RAM LAL NARANG ETC. ETC. A v.

STATE OF DELHI (ADMN.)

January 10, 1979

[N. L. UNTWALIA AND 0. CHINNAPPA REDDY, JJ.]

Criminal Procedure Code, 1973, Section 173-Whether the Police have powers to jur1/lr investigate, after the magistrate has taken cognizance of the offence-Scope and ambit of Section 173 Cr. P.C.

A criminal case, arisi1.1g out of F.I.R. 72 of 1967 against one Sri Bali Ram Sharma and two others for the offence of the th'eft of two sandstone pillars of great antiquity, beauty and value from the Suraj Kund Temple, in village Amin, Dist. Karnal, ended in the acquittal of the accused. During th! pendency of this ca~'e •. on an applica.tion made by him rn:1e Narinder Nath Malik (N. N.

Malik) an alleged research scholar and a. friend of H. L. Mehfa, the then Chief Judicial Magistrate was given the custody of these two sandstone pillars which had been recovered from th'e accused.

The pilla.rs remuined in the custody of N. N. Malik from 1-3-1968 to 27-5-1968 and on the acquittal of the accused on 16-7-1968, they were handed over to the Lambardar of Village Amin. LatC:r,

it came to light that the pillars returned by Malik w'ere not the original pillars but fakes. 1hereupon, F.I.R. RC 2-71-CIA/SPEICBI was registered at Delhi against Malik and H. L Mehra under Section 120 B read with Sections 406 and 420 J.P.C. After completing the investigation a charge sheet No. RC 2

of 1971 wa:rs fded on 30-12-1972, in the Court of Spe-cial Magistrate, Ambala against Malik and H. L Mehra for the aforesaid offences noted in the F.l.R.

Though an order was passed oo 17-5-1976 directing the framing of charge3, no charges were actuaJly framed.

However, on 16-5-77, on an application dated 17-4-77 filed by the Public Prosecutor under Section 494 of the Criminal Procedure Code, 1973, the Special Magistrte permitted the \vithdrawal of the case and discharged the accused.

During th'e pendency of the case, the two genuine pillars were traced and found in London in the ware house Of Spink & Co.

Jt wa.s \uspected that Manohar Lal Narang and Ramlal Narang had engaged Balkisban Rawat and Nathubai Rawal of Delhi to make three s'ets of

t'aJceB and had exported the genuine pillars to London.

This resulted in the registering of F.T.R. RC 4/76-0W(A)/SPE by the Superintendent of Police, CIV

(Antiquities 5PE/CBI, New Delhi) against l\fanohar L'll Narang and others for aHet:ed offences under Section 120B, read \.Vith Section 411 IP.C. and Section 25 (I) of the Antiquities and Art Treasures Act, 1972.

An application under s. 306 Cr.P.C. filed by N. N. Malik on 26-6-1976 before the Chief Metropolitan M; iglstrate, New Delhi with reference to this F.lR. RC 4/76, was accepted on 3-7-1976 and Malik was granted pardon, after confessiorial statement was recorded.

On 19-r-1976 a charge sheet was filed (RC 4 of 1976) before the same Court for offences under Sections 120B, I.P.C. rad with Section 420, 411 and 406 J.P.C. and Section 25 of the Antiquities and Art Treasures Act

1972. The case was transferred to the Court of Additional Chier Metropolitim Magistrate.

On 20-7-1976 the Magistrate issued process for the appearance of the accused including the three Narang brothers out of whom the appellant in Cr!. Appeal 373 of 1978 was already under detention under

MISA and COFEPOSA. The other two who were in London were extradited and brought

A to India on 27-7-1977. An application filed by Ramlal Narang in March 1977 immedia.tely after his release from detention, to drop the proceedings against him, to cancel the extradition warrants against his two brothers and to discharge all the accused on the ground of illegality of the Delhi case in view of the fact that a case on the same facts was a.lready peding in th'e Ambala Court failed.

Thereafter two applications filed by the three N arang brothers on 21-6-1977 in the Delhi High Court under Section 482 Crl. P.C. once again B challenging the legality of the proceedings arising out of charge sheet RC 4 of 1974 were admitted on 22-6-1977, but dismissed on 10-1-1978. During the pendency of these two appeals Malik died sometime during May 1977 and Mehra \\as made a co-accused in the Delhi case on 1-8-1977 in view of th'e withdrawal of the Ambala case on 1~-5-1977.

Dismissing the appeals by special IeM>e, the Court,

HELD : 1. The police have the statutory right and duty to 'register' tvery informatiotl relating to the commission of a cognizable offence. The police also have the stntutory right and duty to investigate the facts and circumstances of the cas'e where the commission of a. cognizable offence was suspected and to submit the report of s.uch investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report. These statutory rights and duties of the police were not circumscrib'ed by any power of superintendence or interference in the Magistrate; nor was any sanction required from a 1'..iagistrate to empolh•er the police to investigate into a cognizable offence. [937 F-H]

(a) The scheme. of the 1898 Code of Criminal Procedure was that the First Information Report was. followed by investigation, the investigation led to the submission of a report to the Magistrate, the Magistr3.te took cognizance of the offence on receipt of the police report and finally, the Magistrate taking cognizance issued process to the accused.

As such ordinarily the right and duty of the police would end with the submission of a report under Section 173(1) Criminal Procedure Code upon receipt of which it was up to the Magistrate to take or not to tl>ke cognizance of the offence. [937 E-F, 938 Fl

(b) There was no provision in the 1898 Code prescribing the procedure to be followtd by the police, where after the snbmiedon of a report under Section 173(1) Criminal Procedure Code and after the Magistrate had taken cognizance of the offence, fresh facts came to light which required further investigation.

Similarly, there was no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under-Section 173(1) or after the Magistrate had taken cognizan.ce of the offence.

Therefore further investigation was permissible and was not altogether ruled out merely because cognizance of the case has been taken by the Court; defective investigation coming to light during the course of a trial could also be cured by a further investigation, if circumstances permitted it, [938 F~H,

941 C-DJ

King Emperor v. Khwaja Wazir ~4hmed, 71 Indian Appeals, PO 203; followed.

H Diwakar Singh v. A. Ramamurthy Naidu, AIR 1919 Madras 751. ln re. Palaniswami Goundan, AIR 1946 Madras 502; Mohd. Niwa/ v. The Crov:n, 48 Crl. L.J. 744 Lahore; Prose.uting l11spector v. Minaketan

--~-.-..--

~·

R. L. NARANG v. STATE 925

Monato, AIR 1952 Orissa 350; Ramashankar v. State of U.P., AIR 1956 All. 525; In re. State of Kera/a v. State Prosecutor, 79 Cr!. L.J. 1973 p. 1288 (Kerala) D.B.; approved.

H. N. Rishbud v. State of Delhi, [1955] 1 SCR !150; Tara SingM!.

S1"te [1951] SCR 72; referred to .

2. (a) Neither Section '173 nor section 190 lead to the conclusion that the power of the police to further investigate was exhausted by the Magistrate tak~ ing cognizance of the offence. Practice, convenience and preponderance of authori '.y, permitted repeated investigations and discovery of fresh facts.

Not~ withstanding that a Magistrate had taken cognizance of the offence upon a p61ice report :mbmitted under Section 173. of !be 1898 Code, !be right of the police to further investigate was not exhausted and the police could exercise such right as often aa necessary when fresh information came to light.

Where the police desired to make a further investigation, the police could' express their regard and respect for the Court by seeking its formal permission to make further investi4 g:.tion.

[943 GH, 944 A]

tb) When it comes to the notice of the invesligating agency that a person alrt.'aJy an accused of an offence has a good alibi or where the involvement.of persons who are not already accused comes to the notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information. It is their duty to investigate and submit a report to the Magistrate upon the innocence or involvement of the persons concerned.

In either case, it is for the Maogistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved acCused and proceed with the case as a separate case.

What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. A further investigation by the police cannot be considered as trenching upon the proceedings before the Court because whatever the police may do, the final discretion in regard to further action is with the Magistrate.

That the final word is with the Magistrate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation.

[942 P..H, 943 ADJ

Ram Copa/ Neotia v. State of West Bengal, AIR 1969 Cal. 316 Hanuman and Anr. v. Raj. AIR 1951 Rajasthan 131; State v. Mehr Singh and Ors., !LR 1973 (3) P & H 561-[1974] 2 Cal. U 970; over-ruled.

• ( c) Wherf; the rep(\rt of the second investigation is submitted to a Magistrate other than lhe Magistrate who has already taken cognizaoce of the first case, it is up to thr prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together. The Magistrate themselves may take action suo motu.

[944 BJ

r B

c •

In the inslant case; the proscution did not act with any oblique motive or out of any malice by submitting a charge sheet to the Delhi Court and by withdrawing the case in the Ambala Court. In the charge sheet filed in the Delhi Court, it was expressly mentioned that a case had been filed in the Delhi Court against ehra and others and, therefore, it was not necessary to prosecute Mehra in the Ambala Court. The Court granted its permission for the withdraw&! of the case. [944 C-E]

3. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy \vhich covered a smaller field of narrower dimentions. [936 B-C]

In the present case, (a) the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy \vhich is the subject matter of the first case, may perhaps be sf.Lid to have turned out to be part of the conspiracy which is the subject matter of the second case . \Vhen invetigation comn1enced in First Information Report No. RC4 of 1976, apart from the circumstance that the property involved was the same, the Iiitk between lhe conspiracy to cheat and to misappropriate and thC conspira-cy to dispose cf the stolen property was not known. [936 Cl)]

(h) A con1parison of the two First Infonnation Report cot1pled with the several facts and circumstances show that the conspiracy which was the subject matter of the second case could not be said to. be identical with the conspiracy which was the subject matter of the first case.

