed the Government tc~ deal with the tender of respondent No. I according to law. The main reason which weighed with the learned Judicial Commissioner was the suon made on behalf of the State that it was prepared, without accepting the correctness of the con. tention5 of Respondent No. I, to set aside the lease, if the Court So desired. The Judicial Cornmissioner also held !hat clause? of the notice wa~ ultra v~. that givi:ng E. lease to the appellant by accepttng more money than the highest bid by a private deal was contrary to law and not assigning reasons for the rejection of the tender of 1espondent No. 1 was illegal. (680}

A.llo..ylng the appeal b)' special leave,

HELD: (1) The Judicial Corr'unissioner should not have, without giving some cogent reason set aside the lease of the distillery in favour of the appellant. The main reason v.'.hich weighed with the learned Judkil Commissioner in setting aside the lease in faour of the appellant was the submiion made on behalf of_thc State that it was prepared. without accepting the correctness of the contentions of respondent No. 1, to set aside the lease if the Court so desired. This circun15tance was hardly sufficient to warrant the setting aside of the lease in favour of the appcl. ]ant. The person who was primarily affected by the setting aside of the lease was the appellant to whon1. the lease had been granted. Io the absence of any con currence of the appellant, the fact that the Government was prepared, if the Court so desired. to set aside the lease, could hardly provide valid basis for tlie seltif'lg: aside of the leac. [ 680}

01) Regarding the question of the validity of clause 7 and the grant of lea_se in favour of the appellant even though the tender of respondent- No. 1 was for the highest amount, the matter is not res integta and is more or less concluded by the pronouncements of this court. The view taken by this-Court is that a condition like that contained in clause 7 produced above is not violative of Article 14 of the Constitution and that in matters relating to contracts with the Government, the latter is not bound to accept the tender of the person who offers the highest amount.

The circumstance that those cases were decided in the context of certain statutory

~ provisions would not detract from the bindina effect of the general principles eoun-

,. c.lated in those i; ases. [68F; 71HJ

1 A • • r-

...,,

.P. R.

0QUENIN v. M. K. TANDEL (Khanna, J.). 6 s;

C. K. Achuthan v. The-State of Kera/a and others [1959] Suppl. 1 S.C.R; 7_87, .

Trilochan Afishra etc. v. State o/Orissa and Ors. [1971]3 S.C.C. 153.State o/f:?nssa and Ors. v. Harinarayan Jaiswal and others, [1972] 2 S.C.C. 36.

Coover1e B.

Bharucha's case [1954] S.C.R. 873 and Union af India and Ors. v. M/s Bh1msert

Walaiti Ram, [1970] 2 S.C.R. 594, relied on.

Cehtufy Spinning & Mfg. Co. d anr. v. The Ulhasgar Municipal Council & Anr. [1970] 3 S.C.R;854, Rashbihar Panda etc. v. StateofOrissa. [196913 S.C.R. 374, Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh & Two Ors., f1954] S.C.R. 803, and Guruswamy v. State of Mysore A.l.R. 1954 S.C. 592, distinguished'.

No allegations were made in the writ petition by respondent no. 1 that the act of the authorities in the grant of lease of the distillery to the appellant was mafa fide Nor has th' abov~ act been shown to be vitiated by any such arbitrariness as should call for interference by this Co~. [73E]

(III) It does not appear that tenders were invited in connection w!th th~ lease of the distillery in pursuance of the provisions of Art. 9 of the Legislative Diploma No. 1761 framed by the Portuguese Government. According to para 2 of Art. 9 the lease can be put to auction in the stipulated conditions when it is found not convenient to renew the previous one. The aforesaid paragraph, it would thus appear, relates to auction and not to calling of sealed tenders. An auction is a manner of selling or letting property by bids, and usually to thC highest bidder by public competition. -An invitation to tender is a mere attempt to ascertain whether an offer can be obtained within such margin as the building owner or employer is. "illing to adopt, or, in other words, is an offer to negotiate, an offer to receive offers, an officer to. chaffer. There is a difference between auction and invitationfor tenders. As there was no auction but only invitation for tenders in the present case, it cannot be said that the lease was governed by article 9 of the Legislative Diploma. [72BE] .

Halsbury's Laws of England, third Edition, Vol 2, pp.· 69, 422, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 844 and 845 (N) of 1973.

Appeals by special leave from the judgment and order dated the 31st March, 1973 of the Court of the Judicial Commissioner Goa, .. Daman and piu at Panaji in_1, Special Civil Application Writ Petitions Nos. 8 and 9 of 1973. · .

P. H. Parekh, P. G. Navelkar and Sunanda Bhandare, for the appellant. . . . • , . .

B. R. L. Iyengar and P. C. Bhartari, for Respondent No. I.

L. N. Sinha, Solicitor General of India and-M. N. Shroff, for the Respondent Nos. 2-4. -

The Judgment of the Court was delivered by

KHANNA, J-This judgment would dispose of civil appeals No. 844 and 845 of 1973 which have been filed by special leave against the judgment of learned Judicial Commissioner Goa, Daman and !>ju whereby he cancelled the leases of the distilleries grant<d in favour of the appellant and directed the Government to deal with the tender of respondent No. I according to Jaw in the light of the observations made by the Judicial Commissioner.· As the question imolv<d in the two appeals is identical, we may set out the facts giving rise to civil appeal No. 844, Learned counsel for the parties are agreed that the decision in that civil appeal would also govern the other appeal.

0-SS2SCI/74 .

There is a distillery installation owned by the State at Daman.

The Government has been leasing out the said distillery for specified period to members of the public for manufacture of country liquor.

At the expiry of each lease, the Government used to invite fresh tenders from the public or :he next lease and granted lease of the distillery

to the person whose tender was accepted.For a number of years before

1973 the appellant's tender in respect of the above distillery was accep- B ted by the Government as the amount offered by him was the highest.

The last lease in favour of the appellant expired on January 31, 1973.

Before that by notice dated September 25, 1972 the Finance Secretary for the Union Territoiy of Goa, Daman and Diu invited tenders on behalf of the President of India from the public for the lease of the said distillery for a priod of three years commencing from Februa1y I, 1973 for the manufacture of country liquor. The terms and condi- C tions of tender as framed by the Government were appended to the said notice. Clause 7 of those terms and conditions was as under :

"The highest tender shall ordinarily be accepted but the Government reserves the right to select any tender or reject all tenders without assigning any reason therefor."

Pursuant to the notice the appellant and respondent No. 1 submitted closed tenders to the Government in the prescribed form. The tenders were opened on December 20, 1972 in the officeof the Commissioner of Excise in the presense of the tenderers. It was found that the tender of respondent No. l for an amount of Rs. 3,51,345 was the highest, while that of the appellant for Rs. 3,25,000was second. There was a third tenderer also, but his tender was the lowest and we are no longer concerned with him. As respondent No. 1, whose tender was for the highest amount, did not receive any communication regarding the acceptance of his tender, he wrote a Jetter on January 16, 1973 to the Finance Secretary calling upon him to accept the tender of respondent No. 1 within 24 hours and to take necessary steps for the execution of the lease. On January 18, 1973 the Advocate of respondent No. I sent notice to the Finance Secretary to accept the tender of respondent No. 1. Respondent No. 1 then learnt that the distillery in question had been given on lease to the appellant for Rs. 3,52,345, i.e., Rs. 1,000 more than the amount mentioned in the tender of respondent No. J.

Respondent No. 1 thereupon filed petition under articles 226 and G 227 praying for the issuance of a writ to quash and set aside the grant of lease of the distillery in question in favour of the appellant and for directing the Government to grant the lease of the distillery in favour of respondent No. J. According to respondent No. 1, it was incumbent upon the Government to give reasons for the rejection of his tender. It was further stated that in case the Government relied upon clause 7 of the terms and conditions in support of its action, H the said clause was void for violation of article 14 of the Constitution inasmuch as it enabled the Government to reject the highest tender without assigning any reason therefor.

