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STATE Of GUJARAT

v. llA I FATIMA & AN R.

- March J 9, 1975

[A A · .

. • • LAGlRISWAMI AND N. L. UNTWALlA~ JJ.]

G\'tdencc-Apprecicuio!l of-Rig/a of prirare If, ll . . t ei/CC- OIV l!5lllbltJftctf.

l<.cspon<.lnts. Nos. 1 <mu ., were moth . d d h the brothl!rin-law of respond; nt No 1 t nn ·~ 1£ ter.

The 1.kceased \~<IS occurrence, the relations between th· t' rr s?me uys before the t.lat~ of the the l<_tY of th~ occurrence there wasc.: a ~ufll~

1 ~~~-;~rho~~ ~~d~~{~'id n

lcc~,1sd. A ltttlc ater, \\lhcn the dccca5ed was sining in the bcfusc of hi$ father: tn-luw Jn the Ojlp~~Jtc ro~ of houes. rc:sponucnt No. J W<IIS alled to have g

t~ the dccacd wtth a stick 1~ beat him.

Some nci:;:hboun intervened nn~ tncd lo P•ICtfy both the parttcs.

When the d~:easc!.l was going out responde t No. 1 l'Ut tc:r leg across the kJ:,'S of the deca.scd, a~ a result of ":hich he fell down on hts b;1ck.

Respondent No. 2 immcditely caught hold of both the lwnds of the dcccnsed anr.J rcsronJent No. 1 :.S llltcd to h; ve squeezed his testicles n~ pulled them. Eventually thl! decca.'>ed uccumbc:d to the injury.

After the utctJent rcsponent No •. l lodgcll ? complaint before the police st:ting that the c.leceascd, hts wafe anti Ills mothcr-mhtw caught holu of hc:r nnd save her blows

m•d kids with a stkk as n result of \"hkh r.he fell down..

Hulding that the. prosecution Ca'ic wa-; proved beyond reasonable <.lvubt the Se~., ions Judc.: comh; tcd respondent No. l under s. JO.S. Part-!, J.P.C. .Re; pon-

Jnt No. 2 w:ts comktcd unth:r s. 3.23 rc.:ad with s. 144. LP.C. On appeal, the Hin Court, even uftcr believing the main part o( the occurrence, acquitted respondent No. 1 of the charges levelled against her nnd consequently respondent r-io. ::! ul\u on the g•ouod thi.lt she must have done so in e:tercise of her right of private: tlcfcm; c inasmuch as she nmo; t ha\'e squee:£ed the testicles of the dc-

..:c=ad when he ww• !lho\\..:ring blo\\s \\ith a tick on her in order to protect hcr-xdf.

Allov.ing the aprcal of the St<tt~.

HELD ; (I) The trial court \\-U.S ri, gt !n belieing th¢ evidence '!r the P!O- ';:cution \lt itncsc-; in regard to both the tnCIUI!I_lts and the occurrence m ques1.10n formine; purl of the second inciJent. .The H1gh Court dilfered from the Vli!W of the trial judge: on 11inl"Y &.nd umuslamab_le grounJs. l998 D-E)

(2J iherc . was ab, olutdy no basi~ r m:1h:rbl on the recrd to .enable, the J ligh Court to rcconl un '!rJcr of ncqlllllat m f~,-.ur of the resonJcnts b~ e..~· tending them a right of pm.-Le defence.

E\n gmng to lhe ma.xu~um c.dn~ m fuvour of the rcspunJI!nl'i that r~-; ponucnt No. ot th~ b!ows '\ !th n st•ck at

tl e huml'i of the dci.."C>ts~J nml i':' the second 11\Ctdcnt 1t lS mu~•Cest tha.t .her , r 1 o( uault on him \\-aS n dhbcrate counter-attack to cause htm such nJury ul !h . t ! •a t was ltkely to ~.:auc his death. 'fhe countcrattack cold m Dll , ~~~ 0~ u~ ~tl&d. in e,, crd~ of the right of pnvate ddcnce. (1000 f-G] ·.

N 1 . hr com1, Iainl bcf0rc the polkc nor in the statment under

I 3) ctt It: r an . ,

1 N 1 of her ha\'tnS squeezed 3 ,.., (' p (.' wt, there a wh1.., pcr by re:-; punvclt o. . . !f. .. .. , . r. ' • ' .. . rt of thi! uccu in e.xen; ie of her nght Of prt\'<!IC 111~ tc'lln:lc!) auJ pma.te ~~ \:a of privatt ddcn-.:c nlt tulcn by the re.ponets dfcncc. Nol only "~ 1 t P3 .. p Cr p c but no basis for the plea was l:uu 1R in their titulcmnls. un er 5• sC~:llin \\itu~--s or by nl.lducins ny defence the cru!>scxatmnatao~ of r'h\ft, lih ing that pl"a \\'aS not l.lisl!h:\rgeJ m ~~~ wy evidence. Th" bunh:t~ o iying the tc-; t ot prrronderunce of probabtlltJed m

h)' the I'C~!!pOI'l\lenl~ C:\~~h~pis -bsolutd)' no matcri<tl on the record to ea to ru\'OUr of th ~t ~.lea. [91J~ GHl 'I w.:h. cunduton. c R 4 < J u n ) 1 0 1 , " v D, lhi ..!11 mit•i ~~ rc~1io11 [ 19681 2 S. · • ;:~ • A!llllltl Uum CUll I u r. , . followed.

J7-LS64SC1J73

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CRIMINAL APPELL,\TE JURISDICTION : Criminal Appeal No. 67 of 1971.

Appeal by spcial leave from the Judgment & Order dated the 17th July, 1970 of the Gujarat High Court in Crl. A. Nos. 287 and 128 of 1969.

R. H. Dhebar and R. N. Sachthey, for the appellant.

A. S. Qureshi, Vinal Deve and Kailash Mehta, for the respondents.

The JudgnJ.ent of the Court was dlivcred by

UNTWALIA, I.- There is •a. locality known as Nani Malokoad m C the town of Kaloy, District Mehsena, Gurat. In this locality is a road (lane) running north to south. Bai Fatima, respondent no. 1 in this appeal filed on grant of special leave by the State of Gujarat, is the wife of Allarakha Hussemkhan. He had a younger brother named Gulabkhan Husseinklian. The victim of the occurrence is the said Gulabkhan. Both the brothers had their houses adjacent to each other in this lane faci!ag cast. The northern one was in occu- D pation of and belonged to the fi)cceased and the southern one was of Allarakha. There are a number of other houses situated around the houses of the.two brothers.

One such house is of Sardarkhan Muradkhan facing west abutting the road, two houses north of the house of the deceased. Jamiyatkhan is the son of Sardarkhan, father-in-law of the deceased Gulabkhan.

In the month of June, 1968 a compla41t was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that Allarakha, husband of respondent no.l was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality.

That had caused friction between the families of the two brothers. ·

On 27.6.1968 according to the prosecution story there were two incidents in the Angana i.e. space on the road in fro1J.1t of the houses

of the parties-one was at 5.30 p.m. and the other at 6.30 p.m. The prosecution case is that a she-goat of Gulabkhan strayed in the house of Fatima. She began giving blows to the goat. There were altercations between the members of the families of the two brothers. Respondent no.2 who is a married daughter of respondent no.I and her G

so~1 Liyakat who was 15 years old on the date of occurrence were also present at the time of this quarrel. They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi-a neighbourer and a close relation of Nannubibi Respondent no.l is said to have come out with a stick from her house and went to Gulabkhan to strike him. 011e Allarakha Rehman-a close neighbour came there, caught hold of the stick, quietened res- H pondent no.l and sent her back to her house The second part of the story is that Gulabkhan and Nannubibi went and sat in the Angaro of

GUJARAT V; BAI FAll~A (Untwa/ia, /.) 995

Jami)'atkhan son of Sardarkhan, father-inlaw of Gulabkhan.

Respondent no.l about an hour Iate.i.· went with a stick in her hand and hurled ablow oa Gulabkhan. Nannubibi intervened and got the blow on her right hand finger.

Gulabkhan directed respondent no.l to go back to her house by gestures of his hand and he also proceeded and

pused her towards• her house._ hen Gulabkhan reached the Angana of hts house: respondent no.l ts sard to have put her leg across his legs with the result that e fell dOWtl on his back.

Respondet no.2 caught ho1d gf the hanGs of Gulabkhat:~· Respondent no.l sat on his legs and squeezed his testicles and pulled them.

The boy Liyakat is said to have bitten the deceased on the left shoulder.

Gulabkhoan thereafter was made to recline on a cot. Eventually he died of the shock due to the pressing of his private parts by respondent no. 1. Information was sent to the Police Station.

A complaint of Naianubibi was recorded at about 10.30 p.m. Liyakat was sent for trial bei'tre the Juvenile Court. Respondent nos.l and 2 were tried by the Stssions Judge, Mehsana.

The learned Sessions Judge held the prosecution story to be proved . beyond reasonable doubt in all material particulars.

Finding that the injury caused to Gulabkhan in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death, he convicted respondent no.l under section 304 Part-I of the lndizn Penal Code and sentenced her to undergo rigorous imprisonment for 7 years.

She was further convicted under section 323 a'ad was given a concurrent sentence for 3 months under this count.

Respondent no.2 was convicted of an offence under section 323 read with section 114 of the Pe;.1al Code and was sentenced to undergo rigorous imprisonment for 3 months.

The respondents filed an appeal in the Gujarat High Court from the order of conviction recorded against them arid the State went up in appeal for their conviction under section 302 of the Penal Code read with section 114 in the case of respd.1dent no.2 The

State appeal was dismissed by the High Court and that of the respondents allowed.