The conspirators were different. l\.falik and Mehra alone were stated to be the conspirators in the first case, while the three Narang brothers were alleged to be the principal conspirators in the second case. The objects of the two conspiracies were different.

The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them. The alleged object of the second conspiracy was the disposal of the stolen property by exporting the pillars to London. The offences alleged in the first case were Section 120B read with Section 420 and 406 IIldian Penal Code while the offences. alleged in the second case were S. 120B read with S. 411 IPC and ction 25 of the Antiquities and Art Treasures Act, 1972. ~935 D-Fj

(c) No fault could be found with the police for registering a first information Report against the Narang brothers for the offence of conspiracy to commit an offence under section 411 Indian Penal Code. In the course of the investigation into this offence, it transpired that the Narang brothers were also parties to the original conspiracy to obtain possession of the pillars from the Court by chating.

Facts came to light which indic:itel that the conspiracy which was the subject 'matter of the case pending in the Ambala court was but part of a larger conspiracy. The fresh facts which came to light resulted in the filing of the second charge sheet. [935 C-D]

(d) Neither at the time when the Fir<; t Information Report perta1n1ng to the Ambala Case was registered nor at the time when'. the Charge sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture. The investigating agency was not also aware 'of what Malik and Mehra had done with the pillars after they bad obtained possession of the pillars from the court and substituted and returned fake pillars to the Court. The First Information Report and the charge-sheet were concerned primarily with the

,._

. r

offences of conspiracy to cheat and to misappropriate committed by Malik and A Mehra. At that stage, the investigating agency. was not aware of, any conspiracy to send the pillars out of the country. It was not known that Narang brothers were also parties to the conspiracy to obtain possession of the pillars from the

courL It was ni.ucb later, that the pillars sutfaced in London were discovered to be in the constructive possession of Narang brothers.

Even then, the precise connection between Malik and. Mehra on the one side and Narang brothers on the other was not known.

All that was known was that the pillars which B were stolen prciperty within the definition of the expression in Section 410

Indian Penal Code were found to be in the possession of Narang brothers in London.

On the discovery of the genuine pillars in the possession of Narang brothers, without anything further to connect N arang brothers with Malik and Mehra, the police had no option but to register a case under Section 411 Indian Penal Code against Namng brothers. That was what was done. [934 F-H, 935 A-Bl C

Observation :

In the interests of the independence of the magistracy and the judiciary, in the interests of the puri\Y of the administration of criminal justice and in the interests of the comity of the various agencies and institutions en~

trusted with different stages of such administration, it would ordinarily be desirable that the police should inform the Court and seek formal permission to make further investigatio1t when fresh facts come to light. [943 El

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 373- 3,74 of 1978.

 Appeals by Special Leave frO!m the Judgment and Orders dated E !0-1-1978 and 14-9-1978 of the Delhi High Court in Criminal Misc.

(M) No. 323 and 322/77 and Criminal Misc. Nos. 1083, 1149 cl 1978 in Special Misc. (M) No. 322/77.

Ram Jethnra/a11i (In Cr!. A.373), A. K. Sen (In Cr!. A.374) and iiarjinder Singh for the Appellants .

U. R. La/it and R. N. Sachthey for the Respondent.

The Judgment of the Court was delivered by

CHINNAPPA REDDY, J.-On the intervening light of 31st March 1967 and 1st April 1967, two sandstone pillars of great antiquity,

beauty and value were stolen from Suraj Kund temple, in Village Amin G (District Kamal, Haryana). They were of the Sunga period (2nd Century B.C.) and their present estimated value in the Intematiopal Art Treasures' Market is said to be aronnd five hundred thousand American dollars. A first information report (F.l.R. No. 72 of 1967) was registered by the Police of Butana, District Kamal.

The pillars were recovered on 2nd May 1967. On completion of investigation a H charge-sheet was filed on 3rd October 1967 in the Court of the Ilaqa Magistrate at Kamal, against one Bali Ram Sharma and two others.

3-119 SC!/79

The case ended in their acquittal on tl6th July

1968. During the pendency of the case one Narinder Nath Malik (N. N. Malik) filed an application before tho Magistrate alleging that he was a research scholar and requesting that he might be given custody of the two pillars to enable him to make a detailed study.

At the instance of H. L. Mehra, the then Chief Judicial Magistrate, Karna! and a friend of N. N. Malik, the learned. Ilaqa Magistrate gave custody of the two pillars to N. N. Malik on his executing a personal bond in a sum of Rs. 20,000/-. The orde.r was written by H. L. Mehra himself and signed by the Ilaqa Magistrate. The pillars remained in the custody of N. N. Malik from 1st March 1968 to 27th May 1968, when N. N.

Malik purported to return the~ to the Court of the Jlaqa Magistrate.

Kamal. After the acquittal of Bali Ram Sharma and others, the pillars were handed over to the Lambardar of village Amin. Later, it came to light that the pillars returned by _N. N. Malik were not the original pillars but fakes.

Thereupon, First Information Report No. RC.2/71-CIA/SPE/CBI was registered at Delhi against N. N.

Malik and H. L. Mchra under Section 120-B read with Sections 406 and 420 Indian Penal Code.

After completing the investigation the C.B.I. filed a charge-sheet No. R.C. 2 of 1971 in the Court of Special Magistrate, Ambala, against N. N.

Malik and H. L. Mel:u-a for alleged offences under Section 120-B read with Sections 406 and 420 Indian Penal Code. The charge-sheet was filed on 30th December,

1972. On 17th May, 1976, the learned Special Magistrate, Ambala, passed an order directing the framing of charges against N. N. Malik and H. L. Mehra. But, no charges were actually framed as the accused were uot present in the Court. On 17th April, 1977, the Public Prosecutor filed an application under Section 494 Criminal Procedure Code for permission to withdraw the case against Malik and Mehra.

The learned Special Magistrate, Ambala, by his order dated 16th May 1977, permitted the withdrawal of the case and discharged the accused.

Between May 1976 and May 1977 several othe.r things happened (; and the Narang brothers, the appellants in the two appeals, made their appearance on the scene. It may be mentioned here, that of the three Narang 'brothers, Om Prakash alias Omi Narang had been 'Jiving in London since 1970, Manohar Lal alias Manu Narang had been similarly living in London since July 197 4 and Ram Lal Narang alone had been living in India. Ram Lal Narang was detained first undc.r H the MISA from September 197 4 till he was released under o.rders ol the High Court, and later, under the COFEPOSA from 1st July 1975 till after the revocation of the internal Emergency in March 1977.

-~'

• ..

The two genuine pillars which had been removed from Suraj Kund temple were traced and found in London in the W3rehouse of Messrs Spink & Co. It was suspected that Manojharlat Narang and Ramlal Narang had engaged Balkishan Rawal and Nathubhai Rawal of Delhi to make three sets of fakes and had exported the genuine pillars to London.

A First Information Report (R.C.

4/76-CIU(A) /SPE) was rstered by .the Superintendent of Police, C!U (Antiquities, SPE/CBI, New Delhi) against Manohar Lal Narang and others, for alleged offences under Section 120-B Indian Penal Code ; read with Section 411 Indian Penal Code and Section 25(1) of the Antiquities and Art Treasures Act, 1972. On 26th June,

1976, N.

N. Malik made an application before the Chief Metropolitan Magistrate, Delhi, in case R.C. No. 4/76-CIU(A) /SPE, New Delhi, purporting to be under Section 306 of the Code of Criminal Procedure, 1973, praying that he might be granted pardon. The application mentioned Sectioris 411, 406 and 420 Indian Penal Code read with Section 120-B and Section 25(1) of the Antiquities and Art Treasures Act, 1972, as the offences involved.

The application was supported by the reply filed by the Superintendent of Police, C.B.I. On 3rd July 1976, the Chief Metropolitan Magistrate, Delhi, granted pardon to N. N. Malik. Before the grant of pardon the confessi_onal statement of N. N. Malik was got recorded by the Metropolitan Magistrate; Delhi.

Thereafter, on 19th July 1976, a charge-sheet (R.C. 4/1976) was filed in the -Court of Chief Judicial Magistrate, Delhi, for offences under Section

120-B Indian Penal Code read with Sections 420, 411 and 406 Indian Penal Code and Section 25 of the Antiquities and Art Trea- sures Act, 1972. The case was transferred to the Court of the Additional Chief Metropolitan Magistrate. On 20th July 1976, the Additional Metropolitan Magistrate issued process for'the appearance of the three Narang brothers.

The learned Magistrate also issued. warrants for the extradition of Omi Narang and Manu Narang who were iii London. Extradition proceedings were initiated in Britain at the ins- tance of the Government of India. The Metropolitan Magistrate, Bow Street, London ordered the detention of Omi Narang and Manu Narang pending the issue of warrants by the Secretary of State under Section 5 of the Fugitive Offenders Act. A petition for the issue of Writ of Habeas Corpus Ad Subjiciendum was filed in the High Court of Justice, Queen's Bench Division, London.

The Divisional Court directed the release of Omi Narang and Manu Narang. The Government of India filed an appeal to the House of Lords and on 24th March, 1977, the appeal was allowed.

Omi Narang and Mann Narang were finally extradited and brought to India on 27th July, 1977.

7/ A

Meanwhile internal emergency was lifted in India in March 1977 and Ram Lal Narang was released.

Almost immediately he filed a petition before the Additional Metropolitan Magistrate to drop the proceedings against him, to cancel the extradition warrants and to discharge the accused.

The contention was that the entire investigation in First Information Report No. R.C. 4/76 was illegal as a case on the same facts was already pending bfore the Ambala Court and that the Delhi Court acted without jurisdiction in takin[; cognizance of the case pursuant to a report of police based upon such illegal, investigation.

