12~

BALAKA SINGH & ORS.

STATE OF PUNJAB

April 16, 1975

[N. L. UNTWALIA ANDS. M. FAZAL ALI, JJ.J

Evidence-Appreciation of-Addition 'of nanies in inquest rrport-Delay in submission ?I first infonnation report-E'ffect of A cousin of the deceased, \\'ho acted as his body guard and the :fir5t appellant and his party were on inimical terms. Some years before the occurrence the first appellant was charged with an offence of murder, in which C 1he cousin was the chief prosecution witness. The appellant was acquitted by the High Court in that case. Shortly before the occurrence the appellant filed an application under s. 107, Cr.P.C. against the cousin of the deceased and his party which gave rise to a fresh grouse between the party of the prosecution and the party of the appellants.

On the day of the occur~ rence, it was alleged, that the cousin of the deceased saw the appellant and his paiiy consisting of nine members going towards the house of the deceased, D armed with deadly weapons. AU the nine persons elltered the house of the deceased and attacked him. The dceased was a1leged to have fallen dead with the spear blow of the first appellant. The accused caused injuries to the wife when she came to protect the deceased. The Sessions Judge convicted the appeJlant under s. 302 and the other, accused under s. 302 read \Vith s. 149.

On appeal the High -Court affirmed the conviction and sentences against the five appellants. and acquitted the remaining four accused on the ground that in the body of the inquest report the names of the four acquitted accued did not find place and that the names of the nine accused including those of the four accused mentioned on the top of the inquest report was an addition made by the Police Sub~Jnspector to help the prosecutior1.

AJlo\ving the apveal of the five convicted accused to this Court, , HELD : l(a) The prosecution case against the five appeJiants has not been

F proved beyond reasonable donbt. The High Court had given cogent and ::; ubstantial reasons for acquitting the four accused but in that procs it had given a finding which is completely destructive Of the entire prosecution case itself. Although the names of all the nine accuse.d were mentioned at

the top of the inquest report the High Court found that this was an addition made by the Assistant Sub-Inspector to help the -prosecution and to bring the inquest report in conformity with the F.I.R. The prosecution has not been able to give any reasonable explanation for the omission of the names of the four acquitted accused in the inquest report. Even the Assistant Sub-!nspector, who was exa:nilied as a witness had not chosen to give nny explanation for this deliberate omission. This omission throws serious doubt not only on the complicity of the four accused but also on the veracity and authenticity of the F.l.R. itself. When once it is established that the names of the four accused \Vere deliberately added in the inquest report at the instance of the prosecution, there 'is no guarantee regarding 'the truth about the participation of the other five accused in assault of the deceased. If the prosecution could go to the extent of implicating four innocent persons by inserting their names in the inquest report and in the FJ.R., they could very well have put in the names of the other five appellants also because they were inimical to the prosecution party. [133C-G-H, 134B-C, 135C-DJ

(b) A perusal of the evidence of the prosecution wit!'lesses shO\\'ed that the prosecuticin case against the nppellants and the four accuseci \vas so in~ cxtricably mixed up that it is not possible to sever one from the other. In the instant case, having regard to the partisan and interested evidence of the prosecution witnesses who could implicate the appellants and the four acct1sec1

equally with regard to the assault on the deceased it -is not nossible to reiect the prosecution case with respect to the fourth accurd and accept it with reopect to the other five appellants. [l35F-G, HJ

I 30

Zwinglce Ariel v. State of Madhya Pradesh, A.I.R. 1954 S.C. 15. referred to.

(2) Under the High Court cirt:ulars and police rules it was incumbent upon the police to send a r; opy of t4e F.l.R. to the Ilaqa Magistrale immediately. In the instant case the F.I.R. which was recorded at 10 P.!vf. on the day of the occurrence reached the Ilaqa Magistrate at 11 A.M. on the following day. It is, therefore, clear that the F.I.R. was a belated document. lf this were so, then, there, was sufficient time for the prosecution party, who were undoubtedly inimical to the accused, to deliberate and prepare a false case not only against the fourth accused but also against the five appellants.

[!34F-G-H]

CRIMINAL APPELLATE JuRISDICTJON : Criminal Appeal No. 133 of 1970

Appeal by special leave from the judgment & order dated the 21st January, 1970 of the Punjab & Haryana High Court in Criminal Appeal No. 318 of 1967.

R. L. Kohli, for the appellants.

M. S. Dhillon, for the respondent.

Th" Judgment of the Court was delivered by :-

FAZAL Au, J.-This is an appeal by special leave preferred by the appellants Balaka Singh, Joginder Singh, Pritam Singh, Darbara

Singh and Jarnail Singh. The appellant Balaka Singh bas been convicted under s. 302 I. P. C. and sentenced to imprisonment for life.

The other appellants have been convicted under s. 302 read with s. 149 and sentenced to life imprisonment and a fine of Rs. 1,000/- each or in default further rigorous imprisonment for one year. All the appellants have also been convicted under s .. 143 I.P.C. and sentenced to rigorous imprisonment for four months each and under s. 148 to rigorous imprisonment for one year each. Balaka Singh has also been convicteid under s. 325 I.P.C. for haying caused grievous hurt to Gurmej Kaur and Harnam Kaur and sentenced to two years rigorous G imprisonment and fine of Rs. 100. The other accused have also been convicted under s. 325 read with s. 149 I.P.C. and awarded the same sentence as Balaka Singh. Apart from these five , appellants there were four other accused who were prosecuted before the Trial Court of the Additional Sessions Judge, Patiala, namely, Makhan Singh, Sucha Singh H SI o Inder Singh, Teja Singh and Ind er Singh but these accused persons were acquitted on appeal by the High Court of Pnnjab and Haryana.

The High Court has, however, confirmed the conviction and sentences passed on the appellants and has dismissed the appeal and hence this appeal , before us.

Put briefly tbe prosecution case is as follows. Abont seven years befo.re the occurrence one Gurnam Singh alias Kamai! Singh was murdered and Balaka Singh ; i, ccused and bis brother Asa Singh were tried for the murder of Gurnam Singh and convicted and sentenced under s. 302 f.p .C. to imprisonment for life by the Sessions Judge.

Balaka Singh and Asa Singh, however, went up in appeal to the High

Court and were acquitted. Banta Singh P. W. 3 who is informant in the instant case was the chief prosecution witness in the murder case in which Gurnam Singh was killed. It is also the admitted case of the prosecution that Balaka Singh and his people were on iruniical terms with Banta Singh and the deceased Gurnam Singh. It was further alleged that Dharam Singh the deceased in the present case was the cousin B of Banta Singh and was nsed by him as a sort of his body-guard to protect him from his enemies. Shortly before the occurrence the appellant Balaka Singh and bis brother Asa Singh has filed an application under s. 107 of the Code of Criminal Procedure against Banta Singh, Dharam Singh, Budha Singh and Kashmir Singh and i_n those proceedings the Jicenced gun of the deceased Dharam Singh was also deposited C and this gave rise to a fresh grouse on the part of the prosecution party against the accused.