The State came to this Court and obtained special leave from the judgment of acquittal recorded by the High Court in the respondents appeaL The dismissal of the State appeal by the High Court is final. •

The three eye witnesses to the occurrence are P-W.3 Nannubibi.

P.W.4 Noorbibi and P.W.6 Jel.latbibi.

The latter two are neighbourers and related to Nannubibi. The Trial Judge believed their evidence.

He a]so believed the evidence of P.W.7 Gulamanabi Shermohmad-a close neighbour of the parties to whom oan oral dying declaration is said to have been made by Gulabkhan before his death.

It may be stated here that P.W.8 Rasulbhai was sitting in the Bazar at some distance from the place of occurrence t1 the evening of the 27th June,

1968. He got the information at about 9.45 p.m. about the death of Gulabkhan. He rushed to the Police Station and merely informed about his death.

It is also necessary to note here that respondent no.l had received some injuries o~ her persd11 in either of the incidents which took place

on the e:vening of 27th June, 1968. Prosecution did not explain the. injuries on her person but the Trial Judge inferred that they must have been caused in the first incident which took place at 5.30 p.m. and not in the second which was the subject matter of the charge against the respondents.

The High Court has held in favour of the prosecution on the main part of the occurrence, namely, squeezing of the testicles of the deceased by respondent no.l as a result of which he died. Yet it has disbelieved the prosc<.:ution case in regard to some other aspects. It has not •accepted the prosecution story that there were two incid ·nts in the cve'.ling.

Nor has it accepted the version that shortly _after the first incident Gulabkhan and Nannubibi had gone to the Angana of J umiyatkhan. The story of falling down of the deceased by the

trippi',1g of his legs by respondent no.l has been discarded by the High Court. So also the evidence of P.W.7 Gulamnabi. Even after b(!lie~

ving the main part of the occurrence the High Court boas exonerated respondent no. l of the charges levelled against her and consequently respondent no.2 also on the ground that she must have done so in. exercise of her rigbt of private defence in as much as she must }rave squeezed testicles of the deceased when he was showering blows with a stick on respondent no. 1 in order to protect herself. ' In our opinion there arc: two many conjectures, surmises and contradictions in the judgment of the High Court. The respondents had not examined a.1y witness to give any counter version of the occurrence or to justify the assault on testicles of the deceased which rcsultecf in his death.

The High Court has said in its judgment:-

( 1) "There is also no doubt that since some day~ _prior

to the date of the incident the relations between the

deceased and the family of accused no.l were not cordial." •

(2) "There is no doubt that a quarrel did arise on that

day" (meaning thereby the date of occurrence "between the deceased and accused no. 1 in respect of a

goat."

(3) "It is very reasonably clear that the squeezing of the testicles of the deceased was in an probability the act of accused no.l"

( 4) "There is further no doubt that the deceased did die on account of squeezing of his testicles in the evening G that day at round about 8.30 p.m."

On the findings aforesaid if theclaim of right or private defence put forward on behalf of respoadent no.l was untenable as we shall show hereinafter it was wholly so, then it is _plain that the High Court ought not to have interferred with the .order of conviction recorded bv the Trial Court. Even. in face of the said findings the, High Court criticized H the prosecution case as regards some details . of the occurrence or the

ncidents and rejected a good portion of it.

We shall briefly shov that the said rejcctid, l by the High Court was wholly unjustified.

.A There were two incidents accord!ng to the prosecution case which happened in the evening at an interval of about •an hour. High Court says it was not so and says so without any basis.

The prosecution did not stand to. ga~.1 nything by splitting up the evening incident in two parts.

Even in the First Information Report, Ext.32 recorded at 10.30 p.m. in the night the two incidents were separately narrated.

8 There was ab~Jlutely no reason for the High Court to interfere with the findings of the Trial Court in that regard.

Tbe High Court does '.lot accept the prosecution sto.ry that deceased Gulabkhan had gone to the Angana of J amiyatkhan and respon<fent . no. 1 went there as an aggressor wiTh a stick in her hand. This story

h•as been discarded on the ground that it is not mentioned P.1 the First Information Report nor in the statements of the other two witnesses before the police.

We. may observe •again that the prosecution did not" stand to gain anything by unnecessarily or falsely introducing the story of Gulabkhan's going to the Angana of his father-in-law. The main occurrence happened in the Ah.gana of Gulabkh'ari.

The places are so very near that the story of Gulabkhan goi~1g to the Angana of his rather-in-law was not an important one to be remempered by the witneses to be recited before the police. It mattered little wnether respondent no. I went as an aggressor to the Angana of the deceased or a bit further North to the Angana of J amiyatkhan.

High Court also discarded the story of the tripping of the legs of Gulabkhan because it is not mentioned i'.l the First Information Report.

But the.l it ought to have been noticed that no such ontradiction was to be found in the evidence of P.Ws 4 and 6 in Court and their statements before the police. It must, therefore~ be presumed that they had given out the ripping story before the police.

The High Cotirt has not thought it safe to rely upon the evidence of the three eye witnesses 1.1one of whom was found to be disinterested in the prosecution.

The comment is that Allarakha Rehman and Mansabu who lived in the house opposite .to the deceased have not been examined by the prosecution. According to the prosecution case the said Allarakha had merely quietened respondent no. 1 in the first iacident and Mansabu came after the second incident was over. In material particulars we find the evidence of the eye witnesses very convincing and natural. In our opinion the High Court was not justified in thinking that it was not safe to rely on their evidence wholly and speially when the main part of the occurrece which fastened the guilt on respondent no.l was not disbelieved. . . '

Absence of any details in the st•atement recorded at the police station on the basis of the information given by P.W. 8 Rasulbhai.l, m.- necessarily led the High Court to remark that no one k1ucw upto 10.00 p.m. as to how Gulabkhan died.

This contradicts the earlier findings of the Hig~. Court that h.e died as result of the squee7.iilg of his testicles by respondent :t10.l Rasulbhai, according to his evic)ence did not get the details of the occrrence and so did not give any to the police.

The High Court has given 3 or 4 reasO'as for dscarding the eidene of P.W. 7 Gulamnabi to whom the oral dying declaration JS said to have been made by the deceased. The first reason given by the High Court is that when this witness went near Gulabkhan the three women who claimed to have witnessed the occurrence were ·-sitting near him; none of them related the story to Gulamuabi. Wlien he put a question to Gulabkhan who being in a position to give the answer gave it, it was not necessary for him to talk to the women thereafter. Gulatnnabi was the person who had gone to call Dr, Rao to examine Gulabkhan. Dr. Rao came at 8.30 p.m. ai11d declared him to be dead. It was not necessary for Gulamnoabi to relate the details

of the occurrence to Dr. Rao as he himself had not witnessed it A!1other reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 10.00 p.m. no one knew the exact reasQI, l for the death of Gulabkhan. Having accepted the prosecution story about the cause of his death it woas unnecessary to dilate upon the matter any further. The High Court has not disbelieve:d the lodging of the complaint before the police on the statement of' Nannubibi at 1.0.00 p.m. The last reason giyen is the non-examinatim1 of Dr. Rao by the prosecution. His evidence was

of no ttSe it and the comment of the High Court is not, the-refore, justified. -

We have unhesitatingly come tothe cvnclusion that the Trial Court was right in believing the evidence of the prosecution witnesses in regard to both the incidents crad the occurrence in question forming part of the second incident. The High ourt differed from the view of

he Trial Judge on. flimsy and unsustainable grounds.

Now we come to deal with the question of right of private defence.

It is no doubt true that the prosecution did not explain the injuries on the per&on of responde1at no.I. P.W.5 Dr. S. C. Masalia who had examined the injuries on the side of the prosecution also examtned Fatima, respondent no.l when she was sent to him by the police.

Fatima Bibi had lodged a complaint before. the police which was found to be a non-cognizable offence at about 8.00 p.m. on 27-6-1968.

That is Ext.44. In this complaint she stated that her young one of the goat had go~1e in the Angana of Gulabkhan. Three persons named in the complaint were Gulahkhan, Bai-bibi, mother-in-law of Gulaokhan and Nannubibi, hi!; wife.

The two ladies caught hold of her Odhana and began to give her blows of kicks and ftsts.

Gulabkhan gav<! stick blows on the right hand and so she fell down on the ground and began to shout. The injuries found on the persa'-1 of Fatima Bibi were 5 in number. Three contusions on the right forearm, one contusion on posteric-parietal part of right side of scalp and one contusid1.1 on scapular part of right side of back. The inJuries were all of minor character. In her statement under section 342 of the Code of Criminal Procedure, 1898 respondent no. 1 stated almost the soame story a!ad added that Gulabkhan was 4runk while he was abusing her. Neither 'in Ext.44. nor in the statemetat under section

342 thee was a whispe~ by by respondent no.l of her having squeezed the testicles an~ the pnvatc part of Gulabkhan.

Nothing was stated to give any inkling of her having squeezed the testicles of Gulabkhan

in exercise of her right of private defence to protect her from further

assat. Nor was any evidence adduced in Court to give ay counter versiOn of the occurre.nce. No foundtation was laid to enable the court to ac9uit the. respondents granting them a right of private de fence. • It dJd reqrre a pure conjecture and imagination to hold the respondents not guilty by extendl.lg to them the right of private defence.

. . I~ a situation like this when the prosecution fails tC' explain the .

IDJunes on the person of an accused, depending on the facts of each case, any of the three results. may follow :

( 1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. -

(2) It makes the prosecution version of the occurreiJ, ce

doubtful and the charge (!gainst the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

D Question is in which category the present case falls?