The learned Magistrate held that he was not competent to sit in judgn1ent, as it were, over the order of his predecessor taking cognizance of the case. He, however, found that the conspiracy which was the subject matter of the case before the CoJurt at Ambala and the conspiracy which was the subject matter of the case before himself were one and the same, but, he held that the question as to which Court should proceed with the case, was not for him to decide; it was a matter for the High Court to decide under Section 186 Criminal Procedure Code. The learned Magistrate also noticed an application filed before him, after the conclusion of arguments, informing him that the case in the Court at Ambala against Malik and. Mehra had since _been withdrawn on 16th May 1977.

On 21st June 1977, two applications were filed in the Delhi High Court under Section 482 Criminal Procedure Code, one by Ramlal Narang and the other on behalf of Omi Narangi and Manu Narang who were still in England awaiting extradition. The applicants sought quashing of the orders of the learned Metropolitan Magistrate issui'ng process to them and warrants for the extradition of Omi Narang and Manu Narang. It was also songht to be declared that the entire investigation in R. C. 4 of 197 6 was illegal and the orders of the Chief Metropolitan Magistrate and the Additional Metropolitan Magistrate taking cognizance of R.C. 4 of 1976 were illegal. The grant of pardon to N. N. Malik was questioned. It was also prayed that the proceedings before the Metropolitan Magistrate might be quashed.

The petitions were admitted by the Delhi High Court on 22nd June, 1977, but ultimately dismissed on 10th January 1978, by a common judgment.

Ramlal Narang having obtained special leave from this Conrt hes filed Criminal Appeal No. 373 of 1978 and Omi and Manu Narang bave preferred Criminal Appeal No. 374 of 1978. We may mention ibere that on 1st August, 1977, a supplemental charge-sheet was filed making Mehra an accused in the Delhi case, the case in the Ambala Conrt having been withdrawn on 16th May, 1977, as mentioned earlier.

Malik, we may add, died sometime during August, 1977.

.1.1..

We are given to understand that Mehra also was subsequently granted pardon.

, Shri Harjinder Singh, learned Counsel for the appellant in Criminal Appeal No. 373 of 1978 and Shri Ashok Sen, learned Counsel for the appeUan!s in Criminal Appeal No. 374 of 1978 argued that the conspiracy and the overt acts which were the subject matter of the two First Information Reports and the two charge-sheets were the same and, therefore, there was an implied bar to the power of the Police to investigate into First Information Report No. R.C. 4 of 1976 and the power of the Court at Delhi to take cognizance of the case upon the report of such information. It was submitted that the mere circumstance that some more persons were mentioned as involved or the mere circumstance that the property was said to pave been recovered later would not affect the legal position. It was submitted that gist of the consp.iracy in both the cases was to obtain possession of the pillars. The offence of conspiracy relating to the obtaining of the pillars having been investigated and a charge-sheet having been filed in the Ambala Court, the Police had no authority in law to start a fresh investigation under the Criminal Procedure Code by registering another First Information Report and to submit a charge-sheet in the Delhi Court for the very same offence.

That was an unwananted interference by the Police with the proceedings pending in the Court. The whole of the investigation subsequent to the filing of the charge-sheet in the Ambala Court was without jurisdiction and no material or fact gathered during the course of such 'illegal investigation could be used to found further proceedings.

The Delhi Court was, therefore, in error in taking cognizance of offences which had already been investigated and which wen' the subject matter. of proceedings in another Court. It was also argued that the subsequent withdrawal of the case from the Ambala Court did not and could not confer jurisdiction on the Delhi Court.

The withdrawal itself was an abuse of the process of the Court.

/ Shri Lalit, learned Counsel for the respondents urged that the conspiracy which was the subject matter of the charge-sheet Yiled in the Delhi Court was not the same as the conspiracy which was the subject matter of the charge-sheet filed in the Ambala Court.

The circumstance that some of the conspirators were common and part of the case was the same did not make the two conspiracies identical with each other.

There was, therefore, no question of any bar against the Delhi Court from taking cognizance of the .case based upon the wider conspiracy merely because the Ambala Court had taken cognizance of the case based upon the narrower conspiracy.

Sbri Lalit also urged that the statutory right of the Police to investigate into cognizable

932 SUPREME 'coURT REPORTS [ 1979] 2 s.c.R.

offences was not fettered and did not end with the submission of a -charge-sheet to the Court.

He submitted that the Police had the right and indeed, the duty, to investigate into fresh facts coming to light and to appraise the Court of the same.

The basic submission on behalf of the appellants was that the two conspiracies alleged in the two cases were but one. The sequitur was that the investigation into and the taking of cognizance of the second case were without jurisdiction.

We will first examine the question whether the conspiracy which was investigated by the Police and which investigation led to the flling of the charge-sheet in the Ambala case can be said to be the same as the conspiracy which was later investigated and which led to the filing of the charge-sheet in the Delhi Court.

For this purpose, it is necessary to emµpare the First Information Report and the chargesheet in the two cases_

The First Information Report relating to the ease in the Ambala D Court was registered against "N. N. Malik and others" for aileged offences under "Section 120-B Indian Penal Code read with Section 420 and Section 406 Indian Penal Code." It was stated therein that N. N. Malik applied to the Court of the Judicial Magistrate-1st Class, Karna! and obtained possession of the two stone pillars and dishonestly substituted two fake pillars in their place and returned them to the E Court.

The charge-sheet which was filed on 30th December, 1972 mentioned N. N. Malik and H. L Mehra as the two accused in the case and recited that N_ N. Malik was introduced by Mehra to the Magistrate as an eminent archaeologist and that he obtained possession of the pillars on the pretext that he wanted to make some research.

The actual order granting custody of the pillars to Malik was written by Mehra but signed by the Magistrate R. K. Sen.

It was further recitec•. that sometime after the pillars were returned by Malik to the Court it was discovered that the pillars so returned were fakes and that N. N. Malik was not an archaeologist. It was finally said that Malik and Mehra had "thus dishonestly made misrepresentat; on of fact and got the delivery of the two statues which were subsequently substituted by them" and they had "thus committed the offence under Section 120-B read with Section 420 Indian Penal Code and Section

406 Indian Penal Code." It is, .therefore, seen from the allegations in the charge-sheet filed in the Ambala Court that the conspirators involved in the conspiracy which was its subject matter were two, namely, Malik and Mehra, that the object of the conspiracy was to dishonestly obtain possession of the pillars by making false representation to the Magistrate and to substitute the pillars by fakes after

obtaining possessiol} of the same and that the offences committed were

nnde~ Secti0n 120-B read with Section 420 and 406 Indian Penal

Cod~.

The First Information Report, in the Delhi case was registered on 13th May, 1916, and the offences mentioned were Section 120-B Indian Penal Code read with Section 411 Indian Penal Code and Section 25(1) of the Antiquities and Art Treasures Act, 1972. The accused mentioned in the report were Manu Narang and Ram!a!' Narang.

After reciting that the pillars had been taken from the Court by N. N. Malik and had been s, nbstituted by fake pillars, the First Information Report went on to recite that the genuine pillars; which

were stolen from Suraj Kund temple as mentioned above were found to be in the possession and control of Manohar Lal alias Manu Narang in London. It was further recited that Manu Narang was negotiating the sale of the pillars through some London brokers and the price expected to be fetched was approximately five hundred American dollars. It was recited further that Manu Narang and bis brother Ramlal N arang had commissioned two well known sculptors of Delhi to make three sets of fake pillars.

The two brothers and others, acting in conspiracy, had dishonestly received and exported the two stone pillars.

The charge-sheet which followed the investigation was filed on 19th July 1976 in the Delhi Court.

The charge-sheet mentioned the three Narang brothers, Ramlal Narang, Manoharlal Narang and Om Parkash Narang, as the three accused persons sent up for trial and H. L. Mehra as a person not sent up for trial as he was already facing trial before the Special Mag.istrate, Ambala. The chargesheet recited, among other facts, that the Narang brothers had come to know in or about the month of February 1978 about the invaluable nature of the pillars and devised a stratagem to get the custody of the pillars. They discussed their stratagem with their family friend N. N.

Malik, informing hlm that the pillars were worth a fortune.

Ramlal Narang and Malik met Mehra and it was decided that Malik should file an application for temporary custody of the pillars and that Mehra shoukl wield his influence over the Magistrate to help N. N. Malik to get such temporary custody.

That was done.

Temporary custody of the pillars was obtained and they were removed . to Delhi in a truck at the instance of the Narang brothers to a place in Defence Colony, New Delhi. Replicas of the pillars were made by Balkrishan Rawal and Natwarlal, two eminent sculptors of Delhi under the supervision of Ramlal Narang and Omi Narang.

Manu Narang also used to visit Delhi and check the progress made.

The original pillars were transported to Bombay by Manu Narang and smuggled out of the country.

SUPREME COURT REP OR TS

[1979] 2 S.C.R.

A Fake pillars were substituted and returned by N. N. Malik to the Court.

Later on, suspicion was created by the discovery of two fake pillars which were also attempted to be smuggled out of the country.

The two pillars returned by N. N. Malik were then got examined by experts and were found to be fakes.

Malik was presented by the N arang . b1others with a Fiat car, a revolving brass bed a..'1d a sum of B Rs. 70,000/-.