J ,.

P. R. QUENIN v. M. K. TANDEL (K/1(1flna, l.) 67

The petition was resisted by the appellant as well as by the State Government.

It was stated in the reply filed on behalf of the State Goverument that the invitation of tenders did not give rise to any rights Gther than those stipulated in the terms and conditions upon which the tenders bad been invited. As those rights were purely of a contractual nature, no relief could be granted by the court under its writ jurisdiction for alleged breach of .contract. According further to the affidavit, the acceptance of the tender was solely within the discretion of the Government, uncontrolled by any statutory obligation or limitation and the rejection of the tender of respondent No. 1 created no statutory rights in him. Clause 7 of the terms and conditions was stated to be valid and not violative of article 14. The tender of respondent No. 1 was stated to have been rejected after the appellant had been informed that his tender could be accepted provided he raised his offer so as to pay an amount higher than that offered by the person with the highest tender. The appellant accordingly raised his ojfer and thereupon his tender was accepted. The grounds for lhe rejection of the tender of respondent No. I were stated to have 'been reeorded in the file. It was, according to the affidavit, for the Government to choose the person to whom it would grant the lease and the party aggrieved could not claim the protection of article 14.

The learned Judicial Commissioner in the course of his judgment observed that the act of the Government in giving a lease of the distillery to the appellant for Rs. ~,52,345, i.e., Rs. 1,000 more than the highest bid, by a private deal was not countenanced by law. The Judicial Commissioner then referred to the submission which was made during the course of arguments oh behalf of the Government that the Government was prepared to annul the lease granted in favour of the appellant if the court were to so direct. The Judicial Commissioner thereupon directed that the lease in favour of the appellant be set aside. Dealing with the validity of clause 7 reproduced above the learned Judicial Commissioner observed that, to the extent it gave power to the Government to reject the highest tender without assigning any reason, it was ultra vires and should be struck down.

In the opinion of the Judicial Commissioner, it was open to the Government to assign reasons for the rejection of the tender of respondent No. !. Opportunity was thereafter to be given to respondent No. 1 to show that the reasons assigned by the Government were bad. The lease of the distillery granted in favour of the appellant was accordingly set aside and the Government was directed to deal with the tender of respondent No. l according to law in the light of the observations made by the learned Judicial Commissioner.

It may be stated that after the judgment of the Judicial Commissioner, letter dated April 10, 1973 was addressed on behalf of the Goverment stating that in pursuance of the decision of the Judicial Commissioner the Government had decided that the existing contract with the appellant be set aside and the lease of the distillery be granted in favour of respondent No. 1.

It has been argued by Mr. Parekh on behalf of the appellant that the Judicial Commissioner was not justified in setting aside the lease in favour of the appellant without giving any reason. Clause 7 reproduced above, according to the learned counsel, is valid and does not contravene .rticle 14 of the Constitution. Respondent No. 1, it is further stated, cannot be allowed to take the benefit of one part of clause 7 without at the same time being bound by the other part of that clause. Learned Solicitor General on behalf of the Union of India has contended that clause 7 is valid and binding upon the parties.

As against that, Mr. Iyengar on behalf of respondent No. 1 has con- !roverted the contentions advanced on behalf of the appe1lant. The Judgment of the Judicial Commissioner, it is stated, does not suffer from any infirmity. It has also been argued by the learned counsel that the grant of lease of the distillery in question is governed by the provisions of article 9 of Legislative Diploma No. 176l framed by the Portugese Government.

There is, in our opinion, force in the contention advanced on behalf of the appellant that the Judicial Commissioner should not have without giving some cogent reason set aside the lease of the distillery in favour of the appellant. Perusal of the judgment shows that the main reason which weighed with the learned Judicial Commissioner in setting aside the lease in favour of the appellent was the submiss\on made on behalf of the State that it was prepared without accepting the correctness of the contentions of respondent No. l to set a•ide the lease if the court so desired. This circumstance, in our opinio11 1 was hardly sufficient to warrant the setting aside of the lease in favour of the appellant. The person who was primarily affected by the setting aside of the lease )Vas the appellant to whom the lease had been granted. Jn the absence of any concurrence of the appellant, the fact that the Government was prepared if the court so desired. to set aside the lease could hardly provide valid basis for the setting aside of the lease.

So far as the question is concerned about the validity of clause 7 and the grant oflease in favour of the appellant even though the tender of respondent No. I was for the highest amount, we find that the matter is not res integra and is more or less concluded by the pronouncements of this Court. In C.K. Achuthan v. The State of Kera la & Ors.(l)the facts were as under. The petitioner and the third respondent, Co-operative Milk Supplies Society Cannanore submitted tenders for the supply of milk to the Government Hospital at Cannanore for the year 1948-

49. The Superintendent who scrutinised the tenders, accepted that of the petitioner and communicated the reasons for the decision to the Director of Public Health. The contract in favour ofthe petitioner was subsequently cancelled in pursuance of the policy of the Government that in the matter of supply to Government medical institutions the Cc-operative Milk Supplies Uion was to be given contract 011 the basis of prices fixed by the revenue Department. The petitioner challenged the decision of {he Government in petition under article 32

U) (1959] Suppl. I S.C.R. 787.

P. R. QUENIN v. M. K. TANDEL (Kh111111a, !.) 69

of the Constitution on the ground, inter alia, that there had been discrimination against him vis-a-ris the third respondent and, as such, there was contravention of article 14, 19(\)(g) and 31 of the Constitution. Rejecting the contention the Constitution Bench of \hi> Court speaking through Hidayatullah J. (as he then was) observed:

"The gist of the present matter is the breach, if any, of the contract said to have been given to the petitioner which has been cancelled either for good or for bad reasons. There is no discrimination, because it is perfectly open to the Government. even as it is to a private party, to cJ:oose a person to their liking, to fulfil contracts which they wish to be performed. When one person is chosen rather than another, the aggrieved party cannot claim the protection of Art. 14, because the choice of the person to fulfil a particular contract must be left to the Government. Similarly, a contract which is held from Government stand on no different footing from a contract held from a private party. The breach of the contract, if any, may entitle the person aggrieved to sue for damages or in appropriate cases, even specific performance but he cannot complain that there has been a deprivation of the right to practise any profession or to carry on any occupation, trade or business, such as is contemplated by Art. 19(l)(g). Nor has it been shovin how Art. 31 of the Constitution may be invoked to prevent cancellation of a contract in exercise of powers conferred by one of the tenns of the contract itself."

In Tri/ochan Mishra, etc. v. State of Orissa & Ors.(') this court dealt with the validity of section 3(2)(a) and section 8 (1) of the Orissa Kendu Leaves (Control of Trade) Act, 1961 as amended by the Orissa Kendu Leaves (Control of Trade) Amendment Act, 1969 as well as the validity of the rules framed under that Act. The petitioner in that case also sought a declaration that the revised policy in the matter of the sale of Kendu leaves was arbitrary, dicriminatory and ma/a fide. One of the grievances of the petitioner in that case was that the bid of person making the highest tenders were not accepted. Repelling the contention advanced on behalf of the petitioner, Mitter J. who gave the judgment of the Court on behalf of the Constitution Bench observed :

"With regard to the girevance that in some cases the bids of persons making the highest tenders were not accepted, the facts are that persons who bad made lower bids were asked to raise their bids to the highest offered before the same were accepted. Thus there was no loss to Government and merely because the Government preferred one tender to another no complaint can be entertained( Government certainly has a right to enter into a contract with a person well known to it and specially one who has faithfully performed his conttacts in the past in preference to an undesirable or unsuitable

or untried person. Moreover, Government is not boi:nd to accept the highest tender but may accept a lower on~ in case it thinks that the person offering the lower tender 1s on an overall consideration to be preferred to the higher tenderer."