Banta Singh and Dharam Singh also had made a counter-application for taking security proceedings against the present appellants but no action thereupon appears to have been t; tken.

The actual occurrence took place on September l, 1966, when Banta Singh P. W. 3 the informant and Dharam Singh the deceased had gone to see their fields. They returned from their fields at about 6 P.M. and Dharam Singh had entered his house while Banta Singh took his leave and went to his own house. While Banta Singh was going to his house he saw the rune accused persons including the five appellants variously armed with spears, gandasis and lathis proceedings towards the house of Dharam Singh. The party of the accused is said to have entered the house of Dharam Singh and Makhan Singh, Sucha Singh s/o lnder Singh, Inder Singh and Teja Singh-hereinafter referred to as 'the four accused' (since acquitted by the High Conrt) are said to have incited and exhorted their companions to finish off Dharam Singh and not to spare any member of his family. Dharam Singh was busy in tying the rope of his ox which was tethered in his court-yard.

The accused after entering the court-yard opened attack on the deceased Dharam Singh in which Dalaka Singh took a main part and gave a spear blow on the_chest of Dharam Singh as a result of which he fell down on the ground. Thereafter Banta Singh raised a hue and cry to the effect that Dharam Singh had been murdered. Not content with giving one spear blow to Dharam Singh even after he fell down, Joginder Singh is said to have given a barchha blow on his right knee and Pritam Singh a gandasi blow in the right shoulder of Dharam Singh. Just at that moment Smt. Gurmej Kaur the wife of Dharam

Singh, his mother, W aryam Singh his father and his brothers who were in the house tried to intervene and fell on the body of Dharam Singh. But they were also assaulted by Joginder Singh, Balaka Singh and others. It is said that other inmates of the house were aim assaulted. On hearing the cries of Banta Singh the informant, Harnam Singh

and Kapur Singh reached the spot and they saw Joginder Singh accused catching Dharam Singh by his long hair, .while Balaka Singh had caught him by the legs and were trying to drag the _deceased towards the entrance gate of the house. Kapur Singh who was armed with a gun fired a shot in the air which dispersed the accused party who ran away. In the aforesaid occurrence apart from the deceased Dharam Singh Mst. Gurmej Kaur, Harnam Kaur, Waryam Singh,

Such.a Singh and Bud_ha Singh also receiveid injuries on their person.

Banta Singh P.W. 3 went to the police station Julkan and lodged the F.I.R. the police station being 6/7 miles away from the place of occmrence. The report was lodged at about 10 P.M. Accordingly a case under s. 302, 307 and other sections of the Indian Penal Code was registerlld by the police. Assistant Sub-Inspector Teja Singh reachcd the spot along with Banta Singh and some constables. After reaching there at about 2 or 2.30 A.M. he prepared the inquest report and injury statement of the injured persons. The dead body was sent to' the mortuary at Patiala for post-mortem examination. The AS.I. also took blood-stained earth from the spot and the blood-stained clothes of the deceased were also taken. After completion of the usual investigations the nine accused persons were challaned in the Court of the J udiqial Magistrate, Patiala who committed them for trial to the Court of Session which resulted in the ultimate conviction and sentence against the accused as mentioned above. The accused pleaded innocence and averred that they had been falsely implicated due to previous enmity.

In support of the prosecution 19 witnesses were examined but the defence did not give any evidence at all. The learned Sessions JuJge after consldering the evidence came to the conclusion that the prosecution case against all the accused persons was fully proved and he accordingly convicted and sentenced the accused persons as mentioned in his judgment. The accused persons then fileo an appeal in the High Court, which, while accepting the prosecution case against the five appellants in this Court, acquitted the four accused namely, Makhan Singh, Sucha Singh s/o Inder Singh, Teja Singh and Indcr Singh. The High Court has given cogent and substantial reasons for acq1iitting the aforesaid acused, but in that process they have given a finding which, in our opinion, is completely \destructive of the entire prosecution case itself.

We may now refer to the reasons given by the High Court for acquitting the four accused mentioned above. The first and foremost reason given by the High Court was that although the inquest report was prepared by the A.SJ. at about 2.30 A.M. in the morning yet the names of the four accused did not find place in the body of the inquest report which was made on the basis of the report made to the police by the informant Banta Singh. It is true that the names of all the nine accused were mentioned at the top of the inquest report but the High Court found that this appears to have been the addition made by the Assistant Sub-Inspector to help the prosecuti?n and to bring the inquest report in conformity with the F.I.R. In this connection the High Court observed as follows ;

 "The first thing to be noted in this connection is that the names of th!'se four appellants do not figur~ in th~ body of the inquest report although they are mentioned m the heading thereof as well as in the first information report. The circumstance leads clearly to the inference that throughout the preparation of the inquest report these appellants were not named as members of the party of the culprits and that

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.· .. ·•· "' .

• ...

their names were added in the said heading as well as in the A first information report later."

We liave perused Ext. P. H. inquest report ourselves and find that in the' brief facts of the case which were made to the Investigating

Officer by Banta Singh only the names of Balaka Singh, J oginder B Singh, Pritam Singh, Darbara Singh and Jarnai! Singh are mentioned.

There is no reference at all to Makhan Singh, Sucha Singh s/o Inder Singh, Teja Singh and Indcr Singh in the report nor is it mentioned that Teja Singh and Inder Singh incited or exhorted the other accused persons to open the assault on the deceased which appears to be the

starting point of the occurrence. The prosecution has not been able C to give any reasonable explanation for. this important omission in the inquest report. The AS.I. Teja Singh was questioned on this point and he stated thus :

"The brief statements of the facts of the case mentioned in the inquest report are based on the report lodged by Banta Singh. In this brief statement, however, the names of Inder Singh, Sucha Singh, Teja Singh and Makhan Singh accused are not mentioned as culprits, specifically. I_tl is correct that in the brief facts mentioned in the body, there is no reference of the names of these four men."

Thus even the AS.I. while admitting that the names of the four accused were not mentioned by Banta Singh has not ch6sen to give any explanation for this deliberate omission to that effect. According to the prosecution the names of the four accused who have been acquitted by the l:Iigh Conrt had already been mentioned in the F.I.R. which was lodged 4/5 hours before the inquest report was prepared.

Any Investigating Officer possessing some intelligence would have at once questioned Banta Singh as to how it is that while he ha.d named

the four accused in the F.I.R. he had not referred to them in his brief statement in the inquest report. In these circumstances, therefore, G the High Conrt was fully justified in holding that the omission of the names of the four accused acquitted by the High Court in the inquest 1eport was a very important circumstance which went in favour of the follr accused. This omission bas a two-fold reaction. In the first place it throws doubt on the e-0mplicity of the four accused acquitted by the High Court and secondly it casts serious doubt on the veracity and authenticity of the F.I.R. itself. It is not understandable as to why the four accused who are alleged to have taken an active part in the assault on the deceased were not at all mentioned in the inquest report and in the brief statement of the very person who had lodged the I' .I.R. four hours before. Counsel for the State tried to justify this omission on the ground that in the inquest report Ext. P. H. the names of all the nine accused appear to have been mentioned at the top of that document. There is, however, no column for mentioning the names of the accused arn'I, therefore, there was no occasion for the Investigating Officer to have mentioned the names of the

acused in that particular place.