They also paid for two pleasure trips made by Malik and his wife io Bombay. It was recited in the charge-sheet that the facts disclosed "the commission of offences under Section 406 ( criminal breach of trust) , Section 411 (receiving and retaining stolen property), Section 420 (cheating) Indian Penal Code and Section 25 (1) C of the Antiquities and Art Treasures Act, 1972, all read with Section

120-B Indian Penal Code, in pursuance of criminal conspiracy to which Manoharlal Narang, Ramlal Narang and Om Prakash Narang, H. L. Mehra and N. N. Malik (already granted pardon) were parties." It was further recited "Manoharlal Narang, Ramlal Narang and Omi Narang also abetted the commission of offences under Section 420 and - D Section 406 Indian Penal Code by N. N. Malik approver and these

thre~ accused were, therefore, liable for prosecution under Section 406 and Section 420 Indian Penal Code read with Section 109 Indian Penal Code and they had also committed other offences under Section 411 Indian Penal Code." It was further mentioned in the chargeshee'. that J\Ianoharlal Narang and Omi Narang were in London and that proceedings for their extradition were under way.

It was also mentioned that H. L. Mehra was facing trial before the Special Magistrate, Ambala, for the offences committed by him and, :hereforc. he was nor being sent up for trial in this case.

It is obvious that neither at the time when the First Information Report pertaining to the Ambala case was registered nor at the time when the charge-sheet was filed in the Ambala Court, were the Narang brothers known to be in the picture.

The investigating agency was not also aware of what Malik and Mehra had done with the pillars after they had obtained possession of the pillars from the Court and substituted a!1d returned fake pillars to the Court.

The First Information Report and the charge-sheet were concerned primarily with the offences of conspiracy. to cheat and to misappropriate committed by Malik and Mehra.

At that stage, the investigating agency was not aware of any conspiracy to send the pillars out of the country. It was not known that the N arang brothers were also parties to the conspiracy to obtain possession of the pillars from the Court. It was much later that the pillars surfaced in London and were discovered to be in the constructive possession of Narang brothers.

Even then, the precise connection between Malik .and Mehra on the one side and

i /'°'\

" -

R. L. NARANG v. SH.TE (Chinnappa Reaay, j.) 935

Narang brothers on the other was not known.

All that was known was that the pillars which were stolen property within the definition of the e:xpression in Section 410 Indian Penal Code were found to be in the posession of Narang brothers in London.

On the discovery of the genuine pillars in the possession of N arang brothers, without anything further to connect N arang brothers with Malik and Mehra, the police had no option but to register a case under Section 411 Indian Penal Code against Narang brothers.

That was what was done.

No fault could, therefore, be found with the police for registering a First Information Report against the Narang brothers for the offence of conspiracy to commit an offence under Section 411 Indian Penal Code.

In the course of the investigation into this offence, it transpired that the Narang brothers were also parties to the' original conspiracy to obtain possession of the pillars from the Court by cheating.

Facts came to light which indicated that the conspiracy, which was the subject matter of the case pending in the Ambala Court was but part of a larger conspiracy.

The fresh facts which came to light resulted in the filing of the second charge-sheet.

The several facts and circumstances mentioned , by us earlier and a comparison of the two First Information Reports and the two charge-sheets show that the conspiracy which was the subject matter of the second case could not be said to be identical with the conspiracy which was the subject matter o! the first case. The conspirators were different. Malik and Mehra

alone; were stated to be the conspirators in the first case, . while the three Narang brothers were alleged to be the principal conspirators in the second case. The objects of the two conspiracies were different.

The alleged object of the first conspiracy was to obtain possession of the pillars from the Court by cheating and to misappropriate them.

The alleged object of the second .conspiracy was the disposal of the stolen property by exporting the pillars to London.

The offences alleged in the first case was Section 120-B read with Section 420 and Section 406 Indian Penal Code, while the offences alleged in the second case were Section 120-B read with Section 411 Indian Penal Code and Section 25 of the Antiquities and Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act had no~ yet come into force on the date when the First Information Report was registered. It is also true that Omi Narang and Mann Narang were not extradited for the offence under the Antiquities and Art Treasures Act and, therefore, they could not be tried for that offence in India.

But the question whet1<_er any of the accused may be tried for a contravention of the _ Ar.tiquities and Art Treasures Act or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two

conspiracies are one and the same.

The trite argument that a Court takes cognizance of offences and not offenders was also advanced. This argument is again of no relevance in determining the question whether the tw0 conspiracies which were taken cognizance of by the Ambala

nd the Delhi Courts were the same in substance.

The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a few more conspirators as accused or by the addition of one more among the objects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same.

Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions.

We are clear, in the present case, that the conspiracies wl:ich are the subject matter of the two cases cannot be said to be id ontical though the conspiracy which is the subject matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject matter of the second case.

As we mentioned earlier, when investigation commenced in First Information Report No. R.C. 4 of 1976, apart from the circumstance that the property in.-olved was the same; the link between t)ie conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.

The further connected questions arising for consideration arc, what was the duty of the police on discovering that the conspiracy, which was the subject matter of the earlier case, was part of a larger conspiracy, whether the police acted without jurisdiction in investigating or in continuing to investigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case ?

In order to answer these questions, it is necessary to refer to rhe relevant provisions of the Criminal Procedure Code.

Counsel on both sides argued the questions on the basis that the Old Criminal Procedure Code governed the situation.

We proceed on that assumption without deciding whether the trial in the Delhi Court will be governed by the old Code or the new one.

Under the Criminal Procedure Code, l 898, whenever an officer incharge of the Police Station received information relating to the com~ TJJission of a cognizable offence, he was required to enter the substance H thereof in a book kept by him, for that purpose, in the prescribed form !Section 154 Criminal Procdure Code).

Section 156 Criminal Procedure Code invested the Police with the power to investigate into

ccgnizable offences without the order of a Court. If, from the information received or otherwise, the officer in charge of a Police Station suspected the commission of a cognizable offence, he was required to send forthwith a report of the same to aMagistrate empowered to take cognizauce of >uch offence upon a police report and than to proceed m person or depute one of his subordinate officers to proceed to the spot, to im estigate the facts and circumstances of the case and to take measures for the discovery and arrest of the offender (Section 157 Criminal Procedure Code). He was required to complete the investigation without unnecessary delay, and, as soon as it was completed, to forward to a Magistrate empowered to take cognizance of the offence upon a police report, a report in the prescribed form, setting forth the names of the parties, the nature of the information and the names of the persons who appeared to be acquainted with the circumstances of the case (Section 1 7 3 (! ) Criminal Procedure Code) . He was also required to state whether the accused had been forwarded in cu>- tody or had been released on bail. Upon receipt of the report submitted under Section 173 ( 1) Criminal Procedure Code by the officer incharge of the Police Station, the Magistrate empowered to take cognizance of an offence upon a police report might take cognizance of the offence (Section 190 (I) (b) Criminal Procedure Code). Thereafter, if, in the opinion of the Magistrate taking cognizance of the offence, there was sufficient !Round for proceeding, the Magistrate was required to issue the necessary process to secure the attendance of the accused

(Section 204 Criminal Procedure Code). The scheme of the Code thus was that the First Information Report was followed by investigation, the investigation led to the submission of a report to the Magis· !rate, the Magistrate took cognizance of the offence on receipt of the police report and, finally, the Magistrate taking cognizance issued process to the accused.

The police thus had the statutory right and duty to 'register' every information relating to the commission of a cognizable offence.

The police also had the statutory right and duty to investigate the facts G and circumstances of the case where the commission of a cognizable offence was suspected and to submit the report of such investigation to the Magistrate having jurisdiction to take cognizance of the offence upon a police report.

These statutory rights and duties of the police wern not circumscribed by any power of superintendence oc interference in the Magistrate; nor was any sanction required from a R Magistrate lo empower the Police to investigate into a cognizable offence.

This position in law was well established.

In King Emperor

3UPREME COURT REPORTS

v. Khwaja Nazir Ahmed('), the Privy Council observed as follows:

"Just as it is essential that every one accused of a crime should have free access to a Court of justice, so that he may be duly acquitted if found not guilty of the offence with !which he is charged, so it is of the utmost importanc~ that the judiciary should not interfere with the police iu matters which are within their province and into which the law imposes on them the duty o( inquiry.

In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime witho11t requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rules by an exercise of the inherent jurisdiction of the Court.

The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right •Jf the Courts to intervene in an appropriate case when moved under Section 491 of the Criminal Procedure Code to give directions in the nature of Habeas Corpus.

In such a case as the present, however, the Court's function begin when a charge is preferred before it and not until then. . ...... .

In the present case, the police have under Sections 154 and 156 of tl1e Criminal Procedure Code, a statutory right to investigate a cognizable offence without requiring the sanction of the Court .............. "

Ordinarily, the right and duty of the police would end with the submission of a report under Section 173(1) Criminal Procedure Code upon receipt of which it was up to the Magistrate to take or not to take cognizance of the offence.

There was no provision in the 1898 Code prescribing the procedure to be followed by !he police. where, after the submission of a report under Section 173 ( n Criminal Procedure Code and after the Magistrate had taken cognizance of the offence, fresh facts came to light which required further investigation.

There was, of c.ourse, no express provision prohibiting the police from launching upon an investigation into the fresh facts coming to light after the submission of the report under Section 173 (I)

or after !he Magistrate had taken cognizance of the offence.

As we shall presently point out, it was geurally, thought by many High

(l) 71 Tndian Appeals 203.

Courts, though doubted by a few, that the police were not barred A from further investigation by the circumstance that a report uuder Section 173 ( 1) had already been submitted and a Magistrate had already taken cognizance of the offence.

The Law Commission in its 41st report recognized the position and recommended that the right of the police to make further investigation should be statutorily affirmed.

The Law Commission said :

. B '

"14.23. A report under Section 173 is normally the end of the investigation.

Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused.

We sheuld have thought that the police officer can collect that evidence and se.nd it to the Magistrate concerned. It appears, however, that Courts have sometimes taken the narrow view that once a final report under Section 173

has been sent, the police cannot touch the case again and cannot re-open the investigation.