In State of Orissa & Ors. v. Hari11araya11 Jaiswal & Ors.(I) .the respondents were the highest bidders at an auction held by the Onss.a Government through the Excise Commissioner, for the exclusive pnvilege of selling by retail the country !iquo~ in some shops. The Government of Orissa had reserved the nght either to accept or reiect the highest bid and had actually rejected the bids of the respondents and later on the privilege was sold by negotiation to some others. One of the contentions taken on behalfof the writ petitioners in that case was that the power retained by the Government "to accept or to reject any bid without assigning any reason therefor" was an arbitrary po'Yer and therefore, violative of articles 14 and 19(1)(g). Hegde J. speakrng for this Court rejected that contention in the following words :

"One of the contentions taken on behalf of the writ petitioners was that the power retained by the Government 'to accept or tc:> reject any bid without assigning any reason therefor' in clause (6) of the order made by the Government on January 6, 1971, in exercise of its powers under section 29(2) of the Act was an arbiirary power and therefore it is violative of articles 14 and 19(1)(g). This contention has been upheld by the High Court. It was urged on behalf of the writ petitioners that they have a fundamental right to carry on trade or business in country liquor. That right can be regulated only by imposing reasonable restrictions in the interest of the general public. It was further urged that the power retained by the Government to accept or to reject the highest bid without assigning any reason is an unguided power and hence it is violative of article

14. These contentions were accepted by the High Court. To us, none of these contentions appear to be well founded. As seen earlier section 22 of the Act confers power on the Government to grant to any person on such conditions and for such period as it may think fit the exclusive privilege of selling in retail any country liquor. Section 29 empowers the Government to accept payment of a sum in consideration for the grant of any exclusive privilege under section 22 either by calling tenders or by auction or otherwise as it may by general or special order direct. The powers conferred on the State Government by section 22 and section 29 are absolute powers. As seen earlier, the validity of those provisions has not been challenged before us. Under section 29(2) the Gcvernment had power to dispose of any of the exclusive privileges mentioned in section 22 either by auction or otherwise as it may by general or special order direct. Thal being the amplitude of the power of the Government, we fail to see how the Government can be said

(I) [19721 2 s.c.c. 36,

P. R. QUENIN v. M. K. TANDEL (KhiflltUI, /,)

to have conferred on itself arbitrary power under clause (6) of its order made on January 6, 1971, when it provided that :

"No sale shall be deemed to be final unless confirmed by the State Government who shall be at liberty to accept or reject any bid without assigning any reason therefor."

B Even apart from the provisions of sections 22 and 29, this Court took the view that the power retained by the Govornment under clause

(6) reproduced above was not unconstitutional. It was observed in this context :

G .•·

"Even apart from the power conferred on the Government under sections 22 and 29, we fail to see how the power retained by the Government under clause (6) of its order, dated January 6, 1971, can be considered as unconstitutional. As held by this Court in Cooverjee B. Bharucha's case(!) one of the important purposes of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue. Excise revenue forms an important part of every State's revenue.. The Government is the pardian of the finances of the State. It is expected to protect the financial interest of the State. Hence quite naturally, the legislature has empowered the Government to see that there is no leakage in its revenue. It is for the Government to decide whether the price offered in an auction sale is adequate.

While accepting or rejecting a bid, it is merely performing an executive function. The correctness of its conclusion is not open to judicial review. We fail to see how the plea of contravention of article 19(1)(g) or article 14 can arise in these cases.

The government's power to sell the exclusive privilege set out in section 22 was not denied. It was also not disputed that those privileges could be sold by public auction. Public auctions are held to get the best possible price. Once these aspects are recognised, there appears to be no basis for contending that the owner of the privileges in question who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate. There is no concluded contract till the bid is accepted. Before there was a concluded contract, it was open to the bidders to withdraw their bids-see Union of India and Ors. v. M/s. Bhimsen Walaiti Ram.(2) By merely giving bids, the bidders had not acquired any vested rights.

The fact that the Government was the seller does not change the legal position once its exclusive right to deal with those privileges is conceded. If the Government is the exclusive owner of those privileges, reliance on article 19(l)(g) or article 14 becomes irrelevant."

It would appear from the above that the view taken by this Court is that a condition like that contained in clause 7 reproduced above is not violative of article 14 of the Constitution and that in matters relating to contracts with the Government, the latter is not bound

(I) [1954] S.C.R. 873.

(2) [19701 2 S.C.R. 594.

to accept the tender of the person who offers the highest amount. • A Mr. Iyengar has tried to distinguish the above mentioned cases on the ground that they were decided in the context of certain statutory provisions. This circumstance, in our opinion, would not detract from the binding effect of the general principle enunciated in those cases.

We may now deal with the contention of Mr. Iyengar that the lease of distilleries is governed by para 2 of article 9 of Legislative B Diploma No. 1761. In this connection we find that the judgment of the learned Judicial Commissioner does not show that any such ground was urged before him. Mr. Parekh on behalf of the appellant submits that the said Legislative Diploma was no longer in force at the time the distillery was leased in favour of the appellant. It is, in our opinion, not necessary to go into this aspect because it does not appoar that tenders were invited in connection with the lease of c the distillery in pursuance of the provisions of article 9 of the Legislati.ve Diploma. According to para 2 of article 9 upon which reliance has been placed by Mr. Iyengar, the lease can be put to auction in the &tipulated conditions when it is. fou11d not convenient to renew the previou• one. The aforesaid paragraph, it would thus appear, relates to auction .and not to calling of sealed tenders. An auction, , as stated in Halsbury's Laws of England, Third Edition, Vol. 2, page 69, is a D manner of selling or letting property by bids, and usually to the highest bidder by public competition. An invitation to tender is a mere attempt to ascertain whether an offer can be obtained within such margin as the building owner or employer is willing to adopt, or, in other words, is an offer to negotiate, an offer to receive offers, an offer to chaffer (see Halsbury's Laws of England, Third Edition, page 422).

There is, in our opinion, difference between auction and invitation E for tenders. As there was no auction but only invitation for tenders in the present case, it cannot be said that the lease o( the distillery was governed by article 9 of the Legislative Diploma.

It has been argued by Mr. Iyengar that there must have been s.ome • negotiation between the Government and the appellant as a result of which the appellant raised his offer to that it might exceed that of respondent No. I. This may have been so but it was apparently with F a view to ensure that the pecuniary interest of the Government did not suffer as a result of the rejection of the tender of respondent No. 1.

The appollant was consequently made to pay Rs. 1,000 more than what had been offered by respondent No. I.

Mr. Iyengar has referred to some of the decisions of this Court but none of them, in our opinion, is of any material assistance t~ G respondent No. I. In Century Spinning & Manufacturing Company Ltd. & Anr. v. The U/hasnagar Municipal Council & Anr.(1) this Court

obse!""ed tat pubic. ?ody is not exempt frm the liability to carry

o.u~ 1ts obhgallons ammg out of represntallon made by ; t when a

c11Len. who rehes upon that rep_resentatton alters his position to his prejudice. No such question arises m the present case because it is .not. shown tht respondent No. I has altered his position to his pre- H JUdtce by relymg upon any representation made by the authorities.

(I) [1970) 3 S.C.R. 854.

P. R. QUENIN v. M. K. TANDEL (Khanna, /.) 73

In Rashbihar Panda etc. v. State of Orissa(I) this Court dealt with a Government scheme for sale and disposal of Kendu leaves. It was found that the right to make tenders for the purchase of Kendu leaves was restricted to those persons who had obtained contracts in the previous year. The scheme was held to be violative of articles 14 and 19(1)(g) because it gave rise to monopoly in Kendu leaves to certain traders. The dictum laid down in the above case cannot be of much assistanee because there was no such restriction in the present case with regard to the making of the tenders.

Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh & Two Ors.(2) related to the validity of clause 4(3) of the Uttar Pradesh Coal Control Order, 1953 according to which the licensing authority was given absolute power in the matter of grant, revocation, cancellation or modification of the licences issued under that Order. No such questian arises in the present case.