134 SUPREME COURT REPORTS [1975] SUPP. S.C.Jt.

A Finally the Investigating Officer P.W. 23, Te3a Singh admitted in his evidence that he had prepared the inquest report and that he had read out the same to Banta Singh and Harnam Singh P.Ws. but later

tried to say that he did not recollect whether he had read out the inquest reporl'to Banta Singh and Harnam Singh before getting their thumb impressions on the inquest report. This circumstance speaks B; volumes against the prosecution case, If, therefore, it is once established that the names of the four accused were deliberately added in the inquest report at the instance of the prosecution there is no guarantee regarding the truth about the parucipation in the assault. , on the deceased by the appellants, c Another finding which demolishes the entire edifice and fabric of the prosecution case is that the F, LR. itself was not written at 1 C P .M. as alleged by "the informant Banta Singh but it was written out after the inquest report was prepared by the AS.I. and after the , names of the four accused acquitted by the High Court were inserted D in the inquest report. If this is true then the entire case of the prosecution becomes extremely doubtful. The High Court has also derived rnpport from another important circumstance to come to the conclusion that the F.LR, was not written at 10 P, M. as alleged by the prosecution but after the preparation of the inquest report at about

230 AM. The High Court points out that according to the prosecu- E, tion the special report reached the Ilaqa Magistrate at 11 AM. on September 2, 1966 i.e. more than 12 hours afterr the F.LR. was lodged at the police station, whereas it should been delivered to the Ilaqa Magistrate during the night or at least in the early morning.

Counsel appearing for the appellants submitted that under the High Court Circulars ;µid the Police Rules it was incumbent upon the F _ Inspector who recorded the F .LR. to send a copy of the F, LR. to the llaqa Magistrate immediately without any loss of time and the delay in sending the FJ.R. has not been properly explained by the prosecution as rightly held by the High Court, It is, therefore, clear that the F l.R. itself was a belated document and came into existence during G the small hours of September 2, 1966. Indeed if this was so, then there was sufficient time for the prosecution party who are undoubtedly inimical to the accused to deliberate and prepare a false case not only against the four accused who have been acquitted, but against the other five appellants also, The High Court also found that, the best per&on to explain the delay in sending the special report to the llaqa H Magistrate was the Police Constable who had carried the F.I.R. to the Ilaqa Magistrate but that Constable has not been examined by the prosecution. On this point the High Court observed as follows :

"The delay with which the special report was made available to the Ilaqa Magistrate is indicative of the fact that the first information report did not come into existence probably till about sunrise by when the dead body had already been despatcheld for the purpose of post-mortem examination to Patiala along with the .inquest report, so that the Investigating Officer was no longer in a position to make alterations in the body of that report and all that he could do was to

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add later on the names of the said. four appellants to its A heading."

This finding of the High Court is based on cogent materials and convincing reasons, but unfortunately the High Court has not considered the effect of this finding on the truth of the prosecution case

with regard to the participation of the appellants. In our opinion, B i rl view of the finding given by the High Court it has been clearly established that the F.I.R. was lodged not at 10 P.M. as alleged by the prosecution but some time in the _early morning of September 2, J 966. If this was so, then the F.I.R. lost its authenticity. If the prosecution could go to the extent of implicating four innocent persons by inserting their names in the inquest report and in the F.I.R. which was written subsequent to the inquest report they could very well hav" put in the names of the other five appellants also because they were equally inimical to the prosecution party, and there could be no dilliculty in doing so because it is found by the High Court that all

the prosecution witnesses belonged to one party who are on inimical D tcnns with the accused.

The suggestion of the appellants is that they were falsely implicated because the prosecution could not succeed in convicting Balaka Singh for the murder of Gurnam Singh in the previous murder case.

It was to wreck fresh vengence on the accused that they had been E falsely implicated in the present case. It is true that there are as many as eight witnesses who are alleged to have seen the occurrence and they have given a parrot-like version of the entire case regarding the assault on the deceased by the various accused persons. All these witnesses have with one voice and with complete unanimity implicated even the four accused persons, acquitted by the High Court, equally F with the appellants making absolutely no distribution between one and the other. A perusal of the evidence of the prosecution witnesses would rhow that the prosecution case against the appellants and the four , r.ccuse'd is so inextricably n)b<ed up that it is not possible to sever one from the other. It is true that, as laid down by this Court in Zwinglee - Ariel v. State of Madhya Pradesh(') and other cases which have G followed that case, the Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation H the Court would have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, then this principle will not apply. We are satisfied that in the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses who can impli .ca'e the appellants and the four accused equally with regard to the assault on the deceased it is not possible to reject the prosecution case with respect to the four accused and accept it with respect to the other five appellants. If all the witnesses could in one breath implicate the

(I) A.l.R. 1954 S.C. 15,

IO SC/75-10

A four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts attributed to Balaka Singh, Joginder Singb, Pritam Singh, Darbara Singh and Jamail Singh may have been conviniently made to suit the needs of the prosecution ca, se having regard to the animus which the witnesses as also Banta Singh bore against the appellants. In these circumstances, therefore, we are satis- B fied that in view of the finding of the High Court that the F.I.R. was a belated documen! having come into existence much later than the time it is said to have been recorded and which adds the names of the four accused against whom the prosecution case is absolutely identical with the appellants, the case of the appellants cannot at all be C distinguished from that of the four accused in any respect. If the case against the four accused fails, then the entire prosecution will have to be discarded and it will not be possible for this Court to make out a new case to convict the appellants as has been done by the Higb Court.

In order to test the veracity of the prosecution witnesses we find that one of the eye witnesses, namely, Waryam Singb has deposed that Gunnej Kaur, the wife of the deceased, who was drawing water from the hand pump when the accused came, ran towards Dharam Singh and fell upcn his body in order to protect him from receiving further injuries. At this the appellant Balaka Singb is alleged to have given lier a barcbha blow on her right hand and the appellant J oginder Sini; h gave a harchha blow on the left buttock of Gurmej Kaur. According to the evidence of this witness the two appellants Balaka Singh and Joginder Singb appear to have assaulted Gurmej Kaur with a sharp-cutting instrument, namely, barchha and spear. This version is completely falsified by the medical evidence of Dr. Mohinder Singb who examined Gunnej Kaur and who stated in his evidence that all the injuries on Gunnej Kaur were caused by blunt weapon. Moreover out of the six injuries which Gurmej Kaur received on her body not a single one could be caused by a sharp-cutting instrument because there was no penetrating or incised wounds. The injuries were either contusions,· abrasions or lacerated woullds. While the witness Waryam G Singh says that the accused Joginder Singh had given a barchha blow on the left buttock of Gunnej Kaur, according to the medical evidence it was a lacerated wound deep on the upper and outer part of the left buttock. This, therefore, clearly ; demonstrates the extent to which the witnesses could have gone in order to implicate all the accused.

