judgement:
iminal Appeal No.207 of 1969.
Appeal by special leave from the judgment and order dated September 11, 1969 of the Delhi High Court in Criminal Misc.
(Main) No. 53 of 1969.
V. A. Seyid Muhammad and section P. Nayar, for the appellant.
R. Jethamalani, Harjinder Singh, Kumar Mehta, H. K. Puri and Rameshwar Nath, for respondent No. 1.
Immediately after his arrest, he made a confession before a Magistrate.
Since then, he has been in custody part of the time under section 3 (2) (g) of the , part of the time as a convict in various offences for which he was convicted, and part of the time as an under trial prisoner.
The first regular case filed against him was under section 5 of the in which he was convicted on 29th January, 1965 and sentenced to undergo six month 's rigorous imprisonment after he had pleaded guilty.
While he was undergoing that sentence, a second case was filed against him for an offence under section 135 of the in which he was convicted and sentenced to nine months ' rigorous imprisonment and a fine of Rs. 2,000 again after he had pleaded guilty.
This conviction was recorded on 29th May, 1965.
After he had undergone this sentence, he was again put in detention under section 3 (2) (g) of the .
This detention was challenged by him by filing two writ petitions in the High Court of Punjab, and in this, Court, but both the writ petitions were dismissed.
Then, on 17th January, 1967, a case was filed in the Court of Miss K. Sen Gupta, S.D.M., New Delhi, for a substantive offence under section 135 of the , for an offence under section 120 B of the Indian Penal Code read with section 135 of the Customs ' Act and section 23 (1 ) (a) of the Foreign Exchange Regulations Act, and an offence under section 23 (1 ) (a) of the Foreign Exchange Regulations Act read with sections 109 and 114 of the Indian Penal Code.
The respondent again pleaded guilty, was convicted on 31st January, 1969, and was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 2,000.
In this case, 17 other persons were prosecuted as his co accused.
114 During the pendency of this case,, another case was filed in the Court of Shri N. C. Jain, S.D.M., New Delhi, on 18th March, 1968 against the respondent and 45 other persons charging them with offences under section 120, I.P.C., read with section 135 of the , section 167(81) of the and section 23 (1 A) of the Foreign Exchange Regulations Act, as well as substantive offences under section 135 of the , section 167(81) of the , and section 23(1 A) of the Foreign Exchange Regulations Act.
Having already been convicted for some of the offences, particularly the offence of conspiracy in the earlier case, on the 31st January, 1969, the respondent moved a writ petition in the High Court on 4th April,, 1969, for quashing these last proceedings on the ground that, having been convicted for a conspiracy earlier, he could not be retried for the same conspiracy, so that this trial was invalid.
In the alternative, the respondent prayed that, in case the proceedings are not quashed, the proceedings against him be separated from other co accused, his plea of guilty be recorded, and he be convicted in? accordance with law.
Two other alternative prayers were that, in case the first two prayers were not accepted, the trial Court may be directed to record the plea of guilty of the respondent and convict him in accordance with law even in the joint trial, and, in the alternative, the trial Court be ordered to take up the proceedings day to day and a time limit may be fixed by which the complainant should furnish the evidence against the respondent before the Court.
The High Court, by its order dated 11th September, 1969, accepted the plea of the respondent, held that this second trial for the offence of conspiracy was barred as a result of the earlier trial in which the respondent had been convicted on 31st January, 1969, and, consequently, quashed the proceedings in respect of this offence.
The Court also quashed the proceedings in respect of specific offences under section 135 of the and section 23(1 A) of the Foreign Exchange Regulations Act insofar as they related to smuggling of 52 kilograms of gold into India on or about 8th May, 1964 on the ground that the respondent had already been convicted and sentenced in respect of these offences.
The High Court, however, added a sentence that, if the respondent is accused of any other specific acts of smuggling , there will be no bar against the continuation of prosecution proceedings in respect of them.
It is this order which has been challenged before us in this 'appeal by special leave.
In this case, it was very unfortunate that, when the writ petition was heard by the High Court, the very first confession made by the respondent, which was to a great extent the basis of the various prosecutions, was not placed before the High Court and was not brought to its notice.
Obviously, there was carelessness on the part of the prosecution in not bringing it to the notice of 115 the High Court.
At the same time, the respondent, who had challenged the prosecution, also owed a duty to bring that confession to the notice of the High Court as the burden lay on him to show that the prosecution going on against him was illegal and liable to be quashed; and he had moved the High Court to exercise its extra ordinary writ jurisdiction to obtain this relief.
In his writ petition, the respondent had offered to produce the copy of the confession for perusal of the Court, but the Court lost sight of this offer and proceeded to pass the order without examining the confession.
The importance of this omission lies in the fact that a reading of the confession itself makes it manifest that there were two different and separate conspiracies, one which was, headed by a person known as Abid Hussain, and the other by another person known as Allau din.
The respondent, in the confession, made statements which indicated that these two conspiracies were distinct and separate ones, though a few of the persons involved in the two conspiracies were common.
In fact, the confession showed that, at one stage, he was given in structions by the head of one of the conspiracies to see that his part in that conspiracy did not come to the knowledge of the head of the other conspiracy.
It is true that, at the initial stage, the customs authorities, even after, the confession, proceeded on the view that, very likely, there was one single conspiracy and that the respondent had incorrectly tried to show that there were two separate conspiracies in which he was involved.
That appears to be the reason why, at the early stages, in the various documents put forward before the courts, the authorities used language indicating that there was one single conspiracy in respect of which the respondent was being held in custody and was going to, be prosecuted.
It appears that it was much later, after detailed investigation, that the authorities became satisfied that there were two separate conspiracies and, consequently, came forward with a second prosecution of the respondent in respect of the conspiracy which was not the subject matter of the first complaint on the basis of which the respondent was convicted on 31st January, 1969.
That the authorities were under the impression that there was only one single conspiracy at the earlier stages is apparent from the facts stated in the complaint dated 5th April, 1965 in respect of the substantive offence under section 135 of the , and even later, in an affidavit filed on 5th January, 1966 by the Under Secretary to Government in reply to the habeas corpus petition filed by the respondent in the High Court, the allegations made out as if there was one single conspiracy which was engineered by a syndicate headed by Abid Hussain.
Even at the time of the prosecution for the first conspiracy on 17th January, 1967, the facts given in the complaint created the impression that there was one single conspiracy and that Allau din was one of the conspirators in that conspiracy and was not the head of that 116 separate conspiracy for which the respondent and 17 others were prosecuted.
These circumstances were partly explained in a later affidavit of H. K. Kochhar, Assistant Collector of Customs, sworn on 12th May, 1969, and filed in the High Court in reply to the petition under article 226 of the Constitution on which the High Court passed the present impugned order.
The High Court preferred to attach greater weight to the affidavit of the Under Secretary to Government and did not choose to act at all on the affidavit of H. K. Kochhar, considering that the former affidavit was by a senior officer on behalf of the Government, while the,, latter affidavit had been sworn by an Assistant Collector of Customs only.
In adopting this course, the High Court lost, sight of the.
circumstance that the affidavit of the Under Secretary was filed in January, 1966 when the investigation of the various facts was at a fairly early stage, while Kochhar 's affidavit was filed in May, 1969, by which time fuller investigation had been made by the authorities and they had discovered that their first impression that there was one single conspiracy was incorrect.
The position has been further clarified before us in the affidavit of the Collector of Customs, R. Prasad, filed in reply to the petition for revocation of special leave to appeal on the basis of which this appeal has 'been heard by us.
These facts made it clear that the High Court misdirected itself in accepting the plea of the respondent and in quashing the proceedings.
In fact, Mr. Jethmalani, counsel for 'the respondent, did not make any serious effort to justify the order of the High Court after we had gone through the confession of the respondent, so that it is obvious that the order of the High ,,Court quashing the proceedings was not justified.
Mr. Jethmalani, however, urged that, even though the order of the High Court may not be justified, the circumstances of this case do not require that this Court should exercise its special powers under article 136 of the Constitution to order a trial of the respondent and reopen the proceedings.
He drew our attention to two decisions of this Court K.V.Krishnamurthy Iyer and others vs The State of Madras(1), and The State of Bihar vs Hiralal Kejriwal and another(2) in which this Court declined to ,order a re trial in exercise, of its powers under article 136 of the ,Constitution even though the orders in which the trials had terminated were held to be incorrect and set aside.
In both the .,cases, the principle laid down was that public interest or th interest of justice did not require that there should be a fresh trial.
Reliance was also placed on the views expressed by 'Bombay High Court in Chudaman Narayan Patil vs State of Maharashtra(3).