The last case referred to on behalf of respondent No. 1 is Guruswamy v. State of Mysore.(l) In that case a liquor contract was knocked cown in an auction by the Deputy Commissioner in favour of A who was the highest bidder. B who was present at th~ auction but did not bid, saw the Excise Commissioner and offered Rs. 5000/- in excess of A's bid. B's offer was accepted and A's bid was cancelled. It was held that the cancellation of A's bid though irregular was proper as A had obtained no right to the licence by the mere fact that the contract had been knocked down in his favour. The action of the Deputy Commissioner in giving contract to B was held to be wro_ng as it was found to be contrary to the rules framed under the Mysore Act. No such contravention of a statutory rule has been shown in the present case because of the lease of the distillery in question to the appellant: It may be stated that no allesations were made in the writ petition by respondent No. I that the act of the authorities in the grant of lease of the distillery in question to the appellant was mala fide. There arises consequently no occasion for us to go into that aspect. Nor has the above act been shown to be vitiated by an such arbitrariness as should call for interferences by the Court. Indeed, as mentioned -earlier, the matter is concluded by the decisions of this Court.

As a result of the above, we accept the appeals, set aside the judgment of the learned Judicial Commissioner and dismiss the petitions under article 226 filed by respondent No. I. Looking to all the circumstances; we leave the parties to bear their own costs throughout.

S.B.W.

(I) [1969) 3 S.C.R. 374.

(2) [19541 S.C.R. 803.

(3) A.T.R. 1954 S.C. 592.

Appeals allowed.

PURXOMOMA

RAMANATA

QUENIN

MAKAN KALYAN TANDEL & ORS

January 9, 1974

H. R. KHANNA

Art. 14

Art. 14

Art. 9

Daman

Diu

Clause 7

Goa

clause 7

clause 7

Article 14

B.

Bharucha

[1970] 2 S.C.R. 594

Art. 9

Art. 9

article 9

CIVIL APPELLATE JURISDICTION

P. H. Parekh

P. G. Navelkar

Sunanda Bhandare

B. R. L. Iyengar

P. C. Bhartari

N. Sinha

M. N. Shroff

KHANNA

Daman

January 31, 1973

September 25, 1972

Clause 7

December 20, 1972

January 16, 1973

January 18, 1973

articles 226

clause 7

article 14

Clause 7

article 14

article 14

clause 7

April 10, 1973

Parekh

Clause 7

clause 7

Union of India

clause 7

Iyengar

article 9

Portugese Government

clause 7

Cannanore

Cc-operative Milk Supplies Uion

article 32

article 14, 19(\)(g) and 31

Constitution Bench

Hidayatullah

Art. 14

Art. 19(l)(g)

Art. 31

section 3(2)(a)

section 8

Amendment Act, 1969

Mitter

Government of Orissa

articles 14 and 19(1)(g)

Hegde

January 6, 1971

section 29(2)

articles 14 and 19(1)(g)

article

14

section 22

Section 29

section 22

section 22

section 29

section 29(2)

section 22

sections 22 and 29

sections 22 and 29

Cooverjee B. Bharucha

article 19(1)(g)

article 14

section 22

article 19(l)(g)

article 14

clause 7

article 14

article 9

article 9

article 9

England

article 9

[1970) 3 S.C.R. 854

articles 14 and 19(1)(g)

Dwarka Prasad

clause 4(3)

article 226

[1969) 3 S.C.R. 374


HALLU AND OTHERS

I'.

STATE OF MADHYA PRADESH

March 19, 1974

(M. H. BEG ANO Y. V. CHANORACHUO, JJ.)

Crimin.:U trial-Cast of rioting and murder-Correct' approach to eridenct- FIR if should be givtn by one having persona/ know/edge of the incitknt.

The appeUants, along with others, were charged with offences arising out of tbemurdCr of two persons. The trial court assessed the evidence on the followina principles, namely : (a) in rioti.n:g cases discrepancies arc bound to occur in the evidence but the duty of the court is to have regard to the broad probabilities of the

case; (b) in a factious village independent witnesses arc unwilling to come forward C and therefore the testimony of eye witnesses who may be interested in the doceased cannot be discarded merely for that reason, provided of course the presence of the

witnesses is proved; and (c) the First Information Report docs not constitute su~ tantive evidence in the case and the mere circumstance that there arc certain omissions in it will not justify the case being disbelieved; and gave weighty fea:SODS fQ[ holding that the guilt of the acc'used was not proved beyond reasonable doubt.

In appeal, the High Court, while acquitting others, convicted the appellants under s. 302 read with s. 149 l.P.C.

Allowing the appeal to this Court.- D

HELD : The Kigh Court ought not to have interfered with the order of acquittal ven if there were two possible views or the evidence. {6S4D-E}

(a) The High Court wrongly refused to attach any importance to the circumstance that the names of the appellants were not mentioned in the very first report to the police and that a totally different group_ of persons were mentioned as the assailants.

The High Court held that that report could not be treated as the First Infonnation Report under s. 154 Cr. P.C., bc: .. ause, the person who gave the Report had no personal knowledge of the incident. Buts. 154 docs not require lhat the Report must be given by a person who has personal knowledge of the incident reported. It only speaks of an inrormation relating to the commission of a cognizable offence given to an officer in-charge of a olice station.

(654H-5SSC]

(b) Another rer, ort, given by the Kotwal of the village, was treated by the Hi&h Court .as the First nformation Report. But this report wholly destroys the prosecu~ tion case, because, while the case of the prosecution was that the incident happened on: the afternoon of the previous day, the Kotwal stated in his report that the incident had taken place during the early hours of the day on which he gave the reponp

(6SSE-GJ

(c) In that Report also the names or the assailants were not mentioned. The inference arising from the fact that the name of an accused is not mentioned in the Fin:t Information Report must vary from case to case; but the High Court wholly ignored the fact that even the Kotwal of the village had not come to know he names or the assailants though 20 hours had elapsed after-the incident had taken place nccording to the prosecution. [655G-HJ

(d) The Hih Court reruSed to attach any importance to the discrepancies between the medical evidence and the evidence of the eye witnesses that the deceased were t1ttacked with spears and axes, on the ground that the witnesses had not stated that 'the miscreants dealt axe blows from the sharp-side or used the spears as a piercing weapon'. The High Court explained the absence of incised er punctured wounds by observing, without any basis, that the accused might have used the blunt side. {656C-E]

(e) It is generally not easy to find witnesses on whose testimony implicit reliance can be placed. It is al, vays advisable to test the evidence of witnesses on the anvil

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.. --...... \-

• G

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HALLU v. M.P. STATE (Chandrachud, ].) 653

•• : -; c , __ of objective circumstances of the case. But the High Court, in the present case, accepted the evidence of the two a11eged eye-witnesses as implicitly re1iablr v.ith()ut so testing their evidence. They claimed to have seen the incident in the afterx:oon, but if the incident toOk place at night, the whole superstructure of the prosecution must fall. (656A, F-O)

CiUMINAL APPELLATE JURISDI~ION : Criminat Aprea! No: 142 of 1970.

Appel by Special Leave from the Judgnlent and Order dated lhe 27th March, 1970 of the Madhya Pradesh High Court at Jabalpur in Criminal Appeal No. 451 of 1967.

D. Mookherjea, S.K. Bagga, S. Bagga and Yash Bagga, for the appellants.

Ram Panjwani, H. S. Parihar and_ I. N. Shroff, for the Resp?ndent.

The Judgment of the Court was delivered by

CHANDRACHUD, J. Eighteen persons were put up for trial before the First Additional Sessions Judge, Durg (M. P.) for offences arising out of the murder of two persons Jagdeo and Padum. The learned Judge acquitted them of all the charges but that order was partly set aside by the High Court of Madhya Pradesh which confirmed the acquittal of eight persons and convicted the remaining ten under section 302 read with section 149 of the Penal Code. This appeal by special leave is directed against the judgment of the High Court under which a sentence of life imprisonment has been imposed on the appellants.