In view of these circumstances and the evidence discussed above, H we are clearly of the opinion that the prosecution case against the five appellants has also not been proved beyond reasonable donbt and the manner in which the FJ.R. arrd the inquest repcrt have been made throws considerable doubt on the complicity of the five appel !ants in the crime. - The result is that the appeal is allowed and the order of conviction and sentence passed on all the appellants is set aside. The appellants are acquitted of the charges framed against them and are directed to be released forthwith.

Appeal allowed.

P.B.R.

BALAKA SINGH & ORS

STATE OF PUNJAB

N. L. UNTWALIA ANDS. M. FAZAL ALI, JJ

s. 107

Cr.P.C

s. 302

s. 302

s. 149

s. 302

s. 302

s. 149

I.P.C

s. 148

s. 325

I.P.C

s. 325

s. 149

I.P.C

s. 302

s. 107

Code of Criminal Procedure

s. 302, 307

Indian Penal Code


NATABAR PARIDA BISNU CHARAN PARIDA BATAKRUSHNA A

. PARIDA BABAJI PARIDA

STATE OF ORISSA

tlpril 16, 1975

[N. L UNTWALIA ANDS. MURTAzA FAZAL ALI, JJ.]

Code of Criminal Procedure, 1898, Sections 167 and 344-Remand of an .accused to custody-Courts, if .ave inherent power.

Code of Criminal Procedure, 1973, Sections 167(1), Proviso (a) to Sec- C tion 167(2), 428 and 484(2)(a)-lnvestigation pending at the commencement of the Act and not completed wi1hin the period of 60 days-Accused, if ha.! a right to be released on bail.

In respect of an occurrence which took place on 8th March, 1974, at a place in the DistriCt of Cuttack, a police investigation commenced in Con~

nection with the offences alleged to have been committed under sections D 147, 148, 307~ 302 simpliciter as also with the aid of section 149 of the Indian Penal Code. Of the eight persons arrested during investigation, four have been enlarged on bail by the Sessiora Judge of Cuttack, but the learned Sessions Judge refused to grant bail to the four appellants.

Their cont.ention based on proviso (a) to sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973, was rejected by the learned Judge relyinx on the saving clause (a) of sub-section (2) of section 484. The High Court E a1so rejected their contention. This appeal has been filed on the basis of the special leave granted by the Supreme Court.

HEID : (i) A Magistrate having jurisdiction to try a case could remand an accused to jail custoO.'y from time to time during the pendency of the investigation in exercise of the power under section 344 of the Code of Criminal Procedure, 1898. In other words, the power of remand by the Magis. trate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised whenever necessary to aid the investigation and collection of further evidence.

[141E-F]

A. Lakshmanrar) v. Judicial Magistrale, First Class Parvatipuram and others, [1970] 3 S.C.C. 501 and Gouri Shankar !ha v. Tlie State of Bihar and others, [1972] 1 S.C.C. 564, relied on.

.f..

The Superintendent and Remembrancer of Legal Affairs Governmen1 of West Bengal v. Bidhindra Kumar Roy and others, A.I.R. 1949, Calcutta 143; Chandradin Dubey v. The State, 1955 Bihar Law Journal Reports, 323; Dukhi and another v. State and another, A.I.R. 1955 Allahabad, 521; Shrilal Nanclram & Another, v. R. R. Agrawal, S. D. M. First Class, Gwalior and anather Kuttan, A.l.R. 1964, Kerala, 232; Artatran Mahasuara and others v State of H Orissa, A.LR. 1956 Orissa, referred to. ·

(ii) courts will have no inherent power of remand of an accused to any custody unless the power is conferred by law. The High Court has erred in assuming, without reference to section 344 of the old Code that $UCh a power existed. [1400] '

(iii) The COlllll)and of the Legislature in proviso(a) to section 167(2) pf the. new Code IS that the accused person has got to be released on bail if he is prepard to and does furnish bail and cannot be kept in detention

yond the period of 60 ?ays even if the investigation may still be proceed. ing. 1\}thongh !he expression 'reasonable cause' occurring in sub-section (lA) of ""ction 3~4 IS no "'.here to be found in section. 309 of the New Code, the. explanation to section. 344 of the. Old Code has been retained as explanation 1 w Section 309 m .the identical language. The law as engrafted in

A proviso (a) to section 167(2) and section 309(2) of the New Code confers the po\\ers of remand to jail custody during the pendency of the investigation only under the fonner and not under the latter. S'!ction 309(2) is attracted r

only after cognizance of an offence bas been taken or commencement of trial has proceeded. [142G-H]

Quere : \Vhat is the purpose of Explanation-1 in section 309 of the Code of Criminal Procedure, 1973.

(iv) Unlike the wordings of section 428 the language of section 167(1) \Vhich will govern .sub-section (2) also, is-"whCnever any person is arrested", suggesting thereby that the section would be attracted when the arrest h; made after coming into force of the Act of 1973. The expression used in section 428 is "where an accused person has, on conviction been sentenced ..... ". To the facts of the present care, clause (a) of subsection (2) of section 484 will apply. Immediately before the 1st day of April, 1974 C the investigation of . this case was pending.

Saving clause (a) therefore, en joins that the said investigation shall be continued or made in accordance with Chapter XIV of the old Code. Section 167 of that Code could not enable the Magistrate to remand the appellants to jail custody 6.uring the pendency of the investigation. The police could seek the help of the Court for excr cise of its power of remand under section 344, bringing it to the notice of the Court that sufficient evidence had been obtained to -raise a suspicion that the appellants may have committed an offence and there will be hindrance to D the. obtaining bf further evidence Unless an order of remand was made.

{143C-D-144B-C]

Mr. Boucher Pierre Andra v. Superi1ucndent, Central Jail, Til1ar, Ne1v Delhi and another, A.l.R. 1975 S.C. 164, referred to.

CRIMINAL APPELLATE JURISDICTION': Criminal Appeal No. 359 of 1974.

Appeal by special leave from the Judgment and order dated the 6th August 1974 of the Orissa High Court in Criminal Misc. Case No. 180 of 1974.

Sharad Manohar, R. N. Nath and V. N. Ganpule, for the appellant.

Gobind Das, and B. Parthasarathi, for the respondent.

The Judgment of the Court w.a.s delivered by :-

UNTWALIA, J.-An occurrence took place on the 8th of March 1974 at a place situated in the District of Cuttack, Orissa. First Information Report was lodged on the 9th March, 74 and a police investiga- G tion started in connection with the offences alleged to have been comnJ.itted under sections 147, 148, 307, 302 simplicitcr as also with the aid of section 149 of the Indian Penal Code.