This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused''.

Accordingly, in the Criminal Procedure Code, 1973, a new provision, Section 173 ( 8), was introduced anc; I it says :

"Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge Of the police Station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed, and the provisions of sub-sections (2) to ( 6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under subsection (2)".

The right of the police to make repeated investigations under the old Code was recognised by the Madras High Court as early as in

1919 in Divakar Singh v. A. Ramamurthi Naidu ( 1), where Phillips B .aad Krishnan, JJ., observed as follows :

(ll A.I.R. 1919 Madras 751.

_ _,,,

"Another contention is put forward that when a report of investigation has been sent in under Section 173, Criminal P.C., the police has no further powers of inv, estigation, but this argument may be briefly met by the remark that the number of investigations into a crime is not limited by law and that when one has been completed another may be begun on further information received".

In re. Palaniswami Goundan(') the Madras High Court held that notwithstanding the filing of a final charge-sheet, a police officer could still investigate and lay further charge-sheets if he got information and that there was no finality either to the investigation or to the layrng of charge-sheets. In Md. Niwaz v. The Crown(') a Bench of the Lahore High Court consisting of Din Mohammad and Cornelius JJ., cited with approval the decision of the Division Bench of the Madras High Court in Divakar Singh v. A. Ramainurthi Naidu(•) already referred to by us.

In Prosecuting Inspector v. Minaketan Mahato('), the High Court of Orissa held that the police had the right to reopen investigation even after the submission of the chargesheet under Section 173 Criminal Procedure Code if fresh facts came to light. In Rama Shanker v. State of U.P.(') a Division Bench of Allahabad High Court took the view that the submission of a chargesheet not being a judicial act, the submission of a fresh charge-sheet 2fter submission of a report under Section 173 Criminal Procedure Code was not illegal.

In re. State of Kerala v. State Prosecu:vr( 6 ) a Divismn Bench of the Kerala High Court thought it was well settled law that the police had the right to reopen the investigation even after !he submission of a charge-sheet under Section 173 Criminal Procedure Code and that there was no bar for further investigation or for filing of

r 'supplementary report.

In H. N. Rishbud v. The State of Delhi('), this Court contemplated the possibility of further investigation even after a Court had taken cognizance of the case.

While noticing that a police report resulting from an investigation was provided in Section 190 Criminal Procedure Code as the material on which cognizance was taken, it was pointed out that it could not be maintained that a valid and legal police report was the foundation of the jurisdiction of the Court to take cognizance.

(1) A.J.R. 1946 Madras 502.

(2) 48 Cr!. Law Journal 774.

(3) A.I.R.1919 Madrcs751.

(4) A.J.R. 1952 Orissa 350.

(5) A. I. R. 1956 All 525.

(6) 79 Crl. Law Journal 1973, p. 1288

.,.

I It was held that where cognizance of the case had, in ~' been taken A and the case had jlToceeded to termination, the invalidity of the precedent investigatipn did not vitiate the result unless miscarriage of iustice had been caused thereby. It was said that a defect or illegality in investigation, however serious, had no direct bearing on the compe- tence of the procedure relating to cognizance or trial. However, it was .observed : B

"It does not follow that the invalidity of the. investigation is to be completely ignored by a Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizan<X!, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such re-investigation as the circumstances of an individual case may call for".

!his decision is a clear authority for the view that further investigation

1s not altogether ruled out merely because cognizance of the case has D !been taken by the' Court; defective investigation coming to light during the course of a trial may be cured by a further investigation, if circnmstances permit it.

In Tara Singh v. State(') the police first submitted a report styled , as "an incomplete challan", which, however, contained all the parti- E culars prescribed by Section 173 (1).

Later, two supplemental challans were submitted containing the names of certain formal witnesses.

The Magistrate had taken cognizance of the case when the incomplete .challan was submitted. It was urged that the Magistrate had taken cognizance of the case. illegally and the statements of witneses examine}! .before submission of the supplemental challans should be excluded f!' cfrom the record.

This Court held that the so called incomplete cha]c Jan was in fact a complete report of the kind contemplated by Section

173(1)(a), and, therefore, the Magistrate had properly taken cognizance of the case.

The Court declined to express any opinion on ·!he question whether the police could be permitted to send incomplete .reports under Section 173 (I) Criminal Procedure Code. This case G whiie neither approving nor disapproving the practice of submitting ; incomplete challans in the first instance, certainly notices the existnce

of such practice.

Some High Courts tool.: the view that with the submission of a .charge-sheet under Section 173 the power of the police to investigate . H .came to an end and the Mai:istrate's cognizance of the offence started.

- (I) [1951] S.C.R. 72,.

A It was said that any further investigation by the police would trench upon the magisterial cognizance.

Vide-Ram Gopal Neotia v. State of West Bengal('). In Hanuman & Anr. v. Raf(') it was held that when a case was pending before a Magistrate, the action of the police in resuming investigation and putting up a new challan against a person not originally an accused as a result of the further investigation was unauthorised and unlawful. . In State v. Mehar Singh & Ors.('), a Full Bench of the High Court of Punjab and Haryana held that the police became functus officio once the Court took cognizance of an offence on the filing of a charge-sheet by the police and thereafter further investigation by the police was not permissible.

The police, it was said, could not 'tinker' with the prQCeedings pending in the Court.

It was, however, observed that it would be open to the Magistrate to 'suspend cognizance' and direct the police to make further investiga-· tion into the case and submit a report.

The High Court of Punjab and Haryana acknowledged the existence of the practice of submitting supplemental charge-sheets, but was of the view that such practice was not sanctioned by the Code.

Faced with the impracticality of banning all further investigation once cognizance of an offence was taken by the Court, the High Court tried to find a solution to the problem by suggesting the procedure of the Magistrate suspending cognizance

and ordering further investigation.

The procedure of 'suspending cognizance' suggested by the High Court of Punjab and Haryana does not appear to us to be warranted by the provisions of the Criminal Procedure Code.

Anyone acquainted with the day today working of the criminal courts will be alive to the practical necessity of the police pc\ssessing the power to make further investigation and submit a supplemental report. It is in the interests of both the. prosecution and the defence that the police should have such power.

It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absol've person' already accused.

When it comes to the notice of the investigating 11gency that a person already accused of an offence has a good alibi, i• it not the duty of that agency to investigate the genuineness of the plea of alibi and submit a report te the Magistrate ? After all the investigating agency has greater resources at its command than a private individual.

Similarly, where the involvement of persons who ..re not already accuse4 comes to tke notice of the investigating agency, the investigating agency cannot keep quiet and refuse to investigate the fresh information.

It is their duty

(1) A.I.R. 1969 Cal. 316.

(2) A.I.R. 1951 Raj. 131.

(3) I.L.R. (1973] 2 P & H 561=1974 (2) Crl L J 970.

to investigate. and submit a report to the Magistrate upon the invoh1ement of the olher persons.

In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused, in a single enquiry or trial. If the case cl which lie has previously taken cognizance has already proceeded to

-some extent, he may take fresh cognizance of the offence disclosed <i°gainst the newly involved accused and proceed with the case as a separate case.

What action a Magistrate is to take in accordance with lhe provisions of the Code of Criminal Procedure in such situations is a mailer best left to the discretion of the Magistrare.

The criticism that a further inyestigation by the police would trench upon the proceedings before the Court is really not of very great substance, since whatever the police may do, the final discretion in regard to further action is with the Magistrate.

That the final word is with !he Magis- \!rate is sufficient safeguard against any excessive use or abuse of the power of the police to make further investigation.

We should not, l10wever, be understood to say that the police should ignore the pen- , dency of a procNding before. a Court and investigate every fresh fact that comes to light as if no cognizance had been taken by th.e Court of any offence.

We think that in the interests of the independence of the magislracy and the judiciary, in the interests of the purity of the administration of criminal justice and in .the interests of the comity of the various agencies and institutions entn1stcd with different stages of such administration, It would ordinarily be desirable that the police

should inform the Court and seek formal prmission to make further investigation when fresh facts come to light.

As observed by us earlier, there was no provision in the Code of Criminal Procedure, 1898 which, expressly or by necessary implication, barred the right of the police to further investigate after cognizance of the case had been taken by the Magistrate, Neither Section 173 nor Section 190 lead us to hold that the power of the police to further investigate was exhausted by the Magistratetaking cognizance of the offence.

Practice, convenience and preponderance of authority, permitted repeated investigations on discovery of fresh facts. In our view, notwithstanding that a Magistrate had taken cognizance of the offence upon a police report submitted under Section 173 of the 1898 Code, the right of the police to further investigate was not exhausted and the police could exercise such right as often as neccsary when fresh informa!ion came to light.

Where the police desir-

4-119 SCJ/79

ed to make a further investigation, the police could express their re gard and respect for the Court by seeking its formal pennission t<" make further investigation.

As in the present case, occasions may arise when a second inves-· ligation started independently of the first may disclose a wide range B of offences including those. covered by the first investigation.

Where the report of the second investigation is submitted to a Magistrate other than the Magistrate who has already taken cognizance of the first case., it is up to the prosecuting agency or the accused concerned to take necessary action by moving the appropriate superior Court to have the two cases tried together.

The Magistrates themselves C may take action suo motu. In the present case, there is no problem since the earlier case has since been withdrawn by the prosecuting agency.

It was submitted to us that the submission of a charge-sheet to the Delhi Court and the withdrawal of the case in the Ambala Court amounted to an abuse of the process of the Court.