The case of the prosecution is that on the afternoon of May 9, 1966 a group of about 18 persons including the appellants dragged Jagdeo •and Padum from their houses and attacked them with lathis, spears and axes. In 1965 Jagdeo and Padum were prosecuted along with 2 others for committing the murder of one Daulatram, the Sarpanch of the village. That case ended in acquittal and it is . alleged that Jagdeo and Padum were done to death by the appellants who felt especially aggrieved by)h_e murder of the Sarpanch .

Since the High Court has set aside the order of acquittal passed by the Sessions Court it is of primary importance to appreciate and understand the approach cf the Sessions Court to the evidence in the case and jts conclusions thereon. These, briefly, are the structural hallmarks of the Se'8ions Court's judgment: (I) In rioting cases discrepancies are bound to occur in the evidence but the duty of the court is to have regard to the broad probabilities of the case; (2) In a factious village independent witnesses are unwilling to come .forward and therefore the testimony of eye-witnesses who are interested in the deceased cannot be discarded merely for the reason that they are so interested, provided of course the presence of the witnesses is proved; (3) The First Information Report does not constitute substantive evidence in the case and the mere circumstance that there are certain omissions in it will not justify the case being disbelieved.

., Applying these broad principles the Sessions Court rejected the evidence of the eye-witnesses and acquitted the accused. fo doing this the court was influenced by these circumstances: (I) There were muteJial discrerancies as re[ards the place wh<re Jagceo was asrnultcd.

The police had taken scratchings from the walls of Jagdeo's house but did not send them to the Chemical Analyser for ascertaining whether they bore stains of blood; (2) The widows of Jadgeo and Padum had stated that the two men were attacked with spears and axes but according . to the medical evidence there. were neither incised nor punctured wounds on the dead bodies; (3) As many as three different Reports were given to the police station on the morning of the day following the day of the incident but the names of the appellants were not mentioned in any one of them; (4) Jn one of those Reports the incident was stated to have happened at night whereas the c°'e of the prosecution is that the incident happened in broad daylight at about 1 p. m. and (5) There was no reliable evidence showing that the accused had sufficient motive to commit the murder.

These, in our opinion, are weighty reasons on the strength of which the learned Sessions Judge was reasonably '.entitled to come to the conclusion that the charge against the accused was not proved beyond a reasonable doubt. At worst, it may perhaps be possible to say that two views of the evidence were roasonably possible. It is well established that in such circumstances the High Court ought not to interfere with the order of acquittal.

We will demonstrate in reference to a few important circumstances as to why the High Court was not justified in interfering with the oraer ol acquittal. The incident is alleged to have taken place at about I p. m. on May, 9, 1966 but it was not until the next morning that any one in the village thought it necessry to report the incident to the police.

The first person who at all contacted the police after the incident was Tibhu, the son of one of the murdered persons, Jagdeo.

Tibhu went to the Rancharia Police Station at 8-15 a. m. on the 10th and told the police that on the previous afternoon Jagdeo and Padum were murdered.

Jn that report Tibhu mentioned the names of as many as 10 persons who according to him had participated in the assault but none of the 18 accused found a place in that long list except perhaps "Bentha Satnami"

the reference to whom Jnay by a process of some stretching be construed as a reference to one of the accused. Tibhu mad' an interesting disclosure in his evidence that he had gone to the police for lodging information about an altogether different incident and after having lodged that information he was told by a woman called Dharmin that the eighteen accused had committed the murder of Jagdeo and Padum. Yet it is surprising that not only did he not mention the names of the present accused but he mentioned the names of an altogethor different group ofpersom. This is in regard to the earliest information given to the police in point of time.

The Report given by Tibhu thus suffers from a serious infirmity and the Sessions Court was justified in citing that infirmity as one of the reas-

HALLU v. M.P. , STATE (Cha11drachud, /.) 655

ons leading to the acq'"ttal of the appellants. The High Court however refused to attach any imprtanoe to the circumstance that the names of the appellants were not mentioned in the Report on the ground that though it was earlist in point of time it could not be treated as the First Information Report under section 154, Criminal Procedure Code as Tibhu had no personal knowledge of th: incident and the Report was based on h'arsay evidence. In this view the High Court clearly erred for section 154 does not require that the Report mu't be given by a person who has personal knowledge of the incident reported. The section speaks J.lf an information relating to the commission of a cognizable offence given to an officer in charge of a police station. Tibhu had given such information and it was in consequence of that information that the investigation had commenced.

At abvut 11-45 a. m. one Dharamdas who was examined in the case as an eye-witness went to the police station and lodged information about a totally different incident stating that a boy whose name he did not know had beaten him with a lathi. This of course cannot be regarded as a first information report of the offence in question but the High Court overlooked that if Dharamdas was an eye-witness and if he did go to the police station quite a few horrs after the incident it was strange that he did not refer to the incident at all. Dharamadas wriggled out of an inconvenient situation by saying that as Tibhu had already reported the incident to the police he himself did not think it necessary to do so. The evidence of Dharmdas, we may mention, has been rejected by the trial court as well as the High Court.

Then comes yet another 'Report made to the police and that was made by one Vishal D1s who was the Kotwar of the village in between the two earlier Reports. Vishal Das's Report, Ex. P-47, shows that he gave the information at the police station at about 10 a. m. on the I 0th. This information, according to the High Court, must be treated as the First Information Report in the case. This in our opinion, is clearly erroneous. But apart from the legality of the finding reorded by the High Court Vishal Das's Report almost wholly destroys the prosecution case. The case of the prosecution is that the incident in question ha; ipened on the afternoon of the 9th whereas Vishal Das stated in his Report that the inc'dent had taken place on the night of the 10th, meaning thereby in the early hours of the 10th. Vishal Das also stated expressly in his Report that he did not know as to who had assaulted Jagdeo and Padum. The High Court failed to give

tilese circumstances their due weight and observed on the contrary that the fact that the names of the assailants were not mentioned by Vishal Das was not very material as the assault was committed by a large group of 17 or 18 persons. The inference arising from the fact that the names of the accused are not mentioned in a First Information Report must vary from case to case but the High Court wholly ignored that even the Kotwar of the village had not come to know the names of the assailants though 20 hours had elapsed after the incident had taken place and further that according to him the incident had taken place at night It is obvious that if the incident had taken place at night the

whole superstructure of the prosecution case must fall.

The eyewitnesses Musammat Dev Kunwar and Musammat Mahatrin claim to have seen the incident on the supposition that it happened on the after-noon of the 9th.

The High Court observed in its judgment that the trial court was "mainly influenced by the so-called discrepancies in the three reports lodged with the police".

We may point out that the trial cowt was influenced by a variety of considerations and the discrepancies in the three Reports are not by any standard "so-called". The discrepancies have a fundamental importance for they tend to fal5ify the evidence of' the eye-witnesses and show that the incident happened under cover of darkness and was in all probability not witnessed by anyone.

The postmortem report prepared by Dr. N. L. Jain shows that on the body of Jagcleo were found three bruises and a hematoma. On the body of Pad um were found four lacerated wounds and two bruises.

According to the eye-witnesses the two men were attacked with lathis, spoars and axes but that clearly stands falsified by the medical evidence.

Not one of the injuries found on the person of Jagdeo and Pad um could be caused by a spear or an axe. The High Court however refused to attach any importance to this aspect of the matter by saying that the witnesses had not stated that the miscreants dealt axe blows from the sharp-side or used the spear as a piercing weapon". According to the High Court axes and spoars may have been used from the blunt side and therefore the evidence of the eye-witnesses could safely be accepted.