On the basis of the views expressed in those (1) A.I.R. 1954 S.C. 406.
(2) [1960] 1 S.C.R. 726.
(3) A.I.R. 1969 Bom.
117 cases, he urged that, in this case, the respondent had been in. custody for a period of about six years since his arrest and was being harassed by prosecutions launched one after the other, while.
being kept in custody under section 3 (2) (g) of the .
during the period when he could not be detained either as a convict or as an under trial prisoner.
He also emphasised the frank confession of his part in the conspiracies and that, every time.
frank confession of his part in the conspiracies and that, everytime a case was brought up against him, he stuck to that confession.
and pleaded guilty in court.
He was also given the impression, when the earlier case of conspiracy was started on 17th January., 1967, that after the trial of that case, his woes will be over and.
he will not have to face any further trials.
We have considered these aspects, but we do not think that.
this is a fit case where we should uphold the order of the HighCourt quashing the proceedings which were validly started and which related to an entirely distinct and separate offence of cons piracy apart from the one for which the respondent has already been convicted.
The offences for which he is now being tried.
are of such a nature that they may have far reaching implications, and we do not think that it will be in the public interest that the trial should be given up merely because there has been delay in, sending up the case.
The case related to a conspiracy and we can very well appreciate that investigation of an offence of cons piracy is necessarily prolonged and requires considerable work by the investigating authorities, so that certain amount of delay is bound to take place in putting the case before the court.
In the present case, the matters appear to have been complicated by the fact that, at the earlier stages, the authorities were under the impression that there was one single conspiracy.
We are unable to find any material to suggest that the prosecution have deliberately prolonged the investigation or delayed bringing the case before the court.
We may also add that we are not impressed by the argument advanced by Mr. Jethmalani that the respondent could have been charged for this conspiracy even in the earlier case in which he was convicted on 3 1 st January, 1969 under the provisions of section 236 of the Code of Criminal Procedure, because the two conspiracies, according to the prosecution, are two entirely separate and distinct ones and are not based on allegations of identical acts having been committed by the offenders.
In this case, therefore, it appears to be appropriate that the respondent should be tried for the conspiracy on the basis of which proceedings are being taken which have been quashed by the High Court.
We, however, consider that, in view of the long delay and in view of the circumstance that the respondent has been pleading 118 guilty, his second alternative request in the writ petition is justified.
Merely because he is a co accused with 45 others there is no justification that he should be subjected to a prolonged trial, specially because we have been assured by the counsel for the respondent that the respondent is still sticking to his confession and will, very likely, plead guilty as soon as a charge is framed against him.
In the circumstances, while allowing the, appeal and setting aside the order of the High Court, we direct that the trial of the respondent shall be separated from all other 45 co accused and will be proceeded with separately.
Dr. Seyid Muhammad, counsel for the appellant, opposed this separation of the trial of .the respondent on the ground that, if there is a joint trial, the confession of the respondent can be taken into account by the court trying the case against his co accused which will not be permissible if the respondent is separately tried. '.
That is no ground for unnecessarily delaying the trial of the, respondent specially when, if the prosecution desire, they can either apply to the Court to make the respondent an approver or can even produce the respondent as a witness in the case against others after his ,conviction.
In fact, if any of these two alternative courses is adopted.
it will be fairer to the other co accused who will then have an opportunity of cross examining the respondent before his statement is taken in evidence against them.
On our enquiry, Dr. Seyid Muhammad stated that it will be 'possible for the prosecution to produce sufficient evidence to make out a prima facie case on the basis of which a charge can be framed by the court, if a period of two months is allowed to the prosecution to produce evidence in the trial.
On behalf of the respondent, a request was made that we.
should fix a timelimit for completion of the whole trial in view of the long delay.
We, however, consider that it is sufficient to make a direction that the Magistrate will allow a period of not more than two months to the prosecution to produce evidence to make out a prima facie case against the respondent, calculated from the date on which .the copy of our order is received by the trial Court.
On the expiry of the period of two months, the Court will proceed either to frame a charge or to discharge the respondent in accordance with his judgment whether the evidence produced does or does not make out a prima facie case to justify framing of a charge.
It is to this extent only that we are laying down a time schedule for the trial Court which we consider necessary to avoid possible harassment of the respondent.

summary:
The respondent was a Pakistani national and was arrested on 8th May 1964, and immediately after his arrest he made a confession before a Magistrate.
The confession disclosed that he was involved in two different and separate conspiracies with various co accused.
But the customs authorities assumed that there was only one conspiracy and that the respondent had incorrectly shown two separate conspiracies.
Three cases were filed against him charging him with offences under the , and , and the offence of conspiracy and other offences under various enactments.
He was convicted on his plea of guilty and sentenced to various terms of imprisonment.
He was also detained under the .
After fuller investigation, the respondent was again put up for trial for the second conspiracy and for offences under other Acts.
The respondent moved the High Court for quashing the proceedings on the ground that he having been convicted for a conspiracy could not be retried for the same offence again.
He also pleaded various alternatives in the event of the Court not quashing the proceedings, and one of the pleas was that proceedings against him should be separated from other co accused and his plea of guilty be accepted.
The High Court quashed the proceedings.
In appeal to this Court, HELD : (1) Since the second trial was for a different and distinct conspiracy, the High Court 's order was not justified.
[117 D] (2) Since the offences for which the respondent was being tried were likely to have far reaching implications, it was not in the public interest that the trial should be given up merely because, he had already served various terms of imprisonment, or there has been delay in putting him up for trial for the second conspiracy, especially when there was no material to suggest that the prosecution deliberately prolonged the investigation or delayed bringing up the case before Court.
Further, the trial for the second conspiracy could not have been combined with the earlier one, because, the two are separate and distinct.
[117 D E] (3) In the circumstances however, his alternative plea of separating his case from the other co accused should be accepted and the prosecution allowed a period of not more than two months for producing the evidence so that the court could on a consideration of the evidence, either frame a charge or discharge the respondent.
The contention of the prosecution that he should be tried along with the others to enable the court to take his confession into consideration against the co accused is, not a ground 113 for joint trial especially when the respondent could be called as a witness against the other co accused.
1118 B)


judgement:
minal Appeal.
No.97 of 1968.
Appeal by special leave from the judgment and order dated April 24, 1967 of the Bombay High Court in Criminal Appeal No. 317 of 1967.
R. M. Hazarnavis, K. L. Hathi and P. C. Kapoor, for the appellant.
M. section K. Sastri and section P. Nayar, for the respondent, The Judgment of the Court was delivered by Hidayatullah C.J.
This is an appeal by Narayan Nathu Naik who was tried by the Sessions Judge, Thana for the murder of one Rattan on the night following 18th March, 1966 at about midnight.
He was convicted by the Sessions Judge under section 302. 134 of the Indian Penal code and sentenced to imprisonment for .life.
His appeal to the High Court was summarily dismissed .although the High Court recorded a brief note of the arguments which were raised before it and the replies to those arguments repelling them.
It is contended in this case that the appellant was entitled to at least one appeal and that his first appeal should have been properly considered in the High Court and the judgment of the High Court,, which according to the .learned counsel, reads like a dialogue between the court and counsel, is no judgment at all.
It appears that special leave was probably granted in this case, because of the unsatisfactory manner in which reasons were recorded.
The High Court need .not have recorded reasons if it was satisfied that the case was ,one for dismissal but if it thought that it had to go into the . evidence and to discus it, the proper course would have been to set the case down for a proper hearing and to give a con sidered judgment in the case.
We have considered this case on the evidence brought against the appellant and we are satisfied that the appeal must fail.
We give our reasons briefly.
There is some evidence that the appellant Narayan Nathu Naik and the deceased Rattan had some quarrel over property.
This, it is contended, was somewhat old and not very serious and that nothing untoward had happened, for the appellant to .have suddenly embarked upon the murder of rattan.
We need not consider the question of motive in this case if we are ,satisfied that the evidence that Narayan Nathu Naik was the assailant of Rattan, is acceptable.
The Medical evidence showed that Rattan died of a single injury which was a stab wound through the heart.
The left ventricle was cut and the heart was drained of all blood.
The pericardium had also a tear but on its upper reach and the evidence of the doctor who performed the autopsy shows that the pericardium was full of blood.
The clothes of the deceased were also profusely stained but no blood was found inside the house where the deceased was first sleeping, but some blood was found at the Ota where the dead body was found but the source of the blood could not be identified.
From this the learned counsel raised the contention that the scene of offence was probably not what the prosecution case described and his contention is wound up with the rest of the story given by the eye witnesses particularly the wife who named the appellant as one of the assailants.