We do not think that the prosecution acted with any oblique motive. In the charge- D sheet filed in the Delhi Court, it was expressly mentioned that Mehra was already facing trial in the Ambala Court and he was, therefore, not being sent for trial. In the application made to the Ambala Court under Section 494 Criminal Procedure Code, it was expressly mentioned that a case had been filed in the Delhi Court against Mchra

and others and, therefore, it was not necessary to prosecute Mehra in the Ambala Court. The Court granted its permission for the withdrawal of the case. Though the investigating agency would ha; done better if it had infonned the Ambala Magistrate and sought his formal pennission for the second investigation, we are satisfied that the investigating agency did not act out of any malice.

We are also satisfied that there has been no illegality.

Both the appeals are, therefore, dismissed.

M.R.

Appeals dismissed.

J.,

~ ..

RAM LAL NARANG ETC. ETC

STATE OF DELHI (ADMN

January 10, 1979

January 10, 1979

[N. L. UNTWALIA AND 0.

N. L. UNTWALIA

0. CHINNAPPA REDDY, JJ.

Criminal Procedure Code, 1973

Section 173

Section 173

Narinder Nath Malik

N. N.

Malik

H. L. Mehfa

N. N. Malik

Amin

Malik

LatC:r,

it came to light that the pillars returned by Malik w'ere not the original pillars but fakes.

Delhi

H. L Mehra

Section 120

Sections 406 and 420

Court of Spe-cial Magistrate, Ambala

Section 494

Criminal Procedure Code, 1973

Manohar Lal Narang

Ramlal Narang

Balkisban Rawat

Nathubai Rawal

London

l\fanohar L'll Narang

Section 120B

Section 411

IP.C

Section 25

Antiquities and Art Treasures Act, 1972

s. 306

the Antiquities and Art Treasures Act, 1972

the Antiquities and Art Treasures Act, 1972

Cr.P.C

19-r-1976 a

Sections 120B

I.P.C

Section 420, 411 and 406

Section 25

Antiquities and Art Treasures Act

Additional Chier Metropolitim Magistrate

The case was transferred to the Court of Additional Chier Metropolitim Magistrate.

Narang

India

The other two who were in London were extradited and brought

A to India on 27-7-1977.

Ambala Court

Delhi High Court

Section 482

the Antiquities and Art Treasures Act

1972

the Antiquities and Art Treasures Act

1972

Mehra \\as

Ambala

Code of Criminal Procedure

Section 173(1)

Criminal Procedure Code

Section 173(1)

Criminal Procedure Code

Section 173(1)

section 190

Section 173

What action a Magistrate is to take in accordance with the provisions of the Code

Delhi Court

ehra

Mehra

l\.falik

Section 120B

Section 420 and 406

IIldian Penal Code

S. 120B

S. 411

IPC

Antiquities and Art Treasures Act, 1972

section 411

Indian Penal Code

Ambala court

A Mehra

r

offences of conspiracy to cheat and to misappropriate committed by Malik and A Mehra.

Section 410

Indian Penal Code

Section 411

Indian Penal Code

Namng

cl 1978

Ram Jethnra

K. Sen

iiarjinder Singh

A.374) and iiarjinder Singh for the Appellants .

U. R. La

U. R. La/it and R. N. Sachthey for the Respondent.

R. N. Sachthey

Intematiopal Art Treasures' Market

2nd May 1967

The pillars were recovered on 2nd May 1967.

3rd October 1967

Ilaqa Magistrate at Kamal

tl6th July

1968

3-119 SC!/79

The case ended in their acquittal on tl6th July

1968.

Narinder Nath Malik

H. L. Mehra

At the instance of H. L. Mehra, the then Chief Judicial Magistrate, Karna!

H. L. Mehra

The orde.r was written by H. L. Mehra himself and signed by the Ilaqa Magistrate.

Ilaqa Magistrate

N. N. Malik

1st March 1968

Jlaqa Magistrate

Bali Ram Sharma

H. L. Mchra

Section 120

Sections 406 and 420

Indian Penal Code

C.B.I.

After completing the investigation the C.B.I. filed a charge-sheet No.

Special Magistrate, Ambala

N. N.

Malik

H. L. Mel

Section 120

Sections 406 and 420

Indian Penal Code

17th April, 1977

Section 494

Criminal Procedure Code

16th May 1977

Narang

Om Prakash alias Omi Narang

Manohar Lal alias Manu Narang

Ram Lal Narang

Messrs Spink & Co.

Manojharlat Narang

Balkishan Rawal

Nathubhai Rawal

Section 120

Indian Penal Code

Section 411

Indian Penal Code

Section 25(1)

Antiquities and Art Treasures Act, 1972

26th June,

1976

N.

N. Malik

Chief Metropolitan Magistrate, Delhi

Section 306

Code of Criminal Procedure, 1973

Indian Penal Code

Section 120

Section 25(1)

Antiquities and Art Treasures Act, 1972

3rd July 1976

Section

120

Indian Penal Code

Sections 420, 411 and 406

Indian Penal Code

Section 25

Antiquities and Art Trea- sures Act, 1972

20th July 1976

Omi Narang

warrants for the extradition of Omi Narang and Manu Narang who were iii London.

Manu Narang

Britain

Extradition proceedings were initiated in Britain at the ins- tance of the Government of India.

Government of India

Metropolitan Magistrate, Bow Street, London

Section 5

the Antiquities and Art Trea- sures Act, 1972

the Antiquities and Art Trea- sures Act, 1972

High Court of Justice, Queen's Bench Division, London

Government of India

The Government of India filed an appeal to the House of Lords and on 24th March, 1977, the appeal was allowed.

24th March, 1977

Omi Narang

Omi Narang and Mann Narang were finally extradited and brought to India on 27th July, 1977.

Mann Narang

27th July, 1977

Additional Metropolitan Magistrate

Section 186

Criminal Procedure Code

Court at Ambala

21st June 1977

Section 482

Criminal Procedure Code

Omi Narangi

England

10th January 1978

Omi

373 of 1978 and Omi and Manu Narang bave preferred Criminal Appeal No.

1st August, 1977

16th May, 1977

Harjinder Singh

, Shri Harjinder Singh, learned Counsel for the appellant in Criminal Appeal No.

Ashok Sen

373 of 1978 and Shri Ashok Sen, learned Counsel for the appeUan!s in Criminal Appeal No.

Lalit

Ambala D Court

Section 120

Indian Penal Code

Section 420

Section 406

Indian Penal Code

Court of the Judicial Magistrate-1st Class, Karna

It was stated therein that N. N. Malik applied to the Court of the Judicial Magistrate-1st Class, Karna!

30th December, 1972

N_ N. Malik

R. K. Sen.

Section 120

Section 420

Indian Penal Code

Section

406

Indian Penal Code

Section 420 and 406

13th May, 1916

Section 120

Indian Penal Code

Section 411

Indian Penal Code

Section 25(1)

Antiquities and Art Treasures Act, 1972

Ram!a!' Narang

The accused mentioned in the report were Manu Narang and Ram!a!'

Ramlal N arang

19th July 1976

The charge-sheet which followed the investigation was filed on 19th July 1976 in the Delhi Court.

Manoharlal Narang

Om Parkash Narang

Special Mag.istrate, Ambala

Mehra shoukl

New Delhi

to Delhi in a truck at the instance of the Narang brothers to a place in Defence Colony, New Delhi.

Balkrishan Rawal

Natwarlal

Bombay

The original pillars were transported to Bombay by Manu Narang and smuggled out of the country.

SUPREME COURT REP OR TS

[1979] 2 S.C.R.

Section 406

Section 411

Section 420

Indian Penal Code

Section 25

Antiquities and Art Treasures Act, 1972

Section

120

Indian Penal Code

Om Prakash Narang

Section 420

Section 406

Indian Penal Code

Section 406

Section 420

Indian Penal Code

Section 109

Indian Penal Code

Section 411

Indian Penal Code

J\Ianoharlal Narang

N arang brothers

Section 410

Indian Penal Code

Section 411

Indian Penal Code

Section 411

Indian Penal Code

Malik

Malik and Mehra

alone; were stated to be the conspirators in the first case, .

Section 120

Section 420

Section 406

Indian Penal Code

Section 120

Section 411

Indian Penal Code

Section 25

Antiquities and Art Treasures Act, 1972

Antiquities and Art Treasures Act

Antiquities and Art Treasures Act

Art Treasures Act or under the corresponding provision of the earlier Act

Ambala

Counsel on both sides argued the questions on the basis that the Old Criminal Procedure Code

Section 154

Criminal Procdure Code

Section 156

Criminal Procedure Code

Section 157

Criminal Procedure Code

Section 1

Criminal Procedure Code

Section 173

Criminal Procedure Code

Section 190

Criminal Procedure Code

Section 204

Criminal Procedure Code

Section 491

Sections 154 and 156

Criminal Procedure Code

Section 173(1)

Criminal Procedure Code

Section 173

Criminal Procedure Code

Section 173

Section 173

Section 173

Section 173

Section 173

Section 173

Criminal Procedure Code, 1973

Section 173

Madras High Court

Phillips B .aad Krishnan

Section 173

Palaniswami Goundan

Lahore High Court

In Md. Niwaz v. The Crown(') a Bench of the Lahore High Court consisting of Din Mohammad and Cornelius JJ.,

Din Mohammad

Cornelius

High Court of Orissa

Section 173

Criminal Procedure Code

Division Bench of Allahabad High Court

Section 173

Criminal Procedure Code

Kerala High Court

Section 173

Criminal Procedure Code

Section 190

Criminal Procedure Code

A.I.R.1919 Madrcs751

Section 173

Section

173(1)(a)

Section 173

Criminal Procedure Code

Section 173

High Court of Punjab and Haryana

What action a Magistrate is to take in accordance with lhe provisions of the Code

Code of Criminal Procedure, 1898

Section 173

Section 190

Section 173

Section 494

Criminal Procedure Code

Mchra

Ambala Magistrate


• ·""

RAJENDERA NATH KAR v.