I•a unhi Ram and others v. Delhi Administration(l) Hegde, J delivering the judgment of this Court has said at page 458 :

"It is true that appellants i1a their statement under section 342 Cr. P.C. had not taken the plea of prvate defence, but necessary basis for that plea had been laid in the cross• examination of the prosecution witnesses as well as by adduc ing defence evide~1ce. It is welhsettled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the material on record-see In Re-Jogali Bhaige Naiks and another- A.l.R. 1927 Mad. 97. The burden uf establishing that plea is on the accused and that burden can be discarged by showing preponderance of probabilities in favour of that plea on t)le ba:; is of the material on record."

In the instant case not only the plea of private defence was not taken by the respondents in their statement under section 34f but no basis for that plea was laid h1 the cross-examination of the prosecution witneses or by adducing any defence evidence.

In our opinion the burden of establishing tlrat plea was not discharged in any manner by the respondents even applying the test of prepo•.1derance of probabilities in favour of that plea. There is absolutely no material in the records of this case to lead to any such conclusion. We do not think that the Trial Judge was right in assuming that respondent nt). 1 must have received the injuries in the first incident. It may well be that she received the injuries in the second incident.

Since prosecution did not come forward to show in what manner she received these

(1) [1968] (2) S.C.R. 455.

A injuries, assumption can be made to the farthest .etet in. favour. of , the responde11ts that respondent no.l received the mJunes wtth stck, may be at the hands of Gulabkhan or any other person on hts. sde.

But surely the assumption could not be stretched to the. exte?t It as been done by the High Cotirt. The High Court is not nght m saytg th'at by the tripping of the legs Gulabkhan would have fallen on hts B face and t11ot on. his back. A man may fall on back or on face depending upon the side and the angle of the tripping. The other error committed by the High Court is when it says :

"lt appears t0 us to be more probable that while the quarrel was. going on in the Angana of the deceased and the deceased was delivering blows of stick on the accused no. 1, she squeeze.d his testides in order to liberate herself from his attack. It appears that she did so while the deceased was standing and giving blows on her."

The deceased was wearing a pant and it is impossible to imagine that the squeezing of the testicles could be done by respondent no. 1 to the extent of causing his death soon after the squeezing when Gulabkhan was in a standi111g .position. . In 'tflat postion he could have at once moved back and liberated himself.

The extent of squeezing done in this case was possible only if respondent no. I could sit on his legs after he had fallen down at hi~ back. This lends further support to the prosecution s!9ry that respondent no: 2 caught his hands from behind meaning thereby from towards the side of his head, in the front being respondent ~10. 1 on his legs. In our opinion, therefore, there was absolutely no basis or. material in the records of this case to enable the High Court to record an order of acquittal in favour of the respondents by extending them a right of private defence. Even going to the maximum in favour of the respondents that respondent no. I . got the blows with a stick at the hands of Gulabkhan a•11d in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death. The counter-'att!lck could in no sense be an :...ttack in exercise of the right of private defence.

In material particubrs the evidence of th~ three eye witnesses as also the evidence of dyh1g declaration of the deceased before P .. W . . Gulamnabi is so convincing and natural that no doubt creeps into

it for the failure of the prosecution to explain the injuries on the person of respondent no. 1. The prosecution case is not shaken at all on that account. 11t1 our judgment this is _'3 case which falls in the third category

GUJARAT V. BAI FATIMA (Untwalia, /.) toot

as enumerated above. In agreement with _the Trial Court, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt.

For the reasons stated above, we allow this -appeal, set aside the order of the High Court and restore that of the Trial Omrt as against respondent no. 1 as respects her convictions and sentences and as against respondent no. 2 only in regard to her conviction. It is no use sending the young girl back to jail for a few months. While. maintaining her conviction under section 323/114 of the Pe11al Code, we reduce her sentence to the period already undergone.

P.B.R.

Appeal allowed •.

STATE Of GUJARAT

llA I FATIMA & AN

s. 3

s. 144

R. H. Dhebar

R. N. Sachthey

A. S. Qureshi

Vinal Deve

Kailash Mehta

Bai Fatima

State of Gujarat

Allarakha Hussemkhan

Gulabkhan Husseinklian

Allarakha

Sardarkhan Muradkhan

Jamiyatkhan

Sardarkhan

Gulabkhan

Kalol Municipality

Allarakha

Fatima

Liyakat

Nannubibi

Gulabkhan

Rahematbibi

Noorbibi

Allarakha Rehman

Liyakat

Gulabkhoan

Naianubibi

section 304

Part-I of the lndizn Penal Code

section 323

section 323

section 114

Gujarat High Court

section 302

Penal Code

section 114

Jel.latbibi

Gulamanabi Shermohmad

Rasulbhai

27th June, 1968

Gulamnabi

J amiyatkhan

Allarakha Rehman

Mansabu

Rasulbhai.l

Rasulbhai

Gulamuabi

Gulatnnabi

Rao

Gulamnoabi

Gulamnabi

Rasulbhai

S. C. Masalia

Fatima

Fatima Bibi

Gulahkhan

Bai-bibi

Gulaokhan

Gulabkhan

section 342

Code of Criminal Procedure, 1898

section

342

section 342

section 34

section 323


> -

OM PRABHA JAIN

CHARAN DAS & ANR

April 10, 1975

[M. H. BEG, Y. V. CHANDRACHUD AND A. C. GUPTA, JJ.]

Representation of the People Act (43 of

1951) .Ss. 77, 116-A and 123 (6 )-Corr, upt Practice-Standard of proof.

Practice and Procedure-Finding by High Court in election disputes-lnterfrreiice by Supre1ne Court.

Section 77 of the, Represel1tation of the People Act, 1951, tirovides that every can"-idate at an election shall keep an account of ependiture incurred C in connection with the election and that the total expenditure shall not exceed the amount prescribed.

The appellant and the first respondent contested the election to the State Legislature and the first respondent was successful.

The appellant chal_lenged the election on the ground, inter alia, that the first respondent was guilty of corrupt practice having incurred or authorised expenditure in contravention D -0f s. 77.

The election petition \Vas dismissed by the High Court.

In appeal to this Court, it \Vas contended that there was evidence to show that the expenditure incurred by D, in connection with the use of t\VO jeeps during election \Vas authorised by the first respondent and if that expenditure was added to the amount shown by the first respondent as his expenditure, the total expenditure would exceed the prescribed limit of Rs. 9000.

During the pendency of the appeal. s. 77 was amended by inserting two Explanations in the section. Explanation 1 provides that the expenditure in- .curred or authorised in connection wtih the election of a candidate by a political party or by any other association or body of persons or by any individual other than the candidate or his election agent, shall not be deemed to be expenditure in connection with the election, incurred or authorised by the F candidate or his election agent.

DismWiing the appeal,

HELD: (Per curia1n) The allegation of corrupt practice af.[ainst the respondent has not been proved beyond reasonable doubt.

[109H & 123F]

(Per ~I. H. Beg, J.)-If a charge of a corrupt practice is held to have G been cstablislv!d against a candidate, it may have grave repercussions on his reputation and poJitical future; and, therefore, prudence requires that the 'Stricter standard of proof of a criminal Charge should be applied. [109F]

The High Court has held that as the precise connection. of D with the first respondent was not satisfactorily established, the charge of corrupt prac~ tice against the first respondent must fail. This Court will not, \Vithout a b:tter reason than i; ierely that another inference on the evidence is possibk~.

disturb such a finding even on a statutory first appeal on facts.

There is if a bare balance of probabilities could decide the case, sufficient circumstan~ H tial evdence to connect the expenditure incurred by D with the respondent who did not even produce any account books, though the law requires hin1 to maintain sat_isfactory cconts to support hi~ return of expenses; yet, if the rules of c1rcumstant1al evidence were applred with the strictness \\rith

whi.ch they are applicable in criminal cases it must be held that the case against the first respondent has not been proved beyond reasonable doubt

!109D-E-F-G-H]

108 SUPREME COURT REPORT~ [1975] SUPP. s.c.R.

(Per Y. V. Chandrachud and A. C. Gupta, JJ.) : (I) The appeal has to be decided in the light of the Explanation added to s. 77.

(2) The findings of fact recorded by the High Court should not be disturbed in an appeal under s. 116-A, unless there was some serious error in the findings.

Jn the present case, the Judge who tried the petition, had recorded his impression about the demeanour of the V.'itnesses whenever he thought necessary. The findings based solely on the demeanour of the witnesses cannot be reversed in appeal, but the conclusions of fac.t recorded upon a consideration of the probabilities can be tested to see if they contain any serious error [121H 122A]

(3) A charge of corrupt prnctice is quasi-criminal in nature and must be pro\ed beyond reasonable doubt.

[122D1

( 4) Before the High Court the parties proceeded on the footing that the question raised related to both .-illegations,, namely, that the respondent ir.curred or authorised the expenditure incurred on the two jeeps, and, therefore, the scope of the inquiry in appeal cannot be limited only to the question \Vhether the respondent himself incurred the expenditure.

[121A]

(5) There is no evidence of the respondent incurring or any direct evidence of his authorising the expenditure incurred for the jeeps.

[121D]

( 6) From the fact th~1t the respondent used the jeeps once or t\.vice, it could not be inferred that he paid for their hire, because, it is \\'ell known that candidates at an election very often use their supporters' vehicles.

[121D-E1

(7) There is also no reliable circumstantial evidence to connect the respondent with the expenditure il).curred by D.

[121H1

(8) The respondent did not produce his accol1nt of election expenses~ his case being that he had destroyed the papers after preparing his return of election expenses.

From the fact of non-production of accounts no adverse inference can be drawn against the respondent that the expenditure was really incurred by the respondent himself. D who made the payments gave evidence, and he denied that the respondent authorised him to make the payments. and this evidence was accepted by the High Court.

[121 E-F]

D. P. hfishra v. Kanwl Narain and A11r. [1971] l S.C.R. 9, distinguished-

(9) The circumstance5 proved in the case are: (a) that D \Vorked for the respondent; (b) that D hired the t\.VO jeeps and used them for the respondent's election campaign; and (c) that he sometimes operated from the respondent's election office.