Therefore we must turn to that story.
On the day in question, the deceased Rattan had gone to make some purchases.
At night he had not returned when the family took their meals and lay down to sleep.
In the house at that time were Rattan 's mother, Rattan 's wife and Rattan 's 135 'brother.
There were three students who had .,come to this house and were staying to appear at the S.S.L.C. examination.
The family distributed themselves as follows.
Inside the house Rattan 's wife lay down on the ground on a bed with her infant child.
The bed for Rattan was made on a swing nearby.
A lantern was burning and the door of the house was open.
Rattan returned at about 10 P.M. in the night.
As food had been taken by the rest of the family, a portion was set apart for Rattan.
According to his wife, Vimalabai, he took his meals without waking her up and after he had washed his hands, he threw some water on her face which woke her up.
He then lay down on the swing to sleep.
Vimalabai says that she also lay down to sleep and presumably she must have slept, because she says that she was woken up in the middle of the night by shouts from her husband.
Vimalabai 's evidence is that when she woke up, she found that her husband was in the grip of the appellant Narayan Nathu Naik at the door near the ota.
Rattan 's brother Kamlakar who had also been awakened by the shouts of the deceased also arrived there, but the appellant had stabbed Rattan.
Kamlakar caught hold of the appellant from behind around his waist, but when Rattan fell on the ground the appellant broke loose and ran away.
On their shouting and wailing, Jairam the uncle of Rattan (P.W.1.) and two other brothers of Rattan came on the scene.
They were living at a distance of about 1 1/2 furlongs from the house of Rattan.
Rattan is said to have spoken to his mother before he died that it was Narayan Nathu Naik who had attacked him.
The evidence is that it was Narayan Nathu Naik and this is brone out by the statements of Kamlakar (P.W.3), Manibai (P.W.4) and Vimlabai (P.W.5).
The two students who were also witnesses in the case made a state ment before the police involving Narayan Nathu Naik, but they later changed in the court and were declared hostile and cross examined.
We shall refer hereafter to their testimony in so far as they have admitted facts in support of the prosecution case.
The story therefore is of an attack in the middle of the .night upon Rattan by the appellant at the door of his hut.
The incident is said to have been witnessed by three persons whom we have mentioned and who are close relations of the deceased.
The argument is that the evidence of these witnesses should not be accepted because of their interest in Rattan and also because of certain contradictions in their testimony.
Apart from the fact that the High Court and the Court of Session have accepted their testimony and this Court does not go into evidence for the third time, we have read the evidence 136 of these witnesses and we have thoroughly checked it and we are satisfied that what has been stated by these witnesses is the true version of what happened on that fateful night.
The story is a simple one, of an attack in the middle of the night by an ,assailant who was not only grappled with but was seen and identified in the light.
The witnesses who have resiled have also stated that die occurrence took place at the door of the cottage.
They have also stated that there was sufficient light for them to see although they changed that they did not see the assailant nor heard what the victim stated to his mother about the appellant having assaulted him.
This version comes from the witnesses who no doubt are interested, but they are not interested enough to let the real assailant escape and charge someone else.
Report of this case was made almost immediately and in fact the police arrived within a couple of hours and the state ments were recorded the very next morning.
There was no time available to concoct a false case with such details against the appellant.
It was argued that the first information report was not pro perly recorded in the prescribed form but was writen down on a piece of paper and it was copied into the register for first information reports.
At first it was suggested that the first information report in the printed form was not produced in the case, but we find that it was so produced and that the Sub Inspector stated that he had copied it from a plain paper.
In our experience, we have seen several first information reports recorded on plain pieces of paper and then transcribed into the first information report register.
In fact if a written report is brought, it is verbatim copied into the first information report register.
There is no doubt that this was the first version of the incident given out by P.W. 1 Jairam when he went to the police station house to report about the occurrence.
There was no time to bring a false case against the appellant and to let the real assailant escape.
On the whole, we are satisfied that the evidence of the eye witnesses is believable.
The witnesses who resiled were the two students who were present at the house for the purpose of appearing at an examination.
They have answered a number of questions which clearly corroborate the evidence of the other witnesses.
For example, P.W. 7 Chintaman Gangaram Kulkarni stated that the light of some lamp was coming outside the door of the house and that when Kamlakar caught hold of the assailant Rattan fell down on the ground near the door of the Ota.
He also stated that Rattan 's mother went inside the house, brought water, tried to give water to Rattan, but he did not drink.
He also stated 137 that after hearing the cries,, Rattan 's uncles, his sister and her husband came there.
He admitted that Kamlakar told his uncle what had happened, he did not hear it.
He admited that it was true also that thereafter one of the uncles of the deceased Rattan.
went to the police station to make a report.
The other witness (P.W. 10) also stated quite clearly that at about 3 or 4 A.M. the police came to the, house and that his statement and those of two companions were recorded by the police at 7 A.M. the next morning.
He also admited that they all woke up when they heard the cry in the middle of the night and that Rattan 's, wife had also awakened and she had stood in the door of the house.
He admitted that the light was burning in the house and the door of the house was open and that the light of the lamp.
had spread over the ota of the house through the open door.
He also admitted that Rattan 's mother brought water from the house and poured in into the mouth of Rattan but he did not drink and all the inmates were crying aloud with the result that Rattan 's uncle Jairam, his two brothers, Rattan 's sister and her husband came there immediately after the crime.
Jairam made enquiries with Kamalakar and Naibai how it had happened and that Kamlakar told something to Jairam but he said that he did not hear it.
All this corroborates the evidence of the, three eye witnesses except as to the identity of the appellant.
We accept the evidence of the eye witnesses.
The medical evidence was used to challenge the scene of offence on the ground that there were no blood marks found, but, in our opinion, the man might bleed internally after receiving, stab wound in the heart.
The witnesses have stated that Rattan was stabbed on the spot where the body was found after the occurrence took place.
Blood was in fact found at the spot but the source of the blood could not be ascertained There is no, reason to think that it was blood of some animal.
On the whole we are satisfied that this case was proved satisfactorily.
The appeal.
therefore, fails and is dismissed.
Y.P. Appeal dismissed '.

dataset_name: IN-Abs

summary:
The first information report in a murder case was written on a piece of paper, and was copied into the register for first information reports.
The Sessions Judge convicted the appellant on the evidence, even though the first information report was not recorded in the prescribed form.
His appeal to the High Court was summarily dismissed although the High Court recorded a brief note of the arguments which were raised before it and the replies to those arguments repelling them.
Dismissing the appeal, this Court HELD : The High Court need not have recorded reasons if it was satisfied that the case was one for dismissal but if it thought that it had to go into the evidence and had to discuss it, the proper course would have been to set the case down for a proper bearing and to give a considered judgment in the case.
The first information report was properly written.
Several first information reports are recorded on plain pieces of paper and then transcribed into the first information report register.
In fact if a written report is brought, it is verbatim copied into the first information report register.
In this case there was no time to bring a false case against the appellant and to let the real assailant escape.
[134 C; 135 E F] On the evidence, the appellant was rightly convicted.


judgement:
Appeal No. 431 of 1967.
Appeal by special leave from the judgment and decree dated September 1, 1966 of the Andhra Pradesh High Court in Second Appeal No. 719 of 1962.
R. Venugopal Reddy and K. Jayaram, for the appellants.
B. Parthasarathy, for the respondent.
The Judgment of the Court was delivered by Hegde, J.
The point in controversy in this appeal by special leave is whether the properties in dispute herein constitute a hereditary archakatwam service inam granted to the plaintiff 's predecessors or whether they are the properties of the appellant temple.
The High Court and the courts below have come to the conclusion that the appellant 's contention that it is the owner of the suit properties is barred by res judicata.
That conclusion is challenged in this appeal.
In the suit under appeal the respondent who is an archaka in the appellant temple prayed for a declaration that the suit properties had been granted to his family as archakatwam service Inam land and that the appellant has no right therein.
He has also asked for an injunction restraining the appellant from interfering with his possession and enjoyment.
The appellant denied the respondent 's claim.
The High Court as well as the appellate court have upheld the respondent 's claim on the ground that the appellant 's claim is barred by res judicata.
130 In 1931 the Madras Religious Endowments Board framed a scheme for the better management of the appellant temple.
At that time the question arose whether the suit properties were the properties of the temple.
The respondent 's family put forward the claim that those properties had been granted to them as archakatwam service inam and consequently those properties were not temple properties.
That contention was accepted by the Board.
It is said that the said decision operates as res judicata against the claim made by the appellant.