The four appellaRts in this appeal by special leave were arrested by the police in the course of the investigation on the 8th March and four others who have been enlarged on bail by the Sessions Judge of Cuttack were arrested on the 14th March.

They were produced before the H Magistrate who remanc!ed them to jail custody from time to time.

The learned Sessions Judge released on bail four of the accused but

sed to grant bail to the appellants.

An argument based upon , i'oviso (a) to sub-section (2) of section 167 of the Code of Criminal Procedure 1973 (Act No. 2 of 1974) hereinafter referred to as the New Cod~, was rejected by the Sessins Judge relying on the saving clause (a} of sub-section (2) of sectlon 484.

N. PARIDA v. ORISSA (Untwalfri, J.)

'The appellants approached the Orissa Ij:igh Court and pressed their cases for releasing them ou bail on merits as well as on the ground of the provision of law aforesaid contained in the New Code.

A Bench of the High Court by its order dated the 6th August, 1974 has repelled the arguments put forward on behalf of the appellants and dismissed their application for bail.

They have filec! the present appeal by special leave of this Court.

This Court is not expected to examfoe afresh the question of releasing the appellants on bail on merits. But the qllestion for consideration is whether the appellants are entitled to be released on bail under the proviso (a) of section 167(2) of the New

Code.

>- , The New Code came into force on aml from the 1st of April,

1974. Section 484(1) repealed the Coc!e of Criminal Procednre, 4 1898-hereinafter called the Old Code. But there were certain saving clauses engrafted in sub-section ( 2); the relevant clause (a) would be adverted to hereinafter in this juc!gment.

Before doing so . D it is necessary to appreciate the position of law in relation to the power of remand by a Magistrate during the course of investigation of a case by the police.

A person arrested without warrant could not be detamed by a police officer for a period exceeding 24 hours as provic!ed in section 61 of the Old Code.

Section 167(1) required the police officer to forward the accused to the nearest Magistrate if the investigation could not be completed within the period of 24 hours fixed by section 61 anc! if there were grounds for believing that the accusation or information was well-founded.

Sub-section (2) provided :

"The Magistrate to whom an acFused person is forwarded under this section may, whether he has or has not juris- , diction to try the case, from time to time authorise the detention of the accused in such custody as st1eh Magistrate thinks fit, for a term not exceeding fifteen days on the whole. If he has not jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such juriseiction : "

The Magistrate to whom the accused was forwarded could remand him t.o police custody or jail. c!IStody for a term not exceec!ing 15 days m the whole under section 167(2). Even the Magistrate who had jurisdiction to try the case could not remand the accused to any H custody beyond the period of 15 c!ays under section 167(2) of the Old Code.

There was no other section which in clear or express

languag~ conferred this po:ver of remand on the Magistrate beyol)d the penpd of 15 days durmg the pendency of the investigation an<! before the taking of cognizance on the submission of Charge-Sheet.

Section 344, however, enabled the Magistrate to postpone the com-

SUPREME COURT REPORTS [1975] SUPP. S.C.ll.

A mencement of any enquiry or trial fov any reasonable cause.

The explanation to section 344 of the Old Code read as follows :

"If sufficient evidence bas been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand."

Various High Courts had taken the view that a Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pen<!ency of the investigation in exercise of the power under section 344 : to wit, The Superintendent and Remembrancer of Legal Affairs, Government of West Bengal v ..

C Bidhindra Kumar Roy and others('); Chandradi Dubey v.

The State( 2 ), Dukhi and another v. State and anolher(") ; Shriial Nandram and another v.

R. R. Agrawal, S.

First Class, Gwalior and another(') and State of Kera/a v.

Madhavan Kuttan( 5 ). A contrary view was taken by the Orissa High Court in the case of Artatran Mahasuara and others v. State of Orissa(6 ). It D may be emphasised here that the Court will have inherent power of remand of an accused to any eustacy unless the power is conferred by law.

In the order under appeal the High Court without reference to section 344 of the Old Code, seems to have assumed that such a power existed.

That is not correct.

There are two decisions of this Court affirming the view expressed E by majority of the High Courts and over-ruling the one taken by the Orissa High Court in the case referred to above.

In A.

Lakshmanarao v. Judicial-Magistrate, First Class Parvatipuram and

others(") an argument was advanced that section 344 falling in Chapter 24 of the Old Code which contained general provisions as to enquiries and trials could not apply to a case which was at the stage of investigation and collection of evidence only.

Dua, J delivering the judgment on be)lalf oE this Court repelled the argument thus at page 506.

"This argument appears to !!S to be negativecl by the express language both of sub-section (I-A) and the explanation.

Under sub-section (1-A) the commencement of the inquiry or trial can also be postponed.

This clearly seems to refer to the stage prior to the commencement of the inquiry.

The explanation makes it clear beyond doubt that reasonable cause as mentioned in sub-section ( 1-A) includes the likelihood of obtaining further evidence during investigation by securing a remand.

The language of section 344 is unambiguous and clear an<! the fact that this section occurs in Chapter 24 which contains general provisions as

(') A.t.R. 1949. Calcutta, 143. (') 1955 Bihar Law Journal Reports, 323. §

A.I.R. 1955, Allahabad, 521. ( A.LR. 1960, Madhya Pradesh, 135. ( A.I.R. 1964, Kerala, 232.

(6) A.I.R 1956 Orissa. 129

(7) [1970] 3 s.c.c

' -

• -

I -

- '

N. PARIDA v. ORISSA (Untwalia, !.)

to inquiries and trials does not justify a strained construction.''.

In Gouri Shankar !ha v. The State of Bihar and others(') Shela!,

J. delivering the judgment on behalf of the Court has said at page 569

"In cases falling under section 167, a magistrate undoubtedly can order .custoc!y for a period at the most of fifteen days in the whole and such custody can be either police or jail custody.

Section 344, on . the. othr hand, appears in Chapter XXIV which deal with mqumes and trials.

Further, the custody which it speaks of is not such custody as 'the magistrate thinks fit as in Section 167, but only jail custody, the objecc being that once an enquiry or a trial begins it is not proper to let the accused remain under police influence.

Under this section, a magistrate can remand an accused person to custody for a term not exceeding fifteen days at a time provided that sufficient evidence has been collected to raise a suspicion that such an accusec! person may have committed an offence and it appears likely that further evidence may be obtained by granting a remand."

Further says the learned Judge at page 570 :

"The fact that Section 344 occurs in the Chapter dealing with inquiries and trials does not mean that it does uot

apply to cases in which the proces& of investigation anc!

E collection of evidence is still going on."

It would thus be seen that under the Old Code the Magistrate was given the power under section 344 to remand an accused to jail custody as the section was also applicable to cases in which process of investigation and collection of evidence was going on.

In other words, the power of remanc! by the Magistrate during the F process of investigation and collection of evidence was an integral part of the process.