But these circumstances do not justify the inference that the respondent put D in charge of his transport arrangements. [122F-Hl

(10) As regards the money spent by D it is not believable that he spent his O\Vn money. But the only alternative inference is not that it \Vas the res- . pondent's money that was sp, ent and that lhe respondent authorised D to H spnd it, especially when there is evidence to show that the respondent's electian campaign received financial assistance from other sources, such as the Jan Sangh Party. [123B-C]

(11) A note bo6k put in evidence by the appellant seen1s to suggest that a. part of the money paid for the 2 jeeps was taken from the respondent. But. the note book was not kept in the regular course of business, it was not a reliable clocument and there \Vas no independent evidence proving the correctness of the: entries therein. Therefore, it is not possible to rely on the entries in the note book and it must be left out of consideration.

[120E-121C-122H-

123A]

(12) It may be difficult to get hold of evidence in an election dispute to prove such. a corrupt practice, but the Jaw requires proof beyond reasonable doubt.

[123E-F]

' -

,.... ,

OM PRABHA v. CHARAN os. (Beg, J.)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1551 of 1973.

From the judgment and order dated 31st August 1973 of the Punjab & Haryana High Court in Election Petition No. 42 of. 1972.

L. M. Singhvi, A. Gupta, S. L. Yadava, S. K. Dhingra and

S. Swamp, and J. B. Dadachanji, for the appellant.

H. L. Sibal, S. S. Khanduja, Susnik Kumar Jain, Vishwanath K. V. and Kapil Sibbal, for respondent No. 1.

The Judgment of the Court was delivered by c BEG, J.-I would like to point out that the High Court, in the judgment under appeal, recorded the finding, after a very comprehensive and detailed discussion of the whole evidence "that the two jeeps in question actually worked iu support of the respondent's election campaign right from February 18, 1972 to March 11, 1972 under the charge and direction of Duni Chand".

Nevertheless, the D High Court finally held that, as the precise connection of Duni Chand with the contesting respondent was not satisfactorily established, the charge of corrupt practice against the respondent must fail.

It is the well established practice of this Court (see e.g. B. B. Karemore & Ors. v. Govind & Ors.)( 1 ) that it will not, without a better reason than merely that another inference, on evidence on record, is possi- E ble, disturb such findings even on a statutory first appeal which is not confined to questions of law.

We cannot forget that, if a charge at a corrupt practice, as an electoral offence, is held to have been established against a candidate, it may have grave repercussions on his reputation and political future.

Therefore, prudence requires that we should apply the stricter standard of proof of a criminal charge in such a .case and not decide the case on a bare balance of probabilities.

It appears to me that, although there is, if a bare balance of G probabilitie.s could decide the case, sufficient circumstantial evidence to connect the expenditure incurred by Duni Chand with the respondent, who did not even produce any account books though the law requires him to maintain satisfactory accounts to support his re- 'turn of election expenses, yet, if we are to apply the rules of circumstntial. eyidence wih the strictness with which they are appli- H cable m cnmmal cases, 1t may be held here that the case against the contesting respondent is not proved beyond reasonable doubt despite all the circumstances appearing against him. There are other circumstances which suggest another possible inference.

Hence, we are left in doubt on the question whether he or the Jan Sangh party, from which he broke away after his election, had incurred these expenses through Duni Chand. I, therefore, though not without some hesitation, agree with the conclusion reached by my learned brethren that this appeal must be dismissed.

I also agree that, in the circumstances of this case, the parties should bear their own costs.

(l) A.T.R. S.C. 405.

GUPTA, J.-This is an appeal under Section 116A of the Reprosentation of the People Act, 1951 (hereinafter referred to as "the Act") from an order passed by the Punjab and Haryana High Court at Chandigarfi-dismissing the election petition filed by the appellant calling in question the election of the first respondent to the Haryana State Legislature from the Kaithal Assembly Constituency in 1972.

Poll was taken on March 11, 1972.

The first respondent who secured 26095 votes was elected defeating the nine other candidates who contested the election.

Appellant Om Prabha Jain who polled 22673 votes secured the next position in the contest.

In her election petition the appellant hereinafter also referred to as the petitioner, alleged various corrupt practices against the returned candidate seeking his election to be declared void under sec. 100 of the Act and also prayed for an order under sec. 99 naming him guilty of corrupt practice so that he might be disqualified under sec. SA of the Act.

In this appeal the challenge is confined to the allegations c; f corrupt practice under sub-sec.(6) of sec. 123-"ineurring or authorising of expenditure in contravention of Section 77".

Sec. 77 as it stood when the election petition was presented was in these terms:

"77. Account of election expenses and n1axb11um thereof.-(1) Every candidate at an election shall, either by himself or by his election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorized by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result. thereof, both dates inclusive.

(2) The account shall contain such particulars as may be prescribed.

( 3) The total of the said expenditure shall not exceed such amount as may be prescribed."

For the State of Haryana the prescribed limit on election expenses was Rs. 9000.

H During the pendency of the appeal in this Court an Ordinance, n:l!llely, the Representation of the People (Amendment!

Orinancc, 1974 was promulgated amending sec. 77 of the Act by .msertmg two explanations to sub-sec. (!) thereof.

The explanations read as follows :-

'Explanation 1.-N otwithstanding any judgment, order or decision of any court to the contrary, any cxl'end1ture incurred or authorized in connection with the electt0n of a candidate by a political party or by auy other association or body of persons or by any individual (other than the

-candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorized by the candidate or by his election agent for the purposes of this sub-section :

l 11

Provided that nothing contained in this Explanation shall affect-

( a) any judgment, order or decision of the Supreme Court whereby the election of a candidate to the House of the People or to the Legislative Assembly of a State has been declared void or set aside before the commencement of the Representation of the People (Amendment) Ordinance, 1974;

(b) any judgment, order or decision of a High Court whereby the election of any such candidate has been declared void or set aside before the commencement of the said Ordinance if no appeal has been preferred to the Supreme Court against such judgment, order or decision of the High Court before such commencement and the period of limitation for filing such appeal has expired before such commencement.

Explanation 2.-For the purposes of Explanation 1, "political party" shall have the same meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time being in force.'.

The Representation of the People (Amendment) Ordinance, 1974 was subsequently repealed and replaced by the Representation of the

People (Amendment) Act, 1974 (Act 58 of 1974) inserting the aforesaid explanations in sec. 77 of the Act. The appeal before us does not attract the proviso to Explanation 1 and sec. 77 with the explanations added will govern this case.

The particulars of the charge that the returned candidate incurred

or authorized expenditure above the prescribed limit are set out in clauses (a) to (J) of paragraph 14 of the election petition. Dr. H Singhvi, learned counsel for the appellant, confined his submissions to the expenditure incurred in connection with the use of two jeeps bearing Nos. 6424 and 1116 mentioned along with several other vehicles in clause ( e) of paragraph 14.

It is alleged in that paragraph that though the first respondent showed in his return his total expenditure as Rs. 5844/24 p., his expenses exceeded in any case the prescribed limit of Rs. 9000/-. The contents' of paragraph 14 of the election petition are denied in paragraph 14 of the written statement of the first respondent wherein he has stated that he never used most of the vehicles mentioned in the election petition including the jeeps 6424 and 1116. -

Of the Issues framed, only Issues Nos. 14, 15 and 16 are relevant for the purpose of this appeal.

These Issues are as follows:-

"(14) Whether respondent No. 1 incurred or authorised expenditure on the various items enumerated in subparagraph (a) to (1) of paragraph 14 of the election petition.

( 15) If any of the items of expenditure referred to in the preceding issue is proved to have been incurred. by the returned candidate, does the addition ol' that extra amount to the amount of expenses shown by the returned candidate to have been incurred by him in the return of election expenses take the total amount spent by him above the statutory limit of Rs. 9,000/-?

(16) If the preceding issue is proved, has the returned candidate not committed the corrupt practice defined in section 123 ( 6) read with section 77 of the Act ?"

Before we turn to the evidence bearing on these issues it would be appropriate to state here certain facts in the background which must be kept in mind in considering the evidence.

The appellant contested the election as a candidate of the Indian National Congress.

The first respondent had filed several nomination papers, two of them as a candidate of the Bharti ya Jan Sangh and two as independent.

He had signed the pledge of the Jan Sangh, but ultimately he contested the election as an independent candidate.

He had been a member of the Municipal Committee of Kaithal on the Jan Sangh ticket and was elected its President in April, 1971 as a nominee of that party.

Some time after the election in question in the present appeal was over, the first respondent was served with a charge-sheet by the Bhartiya Jan Singh, Haryana State, alleging that he had betrayed the organisation by failing to join the Jan Sangh Legislature Party which. it was said, he had promised to do as soon as the result of the election was declared; finally he was expelled from the Party.

These facts are not in disp?tc.

The first witness examined by the petitioner to prove that the two jeeps in question were hired for the first respondent is P.W. 3 Jaojit Singh, a taxi driver of-Delhi.

He proves the letter Ext. P.W. 3fl, said to have been given to him by Brij Mohan, a neighbour, who asked him to send four or five jeeps to respondent Charan Dass at Kaithal.

Ext. P.W. 3/1 is a letter dated February 20, 1972 addressed to Brij Moban by one Duni Chand Gupta.

The letter translated into English from the original Urdn reads as follows :-

"Kaithal.

20-2-72.

Babu Brij Mohan Ji.

It is requested that I had taken from you two Nos. jeeps on dated 18-2-1972 bearing No. 1116 and 6424 for the election of Shri Charan Dass, for which I had paid you the amount of Rupees two thousands in Advance.