On behalf of the appellant it was urged that the proceeding before the Board under section 57(1) of the Madras Religious & Charitable Endowments Act, 1927 (in short the Act) was a summary proceeding, the question as to the title to the suit properties was not directly and substantially in issue in that proceeding and as such the decision in question does not operate as res judicata in the present suit.
Section 57(1) as it stood in 1931 reads thus "When the Board is satisfied that in the interest of the proper administration of the endowments of a temple, a scheme of administration should be settled, the Board may after consulting in the prescribed manner, the trustee, the committee, if any and the persons having interest by order settle a scheme of administration for the endowments of such temple".
Sub section (3) of that section says "Every order of the Board under this scheme shall be published in the prescribed mariner.
The trustee or any person having interest may within six months of the date of such publication institute a suit in the court to modify or set aside such order.
Subject to the result of such suit every order of the Board shall be final and binding on the committee, the trustee and all persons having interest.
" It is not disputed that the decision of the Board holding that the properties in question were archakatwam service inam lands was not challenged by means of a suit under section 57(3).
Therefore the said decision has become final.
We have now to see what is the effect of the finality in question.
According to the appellant as the title to the suit properties was not directly and substantially in issue in the proceeding before the Board and the decision thereon being only incidental, the same cannot operate as res judicata.
In support of the contention that the decision rendered by the Board was only an incidental one, it was urged that the essential purpose of framing of a scheme for the management of temple is 131 to see that the temple 's administration is carried on properly; and" in such a proceeding it is not necessary to determine what all properties the temple owns.
We are unable to accede to this contention.
A scheme framed for the better management of a temple must necessarily show therein the properties of the temple.
Before deciding to frame a scheme the authority framing the scheme must know the nature and extent of the trust funds.
There can be no scheme of management of a temple in vacuum.
As observed by the Judicial Committee in Chotalal Lakhmiram and ors.
vs Manohar Ganesh Tambekar and ors.(1) : "Until the trust funds are ascertained, it seems impossible that any scheme can be settled." Varadachariar J. in (Sri Mahant) Sitaram Dass Bavaji vs Madras Religious Endowment Board, Madras and OrS;(2) observed.
that the power given by section 63 to the Board for framing a scheme for the management of a mutt, a power similar to that conferred on the Board under section 57 for framing scheme for the management of a temple carries with it the power to settle what the properties of the institution are.
A scheme for proper administration of a temple must necessarily provide for the proper administration of its assets.
The persons empowered to manage must know what properties are to be governed by the scheme and what the resources of the temple are.
It is not correct to say that the power conferred on the Board.
under section 57 is a summary power as urged by the learned Counsel for the appellant.
A decision rendered by the Board under that section is final subject to the result of the suit contemplated in the said section.
Section 57 provides for an exhaustive enquiry in the matter of framing scheme, firstly by the Board and then by the Court.
The trial before the court has to be held in the same manner as any other suit that may be instituted under the provisions of the Civil Procedure Code.
In Arikapudi Balakotayya vs Yadlapalli Nagayya(3); a Division Bench of the Madras High, Court held that the order made by the District Court under section 84(2) of the Act operates as res judicata in a subsequent proceeding.
Under section 84(1) the Board is given Dower to decide if any dispute arises as to (a) whether an institution is a math or temple as defined in the Act; (b) whether the trustee is a hereditary trustee a_ defined in the Act or not and (c) whether any property or money endowed is a specific endowment as defined in the Act or not.
(2) of that section provides that any person affected by a decision under sub section
(1) may, within six months apply to the Court to modify or set aside that decision.
Sub s (3) thereof provides for (1) I.L.R. XXIV Bom.
p. 50.
(2) A.I.R. 1937 Mad. 106.
(3) A.I.R. (33) 132 an appeal to the High Court against the order of the District Judge.
Sub section
(4) of that section provides that subject to the result of an application under sub section
(2) or an appeal under sub section
(3), the decision of the Board shall be final.
In Balakotayya 's case( '1) while examining the effect of a decision under section 84(2), it was observed that the doctrine of res judicata is (not confined to a decision in a suit it applies to decisions in other proceedings as well.
But how far a decision which is rendered in other proceedings will bind the parties depends upon other considerations one of which is whether that decision determines substantial rights of parties and the other is whether the parties are given adequate opportunities to establish the rights pleaded by them.
The doctrine of res judicata is not confined to the limits prescribed in section 11, Civil Procedure Code.
The underlying principle of that doctrine is that there should be finality in litigation and that a person should not be vexed twice over in respect of the same matter.
In the proceedings with which we are concerned in this appeal one of the important question the Board had to decide was whether the properties in dispute are archakatwam service inam properties.
The Board 's decision which was adverse to the temple, affected the rights of the temple in a substantial manner.
It was open to the temple to get its right established by means of a suit under section 57(3).
It failed to take that step.
Therefore the decision of the Board has become final and binding on the temple.
In State of Madras vs Kunnakudi Melamatam alias Annathana Matam(2) this Court held that a decision of the Board under section 84(1) which had become final in the absence of any application to the court to set aside that decision under section 84(2), holding that the institution was outside the purview of the Act, bars the board from levying any contribution on the institution under the Act subsequently.
In our judgment the decision of the Board in 1931 that the suit properties are not temple properties operates as res judicata in the present proceeding.
In the result this appeal fails and the same is dismissed with costs.
G.C. Appeal dismissed.
(1) A.I.R. (33) (2) (1962) 2 M.L. J. p. 13.

summary:
In 1931 the Madras Endowments Board framed a scheme for the better management of the appellant temple.
At that time the question arose whether the suit properties were the properties of the temple.
The respondent 's family put forward the claim that those properties had been granted to them as archakatwam service inam and consequently those properties were not temple properties.
That contention was accepted by the Board.
The Board 's decision was not challenged by the appellant by a suit under section 57(3) of the Act.
The suit under appeal was filed by the respondent praying for a declaration that the suit properties had been granted to his family as archakatwam service inam, and that the appellant had no right therein.
An injunction restraining the appellant from interferring with the respondent 's possession was also prayed for.
The appellant resisted the claim.
The lower courts as well as the High Court upheld the respondent 's claim on the ground that the appellant 's claim was barred by res judicata.
In this Court it was urged on behalf of the appellant that the Board 's decision could not be regarded as res judicata because (i) the proceeding before the Board was a summary proceeding, (ii) the question as to the title of the suit properties was not directly and substantially in issue in that proceeding since the essential purpose of the framing of a scheme for the management of a temple is to see that the administration is carried on properly and not to determine what properties the temple owns.
HELD: (i) It is not correct to say that the power conferred on the Board under section 57 is a summary power.
A decision rendered by the Board under that section is final subject to the result of the suit contemplated in the said section.
Section 57 provides for an exhaustive enquiry in the matter of framing scheme, firstly by the Board and then by the Court.
The trial before the Court has to be held in the same manner as any other suit that may be instituted under the provisions of the Civil Procedure Code.
[131 E F] (ii) (a) The doctrine of res judicata is not confined to a decision in a suit but it applies to decisions in other proceedings as well.
But how far a decision which is rendered in other proceedings will bind the parties depends upon other considerations one of which is whether the decision determines substantial rights of parties and the other is whether the 'parties are given adequate opportunities to establish the rights pleaded by them.
The doctrine of res judicata is not confined to the limits prescribed in section 11 Civil Procedure Code.
The underlying principle of that doctrine is that there should be finality in litigation and that a person should not be vexed twice over in respect of the same matter.
[132 B C] 129 (b) A scheme framed for the better management of a temple must necessarily show therein the properties of the temple.
Before deciding to frame a scheme the authority framing the scheme must know the nature and extent of the trust funds.
There can be no scheme of management of a temple in vacuum.
[131 A B] In the previous proceedings one of the important questions the Board had to decide was whether the properties in dispute were archakatwam service inam properties.
The Board 's decision which was adverse to the temple affected the rights of the temple in a substantial manner.
It was open to the temple to get its right established by means of a suit under section 57(3).
It failed to take that step.
Therefore, the decision of the Board in 1931 that the suit properties were not temple properties operated as res judicata, and the appeal must fail.
[132 D G] Chotalal Lakhmiram & Ors.
vs Manohar Ganesh Tambekar & Ors.
I.L.R. XXIV Bom.
p. 50, (Sri Mahant) Sitaram Dass Bavaji vs Madras Religious Endowment Board, Madras, A.I.R. 1937 Mad. 106, Arikapudi Balakotayya vs Yadlapalli Nagayya, A.I.R. (33) and State of Madras vs Kunnakudi Melamatam alias Annathana Matam, , applied.