The power was meant to be exercised, whenever necessary, to aid the investigation and collection of further evidence.

Let us now examine the position of law under the New Code.

No police officer can detain a person in custody, arrested without a warrant, for a perioc! longer than 24 hours as mentioned in section 57 corresponding to section 61 of the Old Code.

Section 167 occurring in Chapter XII bearing the heading "Information to the police and their powers to investigate"-the same as in Chapter XIV of the Old Code-has made some dr, astic departure. Similar is the position in regard to section 309 of the New Code corresponding to section 344 of the Old Code.

While retaining the provision of forwarding the accused to the nearest Magistrate (of course under the New Code to the Judicial Magistrate), and while authorising the Magistrate to remand the accusec! to either police or judicial custody for a period not exceeding 15 days, proviso (a) has been added in these terms :

(1) [1972] 1 s.c.c. 564.

SUPREME CO\.JRT REPORTS [1975] SUPP. s.c.R.

A "Provided that-

( a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds

exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accusecl person shall be released on bail if he is prepared to and does furnish bail; and every person released on baH under this section shall be deemed to be so rclcasecl under the provisions of Chapter XXXIII for the purposes of that Chapter ;"

The expression "the Magistrate" in the proviso would mean the Magistrate having jurisdiction to try the case.

Section 309 .(2) says :

"If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks

fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody :

E Although the expression 'reasonable cause' occurring in sub-section (lA) of section 344 is no where to be found in section 309 of the New Code, the explanation to section 344 of the Old Code has been retained as Explanation 1 to Section 309 in the identical language.

The law as engraj'ted in proviso (a) to section~ 167(2) and section

309 ( 2) of the New Code confers the powers of remand to jail cus- F tody during the pendency of the investigation only under the former and not under the latter.

Section 309(2) is attracted only after cognizance of an offence has been taken or commencement of trial has proceeded. In such a situation what is the purpose of Explanation-I in section 309 is not quite clear.

But then .the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to ancl does furnish ba; t and cannot be kept in d"'ention beyond the period of 60 days evw if G the investigation may still be proceeding.

In serious offences of criminal conspiracy-murders, dacoities, robberies by inter-state gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days.

Yet the intention of the Legislature seems. to be to grant no discretion to the court and to .make it obligatory for 1t to release the accused on bail.

Of cm1rs~, it has H been provided in proviso (a) that the accused released on bil: under section 167 will be deemed to be so released under the provlSlons of Chapter XXXIII and for the purposes of that Chapter. That may empower the court releasing him on bail, if it consides necessary so to clo to direct that such person be arrested and comnutted to custody as prvided in sub-section ( 5) of section 4.3 7 occurring ir_i Chapter

XXXIII.

It is also clear that after the takmg of the cognizance the

' -

N, PARIDA v. ORISSA ( Untwa/ia, J.) 143

power of remand is to be exercised under section 309 of the New Code.

But if it is not possible to complete the investigation withiu a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail.

Such a law may be a " paradise for the criminals," but surely it would not be so, as sometimes it is supposed to be, because of the courts. It would be so under the command of the Legislature.

But the question In this case is whether during the pendency of the investigation which started before coming into f9rce of the New Code the appellants can press into service proviso (a) to section 167

(2) of that Code and claim to be released on bail as a matter of right when they are prepared to furnish bail.

The answer to this qnestion depends on the interpretation of sections 167 and 484 of the New Code.

Unlike the wordings of section 428 the language of section 167(1) which will govern sub-section (2) also, is-"whenever any person is arrested", suggesting thereby that the section would be attracted when the arrest is made after coming into force of the Act.

While the expression used in section 428 is "where an accused person has, on conviction, been sentenced ...... " Interpreting such a phrase it has been held in the case of Mr. Boucher Pierre Andra v. Snperintendent, Central Jail, Tihar, New Delhi and another(') by Bhagwati, J. delivering the judgment of this Court at page 166 :

"This section, on a plain natural construction of its language, posits for its applicability of fact situation which is described by the clause "Where an accused person has, on conviction, been sentenced to imprisonment for a term".

There is. nothing in this clause which suggests, either expressly or by necessary implication, that the conviction and sentence must be after the coming into force of the New Code of Criminal Procedure.''

We may, however, hasten to add tha.t in spite of the phrase "is arrestee" occurring in section.167(1), since the Old Code has been repealed by sub-section (1) of section 484 of the New Code, the provision would have applied, a fortiori, if the savings provided in sub-section (2) would not have applied to the situation with which we are concerned in this case.

In our judgment clause (a) of subsection (2) of section 484 does apply. It reads as follows :

"Notwithstanding such repeal,-

(a) If, immediately, before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the H provisions of the Code of Criminal Procedure J 898, as in force immediately before such commencement, (hereinafter referred to as the Old Code), as if this Code had not come into force :"

(1) A.LR.I 975 S.C. 16t

linmcdiately before the !st day of April, 1974 tbe investigation of this case was pending.

Saving clause (a) therefore enjoins t)iat tbe said investigation shall be continued or made in accordance with tbe provisions of the Okl Code. The police officer, therefore, making the investigation has to continue and complete it in accordance with Chapter XIV of the Old Code.

Section 167 of that Code could not enable tbe Magistrate to remand the -appellants to jail custody during the pendency of the investigation.

The police could seek the help of the Court for exercise of its power of remand un<.'cr section 344, bringing it to the notice of the Court that sufficient evidence , had been obtained to raise a suspicion that the appellants may have committed an offence and there will be hindrance to the obtaining of further evidence unless an order of remand was made.

As we have said above, invoking the power of tbe court uneer section 344 of the Old Code by the Investigating Officer would be a part of the process of investigation which is to be continued and made in accordance with the Old Code. That being so, we hold that the appellants in this case cannot claim to be released uncer proviso (a) to section 167 (2) of the New Code.

In the result the appeal fails and is dismissed.

Appeal dismissed.

V. M. K.

, -

NATABAR PARIDA BISNU CHARAN PARIDA BATAKRUSHNA PARIDA BABAJI PARIDA

STATE OF ORISSA

Code of Criminal Procedure, 1898

Sections 167 and 344

Code of Criminal Procedure, 1973

Sections 167(1)

section 149

Indian Penal Code

Section 167

Code of Criminal Procedure, 1973

section 484

section 344

Code of Criminal Procedure, 1898

section 344

section 167(2)

Section 309

section 167(2)

section 309(2)

section 309

Code of Criminal Procedure, 1973

section 428

section 167(1)

section 428

section 484

Chapter XIV of the old Code

Section 167

section 344

sections 147, 148, 307, 302

section 149

Indian Penal Code

section 167

Code of Criminal Procedure 1973

section 167(2)

Section 484(1)

section 61

Section 167(1)

section 61

section 167(2)

section 167(2)

Section 344

section 344

section 344

section 344

section 344

section 344

section 167

Section 344

Section 167

Section 344

section 344

section 57

section 61

Section 167

Chapter XIV of the Old Code

section 309

section 344

Section 309

section 344

section 309

section 344

Section 309

section

309

Section 309(2)

section 309

section 167

section 4

section 309

section 167

sections 167 and 484

section 428

section 167(1)

section 428

Code of Criminal Procedure

section 484

section 484

Code of Criminal Procedure

Chapter XIV of the Old Code

Section 167

section 344

section 344

section 167


~--

DAITATRAYA NARAYAN PATIL

STATE OF MAHARASHTRA

April 16, 1975

[N. L. UNTWALIA AND S. MURTAZA FAZAL- ALI, JJ.J

I.P.C. Sec. 21, 353, 355--Public servant-Duty assigned to a public servant by an executive order whether public duty.