GANGADAS & GANGADHAR RATH! & ORS.

January 12, 1979

tY. V. CllANDRACHUD, C.J., V. D. TULZAPURKAR AND A. P. SEN, JJ.)

Wes/ Bengal Pre1nises Tenancy A.ct, 1956-Scope of Stctions 11A and 39 tr.ad with s. 5 of the Limitation Act, 1963-Condonation of delay does not "?.cal! t:Xl't'11Sion of the period of li1nitation prescribed under the Act.

Jn the eviction suit filed by the respondents against the appellant under the West Bengal Premises Tenancy Act, 1956, on the ground that the appellant was in arrears of rent, that he had sub-let the premises and that the respondents required the premises for their personal use, the appellant deposited the arrears ofrent within a period of 30 days i.e. within the time but did not deposit th~ intnest due on the arrears as required by s. 17(i) of the Act.

The respondents therefore, filed an application 1:1-nder s. 17 (3) of the Act to strike off the appellant's defence for failure to deposit the interest. The said application was accepted by the Trial Court and, therefore, the respondents filed a civil revision application in the Calcutta High Court against that order which was dismissed on April 4, 1968.

During the pendency of the said revision application, s. 17A was newly intrcduced in the 1956 Act with retrospect1\'c from 26-8-1967.

By that section tenants v.1ere given the right, if the proceedings for eV-iction was not disposed of, to apply within 30 days of the said dttte for setting aside the order for .striking off the defence. Jn view of the challenge by wa'y of revision application in the High Court against the order striking off his defence -the aprclh1r, t did not take recourse to the provisions of the newly introduced s. 17 A of the West Bengal Premises T'enoocy Act.

After the dismissal of the revision petition, the appellant filed an application under the ne\v s. 17A of the Act praying that the order dated July 25, 1963 passed by the Trial Court, striking off his defence be set aside.

A1ong with the aid application. an application to condone the delay under Eection of the Limitation Act was also filed. The Trial Court tlism\ssed both the applications and the Hi£h Court confirmed that order in revision.

Allowing the appeal by special leave, the Court

HELD : 1. The true meaning and effect of s. 39 is that if any special period G of limitation is prescribed by the Act, that period will govern the proceeding under the Act in preference to the period, if any, prescribed by the Limitation Act.

But apart from such an over-riding effect of the period of limitation presciibcd by the Act, not only that the other provisions of the Limilation Act do not stand excluded or superseded, but they are expressly made applicable by s. 39 of the Act. [949 A-BJ

2. Section 39 of the West Bengal Premises 1'enancy Act, 1956, which is clear and specific, leaves no doubt that the provisions of the Limitation Act

would apply to proceedings under the West Bengal Premises Tenancy Act, subject to the condition that if there is a provision in the West BCngal Act relating to J; mitatk1n, that provision \voul<l prevail over the provisions of the Indian Limitation Act relating to limitation. Since the West Bengal Act prescnOed a specific period of limitation for filing an application for scttlng aside an order st!ilting out the defence, namely a period of 30 days comn1encing on August 26. 1967 'vhcn the first Ordinance came into force, that period would undoubtedly apply to the n1aking of the application under s. 17A of the Act. Since the appellant did not file bis application under s. 17A before the due date, that is to say, before September 25, 1967, the application must be held to be barred by ]imitation. But, by reason of s. 39 of the Act, all other provisions of the Limitation Act would be attracted including '' 5 of the latter /\ct. [948 D-F]

Jn the instant case since the appcllanl <lid not file his application under s. 17A of the Aet, before the due date, thnt is to say, before September 25, 1967, the app1ication under s. 17A is barred by limtta-t:ions, Ho\vcvcr, the application filed by him un<lcr s. 5 of the Lilnitation Act for condonation of delay is maintainable. [948 A-B, G]

M/s. J>akarmal Gurudayal v. Sagannal Bengani 16 C.W.N. 486 app:ovcd.

3. When a Court condones the delay caused in filing a proceeding, i.t does r:ct c.xtcnd the period of Jimitation prescribed by law for filing it. It treats the

proceeding as if it is filed .. vithin linlltation, \vhich it has the power to do if

ntlicicnt cause is shown for not filing •he proceeding within the prescribed peri<><l. IS49 B-Cl

Crv:lL APPELLATE JURISDICTION: Civil Appeal No. 1931 of 1969.

Appeal by Special Leave from the Judgment and Order dated 3-6-1969 of the Calcutta High Court in Civil Rule No. 2924168.

Sukunlfir G/iosh for the Appellant.

'The Judgment of the Court was delivered by

CHANDRACJIUD, C. J.-On November 27, 1962 respcmdents filed a suit for eviction against the appellant under the West Bengal premises Tenancy Act. l 956 ("The Act") on the ground that the appellant was in arrears of rent, that he had sublet the premises and that the respondents required the ptemiscs for their personal use. The

summons of the suit was served on the appellant on January 9, 1963 and he deposited the arrears of rent within a period of thirty days thereafter i.e. on February 5, 1963.

On July 10, respondents filed an application umlcr section 17 (3) of the Act for striking off the defence of the appellant on the ground that though the appellant had deposited the arrears o[ rent, he had 11ot deposited the interest due on the arrears, as required by section 1 7 (1) of the Act. By an order dated July 25, 1963 the trial court accepted the respondents' contention and struck off the appellant's defence. On August 26, 1963 the

... •:

' •

R. N. KAR v. GANGADAS (Chandrachud, C.J.) 947

appellant filed a civil revision application in the Calcutta High Court against that order but it was dismissed by the High Court on April 4, 1968.

Between August 26, 1963 when the appellant filed the revision application in the High Court and April 4, 1968 when the revision application was dismissed, ce11ain important events happened.

On August 26, 1967 an Ordinance was passed by the West Bengal Government by which a new section, namely, Section 17B was introduced into the Act.

By that section. tenants were. given the right, if the proceeding for eviction was not yet disposed of, to apply within thirty days of the commencement of the Ordinance, for setting aside the order striking off the defence. on the expiry of that Ordinance,

another Ordinance containing identical provisions was passed on January 8, 1968. This Ordinance was replaced on March 26, 1968 by President's Act 4 of 1968. Section 17-B which was inserted in the Act by the two Ordinances was numbered as section 17-A under the President's Act, the provisions of the section remaining unaltered.

Section 1 (2) of the President's Act provided that the said Act shall be deemed to have come into force on August 26, 1967 which was the date on which the first Ordinance had come into force.

After the dismissal of the revision application on April 4, 1968, the appellant fikd an application on May 3, 1968 in the Trial Court under section 17-A, praying that the order dated July 25, 1963 passed by it, striking off his defence be set aside. It ought to be mentioned that though the Trial Court had passed the order striking

off the appellant's defence as Jong back as in 1963, the eviction suit filed by the rc,; pondcnts continued to remain on the file because. on September 16, 1963 the High Court in the revision application filed by the appellant had issued an order staying all further proceedings i11 the suit.

Along with the application under section 17-A, the appellant filed an application under sccti.on 5 of the Indian Limitation Act, 1963 praying that the delay caused in filing the application may for reasons stated therein be condoned.

Both the applications were dismissed by the Trial Court by an order dated August 17, 1968 which was confirmed by the Calcutta High Court in revision on June 3, 1969. Being aggrieved by the judgment of the High Court in Civil Rule No. 2924 of 1968, the tenant has preferred this appeal by special leave of this Court.

The High Court has dismissed the application filed by the appcl- H !ant under section 17-A of the Act on the ground .that it was not • filed within 30 days of August 26, !967 when the first Ordinance

came into force and further on the ground that since Section 5 of the Limitation Act, 1963 had no application to the proceeding, the Court had no power to condone the delay.

It is patent that the application under section 17-A was not filed within the prescribed period of thirty days.

The sole question for decision, therefore, is whether the provisions of section 5 of the Limitation Act can apply to an application under section 17-A of the Act.

Section 5 of the Limitation Act provides, to the extent relevant, that any application may be admitted after the prescribed period if the

applicant satisfies the Court that he had sufficient cause for not making C the application within the said period. .On the applicability of section 5 to the proceedings under section 17-A of the Act, the provisions of section 39 of the Act have a material bearing and must be noticed.

Section 39 of the Act provides :

"Subject to the provisions in this Act relating to limitation, all the provisions of the Indian Limitation Act, 1908, shall apply to suits, appeals and proceedings under this Act."

This provision, which is clear and specific, leaves no doubt that the provisions of the Limitation Act would apply to proceedings under the West Bengal Premises Tenancy Act, subject to the condition that if there is a provision in the West Bengal Act relating to limitation, that provision would prevail over the provisions of the Indian Limitation Act relating to limitation.

Since the West Bengal Act prescribes a specific period of limitation for filing an application for setting aside an order striking out the defence, namely, a period of 30 days cominencing on August 26, 1967 when the first Ordinance came into force, that period would undoubtedly apply to the making of F the application under section 17 A of the Act.

And since the appellant did not file his application under section 17-A before the due

date, that i"s to say, before September 25, 1967, the application must be held to be barred by limitation.

But, by reason of section 39 of the Act, all other provisions of the Limitation Act would be attrac-

G ted, including section 5 of the latter Act.

Whether the appellant has made out sufficient ground for the condonation of delay is another matter but, in view of the provisions of section 39 of the Act, it seems to us clear that the aPPlication filed by the appellant under section 5 of the Limitation Act for condonation of delay is maintainable and has to be decided on meri\s.