Now I require five Nos. jeeps more. lf you can manage then inform at once so that I may send the advance through somebody.

Inform at once, hire charges are no consideration, the work should be done.

Sd/- Duni Chand Gupta,

Kai th al.

C / o Shri Charan Dass,

Election Office

Kaithal."

Two things are to be noted in this Jetter, that Duni Chand claims that be had paid Rs. 2000/- in advance for the two jeeps bearing numbers 1116 and 6424, and that he gives his address, care of Charan Dass election office, Kaithal.

The evidence of P.W. 3 is that he could secure only two jeeps from a place called Abohar which he sent to Charan Dass.

The next witness who speaks about .these two jeeps is P. W. 5 Puran Chand. He is a shopkeeper in District Shri Ganga Nagar

in Rajasthan. He claims that he was the owner of jeep numbered 6424 and his cousin Munshi Ram owned the other jeep, 1li6. His F evidence is that he and Munshi Ram left Shri Ganga Nagar on February 13, 1972 with the two jeeps reaching Delhi the next day where they contacted Brij Mohan, a commission agent, for getting their "vehicles hired out". On February 17, Duni Chand came to Brij Mohan seeking to hire two jeeps. Brij Mohan settled the terms of hire which were that Duni Ch::ind would pay Rs. 130/- per day G for each jeep from February 18 to March 11, 1972 besides Rs. 5/- per day to the driver of each jeep and also pay for the petrol.

The witness says that Munshi Ram and he were each paid Rs. 1000 in advance by Duni Chand.

On March 4, Duni Chand paid him Rs. 3500/- at Kaithal towards the hire of both the jeeps and got a receipt from him which is Ext. P.W. 5/1; the balance, Rs. 740/-, H was collected later by the drivers of the jeeps.

P.W. 6 Surja 'Ram and P.W. 7 Madan Lal are the drivers of jeeps Nos. 1116 and 6424 respectively, P.W. 6 claims that respondent Charan Dass used to go about in his jeep and the respondent's own .car "used to remain parked in those days".

The witness states further tl1at the respondent never went in the jeep driven by Madan Lal.

The statement that the respondent's car was not used during the election days is not consistent with what appears from paragraph 14 (b) and (c) of the election petition where the petitioner states

A that the respondent used his car in connection with election campaign but has not shown the expenses incurred on that car.

P.W. 7 Madan Lal's evidence is that on arriving at Kaithal with the jeep the witness was deputed by Duni Chand to work at village Cheeka.

This witness claims that the first respondent travelled in his jeep on two occasions, first on the 18th of February and on another day, thus contradicting P.W. 6 who had said that the respondent never used the jeep driven by P.W. 7.

From the evidence of P.W. 3, P.W. 5, P.W. 6 and P.W. 7 1t C would appear that Duni Chand hired the two jeeps in question to help the election campaign of the respondent.

Duni Chand, also known as Duli Chand, was examined as a Court Witness.

His evidence is that he and six or seven other persons D had formed a party to work against the Congress candidates in the Kaithal and Pchowa constituencies.

This party, however, was not given a name nor did it hold any meeting or issue any poster.

He says that each member of this party contributed Rs. 1000/- to carry on the election propaganda.

He admits having written the letter Ext. P.W. 3/1, and that he had hired the two jeeps in question E. through Brij Mohan to work against the Congress candidates in the aforesaid two constituencies. According to him the members of this party went round in those jeeps to canvass support for respondent Charan Dass as they considered the respondent to be the best of the candidates.

Asked about the reason why in the letter Ext. P.W. 3/1 he had . given his address as "care of Charan Dass' election office, F Kaithal", he says that this was done "to facilitate Brij Mohan's man to find me for collecting the balance of the hire money ......... the man could have enquired the address of my shop from the election office of Charan Dass".

The witness denies that he had given that address because he was "incharge of the election work of the respondent relating to employment of motor vehicles''.

The witness adds G that he and his friends who worked for first respondent at the election did not maintain any record containing particulars of how the jeeps were employed by them during those days.

In answer to a question put to him in cross-examination regarding a note-book which figures prominently in this case, Duni Chand admits that the note-book, Ext. P.W. 8/5, is partly in his handwriting.

This note-book which we will consider in due course was also written partly by Raghbir Chand who like Duni Chand was examined as a Court Witness.

He claims to be one of the group of seven or eight persons spoken of by Duni Chand who were helping the first respondent.

The petitioner hersell deposing as P.W. 30 has narrated how she came to know of the said two jeeps being employed by respondent Charan Dass .. According to her fifteen to twenty jeeps were used by him for his election work.

She noted the numbers of these

' ,

vehicles in a diary; this record is based on her personal observation and also on \nformation received from her workers.

In answer to a question put by the Court she read out tbe numbers of the jeeps noted in her diary in the following order: "5948, 6055, 6009, 2574, 1710, 9997, 6424, 1116, 6675, HRJ-5324, HIM-4147, 6170 and 8363."

The note-book, Ext. P.W. 8/5, seems to be the most important documentary evidence produced on behalf of the petitioner to prove that the two jeeps in question had been employed by respondent Charan Dass.

On some pages of this note-book are recorded in an extremely haphazard manner the numbers of several vehicles with C certain dates and figures seeming to indicate when some of the vehicles first reported for duty and how they were deployed.

The note-book also mentions different sums of money stating or hinting at the sources wherefrom these amounts were collected and includes certain entries suggesting payments made for the use of these vehicles.

The two jeeps, 6424 and 1116 are among the vehicles mentioned in the note- D book.

The petitioner states in her evidence that P.W. 9 Mohan Bahadur brought the note-book to her at her residence in Kaithal in the last week of September, 1972.

P.W. 9 Mohan Bahadur, whese eeposition was recorded on October 5, 1972, states that the note-llook was given to him "last week" by Punnu Ram, Joint Secretary •f the Kaithal Jan Sangh. According to the witness, Punnu Ram I. told him that Jan Sangh had expelled Charan Dass from the Party

anci that the note-book would be of help to the petitioner in her election petition. The witness adds that Punnu Ram knew that the witness was a supporter of the petitioner.

In this note-book t_he name of Anil Kumar Gupta, a son of the first respondent, appears to be written at two places.

Admittedly, Anil Kumar was a B.A. student in the R. K. S. D. College, Kaithal, and one of his subjects was Civics.

Pages 3 to 8 of the note-book contain certain notes on Civics.

According to Mohan Bahadur and the petitioner there were three loose sheets of paper inside the notebook.

These loose sheets of paper which have also been produced with the note-book are: (!) a Hindi manuscript containing instructions for the polling agents (Ext. C.W. 2/1), (2) bill of a loudspeaker dealer in the name of Charan Dass for Rs. 101/50p. (Ext.

P.W. 24/1), and (3) a receipt in Hindi dated March 6, 1972 for

RB. 41/50p. for hire of loudspeakers, signed by one Shadi Lal Shad, a worker of the Jan Sangh Party.

As stated already, it is difficult to find any order or method in the entries recorded in: this note book though the fact that it belonged to the respondent's son might appear to lend some authenticity to the document. Respondent Charan Dass (R.W.15) and his election agent Gian Chand (R.W.14) both however deny that any such notebook was maintained by them or that they had asked Duni Chand or Raghbir Chand to make the entries therein. It is also not clear, how the notebook found its way to the petitioner. Punnu Ram,. Joint Secretary of the Kaithal Unit of the Jan Sangh Party, who is said to_

A have handed over the note-book to Mohan Bahadur was examined

by the respondent (R.W.13).

Punnu Ram denies having made over any note-book to Mohan Bahadur whom he says he did nor know.

His evidence is that he saw the note-book for the first time in Court.

Punnu Ram admits that he worked for the first respondent at the B election on behalf of his Party. The witness proves a document (Ext.R.W.13/1) containing a statement signed by Shadi Lal Shad that he had "got prepared" 4 70 small flags and 1000 stencils for the total cost of Rs. 38.SOp. This document contai1is the signature of Punnu Ram who appears to have verified the correctness of it< C contents. In his deposition Punnu Ram explains that the Jan Sangh

"had got the flags and the election symbol of respondent No. 1 prepared as the party was supporting respondent No. 1 '". The witness adds that the Jan Sangh spent a total amount of Rs. 400/- or Rs. 500/- on the election of the first respondent. This part of Punnu Ram's evidence is relevant to the other aspect oE the case, namely, who D really paid for the two jeeps if it was found that they had been 'employed for the respondent's election campaign.

Raghbir Chand who claims to have made some of the entries in the note-book was examined as a Court Witness. His evidence is that Janardan Singh who was his friend and a member of the Jan E Sangh had asked him to make certain entries in the note-book. He says that the first column of page 260 a111l the whole of page 261 of the notebook were in his handwriting. The two jeeps, 1116 and 6424, are mentioned in the first column of page 260 with the word 'Delhi' in Urdu written against them. According to Raghbir Chand these pages

F were blank when the note-book was brought to him by Janardan Singh.

Raghbir Chand says that he did nor know why Janardan Singh wanted him to write in the note-hook and that he obliged his friend without asking any questions. The writings on pages 260 and 261 appear to be in opposite directions, which is one example of the_ lack of order and method in maintaining the note-book. Raghbir Chands explana- G lion is that after be had finished what he was asked to write on page

260 and closed the note-hook, J anardan Singh thought of getting some more entries made by him and opened the note-book at page 261 upside down, and Raghbir Chand copied on the page as he found it whatever Janardan Singh dictated to him.

H Janardan Singh who claims to be a worker of the Jan Sangh was also examined as a Court witness. According to him Pawan Kumar, Joint Secretary of the Jan Sangh at Panipat, came to see him towards the end of March, 1972 and left with him the note-book (Ext. PW. 8/5) and a Parcha containing certain figures in English and wanted him to get these figures which were all numerals, copied into the note-book. The witness did not ask him why, and as a worker of the Jan Sangh proceeded to "obey his orders". He says that he an<l Ragbbir Chand had "blind faith" in each other, and at his request .