judgement:
minal Appeals Nos.
153, 155 and 172 of 1967.
139 Appeals by special leave from the judgment and order dated April 3, 1967 of the Bombay High Court in.
Criminal Appeals Nos. 617, 621, 619 and 620 of 1965.
A. section R. Chari, N. H. Hingorani and K. Hingorani, for appellant No. 1 (in Cr. A. No. 153 of 1967).
N. H. Hingorani and K. Hingorani, for appellant No. 2 (in Cr. A. No. 153 of 1967).
A. section R. Chari, and N. N. Keswani, for appellant (in Cr. A. No. 155 of 1967).
W. section Barlingay and A. G. Ratnaparkhi, for the appellant (in Cr. A. No. 172 of 1967).
M. section K. Sastri and section P. Nayar, for the respondent (in all the appeals).
The Judgment of the Court was delivered by Dua, J.
The four appellants in these three appeals by special leave were tried in the court of the Special judge for Greater Bombay on a charge of conspiracy punishable under section 120 B, I.P.C. Accused No. 1 (Shiv Kumar Lokumal Bhatia) was a godown clerk; accused No. 2 (Hargun Sunderdas Godeja) was the Senior Godown Keeper and accused No. 3 (Hundraj Harchomal Mangtani) was the Godown Superintendent at the General Motors Godown at T Shed, Sewri, Bombay, belonging to the Food Department of the Government of India.
Accused No. 4 (Shankar Maruthi Phadtare) was a driver of Truck No. 2411.
The allegation against them was that all these accused during the month of July, 1963 were parties to criminal conspiracy to commit criminal breach of trust in respect of 1060 bags of red wheat which were released from the ship section section Hudson on July 7, 1963 at Bombay for storing them in the G M.2 Godown at Sewri.
In pursuance of this conspiracy, it was alleged, they had dishonestly and fraudulently misappropriated or converted to their own use 80 bags of red wheat out of 1060 bags released from the ship.
Accused Nos. 1, 2 and 3 were also charged under section 409 read with section 34, I.P.C., section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act.
1947 read with section 34, I.P.C., section 5(2) read with section 5(1) (c) of the Prevention of Corruption Act read with section 34, I.P.C. and section 477 A read with section 34, I.P.C. The learned Special Judge on a consideration of the evidence on the record held that the prosecution has succeeded in proving conspiracy on the part of all the four accused to commit 140 criminal breach of trust in respect of the 80 bags offered wheat Accused Nos. 1, 2 and 3 were also held to have gained pecuniary advantage and further to have altered the records of the T Shed.
Holding the offences to be serious in view of the general shortage of foodgrains in the country the court felt that the case called for deterrent sentences.
Under section 120 B I.P.C. all the accused were sentenced,, to rigorous imprisonment for four years.
Accused Nos. 1, 2 and 3 were in addition held guilty under section 409, I.P.C. read with section 34, I.P.C. and under section 5 (2) read with section 5 (1) (c) of the Prevention of Corruption Act read with section 34, I.P.C., under section 5(2) read with section 5(1)(d) of Prevention of Corruption Act read with section 34, I.P.C. and also under section 477 A read with section 34, I.P.C. and sentenced to rigorous imprisonment for four years on each of these four counts,.
the sentences to be concurrent.
On appeal the High Court confirmed the order of the trial court as against accused No. 4 and dismissed his appeal.
The conviction of accused No. 1 under section 5(2) read with section 5(1) (c) of the Prevention of Corruption Act read with section 34, I.P.C. was set aside.
But his conviction and sentence under section 120 B, I.P.C. and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act read with section 34, I.P.C. as also under section 477 A read with section 34, I.P.C. was confirmed.
His conviction under section 409 read with section 34, I.P.C. was altered to one under section 409, I.P.C. but without altering the sentence.
The convictions of accused Nos. 2 and 3 under section 409, I.P.C. read with section 34, I.P.C. as also under section 5 (2) read with section 5 (1 ) (c) of the Prevention of Corruption Act read with section 34, I.P.C. were set aside but their conviction and sentence under section 120 B, I.P.C. and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act read with section 34, I.P.C. was confirmed.
In this Court Shri Chari questioned the appellants convic tion on the broad argument, which was indeed the main plank of his challenge against the impugned order, that there was great confusion in the matter of storage of stocks of the foodgrains in the T Shed and there was complete want of regularity and considerable inefficiency in the matter of keeping the records of the arrivals and storage of the stocks with the result that it would be highly unsafe to rely on the evidence relating to the records of the stocks in the T Shed, for holding the appellants guilty of the criminal offences charged.
The learned counsel appearing on behalf of the other appellants, while generally adopting Shri Chari 's arguments, supplemented them by reference to the distinguishing features of the case against their indi vidual clients.
141 The counsel in the course of their arguments emphasised that the prosecution, in order to prove the negative, has the difficult task of affirmatively establishing by unimpeachable evidence that 80 bags which were the subject matter of the charge were in fact not received in the T Shed.
The prosecution must, said the counsel, bring the charge home to every accused person beyond reasonable doubt.
The submission as developed by all the counsel representing the appellants did seem on first impression to be attractive but on a deeper probe we consider it to be unacceptable.
It is no doubt true that the onus on the prosecution is of a negative character and also that the failure on the part of the accused to give evidence on the question as to when, where and to whom.
the controversial 80 bags were delivered at the point of unloading a fact on which the driver of the truck and those whose duty it was to receive the goods at the T Shed could give the best and the most direct information cannot under our law give rise to any presumption against them.
The criminal courts holding trial under the Code of Criminal Procedure have accordingly to bear in mind the provisions of section 342 A of the Code and to take anxious care that in appreciating the evidence on the record and the circumstances of the case, their mind is not influenced by such failure on the part of the accused.
But that does not mean that such negative onus is not capable of being discharged by appropriate circumstantial evidence.
If the circumstantial evidence which is trustworthy and which with unerring certainty establishes facts and circumstances the combination of which, on reasonable hypothesis, does not admit of any safe inference other than that of the guilt of the accused then there can hardly be any escape for him and the Court can confidently record a verdict of guilty beyond reasonable doubt.
The court would, of course, be well advised in case of circumstantial evidence to be watchful and to ensure that conjectures or suspicions do not take the place of legal proof.
The chain of evidence to sustain a conviction must be complete and admit of no reason able conclusion consistent with the innocence of the accused.
In the present case it is fully proved and is indeed ,not disputed on behalf of the accused that truck No. 2411 with the 80 bags of red wheat did leave the dock and did pass the yellow gate which is the check point where a register is kept by the Regional Director of Food.
In this Register entries are made when a truck leaves the yellow gate.
The truck in question left the yellow gate at 1 1.20 a.m. on the second trip as deposed by Parmar, (P.W.8).
And this is not disputed.
According to the accused the 80 bags in question were actually delivered at the appropriate place at the T Shed and the truck chits duly given to the truck driver in token of their receipt and indeed D.W. 1 war, 142 produced by accused No. 4 to prove the actual delivery.
The prosecution case, on the other hand, is that those bags were not, delivered at the T Shed but were misappropriated.
There is no dispute about the procedure of delivery at the T Shed of the goods brought from the dock.
This procedure in regard to the wheat brought on February 7, 1963 may briefly be stated.
The foodgrains consisting of 1060 bags of red wheat had arrived by section section Hudson at the Alexandra docks.
The trucks were loaded with the wheat bags to be taken to the T Shed, Sewri.
Four truck chits were prepared at the docks for each truck out of which two were given to the truck driver concerned.
The driver had to give the truck chits at the godown at the time of the delivery of the bags.
One such chit would be returned to him after endorsing acknowledgment of the receipt of the bags, the other chit being retained at the godown.
The one given to the driver was meant to authorise the receipt of hire charges from the food department.
At the godown, according to the general pro cedure, the driver of the trucks had to give the truck chits to one of the godown clerks there.
A batch of gangmen under a particular Mukaddam had generally to unload the goods from the truck allotted to him and no Mukaddam with his gangmen could unload the goods from a truck which was not allotted to him for the purpose.
The gangmen had, therefore, to unload the goods as instructed by the clerk and the senior godown keeper.
After unloading the bags cooly voucher was to be prepared and the daily diary maintained at the godown written: the kutcha chit was prepared by the godown keeper after the unloading and weighment of the goods.
Only 10% of the bags were as a matter of practice to be actually weighed.
The truck movement chart exhibit 10 shows the order in which the various trucks left the dock for the T Shed on July 7, 1963 as also their contents and the truck chit numbers.