H The learned Single Judge of the Calcutta Court has referred in his judgment of June 3, 1969 to the provisions of section 39 but he

,.;._

took the view that sine c section 17 A lays down a special period of •

R. N. KAR v. GANGADAS ( Chandraohud, C.J.) 949

limitation for filing a petition to set aside an order striking ont the defence, that period could not be extended by invoking the provi" sions of the Limitation Act.

This view is unsupportable.

The true meaning and effect of section 39 is that if any special period of Jimi- 1ation is prescribed by the Act, that period will govern the proceeding under the Act in perference to the period, if any, prescribed by the Limitation Act.

But, apart from such an over-riding effect or of the period of limitation prescribed by the Act, not only that the other provisions of the Limitation Act do not stand excluded or superseded, but they are expressly made applicable by section 39 of the Act. When a Court condones the delay caused in filing a proceeding, it does not extend the period of limitation prescribed by law for filing it.

It treats the proceeding as if it is filed within limitation, which it has the power to do if sufficient cause is shown for not filing the proceeding within the prescribed period.

In M/s. Pokarmal Gurudayal v. Sagarmal Bengani(') a Division Bench of the Calcutta High Court took the view that section 5 of the Limitation Act would apply even to an application made for setting aside the decree passed after and following upon an order striking out of the defence.

We endorse the view of the High Court which, ex hypothesi, would justify the application of section 5 of the Limitation Act to an application for setting aside an order striking out the defence.

That leaves for consideration the question whether the appellant has tihown sufficient cause for not preferring his application within a period <>f thirty days after August 26, 1967. On this aspect of the matter, it is relevant to bear in mind that in the revision application filed by the appellant against the order striking out his defence, the High Court on September 16, 1963 had stayed all further proceedings in the suit.

If the appellant were to succeed in that revision application, the suit would have been required to be heard on merits and there would have been no reason or occasion for him to resort to the provision newly inserted by the Ordinance,, under which an application could be made for setting aside the order striking out the defence.

The appellant was evidently advised wrongly as regards the true legal position, as a result of which he awaited the disposal of his rnvision application.

He filed the application under section 1 7 A within 30 days of the date on which the revision application was dismissed.

The appellant acted bona fide in pursuing his remedy by way of a revision application which he had already filed and which, if successful, could have given him effective relief.

We are cSatisfied that he had sufficient cause for not filing the application under

(I) 76 C'akuita Weekly Notes 486.

950 SuPREMB COURT REPORTS [1979] 2 s.c.rr.

A section 17 A within the prescribed period.

Accordingly, tlie delay cauSed in filing that application must be condoned under section 5. of the Limitation Act and the application under section 17 A must he allowed ..

For these reasons, we allow the application filed by the appellant under section 17A of the Act, set aside the order dated July 25, 1963 B striking ont his defence and remit the matter back to the Trial Court for deciding the respondents' suit for eviction in accordance with Jaw.

The suit has been pending since September 1962 and we direct that it shall be disposed of expeditiously.

The appeal is accordingly allowed and the High Court's Judgment is set aside but without an order of costs.

V.D.K.

Appeal allowed.

• ""

RAJENDERA NATH KAR

GANGADAS & GANGADHAR RATH! & ORS.

V. D. TULZAPURKAR

A. P. SEN, JJ.

s. 5

Limitation Act, 1963

s. 17(i)

s. 17

Calcutta High Court

April 4, 1968

s. 17A

s. 17

s. 17A

Eection of the Limitation Act

s. 39

Limitation Act

s. 39

Section 39

Limitation Act

Limitation Act

Since the West Bengal Act

August 26. 1967

s. 17A

s. 17A

September 25, 1967

s. 39

Limitation Act

s. 17A

s. 17A

s. 5

Sukunlfir

CHANDRACJIUD

January 9, 1963

February 5, 1963

section 17

section 1

August 26, 1967

West Bengal Government

Section 17B

January 8, 1968

March 26, 1968

Section 17

section 17

Section 1

section 17

September 16, 1963

section 17

Indian Limitation Act, 1963

August 17, 1968

June 3, 1969

section 17

August 26, !

Section 5

Limitation Act, 1963

section 17

section 5

Limitation Act

section 17

Section 5

Limitation Act

section 5

section 17

section 39

Section 39

Indian Limitation Act, 1908

Limitation Act

Limitation Act

Since the West Bengal Act

section 17

section 17

section 39

Limitation Act

section 5

section 39

section 5

Limitation Act

Calcutta Court

section 39

section 17

Limitation Act

section 39

Limitation Act

Limitation Act

section 39

section 5

Limitation Act

section 5

Limitation Act

section 1

section 17

section 5

Limitation Act

section 17

section 17A

V.D.K.


CONTROLLER OF ESTATE DUTY,

KARNATAKA, BANGALORE v.

UMESH RUDRA

January 15, 1979

[P. N. BHAGWATI, D. A. DESAI AND A. D. KosHAL, JJ.]

Estat~ Duty Act, 1953, S. 10~ enjoyn1i>11t to tlic entire exclusion of t!ie donor, applicabi(ity when liusband is donor.

The deceased gifted his residential property to his W'lfe, but continued to live there with her.

On his death, while calculating the estate duty, the appellant indudcd the \'alue of the residential proprty, in the principal value of the estate, on the ground that the deceased continued to reside with the \Vifc, even after the gift. Upholding the High Cornt's judgment, and rejecting the special leave petition, the Court

HELD : Stction 10 cannot be construed in a n1anner which \Yould require the ln, sband who bas gifted residential house to the wife, to live Separately from her. \\!hen the wife obtains possession of the house and remains in enjoyment of D" it, it cannot be said that the husband who resid, es with the wife, is, on that account, in possession or enjoyment of the house so as to attract the applicability of Section JO. [952 B-D)

Mrs. Shanis111n Nelrar Mansur \'. Controller of lrstate Duty, West Blngal il ITR 301 : Sunil Roy v. Controller of Estate Duty, Calcutta, 77 ITR 667; Mohammad Blwi & Anr. v. Controller of Estate Duty,

A.P.,

69 ITR 770;

I'~ Kamla Pandt1foi v. Controller of Estate Duty, 105 JTR 531; approved.

Bibi Al11nedi IJc{lum v. Controller of Estate Duty, Cl.P .. 83 lTR 303, overruled.

CIVIL APPEi.LATE JURTSDICTIO:< : Special Leave Petition (Civil) No. 6311/78.

From the Judgment and Order dated 1-6-78 of the Karnataka High Court at Bangalore in T.R.C. No. I /75.

R. N. Sac/1they and Miss A. Subhasluzi for the Petitioner.

The Order of the Court was delivered by

BHAGWATI, J. This petition for special leave to appeal against an order of the High Court of Karnataka raises a qncstion of interpretation of section 10 of the Estate Duty Act, 1953.

The deceased made a gift of his residential property to his wife on 27th November, 1957 and on his death which occurred on 2nd August, 1963, the question arose whether the value of the residential property was liable to be included in the principal value of the estate passing on the death of the deceased nuder section 10. The argument of the Revenue was that even after the gilt the deceased continued to reside with the wife and, therefore, it

II!

SUPREME COURT REPORTS [1979) 2 s.c.R.

;\ could not be said that the wife retained possession and enjoyment of the residential property to the entire exclusion of the deceased and hence section I 0 was attracted. Now there can be no doubt that on a proper interpretation of section 10, the donee must retain possession and enjoyment of the property gifted to the entire exclusion cf the

donor, in order to repel the applicability of that section. But we do not see how in the present case it can at all be said that the wife did not retain possession and enjoyment of the residential house to the exclusion of the deceased, merely because the deceased in his capacity as husband continued to reside with the wife.

Section I 0 cannot possibly be construed in a manner which would require the husband who has gifted residential house to the wife to live separately from her, if he wants to escape from the mischief of that section. Such an interpretation would subvert family life and social order and would be contrary to morality and good sense. When the residential house is gifted to the wife and she obtains possession and remains in enjoyment of it, it cannot be said that the husband who resides with the wife, as in a happy family life every husband would be expected to do, is, on that account, in possession of the residential house or in enjoyment of it.

It is the wife who is in possession and enjoyment of the residential house and the husband, by reason of the marital ties, continues to reside with the wife.

We do not think that section 10 would at all be attracted in such a case.

We fmd that this view has been taken by the Calcutta High Court in Mrs. Sham.mm Nehar Mansur v. Controller of Estate Duty, West Bengal(') and Sunil Roy v. Controller of Estate Duty, Calcutta('), the Andhra Pradesh High Court in Mohammed Bhai and a1wther v. Controller of Estate Duty, (3) the Madras High Court in Kam/a Panda/al v.

Controller of Estate Duty,(•) and the Karnataka High Court in the

judgment under appeal and it commends itself to us.

We think that these High Courts rightly refused to apply section 10 to a case like the present where the hu.sband has gifted the residential house to the wife and thereafter continued to reside with the wifo in the residential house.

The contrary view taken by the Allahabad High Court in Bibi Ahmedi Begum v. Controller of Estate Duty, U.P. (') must be held to be erroneous.

We accordingly reject the special leave petition.

M. R.

Petition dismissed.

(I) 71 I.T.R. 301

(2) 77 I.T.R. 667.

\ 11 69 J.T. R. 770.

(4' 1051.T.R •. IJJ,

~S 8'3 IT.R, Jn3

' • •

UMESH RUDRA

January 15, 1979

P. N. BHAGWATI

D. A. DESAI

A. D. KosHAL, JJ.

Duty Act, 1953

S. 10

Karnataka High Court at Bangalore

R. N.

A. Subhasluzi

BHAGWATI

section 10

Estate Duty Act, 1953

section 10

section 10

section 10

Calcutta High Court

Andhra Pradesh High Court

Madras High Court

Karnataka High Court

section 10

Allahabad High Court

S 8