Raghbir Chand copied the figures from the Parcha 011 pages 260 and 261 of the note-book.

These pages however contain certain names of places and persons and also other words; according to Raghbir

I',-.

,:~.

- '

..... - - \ ..

Chand these also were in his handwriting, hut J anardan Singh maintains that the Parcha from which Raghbir Chand had copied did not contain any such names or words. Janardan Singh's evidence is that later Pawan Kumar collected the note-book from him.

At the co<1clusion of Janardan Singh's deposition, the learnoo Judge appears to have recorded a note of his impression that "throughout his statement, this witness has been displaying nervousness, and prevarificating and avoiding to give straightforward answers to the questions put to him".

Duni Chand's version is that what he had written in the notebook was at the instance of Rattan Lal, President of Ward No. 8, Kaithal Jan Sangh Party. Dtmi Chand says that Rattan Lal expressed displeasure at the respondent failing to honour his promise to join the Jan Sangh legislature party, if elected, and enquired of Duni Chand if he could produce any evidence which would go, against the respondent in the election dispute, then pending in the High Court.

Duni Chand made over to Rattan Lal the receipt, Ext. P.W.5/1, given by Puran Chand for Rs. 3500/- paid towards the hire of the jeeps 1116 and 6424. Five or six days thereafter, Rattan Lal again came to sec Duni Chand with a diarv and a note-book. Dtmi Chand's evidence is that he copied on the clifiercnt pages of the note-book whatever Rattan Lal read out from the diarv. This was about a month after the election. Duni Chanel says that, when the note-book was brought to him, it contained all the other writings that are now there.

Duni Chanel's evidence is that he did not question Rattan Lal in what way the note-book would be used against the respondent but wrote to his dictation on such pages of the note-book and in such order as he was told. According to Duni Chand, Rattan Lal took away the diary and the note-book after the writing was done.

Certain entries in the note-book apparently corroborate the oral evidence as to some payments made towards the hire of the two jeeps but it does not record ail the payments claimed to have been G made. For instance, P.W.6 Surja Ram, driver of jeep No. 1116, stated that he had signed in a note book on March 12, in acknowledgement of the receipt of Rs. 740/-, being the balance of the amount dne on account of the two jeeps.

There is however nothing in the note-book to support this statement. Assuming Surja Ram's evidence to he true, one would have expected to find his signature in the note- H book .

Pawan Kumar, Provincial Secretary, Haryana Jan Sangh, was the first witness to be examined on behalf of the petitioner. He disclaims all knowledge of the Parcha or the note-book which, according to him, he saw for the first time in court. His evidence adds to the r.1ystery surrounding the note-book. The witness states that the first respondent was in fact a Jan Sangh candidate but was allowed to contest as an independent as a matter of election strategy. He adds that he went to Kaithal on March 14, 1972 and requestee the respondent to declare that he would join the Jan Sangh legislature party.

A The respondent is said to have replied that be would think over the matter and then inform the witness. The respondent, it is alleged, was thereafter asked on the telephone on March 16, to attend the W orldng Committee meeting of the State Jan Sangh at Kamal to be held the next day. Though the respondent's reply on the teJepbone B was that he would attend the meeting, he did not ultimately do so.

About two days after the meeting, the witness went again to the' respondent for an answer but still the respondent did not give any definite reply. The witness also states that 4 or 5 days after the result of the election was declared, the respondent came to Jan Sangh olficc to have the return of election expenses prepared in consulta- C tion with the witness and the President of the State Jan Sangh Party.

The witness proves the notice. Ex. P.W. I /3, issued on March 25, 1972 asking the first respondent to show cause within one week of the receipt of the notice why he should not be expelled from the party because of his failure to join the Jan Sangh legislature party in breach of his previous assurance.

Pa\van Kumar goes on to say that in the course of his visits to0 Kaithal to supervise the election campaign'. in support of the respoade•t,. he used to find Duni Chand sitting in the respondent's election ollice and alloting duties to the different vehicles and also making pay111e•l6 E in that connection. It is also the evidence of this witness that though

the first respondent was really a Jan Sangh candidate, the Party did not incur any expenditure on his elect.ion. According to him even the expenses of the public meeting arranged by Jan Sangh in support of the respondent at Kaithal on March 4, 1972 were met by tile respondent himself.

F The evidence of Pawan Kumar does not seem to be altogether consistent and some of his statements also appear to contradict what certain other witnesses have said. Pawan Kumar has stated that 4 or 5 days after the result of the election was declared he met the G respondent when the latter came to the Jan Sangh office to have his return of election expenses prepared. The result of election was declared on March 13, 1972. On March 14, the witness claims to have seen the respondent at Kaithal to request him to declare that he would join the Jan Sangh legislature party. On March 16, he requested the respondent on telephone to attend the meeting of the Party to be H held the next day. On March 17, the meeting was held but the respondent did not attend. On March 19, the witness again went to Kaithal to have a discussion with the respondent and on March 25, the show-cause notice was issued. From the above list of dates which appear from Pawan Kumar's own evidence it is diificult to reconcile his other statement that about 4 or 5 day after the respondent 'l'{as declared elected, the respondent came to the Jan Sangh office to have the return of election expenses prepared in consultation with the witness and the President of the Jan Singh Party. Pa wan Kumar had also stated that there was no telephone in tbe olfiee of the Jan Sangh Party at Kaithal. This is contradicted by P.W.18 B. L. Khanija, Accounts Officer, Telephones, South Division, Ambala. His evidence

' -

• '

' I -

. .

based on his office record is that the Secretary, Bhartiya Jan Sangh, Kaithal was the subscriber of the Kaithal Telephone No. 497 from Fcbru~ 16, 1972 to March 15, 1972. This was, P.W.18 added, a casual connection and was installed in the house of Rattan Lal.

P. W .18 further stated that at the time of ins.tallation of the telephpne Rs. 180 were charged as advance rent, Rs. 30 as installauon charges and Rs. 1000 as adjustable security, and that after adjusting the outstanding bills against the security .deposit of Rs. 1000, the balance was refunded to the subscriber. The total expenses incurred by the subscriber of this telephone came to Rs. 385. The original application dated February 4, 1972 for installation of this casual telephone cortnection was also produced in Court, an English translation of (Ext.P.W.18/3) reads as follows:

To,

"Bhartiya Jan Sangh, Kaithal Manda!.

The S.D.O .

Telephones, Karna!.

Kaitha], dated the 4th February, 1972.

Subject :-New connection for the office of Bhartiya Jan Sangh.

It is submitted that a telephone connection is required for the office of Bhartiya Jan Sangh at Kaithal for one and half month.

Kindly get the same installed.

Yours faithfully, Sd/- Amar Nath, M.C.

Bhartiya Jan Sangh,

Kaithll"

Pa wan Kumar's assertion that Jan Sangh did not spend any money on the respondent's election is belied not only by R.W .13 Punnu Ram but also by another witness who deposed for the petitioner. It is P.W. 24 Inderjit. He is an employee of a shop at Kaithal that lends loudspeakers on hire. P.W. 24 states that one Raj Kumar, whom he described as a supporter of the Jan Sangh, came to his shop to hire loud, speakers on March 4, 1972 and he paid charges a few days thereafter.

This witness proves the receipt, Ext. P.W.24/1, for Rs. 101/50p. given by him. The receipt appears to have been made out in the name of the respondent, Charan Dass. The witness states that though the receipt was in the name of Charan Dass he never came tb the shop for the loudspeakers and the hiring charge was paid by Raj Kumar. P.W. 24 adds that he had written the nam'l. of Charan Dass . on the receipt at the instance of Raj Kumar.

The inconsistent statements of Pawan Kumar and the contradictions between his evidence and that of P.W.24 Inderjit who also was a witness for the petitioner, to say nothing about the evidence of

10 SC/75-9

A Punnu Ram, though he too was a member of the Jan Sangh, suggests

that either Pawan Kumar had no knowledge of at least some of the , facts he was talking about or that some of his statements were deliberately false.

On the evidence discussed above the findings recorded by the B High Court may be s_umrnarised as follows :-

1. Duni Chand went to Delhi on or about February 17, 1972 and hired the two jeeps in question at the rate of Rs. 130 per day for each jeep with effect from February 18, 1972. Duni Chand had C paid Brij Mohan Rs. 2000 towatxls the hire of the two jeeps and a further sum of Rs. 3500 to Puran Chand {P.W. 5) on March 4, >

1972 at Kaithal. Altogether Duni Chand spent Rs. 6240 for the two jeeps. Both the jeeps were used in the respondent's election campaign from February 18 to March 11, 1972 under the charge and direction of Duni Chand. •

2. The note-book, Ext. P.W.8/5, belonged to the respondent's son Anil Kumar Gupta and the notes on Civics that this book: contains were in his handwriting. The other entries in the note-book relating to matters cooceruing the election of the respondent were made partly by Duni Chand and partly by Raghbir Chand. The note-oook E i~ not a do.; mnent maintained in the regular course of business and contains certain haphazard entries which cannot be used for foisting liability on any one without definite and clear proof of the genuineness and correctness of these entries. The witnesses who proved some of the entri.es in the note-book, Duni Chand and Raghbir Chand, have F both denied that the entries are genuine. However, their evidence that the ntries were fabricated abont a month after the election and in the circmnstances stated by them is not believable. The fact that the

evidence 'of these two witnesses was false in this regard does not necessarily prove the correctness or genuineness of these entries.