We should have thought that normally when the witness says that an axe or a spear is used there fa no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be tho implication it is. the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing instrument was used as blunt weapon. ·

There is only one more observation which we would like to make about <he judgment of the High Court. The High Court has observed in its judgment at more than one place that Musammat Dev Kunwar and Musammat Mahatrin we1e "implicity reliable". It 1s generally not easy to find witnesses on whose testimony implicit reliance can be placod. It is always advisable to test the evidence of witnesses on the anvil of objective circumstances in the case. Not only did the High Court not do that but by persuading itself to the view that the two eye-witnesses were implicitly reliable it denied to itself the benefit of a judicial consideration of the infirmities to which we have briefly referred.

We therefore allow this app>al, set aside the order of conviction and sentence passed by the High Court and acquit the anpellants.

They shall be released forthwith.

V.P. S.

Appeal A1/01red.

HALLU AND OTHERS

STATE OF MADHYA PRADESH

March 19, 1974

M. H. BEG

s. 302

s. 149

s. 154

D. Mookherjea

S.K. Bagga

S. Bagga

Yash Bagga

Ram Panjwani

H. S. Parihar

I. N. Shroff

CHANDRACHUD

Jagdeo

Padum

High Court of Madhya Pradesh

section 302

section 149

Penal Code

May 9, 1966

Jagdeo

Padum

Daulatram

Jagceo

Jadgeo

May, 9, 1966

Tibhu

Rancharia Police Station

Bentha Satnami

Dharmin

section 154

Criminal Procedure Code

section 154

Dharamdas

Dharamadas

Dharmdas

Vishal D1s

Vishal Das

Musammat Dev Kunwar

Musammat Mahatrin

N. L. Jain

Jagcleo

Pad um

Musammat Dev Kunwar

Musammat Mahatrin


STATE OF HARYANA

GURDIAL SINGH AND PARGAT SINGH

March 19, 1974.

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

Indian Penal Cocle-Sec. 302 read with Ser. 34-Two contradictory versions pre.r, nted by-prosecuti1Jn-Bene/it of doubt must go to 1/ie accused.

P & G were convicted u/s. 302 and were sentenced to death, The High Court set aside the convictions of both the accused and acquitted them. The State has filed the present appeals against the acquittal of the 2, accused by special leave.

The prosecution case is that on account of a family feud, the deceased was mur~ dered by one P. with a double-barrel gun, in front of one A, the widow of a rich landlord.

The trial court accepted the prosecution version of occurrence and relied upon the evidence of A which was corroborated by the youngest son and the dau$htr. that P, was hoJdina: a gun etc. and he was convicted along with G, _an associate.

On appeal 1 the High Cvurt found that the F.I.R. was recorded subsequently after due deliberation and consultation. The High Court also fOund that the witnenes, relied on by the trial court had supported another version .of the occurrence.

It was found that an attempt had been made to improve upon the story with a vieW to save D, tho eldest Son of the landlord. The High Court, therefore, set

aside the conviction of the accused and aquitted them.

Dismissing the appeal,

 HELD : In the present ase, the prosecution witnesses hiive come out with two iDCODSis.tent versions of the occurrence. One version of.the occurrence is contained in the evidence of the witnesses in Court, while the other version is contained in their statements made before the police. According to the version given before the Court, it was P, who shot dead the deceased while according to other version, it was G of villqe Ramana, who was responsible for the crime. Again, according to the version given in Court, the occurrence was witne§Cd by A. As against that, the version con-· in the police statement was that A had not witnessed the occurrence. Jn v~ of these contradictory versions, the High Court _rightly set aside the conviction and there is no groul'!d for interference by this Court in the present appeal.

(6648-D] . ·

CRIMINAL

APPELLATE

JURISDICTION : Criminal Appeals Nos. I & 2 of 1971.

Appeals by special leave from the judgment and order dated the 13th May 1970 of the Punjab arid Haryana High Court in Criminal Appeals Nos. 170 and 201 of 1970. ·

Janarda~ Sharma and R. N. Sachthey, for the appellant. Nurutldin Ahmed and U. P. Singh, for the respondents.

The Judgment of the Court was delivered by

'H KHANNA; J. Pargat Singh (31) of village Taraori was convicted by learned Sessions Judge Kamal under sl:ction 302 Indian Penal Code .and was sentenced to death. Gurdial Singh (35) of village Ramana was

also tried along with Pargat Singh and was convicted under section 302 read with section 34 Indian Penal Code. He too was sentenced to death. On appeal and reference the Punjab and Haryana High Court set aside the conviction of both the accused and acquitted them. The State of Haryana has filed these appeals against the acquittal of the two accused by special leave.

The prosecution also filed charge sheet against Gurdia:t !; ingh of village Taraori, a brother of Pargat Singh accused, but as he was found to be insane, the committing magistrate directed. that his case be separated and a separate challan be filed against him. The said Gurdial Singh of village Taraori was, in the meanwhile, directed to be sent to the hospital for his treatment.

The prosecution case is that Avtar Kaur (PW 3) was married about 33 years ago to Gurinder Singh of village Shamgarh. 'Gurinder Singh was one of the biggest landlords of Kamal district and belonged to a family of Chiefs. About four years after the marriage, Lal Singh, who was aged 65 or 70 years at the time of the present occurrence, was brought by Gurinder Singh to reside with him in Shamgarh. Lal Singh was previously in the service of the mother of Avtar Kaur. Lal Singh was respected like a Guru and was known as Dadaji.

Gurinder Singh 'used to consult Lal Singh deceased with regard to his affairs and generally acted upon the advice of Lal Singh. When a ceiling on landswas imposed, Gurinder Singh, with a view to save some land and prevent its being declared surplus, transferred 23 acres ofland situated in village Taraori to Pargat Singh accused and an equal area of land in that viii: age to Gurdial Singh, brother of Pargat Singh. Parga! Singh and Gurdial Singh were sons of Sher Singh, maternal uncle of Gurinder Singh, and used to reside with him. After the land had been transferred by Gurinder Singh to Pargat Singh and Gurdial Singh, they shifted to village Taraori which is at a distance of about 4 miles from Shamgarh.

They, however, used to visit Shamgarh o.ff and on.

Gurinder Singh died a few months before the present occurrence.

He was survived by his widow Avtar Kaur and three sons Daljit Singh, Gurjeet Singh and Sukhjeet Singh and two daughters Sukhiwan Kaur and Harjiwan Kaur. Sukhjeet Singh and Harjiwan Kaur were tlte only two unmarried children. Sukhjeet Singh was a student of Doon School Debra Dun, while Harjiwan Kaur was studying in another 'school in Debra Dun. Both of them were present in their house at Shamgarh during the days of the present occurrence having come there during winter vacation. The h, ouse is also described during the course,

of evidence as a fort. Daljit Singh and Gurjeet Singh also used to live in that house. Sukhjiwan Kaur too was present there on the night of occurrence.

After the death of Gurinder Singh, Avtar Kaur used to consult Lal Singh in every matter. Gurinder Singh at the time of his death was constructing a cold storage. One chamber of the cold storage had been completed during the life time of Gurinder Singh, while the other chamber yet remained to be completed. Some money was required by Avtar Kaur in that connection. Lal Singh deceased accordingly called Pargat Singh accused about 15 days before the present occurr- ence and told him that as Gurinder Singh had given to him and his brother land worth rupees two lakhs, they should help Avtar Kaur when she was in need of money. Pargat Singh accused then stated that he had nothing to do with that. He also abused Lal Singh and told him that he was nobody to demand the money. Lal Singh deceased then threatened Pargat Singh ihat he would get a suit filed through Sukhjeet Singh, who had recently become major in respect of the land which had been given to Pargat Singh and his brother Gurdia\ Singh.

Daljit Singh eldest son of Gttrinder Singh, it is stted, was a spend thrift. Lal Singh deceased and Gurinder Singh used to tell Daljit Singh not to spend too much money. After the death of Gurinder Singh, Da\jit Singh dem.anded more land in addition to the land which had been given to him by Gurinder Singh in his life time. Demand was also made by Daljit Singh for more money. There used to take place quarrels between Avtar Kaur and Daljit Singh on that account.