Truck No. 2411 with 80 bags of red wheat figures twice in this document but it is not disputed that trip which concerns us is entered at sl.
No. 9.
Truck chit number of this trip is 69 and the truck left the dock at 11.
15 hours.
The truck at serial No. 8 (immediately preceding the trip in question) in this document is No. 2248 with 80 bags and its chit No. is 68.
This truck left the dock at 11 a.m.
The truck at sl.
No. 10 (immediately next after the one in dispute) is 1477 with 65 bags of red wheat whose truck chit No. is 72.
This truck left the dock at 11.45 hrs.
There were in all 14 trips on July 7, and indeed, this is also established by oral evidence and is not denied on behalf of the accused.
We may now turn to the tally sheet for July 7, The first thing to be noticed in this document is that it only shows the arrival of 13 trucks.
In other words accord 143 ing to this document there were only 13 trips of the trucks though the Truck Movement Order exhibit 10 clearly shows that there were 14 trips and on behalf of the accused also it was asserted that there were 14 trips.
We find in Exhibit 41 that after sl. No. 8 which relates to truck No. 2488 with its chit No. 68 and which arrived at the T Shed at 11.58 a.m there is recorded at serial No. 9 the arrival of truck No. 7866 with chit No. 70 and at sl.
No. 10 the arrival of truck No. 1477 with chit No. 72 and at sl.
No. 11 the arrival of truck No. 8769 with chit No. 71.
These three trucks are shown to have arrived at the unloading point at 1.
15 p.m.
It was explained at the bar that from 12 noon to 1 p.m. no work was done, it being lunch interval.
It has been so stated by P. section Shinde, Assistant Director, Vigilance Branch, as, P.W. 18.
Items at sl.
12 and 13 relate to trucks Nos.
2752 .and 1289 with their respective chit nos.
73 and 74.
It is thus clear that chit No. 69 is missing in this sheet.
Bapu T. Pingle produced as D.W. 1 claims to have been in truck No. 2411 as a wamer with the driver, accused No. 4, on July 7, 1963.
According to him this truck made two trips on that day between the dock and the T Shed and on the second trip the other wamer by name Yashwant had taken the truck chit from the clerk concerned after the same was duly signed.
This witness has deposed about the procedure at the godown which is the same as was suggested on behalf of the prosecution.
The man at the godown used to direct the drivers to the place of unloading the goods and, to quote his own words, "unless an entry was made in this Book (Tally Book) we were not allowed to go ahead at all.
" So, according to his evidence, unless an entry is made in the Tally Book the truck could not proceed to the unloading point to deliver the goods brought from the dock.
Exhibits 10 and 41 in our view affirmatively prove that 80 bags of red wheat carried by truck No. 241 1 on July 7, 1963 on the second trip did not reach the T Shed at all.
This finds support, even from the testimony of D.W. 1.
In view of this documentary evidence with which no fault has been found the evidence regarding irregularities in the record of stock at the T Shed loses all importance.
It may be pointed out that July 7, 1963 was a Sunday and as deposed by Parmeshwar D. Menon (P.W. 1) on that day all gates were not opened.
But this . is not all.
Though in the tally chits time of the arrival of the truck at the unloading point is given in the truck chit in question that time is not shown.
According to the evidence of Roque (P.W. 6) on the reverse of all truck chits Exts.
15 to 26 and Exts.
li A and 11 B entries are made in the handwriting of accused No. 1.
In Exhibits 15 to 26 in addition to the arrival and denarture of the trucks, progressive totals at the back of each of them is also stated, but in exhibit ll B there is no progressive total and in exhibit 11 A there is no signature of accused No. 1 144 though the progressive total is mentioned as 240.
Exhibuit 11 B, it may be pointed out, appertains to the trip by truck No. 2411 on July 7, 1963.
Shri Shinde, (P.W. 18) who was Assistant Director, Vigilance Branch at the relevant time has deposed that according to the weighment register exhibit 69 only 98 bags of S.S. Hudson were weighed and this was 10% of 980 bags.
This document bears the signatures of accused No. 1.
Exhibit 41, carbon copy of the Arrival Tally sheet which was sent to the head office for showing if there was any detention of trucks in the godown ' does not, as already noticed contain any entry in respect of the truck in question.
The reverse of exhibit 41 is not printed in the printed paper book but we have checked up from the original record that witness Shinde is right.
Non inclusion of the entry of the truck in question in exhibit 41, is in our view, very material.
In exhibit 53 the daily Arrival Tally book for July 7, 1963 the entry at sl.
No. 68 shows departure of the truck in question at 12.15 afternoon whereas in exhibit 41 it is ,shown as at 1. 15 p.m. and in exhibit 11 B at 12.15 afternoon.
This, according to P.W. 18, was designed to show that the truck was ,unloaded during the recess period which, according to evidence ,on the record, was not done.
The explanation of accused No. 1 is that on July 7, 1963 he was not feeling well though he attended the office.
He had to get chits from the warners and count the number of bags in the truck and order the labourers to unload them from the trucks.
The suggestion appears to be that due to these multifarious duties and due to his being unwell he had perforce to enter the truck chits in the tally books only when he could get time and meanwhile he had no other alternative but to put the unentered truck chits in his pocket.
According to him, it was on July 10, 1963 when he was giving his clothes to the washerman that he discovered, the solitary chit in question left by mistake in his pocket.
The explanation is far from satisfactory and we are not impressed by it.
It may in this connection be pointed out that July 7, 1963 was a Sunday and the three accused persons were specially called for receiving the grain that had arrived by the two steamers.
The amount of work to be done on that day can thus scarcely be ,considered to be excessive.
And then the fact that only one solitary truck chit relating to the 80 bags in question should happen to have remained in the pocket of accused No. 1 to be discovered only on July 10, 1963 is also not without some significance.
We agree with the High Court in holdings, this explanation to be unconvincing and that the 80 bags in question were in fact not received at the T Shed on July 7, 1963.
In 145 our opinion, the material on the record to which our attention has been invited fully supports the conclusions of the High Court.
We may appropriately repeat what has often been pointed out by this Court that under article 136 of the Constitution this Court does not normally proceed to review the evidence in criminal cases unless the trial is vitiated by some illegality or material irregularity of procedure or the trial is held in violation of rules of natural justice resulting in unfairness to the accused or the judgment or order under appeal has resulted in grave miscarriage of justice.
This Article reserves to this Court a special discretionary power to interfere in suitable cases when for special reasons it considers that interference is called for in the larger interests of justice.
As observed by this Court in Chidda Singh vs The State of Madhya Pradesh(1) this Article cannot be so construed as to confer on a party a right of appeal where none exists under the law.
We, however, undertook in this case to go through the evidence, to which our attention was invited to see whether or not the conclusions of the High Court are insupportable.
We are not persuaded to hold that in this case there is any cogent ground for interference with those conclusions.
These appeals according fail and are dismissed.
V.P.S. Appeals dismissed.
(1) Crl.
125 of 1967 decided on 12th January, 1968.

summary:
The appellants were charged with the offences of criminal conspiracy and criminal breach of trust in respect of 80 bags of wheat.
They were ,convicted by the High Court for various offences under the Penal Code and the Prevention of Corruption Act.
The evidence disclosed that there were some irregularities in the matter of keeping the records relating to storage of stocks at the storage sheds.
It was therefore contended in .appeal by special leave, to this Court, that the evidence should be reviewed to see if the prosecution had established by unimpeachable evidence that the 80 bags were in fact not received at the storage shed and, that no presumption should be drawn against the appellants for their failure to give evidence as to where and to whom the bags were delivered.
HELD : Non appearance of an accused as a witness in his own defence does not give rise to any presumption against him.
[141 C] HELD, also : Negative onus can also be discharged by circumstantial evidence if it is trustworthy and with unerring certainty establishes facts and circumstances, the combined effect of which leads to the only safe inference of guilt.
The court has, however, to be watchful to ensure that conjectures or suspicions do not take the place of proof.
The chain ,of circumstantial evidence must be complete and admit of no reasonable conclusion consistent with the innocence of the accused.
[141 E F] HELD further : under article 136 this Court does not normally proceed to review the evidence in criminal cases unless the trial is vitiated by some illegality or material irregularity of procedure or the trial is held in violation of rules of natural justice resulting in unfairness to the accused or the judgment or order under appeal has resulted in grave miscarriage of justice.
This Article reserves to this Court a special discretionary power to interfere in suitable cases when for special reasons it considers that interference is called for in the larger interests of justice.
[145 A C] HELD further : This Article cannot be so construed as to confer ,on a party right of appeal where none exists under the law.