Shri Antulay,. ::, Minister presided over a meeting of the District Advisory Committee. The appellant attendeci.' that meeting as an M.L.A. and his bro-

14 5

ther attended as a Sabha-Patai of the Building Deprtment of the Zila Parishad.

C According to the prosecution, the appellant and his brother assaulted Shri Antulay, a public servant in the execution of his duty, a.s such public servant within the meaning of Sec. 353 of the Code.

The Magistrate held that Shri Antulay \vas a public servant and that, therefore, the charge could be

frameQ under Section 353.

On revision, the Sessions Court held that charges coulQ' be framed against the appe1lant under Sec. 353 and 355 of the Code.

A revision petition filed b}' the appellant in the High Court was dismissed.

On appeal by Special Leave, it was contended before this Court by the D appellant:

(1) That the District Advisory Committee is not a Statutory Committee. It was constituted under an administrative order of the Government. It exercised no Governmental authority. Its function is onJy to make recommendations to the Government.

(2) The Chairman presiding at a meeting of the Committee is not acting as a Public servant.

(3) When an assault was made or criminal force was used against the Chairman as alleged by the prosecution at such a meeting it was directed against the person presiding at the meeting and not against a public servant.

( 4) A Ministr may be a public servant but while presiding over a meeting of the Advisory Committee he was not functioning as a F Minister but as a Chairman. .

(5) That the Judicial Magistrate committed an error of law in treating the chargesheet a complaint and framing the charge: against the appellant for a non-cognizable offence under section 355/511 of the Code.

Dismissing the appeal,

. HEID : The District Advisory Committee V.'as constituted by a notification of _th~ Govenment of Maharashtra fr. the purpos~ _of reviewing the work of Zda Parshad and Panchayat Sam1t1es.

The M1n1ster a public servant was the Chatrman of the Committee. The Divisional Commissioner was to be the: convenor and t?e Deputy Commissioner was to act as the Secretary .. They were all pubhc servants.

The duty assigned to a public servant by. hrn. master \\'hether. under a statte or by the executive order, will assume the character of pubhc_ duty provided the duty assigned is not illegal or against the public policy.

[148B-C, 149-B-C] ·

Shri AntuJay, therefore, was a public servant.

CRIMINAL APPELLATE J URJSDICTJON ; Criminal Appeal No. 257 of 1972.

A Appeal by special leave from the judgment and order dated the t 29th June, 1972 of the Bombay High Court in Criminal Rcv1s10n

Appln. No. 1129 of 1971. ·

M. C. Bhandare, R Nagaratnam and Manju Jaitley, for appellant.

H. R. Khanna, for the respondent.

The Judgment of the Court was delivered by

the

UNTWALIA, J.-This is an appeal by special leave. The question C which falls for determination is whether a charge could be legally and

 validly framed on the facts alleged by the prosecution against the appellant under section 353 of the Indian Penal Code-hereinafter called the code.

D An incident is said to have taken place in a meeting of the District Advisory Committee of Kolaba District held on the 22nd of August,

1970 at about 3. 00 p.m. in a panda! near the Nehru Hall at Alibag under the Chairmanship of Shri A. R. Antulay-a Minister of the Government of Maharashtra. The appellant was a member of the Legislative Assembly and bis brother was the Sabhapati of the Buikling Department of the Zilla Parishad.

Both of them attended the meeting.

E Certain incidents took place in that meeting, which according to the prosecution, amounted to assault or use of criminal force by the appellant to the Minister--, a, public servant-in the execution of his duty as such public servant within the meaning of section 353 of the Code. It was further alleged that the action of both the brothers also amounted to assault or use of criminal force to Shri Antulay intending thereby F to dishonour him, otherwise than on grave and sudden provocation given

by that person, within meaning of section 355.

A complaint of the incident was lodged with the police.

Inyestigation was made and Charge-sheet was submitted in the court of the Judicial Magistrate at Alibag against both the accused for offences alleged to have been committed by them under sections 353 and 355 read with section 34 of the Code.

On perusal of the papers in accordance with section 251 A G of the Code of Criminal Procedure, 1898 and after hearing the arguments the Magistrate found that Shri Antulay, being a Minister, was a public servant.

In that capacity he was presiding over the meeting of the District Advisory Committee of Kolaba District. He, however, held that the meeting of the Committee was illegal because it was not convened at the instance of the Commissioner of the Division as required by the Rules. HcaJso held that the appellant who was accused no. 1, H at the most, had prepared to assault the Minister and not actually assaulted or used criminal force.

The appellant was discharged by the Magistrate in relation to the charge under section 353, but a charge under section 355 read with section 511 was framed against him. flis brother, accused no. 2, was however completely exonerated and discharged.

D. N. PATIL v. MAl!ARASHT!lA ( Untwalia, J.)

Two revisions were filed before the Sessions Judge, Kolaba-one . by the State and the other by the appellant.

The State wanted charges to be framed against the appellant under sections 353 and 355 and also against accused no. 2. The appellant, however, wanted the Sessions Jndge to quash the charge framed against him under section 355/ 511 of the Code.

The learned Sessions Jndge allowed the revision filed by the State in. part and dismissed the one filed by the appellant.

He directed the framing of charges against the appellant under both the sections, viz. 353 and 355 of the Code. The discharge of accused no. 2 was, however, maintained.

The matter was taken further in revision before the Bombay High Court by the appellant only.

The High Court has directed the framing of the charge against the appellant beth under section 353 and 355 of the Code.

Hence this appeal by special leave.

Learned counsel for the appellant did not canvass before us the justification of the discharge of the appellant foil the offence under section 353 of the Code on the ground of the allegedly illegal convening of the meeting of the Advisory Committee. We are, therefore, not called upon to express any opinion of ours in this judgment in that regard.

Nor should we be deemed to have expressed! any opinion, even by implication, as to the truth or falsehood of the allegations made against the appellant, or, whether the prosecution by its evidence will be able to prove the charge against the appellant.

We confine our judgment to the decision of the only question which falls for our determination.

Learned counsel for the appellant submitted :

(1) That the District Advisory Committee is not a Statutory Committee. It was constituted under an administrative order of the Government. It exercised no Governmental authority.

Its function is only to make recommendations to the 6overnment.