The case of the prosecution further is that on December, 11, 1968 Avtar Kaur, Sukhjiwan Kaur, Harjiwan Kaur, Sukhjeet Singh and Lal Singh took their meals in the dining room on the ground floor of the fort. Gurjeet Singh was on that day away to Ferozepore to attend a marriage. After finishing the meals at 9 15 p.m. Avtar Kaur and her two daughters went to her bed room on the upper storey. Sukhjeet Singh bad a room on the ground floor and he went to that room. AL. about 1 () p.m. Avtar Kaur after finishing othe.r work went to the room of Lal Singh. Lal Singh at that time sat on his cot, while Avtar Kaur sat nearby on a chair. Avdr Kaur during the course of her talk asked Lal Singh to settle the miltter about Daljit Singh and to give to him what was his due. When Avtar Kaur and Lal Singh deceased were talking, they heard the sound of a car in the outer courtyard. Daljit Singh, Pargat Singh, Pargat Singh's brother Gurdial Singh, GurdiaU

Singh of Ramana and Rajinder Singh alighted from the car. Rajinder Singh belongs to village Bairsal. He had borrowed Rs. 3,000 in connection with the election of Chanda Singh to the Haryana Legislative Assembly in 1968. Earlier on that day Rajinder Singh refunded Rs. 1,500 out of the amount of Rs. 3,000 to Ram Lal, who was working as an accountant of Gurinder Singh's estate. As Daljil Singh, Rajinder Singh and Gurdial Singh of Ramana had earlier in the day gone for Shikar, Sukhjeet Singh came out and enquired from Daljit Singh as to what he had shot. Sukhjeet Singh was then told by Daljit Singh that , he had been able to shoot four partridges. Daljit SiTigh then went upstairs to his own room taking his gun with him. Sukhjeet Singh .also went to his own room. About 5 or 10 minutes thereafter Sukhjeet Singh and Avtar Kaur heard some footsteps going up the staircase.

Parga! Singh, his brother Gurdial Singh and Gurdial Singh ofRamana then came inside the room wherein Avtar Kaur was talking to Lal Singh deceased. Pargat Singh was holding a double barrel gun P2 in his hand. The said gun belonged to Rajinder Singh. Avtar Kaur en quired from Pargat Singh and others as to why they had come at such .fate hour. Pargat Singh replied that they had come back after Shikar.

Lal Singh then asked them as to whether all three of them had become Shikaris. Parga! Singh replied in the affirmative and said that they would make a shikar of Lal Singh. Parga! Singh at the same time fired at Lal Singh. Before the shot was fired at Lal Singh, Pargat Singh and his two companions made some signs to each other. Lal Singh on receipt of the shot fell down on the spot and died soon thereafter. Avtar Kaur was stunned because of the incident. Pargat Singh and his two coml'anions then left. Harjiwan Kaur, Sukhjiwan Kaur and Sukhjeet

Singh on hearing the gun shot came to the room where Avtar Kaur was present and were told about the occurrence by her. Avtar Kaur was then taken to her room. Sukhjeet Singh was directed by her to call caccountant Ram Lal. When Ram Lal came there he was told by Avtar Kaur that Parga! Singh bad killed Lal Singh by firing a shot with a ·doul)le barrel gun. Ram Lal was told to go to the police station and 110 bring the police. Ram Lal then woke up the car driver and went in 'the car towards the police station. When the car reached near the bus. stop of village Shamgarh on the Grand Trunk Road, Ram La\ saw a police party which included Sub Inspector Ram Rikh. Ram Lal then told the Sub Inspector that Lal Singh had been murdered in the fort and that Ram Lal bad been deputed by Avtar Kaur to call t)le Sub Inspector. Sub Inspector Ram Rikh then went to the fort where Avtar Kaur made statement PD at 3 a.m. to him. The said statement was sent "to police station Butana at a distance of 61 miles from the place of occurrence and formal first information report PJ was prepared on the basis of statement PD at 3 45 p.m. Inquest report relating to the dead body was thereafter prepared by the Sub Inspector. The dead body . was sent to the mortuary in Karna!. Post mortem.examination on the

dead body was performed by Dr. Jagdeep Singh at 4 30 p.m. on mber 12.

On the morning following the occurrence, i.e. on December 12, 1968, a number. of persons including Daljit Singh, Rajinder Singh, 1'argat Singh and the latter's brother Gurdial Singh assembled at the

fort. Sub Inspector Ram Rikh did not arrest Parga! Singh or his brother Gurdial Singh, Daljit Singh then produced gun P2 of Rajinder Singh• along with an empty cartridge which had been fired from that gun.

These articles were taken into possession.

During the course of investigation, it is stated, a counter version of the occurrence came to light, Sub Inspector Ram Rikh and the Deputy Superintendent of Police who was supervising the investigation kept Superintendent of Police Brar (OW 1) informed of the investigation. Final report under section 173 of the Code of Criminal" Procedure in court was filed by Sub Inspector Ram Rikh. In that report only Gurdial Sinh of village Ramana was shown as the culprit.

The names of Parga! Smgh and his brother Gurdial Singh were mentioned in column No. 2 of the challan. The reason for that, according to Sub Inspector Ram Rikh, was that those two persons had been found on investigation to be innocent." The two accused in their statements under section 342 of the Code of Criminal Procedure denied the prosecution allegations which appeared against them in the prosecution evidence. In defence the accused examined Superintendent of Police S. S. Brar who deposed that in view of the fact that there were two versions of the occurrence, he ordered-that before any arrest was made, a thorough probe should be made in the matter to find out the truth.

The trial court accepted. the prosecution version of the occurrence and, in doing so, relied upon the evidence of Avtar Kaur. It was further held that the evidence of Avtar Kaur was corroborated by that of Sukhjeet Singh and Harjiwan Kaur, who had deposed that when they looked out on hearing the gun shot, they .saw Parga! Singh holding a gun and two Gurdial Singhs going downstairs. Regarding the counter version of the occurrence which appeared from the police statements of Avtar Kaur, Sukhjeet Singh and Harjiwan Kaur, the trial court .held that compared to that version, the version as given in the evidence

of the above witnesses in court was reliable. In the opinion of the trial court, the investigauon of the case was tainted and unfair. The argument that there was delay in recording the report was rejected.

On appeal the learned Judges of the High Court found that the circumstances of the case showed that the first information report" was recorded subsequent to the time at which it. purported to have beell' recorded and was the result of deliberation and consultation." The High Court also found that the witnesses, upon whose testimony reliance had been placed by the trial court, had supported a"nother version of th~ occurrence. It was found that an attempt had been made to improve upn the story with a view to save Daljit Singh, eldesr son of Avtar Kaur, Ocular evidence was also found t<' be not in con-" sonance with.the medical evidence. In the result the High Court accepted the appeal, set .aside the conviction of the accused and acquitted them.

We have heard Mr . .Janardan Sharma on behalf of the a1-pellant- State and Mr. Nuruddin on behalf of the accused, respondents and

are of the opinion that the judgm, nt of the High Court calls for no 1nterference. ·

It is not disputed that, Lal Singh deceased died as a result of gun shot wound, Dr. Jagdeep Singh who p.rformed p)st mortem examination on the dead body found "a single oval wound of entry with

"irrcular _inverted margins, 11 11 n trnsverse diameter and 11 .. in vertical diameter, placed on the right side of the neck, just above the calvicle about half inch from the mid-line. The margins of the wound showod blackening and scorching. Hair of beard were not singed. The wound was directed backwards and downwards and towards the mid- 1ine producing extensive laceration of.underlying tissues and fracture •of calvicle bone of right side. Right pleura was ruptured on the top -and the pleural cavity contained large amount of blood. Upper lobe of right lung was lac.rated completely, Middle and lower lobes were 10ontused, showing bleeding on the surface. A pirt of the projectile, lying on the right side of the thoracic cavity, was recovered from mediastinum and two from the left lung, which was also showing haemor- , rhages at various parts. In the n\ediastinum big vassels were ruptured 'at many places and mediastinum was found containing large amount of clotted blood." The injuries were sufficient in the ordinary course •Of nature to cause death.