[145 C] In the present case there were irregularities in the storage records and the evidence was looked into see if the charge as framed was proved.
[145 C D] [An examination of the entire evidence, oral and documentary, however, showed, that there was enough evidence to support the conviction and that the irregularities were unimportant.] [145 A] Chidda Singh vs State of Madhya Pradesh, Cr. A. No. 125 of 1967 dt. 12 1 1968, referred to.


judgement:
Appeals Nos.
2 1 21 and 2122 of 1969.
Appeals from the judgment and order dated July 18, 1969 of the Andhra Pradesh High Court in W. P. Nos. 464 and 602 of 1965.
D. Narasaraju, A. Subba Rao and K. R. Sharma, for the appel lant (in both the appeals) M. C. Setalvad P. Parameswara Rao, V. Rajagopal Reddy, S, L. Setia and K. C. Dua, for respondent No. 1 (in both the appeals).
V. A. seyid Muhammad and section P. Nayar, for respondent No. 2 (in both the appeals).
156 P. Ram Reddy and A. V. V. Nair, for respondents Nos. 3 and 4 (in C.A. No. 2121 of 1969) and respondent No. 3 (in C.A. No. 2122 of 1969).
The Judgment of HEGDE and GROVER, JJ. was delivered by HEGDE, J. SHAH, J. delivered a dissenting opinion : Shah, J. I agree that Appeal No. 2122 of 1969 must be dismissed.
I also agree that if the states to dispose of the application for grant of a mining lease within the time prescribed by the rules, the failure,results in refusal to grant the lease.
The High Court was in error in holding that in the absence of a provision enacting, that even if the application stands rejected for failure to pass an order within the time prescribed, the State Government has power to issue a licence.
The High Court was again in error in holding that because of the representations made by the State before Bhimasankaran, J., in Writ Petition No. 1237 to 1957 the State Government were estopped from contending that the application was by the first respondent must be deemed to have been refused.
But I am unable to agree that the Central Government was competent in exercise of its power of review, against the order of the State Government made in compliance with the order of Basi Reddy, J. in Writ Petition No. 888 of 1957, to set aside the order so as in effect to overrule the, judgment of the High Court.
The relevant facts may be recalled.
The Central Government made an order on September 25, 1957, in the review application filed by the first respondent holding that his application was premature and that it was for the State Government to dispose of the application within six months of August 31, 1957.
The first respondent then moved Petition No. 888 of 1957 for a mandamus directing the State Government to dispose of his application.
By order dated November 4, 1958, Basi Reddy, J., observed that r. 57(2) as amended by S.R.O. No. 2753 "is intended for the benefit of the applicant, and does not relieve the State from per forming the statutory functions imposed on it under rule 17(1) and 17(2) viz. of granting or refusing the licence".
The State Government then heard the application and granted the mining lease for which the first respondent had applied on September 15, 1953.
Against that order the appellant moved a review petition.
The Central Government by order dated February 15, 1965, allowed the review petition and set aside the grant in favour of the first respondent.
Granting that the High Court erroneously issued a writ of mandamus directing the State Government to perform its func tions it was, in my judgment, not open to the Central Government 157 in effect to exercise appellate authority over the judgment of the High Court.
If the order was erroneous it could be set aside by an appropriate proceeding before a Division Bench of the High Court or before this Court.
But the Central Government had no power to set aside the order on the view that the High Court had reached an erroneous conclusion.
To accede to the contention that the executive has the power, when exercising quasi judicial functions, to sit in appeal over the decision of the High Court is to destroy the scheme of division of powers under our Constitution.
I see no reason for making a distinction be tween the effect of an order made by the High Court and carried out by the State, and an order made by the High Court and confirmed in appeal by this Court and carried out by the State.
In my view article 141 of the Constitution has no bearing on that question.
If this Court decided a question of law or of fact or a mixed question of law and fact arising in an appeal against an order passed by the High Court in a writ petition against the action of the State Government granting or refusing to grant a licence, it would not, in my judgment, be open to the Central Government, hearing a review petition against the order of the State Government in compliance with the order of this Court, to set aside the order so as to upset the order of this Court.
That is so,; not because of article 14 1, but I because neither the Legislature nor the executive is invested with powers to supersede judgments of Courts.
The Legislature may if competent in that behalf change the law but cannot supersede a judgment of the Court.
The executive has no power to change the law, and no power to supersede the judgment of the Court.
It was, however, said that the appellant was not impleaded as a party to Writ Petition No. 888 of 1957, and he could not seek redress in a superior court against the order of Basi Reddy, J.
But it is settled by a long course of authorities that a person who has not been made a party to a proceeding may still appeal with leave of the appellate Court, provided he might have properly been made a party to the proceeding : see Re. "B " an Infant.(1).
In In re.
Securitie Insurance Company(2) Lindley, L.J., observed at p. 413 : "I understand the practice to ' be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicially affected by it, cannot appeal without leave.
It does not require.
much to obtain leave.
If a person alleging him (1) C.A. (2) 158 self to be aggrieved by an order can make out even a prima facie case why he should have leave he will get it; but without leave he is not entitled to appeal.
" The rule has been accepted by the High Courts in India : see The Province of Bombay vs Western India Automobile Associa tion;(1) Ponnalagu vs State of Madras;(2) and Pullayya vs Nagbhushanam.
(3) The appellant could undoubtedly have been made a party to a petition before the High Court.
lie could, therefore, challenge the correctness of the order made by Basi Reddy, J. No objection could be raised against the grant of leave to him to appeal ,on the ground that he was not a party to the Writ Petition No. 888 of 1957.
In my judgment, therefore, Appeal No. 2121 of 1967 must also fail.
Hegde, J.
These appeals by certificate arise from the common judgment of the High Court of Judicature at Andhra Pradesh in Writ Petitions Nos.
464 and 602 of 1965.
The appellant herein was the petitioner in Writ Petition No. 602 of 1965 and the 5th respondent in Writ Petition No. 464 of 1965.
In this case, it will be convenient to formulate the issues arising for ' decision after setting out the relevant facts.
Amrutham Kotaiah Naidu, the 1st respondent in these appeals applied for the grant of a mining lease in respect of 915 acres and 18 cents of lands in Appalanarasinmhapuram hamlet of Cheruvumadhavaram in Khammameth Teluqa of Warangal District of the then Hyderbad State, on September 15, 1953.
After production of agreement with the pattedars lease in respect of lands comprising 57 acres 25 Gunthas was granted to him as per the order of the Director of Mines and Geology dated January 9, 1954.
That order is silent as regards the other areas included in his application.
Thereafter the respondent was pressing the State Government to , rant him on lease the remaining areas included in his application.
Meanwhile on November 21, 1955, the appellant applied for the grant of a mining lease of a portion of the area for which the respondent had earlier submitted his application.
The State Government granted on mining lease to various persons some of the areas in respect of which the respondent had asked for a mining lease.
Obviously aggrieved by those grants the respondent moved (1) I.L.R. (2) I.L.R. (3) I.LR.
F.B. 159 the Central Government under rule 57 of the Mineral Concession Rules, 1949 (to be hereinafter referred to as 'rules on December 8, 1955, seeking a directicon to the State Government to grant to him the lease asked for by him by his application of September 15, 1953.
He further requested the Central Government to direct the State Government to stop granting further areas to other appli cants in Appalanarasimhapuram village pending investigation of the matter and pending decision of the Central Goverrunent.
Meanwhile on December 27, 1955, the State Government granted on mining lease 1 acre and 20 cents of land to the appellant from out of the area included in the 1st respondents application.
On July 18, 1956, the Central Government dismissed the review petition made by the 1st respondent on December 8, 1955 with these observations "Sir, I am directed to refer to your application dated the 8th December, 1955, on the subject and to say that after careful consideration of the facts stated therein, the Central Government have come to the conclusion that there is no valid ground for interfering with the decision of the Government of Hyderabad, rejecting your application for grant of mining lease for iron ore in Appanarasimhapuram and Raigudam villages, Khammameth district.
Your application for revision is, therefore, rejected.
Yours faithfully, Sd/ G. C. Jerath, Under Secretary to the Government of India.
" Evidently the Central, Government proceeded on the basis that the order of the State Government dated January 9, 1954 granting 57 acres and 20 cents of land to the 1/st respondent, by implication amounted to a rejection of his claim in respect of the other areas.
Meanwhile on September 15, 1956, some of the rules were amended.
After rule 28(1) anewsub rule 28(1 A)was inserted.
That sub rule reads : "Every application under rule 27 shall be disposed of by the State Government within 9 months from the date of receipt of the application.