(2) The Chairman presiding at a meeting of the Committee is not acting as a public servant.

(3) When an assault was made or criminal force was used against the Chairman as alleged by the prosecution at such a meeting it was directed against the person presiding at the meeting and not against a public servant.

( 4) A Minister may be a public servant but while presiding over a meeting of the Advisory Committee he was not functioning as a Minister but as a Chairman.

( 5) That the Judicial Magistrate committed an error of law in treating the Charge-Sheet as a complaint and framing the charge against the appellant for a non-cognizable\ offence under section 355/511 of the Code .

The decision on the last point urged on behalf of the appellant would have been necessitated provided the argument advanced on his behaif in relation to the charge of the cognizable offence under sectio11

A 353 of the Code would have been well-founded, and correct; otherwise not.

Since in our opinion it is not so we do not deal with the last point and take up the discussion of the first four points together, as really speaking, they are all off-shoots of one and one point only, namely, whether while presiding over the meeting of the Advisory Committee the Minister was executing or discharging his duty as a B pu hlic servant. .

As stated in the judgment of the High Court the District Advisory Committee was constituted by a notification of the Government of Maharashtra, Cooperation and Rural Development Department dated 5-8-1964 for the purpose of reviewing the work of Zilla Parishads and C Panchayat Samitis.

The circular Ext-15 issued by the Maharashtra Government on 5-8-1964 was obviously not in exercise of any statutory power. It was in exercise of the executive power which is co-extensive with the legislative power of the State. In the circular it

is stated :

"For quite some time Government has had in view the question of reviewing the working of Zilla Parishads and Panchayat Samitis (Plan and Development Works) in the State as a regular feature. It is, therefore, felt that this object in view can be substantially achieved by holding sixmonthly meetings of Regional Officers, District Officers, Office-Bearers of Zilla Parishads and Panchayat Samitis and M.Ps., M.L.Cs., and M.L.As., under the Chairmanship of the Minister in-charge of the District.

Government has, therefore, decided that such meetings should be convened twice a year in each of the Districts in the Revenue Division by the Divisional Commissioner in consultation with the Minister in charge of the District. The meetings should be held at the Headquarters of the District concerned. The Deputy Commissioner (Development) of the Division con-· cerned should work as the Secretary of the Committee.

The work pertaining to these meetings should be carried out by the Development Branch of the Commissioner's Office and various actions to be taken as a result of deliberations in these meetings should be pursued by the Deputy Commissioner (Development) under the guidance and supervision of the Divisional Commissioner."

; '

The terms of reference for the working of the Committee as also its composition were indicated in the subsequent part or the circular.

Under the orders of the Government, therefore, its officers includ- H ing the Minister of the District were to carry out certain public duties in connection with the reviewing of the working of Zilla Parishads and Panchayat Samitis which, of course, were constituted undr the statutes.

The Minister, a public servant, was to be the Chamnan of the Committee. The Divisional Commissioner was to be the convener of the meeting.

The Deputy Commissioner (Development) of the Division concerned was to act as the Secretary. They were all

' -

..,.

D. N. PATIL v. MAHARASIITR~ ( Untwalia, !.) 149

public servants.

Is it possible to take the view that the Divisional A Commissioner or the Deputy Commissioner while performing the functions aforesaid under orders of the _Governmen) conveyed in the circular dated 5-8-1964 were performing any private functions and not public duty ? Obviously it was a part of the public duty assigned te them by the Government.

The duty assigned to a public servant by bis master, be it be under a statute or by an executive order, will assume the character of public duty, provided the duty assigned is not illegal or against public policy.

Will it make any difference in the case of a Minister ? In our judgment, not.

The Minister is a public servant-not disputed.

In accordance with the instructions iosued by the Government he was to preside over the meetings of the Advisory Committee.

He was doing so as a Minister and in execution and discharge of his duty as such public servant.

It is no doubt true that non-official office bearers and members of the Committee could -not be public servants.

Non-officials appointed to a Committee constituted under a statute may, under certain circumstances, become public servants within the meaning of section 21 o(

the Code; but surely non-official members of the Committee in question could not be so.

Yet it is wrong to say that the officials and persons who were public servants discharging their duties as officcbearers and members of the Advisory Committee were not performing any duty as such public sei; vants.

Any person who was not a public servant appointed as a Chairman of the Committee may not be a public servant because the office of the Chairman of the Advisory Committee is not such that would make him a public servant.

But the matter. is different when a public servant, under the executive instructions of the Government, is appointed the Chairman of the

Committee. ·

 Learned counsel for the appellant in support of his submissions . placed reliance upon two decisions of this. Court viz. Padam Sen and

another v. The State of Uttar Pradesh(') and The State of Gujarat v.

Manshankar Prabhasankar Dwivedi( 2 ).

Neither of them is apposite and helps the appellant.

In the case of Pa, dam Sen the appointment of the Commissioner by the Additional Munsif was found to be null and void; yet it was argued with the aid of Explanation 2 to section 2.1 of the Code that he was a public servant. The argument was repelled by Raght1bar Dayal, J. c!elivering the judgment on behalf of the Court at page 890 thus :

"We do not agree with this contention, and are of opinion that the Explanation applies only when there be a post in existence.

The Explanation does not apply when there is no pre-existing post or when the person. appointing has no authority to appoint."

In the case of State of Gujarat v. Dwivedi(2 ) the question arose in

relation to an offence said to have been committed by the respondent nuder section 161 of the Code and section 5 ( 2) read with section

(') [1961] I SCR 884.

('( [1973] 1 SCR 313:

A 5(1)(d) of the Prevention of Corruption Act, 1947.

D.wi_vedi was a senior lecturer at a Government College.

In that capacity, Ul)- doubtedly, he was a public servant.

He is alleged to have accepted the gratification of Rs. 500 other than legal remuneration for showing favour to a candidate in his capacity as E1'a.miner for Physics Practical in the examination held by the Gujarat University.

He was B appointed an examiner by the University and1 not by the GovernmenL

in such circumstances it was held that Dwivedi as an examiner of the University was not a public servant as it had no connection with !1is being a Government servant.

For the reasons stated above we hold that no interference is called C for by this Court in the framing of the charge against the appellant as per the directions of the High Court.

The appeal is, therefore, dismissed. ' '

P.H.P.

Appeal dismissed.

DAITATRAYA NARAYAN PATIL

STATE OF MAHARASHTRA

N. L. UNTWALIA

S. MURTAZA FAZAL- ALI, JJ

I.P.C

Sec. 21, 353, 355

Sec. 353

Section 353

Sec. 353 and 355

section 355

section 353

Indian Penal Code

section 353

section 355

sections 353 and 355

section 34

section 251

Code of Criminal Procedure, 1898

section 353

section 355

section 511

sections 353 and 355

section 355

section 353 and 355

section 353

section 355

section 21

section 2

section 161

section 5

[1973] 1 SCR 313

Prevention of Corruption Act, 1947