The case of the prosecution is that it was Parga! Singh accused who fired shot at Lal Singh and thus killed him, The prosecution for this purp)se relied upon tho ocular evidence of Avtar Kaur (PW 3), who "in thi: course of her dcp:>sition supp:>rted the prosecution case as given above, The High Court did not place reliance upon the testimony of this witness, and we find no sufficient ground to take a different view, Avtar Kaur was confronted with her statement made before the police.

Jn that statemont Avtar Kaur stated that after taking her meals, she went to her daughter's room and slept there, It was further stated by Avtar Kaur that on the night of occurrence at about 10 or II p, m.

Rupinder Kaur, wife of Daljit Singh, came to Avtar Kaur and woke her up. Rupinder Kaur also told Avtar Kaur that Daljit Singh was -calling her below in the drawing room, Avtar Kaur further state.d before the police that she had been told by Gurdial Singh of Ramano that in a drunken state he had shot dead Lal Singh deceased and he h> pardoned. Acc>rding to that statemont of Avtar Kaur, she imme- .diately directed that police b> called and thoreupon Gurdial Singh of

<village Ramana tried to run away, but he was secured by Pargat Singh .and Daljit Singh. Daljit Singh also snatched the gun from, his hand, [tis thus plain that the version given by Avtar Kaur in her statement l>>fore the p )]ice was materially different. In view of that fact not much reliance can obviously b: placed upon the testimony of Avtar Kaur in court.

Anothor fact of which note may, bo taken is that, according to Avtar Kaur, she was sitting on a chair in the room of Lal Singh and it was while sitting on that chair that she saw the occurrence.

No such chair was found in that room when /iub Inspector Ram Rikh arrived there on the night of occurrence. It is also nobody's -case that any chair wa• remJved from that room after the occurrence.

HAllYANA V GURDIAL SINGH {Khanna, J.) 663

Th' .ab1cace of the chair in th1t ro'm creates considerable doubt ab, ut lhe correctness of the evidence of Avtar Kaur .

._, The prosecution has sought corroboration of the evidence of Avtar

.IUlur from the testimony of Sukhjeet Singh(PW .4) and Harjiwan Katir, (PW S), accl'rding tq whom they saw Parga! Singh holding a gun and two Uurdial Singhs 'going down the stairs after the occurrence. The . vcmon of these witnesses in their statements before the police was,

however, materially different. Sukhject Singh stated before the P'lice tliatllll bing the drawing room he enquired from Daljit Singh as to~ was the matter and that Daljit Singh then replied that Gurdial Sil!Jh :had shot dead Lal Singh. The witness also stated before the police that Gurdial Singh of village Ramana was lying at the foot ofAvtar Kaur and was saying that under intoxication he had fired the shot and he be plrdoned. Harjiwan Kaur in her statement made before the police stated that she had not seen anybody going or coming. She had also not heard the sound of any gun shot. According to that statement, she, her mother and sister were sleeping in her room on the night of occurrence when Rupinder Kaur came and woke them up.

. The High Court also gave cogent reasons for arriving at the conclusion that the first information report appeared to have been reeorded much later and not at the time it purp, rted to have been done. Police station Butana is at a distance of about I 3 miles from Kamal. Tho two places are connected by metalled road on which buses ply frequently.

Copy of the first information report was received by the Ilaka magistrate at Kamal at 2 p.m. If the formal first information report had, in fact, been preplred at 3 45 a.m. it is not explained as to why the copy of the same was not delivered to the magistrate on the morning of December 12, 1968. Likewise, if the inquest report was prepared by Sub Inspector Ram Rikli shortly after recording report PD at 3 a.m., there is no sufficient reason as to why the dead body which was sent in th• trQ!ly of a tractor to Karna! should be brought to the doctor not before 3·55 p.m. The evidence that it took time to get the tractor ready has not b'en accepted by the High Court and we are not inclined to take a different view.

There is another fact which also indicates that on the morning of December 12, 1968 the P'lice had no material with it about the complicity of Parga! Singh for the murder of Lal Singh deceased. Pargat

Singh was admitiedly amongst those persons who assemblea at the house of Avtar Kaur on the morning of D.:cember 12, 1968. Although Sub Imp:ctor Ram Rikh noticed his presence, he did not arrest Parga!

Singh. It seems rather difficult to believe that if the first information

repart had. been recorded before the assemblage of different persons including Parga! ingh on the momi'!g of J?ccember 12, 1968 and th.e name of Pargat Singh had been menlloned ID that report as the assailant of Lal Singh, the plice Sub Inspector would not take him into custody.

Reliance was placed by the trial court upon the statement of Pargat Singh made before the committing magistrate that on December JI,

1968 he had gone to the room of Lal Singh to pay respects. There is, however, nothing in that statement to show that it related to a visit at day time or at night time. No incriminating inference can in the circumstances be drawn from that statement against Parga! Singh.

The present is a case wherein the prosecution witnesses have come out with two inconsistent versions of the occurrence. One version of the occurrence is contained in the evidence of the witnesses in court, while the other version is contained in their statements made before the police. According to the version given in court, it was Parga! Singh who shot dead the deceased, while according to the other version it was Gurdial Singh of Ramana who was responsible for the crime.

Again, according to the version given in court, the occurrence was witnessed by Avtar Kaur. As against that, the version contained in the police statement was that Avtar Kaur had not witnessed the occurrence. In view of these contradictory versions, the High Court, in our opinion, rightly came to the conclusion that the conviction of the accused could not be sustained. We see no ground to interfere with the judgment of the High Court. The appeals fail and are dismised.

s.c.

Appeals dismissed.

B ,

STATE OF HARYANA

GURDIAL SINGH AND PARGAT SINGH

March 19, 1974

H. R. KHANNA

P. K. GOSWAMI, JJ.

Sec. 302

s. 302

Janarda~ Sharma

R. N. Sachthey

Nurutldin Ahmed

U. P. Singh

'H KHANNA

Indian Penal Code

Gurdial Singh

Pargat Singh

section 302

section 34

Indian Penal Code

Punjab and Haryana High Court

State of Haryana

Gurdia

Taraori

Gurdial Singh

Avtar Kaur

Gurinder Singh

Shamgarh

Kamal district

Lal Singh

Avtar Kaur

Dadaji

Parga! Singh

Sher Singh

Daljit Singh

Gurjeet Singh

Sukhjeet Singh

Sukhiwan Kaur

Harjiwan Kaur

Debra Dun

Sukhjiwan Kaur

Gurdia\ Singh

Gttrinder Singh

Da\jit Singh

December, 11, 1968

Ferozepore

Avdr Kaur

Singh

Ramana

Rajinder Singh

Bairsal

Chanda Singh

Haryana Legislative Assembly

Ram Lal

Daljil Singh

Daljit SiTigh

Shikar

Sukhjeet

Singh

Ram La\

Ram Rikh

Karna

Jagdeep Singh

December 12, 1968

1'argat Singh

Rajinder Singh•

section 173

Gurdial Sinh

Parga! Smgh

section 342

Code of Criminal Procedure

S. S. Brar

Gurdial Singhs

.Janardan Sharma

Nuruddin

Rupinder Kaur

Ramano

HAllYANA V GURDIAL

Avtar

Sukhjeet Singh(PW

Harjiwan Katir

Uurdial Singhs

Sukhject Singh

Gurdial Sil!Jh

Kamal

Ram Rikli

Parga!

Singh

Parga! ingh