Another circumstance which makes the note-book suspect is the fact G that the numbers of the various jeeps mentioned in the note-book are recorded therein in the same sequence in which they appear in the petitioner's diary. She claims to have noted in her diary the nmnbers of the jeeps working for the respondent several months before the note-book was made available to her. This is difficult to explain away

as coincidental.

H Having found that the two jeeps had been hired b~ Duni Chand to be used in the respondent's election campaign, and were in fact so used, the question that the High Court set for itself to answer was, whether on these findings it could. be said that the first. reSpondent

incurred or authorised the expencliture of Rs. 6240 spent on account of these two jeeps.

There was some dispnte before us as to whether the allegation of authorisation could arise on the issue as framed.

It was contended on behalf of the respondent that reading issue No. 14, which is the relevant issue, carefully in the light of the statements made in the various sub-paragraphs of paragraph 14 of the election petition, it would appear that it raised only the question whether the

respondent himself' incurred the expenditure.

However, it seems to A us that before the High Court the parties proceeded on the footing that the issue covered both the allegations and the scope of the enquiry cannot be limited at this stage.

'The High Court answered the question in the negative on the following reasons. All the witnesses deposing for the pettioner said that the payments in respect of the jeeps were made by Duni Chand.

Of course there are entries in the note-book, Ext. P.W. 8/5, which suggest that part of the expenditure incurred on account of the two jeeps was paid by the respondent's )>rother Arjan Das, and also that some amount was taken from the respondent himself. But the High Court found that the note-book which does not appear to have been kept in the regular course of business was not a reliable document in the absence of independent evidence proving the correctness of the entries therein.

The High Court was further of the view that from

the fact that the respondent used these jeeps once or twice, it did not necessarily follow that he paid for their hire, it being well-known that candidates: at an election very often nse their supporters' vehicles.

There is no evidence of the respondent incurring or any direct evidence of his authorising the expenditure incurred for the jeeps.

The respondent did .not produce his account of election expenses, his case being that \he paperscontaining the accounts were destroyed by him after the return of election expenses was prepared. It was argued on behalf of the petitioner, relying on the case of D. P. Mishra v. Kamal Nnrain & Aizr.,( 1) that from the aforesaid fact an adverse_inferenee should be drawn against the respondent and it must be held that the expenditure was really incurred by the respondent himself.

The High Court pointed out that in D. P. Mishra's case the worker of the returned candidate who was supposed to have incurred the expenditure in question in that case was not examined, and this circumstance considered along with the fact that the returned candidate had not chosen to produce his accounts proved the case against him. In the im:tant case, however, Duni Chand who made the payments was examined but he denied that the respondent authorised him to make these payments.

This part of Duni Chand's evidence was accepted by the High Court though he w, as not considered a straightforward witness and a substantial part of his evidence was disbelieved.

The decision in D. P. Mishra's case (snpra) indeed turns on facts somewhat different from the facts of this case.

The High Court has found that there is also no reliable circumstantial evidence in this case to -H connect the respondent with th' expenditure incurred by Duni Oland.

It now seems settled that the findings of fact recorded by the High C-0urt should not be disturbed in ail. appeal under section 116-A of the Act unless there was some serious error in these findings. It appears from the record of this case that the learned Judge of the High Court recorded his impression. about the demeanour of the witnesses whenever he thought necessary.

The findings based solely on the demeanour of 1'.'e witnesses. cannot be reversed in appeal, but

(!) [1971] 1.S.C.R. 9.

A the conclusions of fact reached upon a consideration of the probabilities can be tested to see if they contain any serious error.

We find no reason to disturb any of the findings. of fact recorded by the High .

Court summarized above.

These findings appear to be justified on the evidence which we have discussed.

We agree with the High C:>urt's views on the credibility of the witnesses.

We also agree B that the note-hook is not a reliable document in the absence of independent evidence to prove the genuineness of the entries therein.

What we h11ve to decide is, whether the High Court was right in its conclusion from)hese findings that the first respondent did not autltorise Duni Chand to spend any amount on the hiring of the two jeeps c in question.

The allegation that Duni Chand was in-charge of the transport arrangements for the respondent if true, would be a circumstance which, taken with other circumstances, might indicate that it was the respondent's money that Duni Chand was authorised to spend: If the note-book is left out of consideration, as it must he, the other evidence on record does not appear to us to be sufficient D to prove this allegation.

It is well established that a charge of corrupt practice is quasicriminal in nature and must be proved beyond reasonable doubt.

There is no direct evidence that the respondent himself paid for the two jeeps.

The question is whether it is possible to infer from the circumstances discussed above that Duni Chand was authorised by the respondent to spent the said amount of Rs. 6240 for these vehicles.

In the case of Samant N. Balkrishna & Anr. v. George Fernandez & Ors.(') this Court held that the circumstantial evidence F led to prove corrupt practice must exclude every hypothesis except that of guilt. What are the circumstances here from: which one could infer that Duni Chand was authorised by the. respondent ? It is alleged that Duni Chand was in-charge of the transport arrangement for the respondent's election.

That Duni Chand worked for the respondent at the election is proved. It has also been found that he G hired the two jeeps and used them for the respondent's election campaign. It may also be said that the letter, Ext. P. W. 3 /l, suggests that Duni Chand used to operate at times from the respondent's election office. But from these circumstances onlv, would the inference be justified that the respondent put Duni Chand incharf!e of his transport arrangements ? The High Court has taken the view, which we H endorse, that at an election people work for a candidate prompted by various motives even if they are not employd by the candidate to work for him.

The story that Duni Chand along with six or seven other persons formed a group to support the respondent has been disbelieved, and rightly. But, even then, it is difficult to say with certainly that it was the respondent who engaged Duni Chand to be incharge of the vehicles used in his election campaign.

There is no direct evidence that the respondent put Duni Chand in funds and one hardly expects to find such evidenc0 in a case like this.

We have found that the note-book is not a reliable document. It is therefore

(!) [1969] 3 S.C. R. 603 at 637. .

A not possible to rely on the entries in the note-book which seem to suggest that a part of the money paid for the two jeeps was taken from the respondent.

The High Court did not believe that the notebook was entirely fabricated but felt it was unwise to rely upon it.

The mystery of the note-book has not been solved, but the unsolved mystery cannot be used as proof to bring home the charge. against the respondent.

Whose money it was then that Duni Chand spent ?

B It is not believable that Duni Chand spent his money, but the only alternative is not that it was the respondent's money which he authorised Duni Chand to spend. It has been found that the Jan Sangh incurred some expenditure on the respondent's election campaign in spite of the denial of Pawan Kumar that thei Party did not spend anything. . We do not find .it possible to accept the statement of Punnu Ram, Joint Secretary of the Kaithal Unit o! the Jan Sangh Party, that c

the total amount spent by the Party on the respondent's election was between Rs. 400 and Rs. 500. Apparently, the High Court also did not rely on this part of Punnu Ram's evidence. It is not necessary however to investigate what amount exactly came from which source. It is clear . that the respondent's election campaign received financial assistance from other sources, which makes it difficult to reach the conclusion that none but the first respondent himself spent the amount in question. We do not know what our conclusion would have been had the case fell to be decided on the probabilities only, but is not possible to say that it has been proved beyond reasonable doubt that Duni Chand paid fo~ the jeeps from 'the money he received £rom the respondent and the respondent authorised the expenditure. Counsel for the appellant said that it would be hardly possible ever to get hold of snch evidence in an election dispute.

That may be so, but this is how the law stands. We agree with the High Court <hat the allegation of corrupt practice against the respondent has not been proved beyond reasonable doubt.

The appeal is dismissed; considering all the circumstances of the case, we make no order as to costs.

V.P.S.

Appeal dismissed.

""" -

OM PRABHA JAIN

CHARAN DAS & ANR

M. H. BEG

Y. V. CHANDRACHUD

A. C. GUPTA, JJ.

Representation of the People Act

Ss. 77, 116

Section 77

People Act, 1951

s. 77

s. 77

s. 77

s. 116

Section 116A

Reprosentation of the People Act, 1951

sec. 100

sec. 99

sec. 123

Section 77

Sec. 77

sec. 77

sec. 77

sec. 77

section 123

section 77

section 116

[1969] 3 S.C. R. 603


MOHD. DHANA ALI KHAN

STATE OF WEST BENGAL

April, 11, 1975

[N. L. UNTWAL!A AND s. MURTAZA FAzAL Au, JJ.]

Maintenance of Internal Security Act, 1971-Whether a single incident of their in a running train at night had nexus with disturbance of public orders. 14-:..-Jflhether confers a disc1-'etionary power on the Central (; overnn1ent to revoke or n?odify an order-Detaid; ng authority had other tnaterial before hini at the tilne Of passing the order-Whether vitiates the order of detention.

The petitioner was detained under the provisions of the Maintenance o{ Internal Security Act, 1971. In a petition under Att. 32 of the Constitution the petitioner contended that a single incid.nt of theft committed in a train had no nexus with the disturbance of public order, (2) that under S. 14 of the Act it was open to the Central Government to revoke or modify the order of detcution and, therefore, there must be some material to shov.• that the Government of India applied its mind under S. 14 of the Act and (3) that the District

l\.fagistrate was not only influenced by the grounds served on the petitioner but also by other materials on the record and as: such the order of detention \Vas

vitiated.

Allowing the petition,

HELD ; ( 1) The ground mentioned in the order of detention did ha Ye a nexus with the disturbance of public order. It is true that the ground contained a single incident of theft of valuable property from some passengers travelling in a running train and may amount to robbery. But that did not by itself take the case out of the purview of the provisions of the Maintenance of Internal Security Act. The allegation was tliat the petitioner had snatched away a wTist watch and a gold chain after putting the passengers of the compartn1ent to fear of death. Secondly, the theft had taken place at night in a running train in a third class compartment. The effect of it would be to deter peaceful citizens from travelling in trains at night.

This would undoubtedly disturb th'! even tempo of the life of the community. [126D to F]

(2) There is no material on record to show that the Central Government did not apply its mind at all under S. 14 of the Act. Section 14 nlercly confers

a discretion on the Central Gove'fnment to revoke or modify an order of detention made by the State Government. It does not confer any right or privilege on the detenu. It is for the Central Government to revoke' or modify after the report was submitted to it. The mere fact that the Central Government did not choose to revoke or modify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Governn1ent failed to apply its nlind. It cannot, therefore, b'! said that as the Central Government did not apply its mind under S. 14 of the Act, lhis \vould invalidate the order of detention.

[126G-H & 127A]

(3) The order of detention suffers from. a veTy serious infirmity \vhich goes to the root of the matter. The District Magistra!e was influenced not only by the ground which was served on the petitioner but alsO by other materials on the record. The history sheet of the detenu which was placed before the District Magistrate had been produced and it could be seen from it that there were four incidents, many -of which related to thefts in running 1rains. It is true that in another place in his affidavit the District Magistrate had stated that he was satisfied only on the_ basis of the incident mentioned in the gro!Jnd served .on the petitioner. But this was contradictory to what he had stated tn the op_en1ng

paragrfiph of the counter-affidavit.

The District Magistrate, before passing the order of.detention, had other materials also before him. It cannot, therefore, be

- '

said to \\-'hat extent the District Magistrate \Vas infh.i.enced by the other mate- A rials and not by the material which is mentioned in the ground of detention.

[127E-.GJ

K!wdiram Das v. State of West Bengal, AJ.R. 1975 S. C. 550, referred to.

ORIGINAL JURISDICTION : Writ Petition No. 17 of 1975.

Petition' Under Article 32 of the Constitution of India.

R. K. Jain-for the petitioner.

Sukumar Ghosh and G. S. Chatterjee, for the respondcni.

The Judgment of the Court was delivered by-

FAZAL ALI, J .-The petitioner assails the order of detention .passed against him on August 23, 1973 by the Distmt Magistrate, 24 Parganas. A report was sent ily the District Magistrate to the Government on August 27, 1973 a.id the detention was approved by the Government on 30th Angust, 1973. On September 10, 1973 the detenu made a representation to the Government which was rejected on September 12, 1973. 'Thereafter the matter was referred to the Advisory Board and after obtaining its opinion the order of detention was confirmed by the Government on November 14, 1973. We might a!So

state that a report to the Cen:ral Government was al5o made immediately after the order of detention was passed.

Mr. R. K. Jain appearing for the petitioner as amicus curiae has been of much assistance to us and has advanced five contentions before

us. In the first place he submitted that there was sufficient defav on the part of the District Magistrate in submitting his report to the Government and the explanation. given by him is not convincing. In the counter affidavit, however, the District Magistrate has explained that he had to pass almost eight orders of detention on the 23rd August and all of them had to be typed out and as 26th August which was a Sunday had intervened, it was not possible for him to send the report to the Government earlier. In the circumstances, we arc satisfied that the explanation given by the District Magistrate in his affidavit is convincing and satisfactory. In Writ Petition No. 23 of 1975 (Gopal Manda! v. State of West Bengal decided on 9th April, 1975) an identical explanation was given by tfie District Magistrate which was upheld by this, Court. For this reason, the first contention raised by learned counsel is over-ruled.

It was next argued that the order of the Government rejecting the representation of the petitioner is not a speaking order and therefore the detention is illegal. This matter appears to be concluded by a decision of this Court in John Martin v. State of West Bengal(') following Hardan Shah's case where a a similar argument put forward by this Court was rejected outright. This .contention of the learned counsel does not therefore survive. '

It was next contended that the ground of detention, served on him amounted to a single incident , a, nd had no causal connection with the

(l) Judgement in W.P. No, 467/74 dt. 21-i-1975

SUPRE¥E COURT REPORTS

[1975] SUPP •. S.C.R.

A disturbance of the public order. The , ground served on the petition was as follows :

"That on 3-8-1973 between 21-10 and 21-20 hrs. you and your associates being armed with daggers boarded a 3rd class compartment ot SL 257 Up train of E. Rly. Sealdah Division at Gocharan R. S. and putting the passengers of the compartment to fear of death snatched away a wrist watch and a gold necklace from one Nirmal Chatterjee and his wife in between Gocharan and Surajpur R. Ss. you then decamped with booty from the running train at Suryapur R. S.

Your action caused confusion, panic and disturbed public order there then.

You have thus acted in a manner prejudicial to the mainte- '

nance of public order."

' I

D From a perusal of this we are unable to accept the contention of the petitioner that this ground has no nexus with the disturbance of public order. It is true that the ground contains a single incident of theft of valuable property from some passengers travelling in a running train and may amount to robbery. But that does not by itself take the case

, E out of the purview of the provisions of the Maintenance of Internal

Security Act. There are two pertinent facts which emerge from the grounds which must be noted. In the first place the allegation is that the petitioner had snatched away a wrist watch and a gold chain after putting the passengers of the compartment to fear of death. Secondly, the theft had taken place at night in a running train in a third class •F compartment and the effect of it would be to deter peaceful citizens from travelling in trains at night and this would undoubtedly disturb the even tempo of the life of the community. For tbese reasons we are satisfied that the ground mentioned in the order did have a nexm with the disturbance of public order.

G The fourth contention put forward was that under s.14 of me Maintenance of Internal Security Act it was open to the Central Government to revoke or modify the order of detention after receiving a repon from the State Govermnent and therefore there must be some material to show that the Government of India applied its mind under 'section 14. In the first place s.14 merely confers a discretion on the H Central Government to revoke or modify an order of detention made by the State Govermnent. It does not confer any right or privilege on the detenu. It is for the Central Govermnent to revoke or modify after tbe report is submitted to it. The mere fact that the Central Government does not choose to revoke or mooify the order of detention without anything more cannot necessarily lead to the irresistible inference that the Central Government failed to apply its mind. So far as the State Govermnent is concerned. its duty comes to an end after' it has sent a repon regarding the detention order to the Central Government.

In these circumstances, it cannot be said by any stretch of imagination that as Central Government did not apply its mind under section 14 of the Act, this would invalidate the order f-detention. There is no

! \

material before us to show that the Central Government did not apply A its mind at all under section 14 of the Act. The argument on this score 't is, therefore, n; jected.

Lastly, it was contended that it would appear from the affidavit filed by the District Magistrate that while detaining the petitioner the B District Magistrate was not only influenced by the ground served on the petitioner but also by other materials on the record. In paragraph 5 of the counter affidavit the District Magistrate stated as follows:-

1 >Uy that l matle the detention orde7 after being bou~ fide satisfied from the materials on record (relating to the c detention of the detenu) that with a view to preventing the detenu from acting in any manner prejudicial to the maintenance of public order it is neessary to detain him under the provisions of the Maintenance of Internal Security Act, 1971. I further say that the ground furnished to the detenu is the only ground on which I based my satis- D faction for making the detention order."

It would, thus appear that the District Magistrate has taken a contradictory stand. A close perusal of .his counter affidavit would disclose that he was influenced not only by the ground which was served on the petitioner but' also by other materials on the record. The history sheet E of the detenu which was placed before the District Magistrate has been produced before us and we find that there were as many as four incidents many of whi, ch relate to thefts in running trains. It is true that in another place in his affidavit, the District Magistrate has stated that he was satisfied only on the basis of the incident mentioned in the F ground served on the petitioner. But this is contradictory to what he has stated in the opening paragraph 5 of the counter atlidavit. In these circumstances, therefore, we are satisfied that the District Magistrate before passing the order of detention had other material also before him. It cannot be said to what extent the District Magistrate was influenced by the other materials and not by the material, G which is mentioned in the ground of detention. Thus the order of detention suffers from a very serious infirmity which goes to the root of the matter. The libe11y of the subject being an extremely precious right, where .any infraction of such a right is involved the court must act as a watch-dog and a sentinel on the qui vive to see that every benefit of the lacunae goes to the detenu. We are fortified in our view by rea- H son of the decision of this Court in Khudiram Das v. State of West Benga/(1) where their Lordships observed as follows!-

"It is, therefore, not orily the right of the court, but also its duty as well to examine what are the basic facts and materials which actually and in fact weighed with the detainincr

authority in reaching the requisite satisfaction. The jud~ cial scrutiny cannot be foreclosed by a mere statement of the detaining authority that it has taken into account only certain basic facts and materials and though other -~--------'

(I) A.I.R.1975 S.C. 550

- t

SUPREME COURT REPORTS

(1975] SUPP. S.C.R,

basic facts and materials were before it, it has not allowed them to influence its satisfaction.

The Court is entitled to examine the correctness of this statement and determine for itself whether there were any other basic facts of materials apart from those admitted by it, which could. have reasonably influenced the decision of the detaining authority and for that purpose, the Conrt can , certainly require the detaining authority to produce and make available to the Court the entire record of the case which was before it. That is the least the Court can do to ensure observance of the requirements of law by the detaining authority." ·

Learned counsel appearing for the State justified the order of detention on the ground that there is an express statement made by the District Magistrate that he was satisfied only on the incident mentioned in the ground of detention. This argument however is not ten- D able because it is not supported by a perusal of the affidavit filed by the District Magistrate as a whole. We are therefore of the opinion that the order of detention must be set aside and the petitioner be set at liberty forthwith. The application is accordingly allowed and the rule is made absolute.

P.B.R.

Appeal allowed .

MOHD. DHANA ALI KHAN

STATE OF WEST BENGAL

Internal Security Act, 1971

S. 14

S. 14

S. 14

Section 14

S. 14

Article 32

Constitution of India

Maintenance of Internal Security Act

section 14

section 14

section 14