" At the same time rule 57 was also amended.
Amended rule 57 reads thus : (1) "Application for review. (1) Where a State Government passes as under. (i) refusing to grant a certificate of approval, prospecting license or mining lease; 160 (ii)refusing to renew a certificate of approval, prospecting license or mining lease; (iii) cancelling a prospecting license or mining lease; (iv) refusing to permit transfer of a prospecting license or any right, title or interest therein under clause (iv) of sub rule (1) of rule 23 or a niping lease or any right, title or interest therein under rule 37, it shall communicate in writing the reasons for such order to the person against whom the order is passed and any person aggrieved by such order may, within two months of the date of receipt of such order, apply to the Central Government for reviewing the same.
(2) Where a State Government has failed to dispose of an application for the grant or renewal of a certificate of approval or prospecting license or a mining lease within the period prescribed therefore in these Rules, such failure shall, for the purpose of these rules, be deemed to be a refusal to grant or renew such certificate, license or lease, as the case may be, and any person aggrieved by such failure may, within two months of the expiry of the period aforesaid apply to the Central Government for reviewing the case.
(3) An application for review under this rule may be admitted after the period of limitation prescribed under this rule, if the applicant satisfies the Central Government that he had sufficient cause for not making the application within the said period.
" A further amendment to that rule 57(2) was made on August 31, 1957.
The concerned notification No. S.R.O. 2753 reads "In exercise of the powers ' conferred by section 5 of the Mines and Minerals (Regulation and Development) Act, 1948, the Central Government hereby makes the following further amendment in the Mineral Concession Rules, 1949, namely Provided that any such application pending with the State Government on the 14th September, 1956, and remaining undisposed of on the 24th August, 1957, shall be disposed of by the State Government within six months from the latter date.
" On April 16, 1957, the 1st respondent filed another review petition before the Central Government.
On September 26, 1957, 161 that petition was dismissed by the Central Government as being premature.
The relevant portion of that order reads "With reference to your application dated 16th April, 1957, on the above subject, I am directed to invite your attention to this Ministry 's notification No., MII 152(26)/57 dated the 21 8 57 (copy enclosed) amending the Mineral Concession Rules, 1949.
It will be noticed therefrom that the application for concessions received by the State Govt.
prior to the 4th September, 1956 and remaining undisposed of on the 31st August 1957 shall be disposed of by them within six months from the latter date.
Your application fo r review is therefore premature at this stage and in case your application for Mining Lease is not disposed of by the State Government within the prescribed period you may apply to the Central Government at the appropriate time." While making this order, evidently the Central Government had overlooked its earlier order dated July 18, 1956.
After the aforementioned order of the Central Government, the 1st respondent moved the High Court of Andhra Pradesh under article 226 of the Constitution in Writ Petition No. 888 of 1957 seeking a writ of mandamus to the State Government of Andhra Pradesh to dispose of his application for lease made on September 15, 1953, expeditiously.
To that petition he made only the State of Andhra Pradesh as the respondent.
Neither the Central Government nor the appellant herein were parties to that petition.
That petition came tip for hearing before Basi Reddy J. on November 4, 1958.
At the hearing the learned Government Pleader who appeared for, the State Government conceded that the application of the petitioner for mining lease on September 15, 1953 had not been disposed of by the State Government in the manner prescribed by rule 17 of the 'Rules ' but he contended that that application must be deemed to have been rejected in view of rule 57(2).
The learned judge rejected that, contention with the following observations: "In my opinion this deeming provision is intended for the benefit of the applicant add does not relieve the State Government from performing the statutory functions imposed on it by rules 17(1) and 17(2) viz., of granting or refusing the licence, and in case of refusal of recording in writing the reasons for the refusal and of refunding the application fee." He accepted the petition and issued the mandamus prayed for. 162 During the pendency of the writ petition No. 888 of 1957, ,the 1st respondent filed another writ petition on December 16, 1957 seeking the very relief that he had sought in his earlier writ ,petition.
That petition was disposed of by Bhimasankaram J. ,on August 20, 1959, with these observations : "It is stated by the learned 3rd Government Pleader that the Government is prepared to dispose of the application of the petitioner on the merits without relying upon rule 57(2) of the Mineral Concession Rules, 1949.
in the circumstances the petitioner does not want to press his petition.
The writ petition is accordingly dismissed.
There will be no order as to costs.
" The State Government by its order dated May 27, 1961, :granted on mining lease to the respondent all the areas for which he had applied an September 15, 1953 less those areas which had been earlier leased out to others.
Aggrieved by the above order, the appellant moved the Central Government under rule 57 on July 7, 1961 for review ing the said order.
Even before that he had moved the Andhra Pradesh High Court under article 226 of the Constitution on June 13, 1961 to issue a writ of mandamus to the State Government .to consider his application for mining lease in preference to that of the 1st respondent as according to him the 1st respondent 's application should be deemed to have been rejected under rule 57(2).
The High Court rejected that application observing that the appropriate course for him was to move the Central Government under rule 57 against the order of the State Government.
Thereafter on 15 2 1965, the Central Government allowed the review petition filed by the appellant and set aside the grant made in favour of the 1st respondent on May 27, 1961.
It came to the conclusion that the applications made by the appellant, the 1st respondent as well as others which were pending before the Andhra Pradesh Government should be deemed to have been rejected on the 1st March 1958, in view of rule 57(2).
Aggrieved by that order the 1st respondent filed Writ Petition No. 464 of 1965 praying that the High Court may be pleased to call for 'the relevant records from the Central Government by issuing a writ of certiorari and quash the order of the Central Government and issue a further writ to the Central Government and to the :State Government to grant the lease asked for by him.
During ,the pendency of that petition the appellant filed Writ Petition 'No. 602 of 1965 seeking a writ of mandamus against the Central 'Government and the State Government to grant him the mining lease for which he had applied.
The High Court has allowed 'the writ petition filed by the 1st respondent and dismissed that of the appellant.
Hence these appeals.
163 So far as Civil Appeal No. 2122 of 1969 is concerned there is no merit in the same.
No ground in support of that appeal was urged before us.
Hence it fails and it is dismissed.
In Writ Petition No. 464 of 1965 from which Civil Appeal ' No. 2121 of 1969 arises, the High Court set aside the order of the Central Government on various grounds and upheld the grant made by the State Government in favour of the 1st res pondent.
We shall now proceed to consider the correctness of the reasons given by the High Court in support of its order.
The High Court was of the opinion that rule 57(2) was enacted only for the benefit of the applicants for lease, license etc.
so that they may have an early opportunity to move the Central Government for appropriate orders.
In the view of the High Court that rule does not take away the, power of the State Government to dispose of the applications made for mining lease etc.
even after the period prescribed expires.
In support of this conclusion, it relied on the decision of the Patna High Court in Dey Gupta and Co. vs State of Bihar and Anr.(1) as well as on the decision of Basi Reddy J. in Writ Petition No. 888 of 1957 to which reference has already been made.
Neither the Patna decision nor the judgment of Basi Reddy J. nor the decision under appeal gives any cogent reason An support of the conclusion that the deemed dismissal under rule '57(2) does not take away the right of the State Government to grant the lease asked for.
The Patina High Court in support of its conclusion observed "No doubt, reading rule 27(1 A) with rule 57(2) of the Rules, it is clear that, if the State Government fails to dispose of an application for the grant of a mining lease within nine months, it must be deemed to have been refused by it.
But this provision is made, in my opinion only for the purpose of filing a review application before the Central Government, so that an applicant desirous to have a mining lease may not have to wait unnecessarily for a long period without any order being passed on his application.
That however, does not mean that after the lapse of nine months from the date of receipt of the application, the State Govt.
ceases to have jurisdiction over the matter so as not to pass any order on any application after the lapse of nine months from the date of its receipt.
The expression "deemed to be a refusal" in rule 57(2) is only for the purpose of a review application to (1) A.I.R. 1961 Pat.
164 be filed before the Central Government, and it is not a part of rule 28(1 A).
In this view of the matter the legality of the order passed by the State Government granting a mining lease to respondent No. 2 cannot be Challenged on the above ground.
" We think that these observations are not correct.
If it is otherwise, even when a review petition is pending before the Central Government under rule 57, the State Government can make an order on the application made and thus compel the parties to file another review petition.
Further, if the Central Government gives one direction ins the review petition and the State Government passes an inconsistent order in the original petition, there is bound to be confusion.
If we read rule 27(1A).
and rule 57(2) together, there is hardly any doubt that after the period prescribed, the State Government is incompetent to deal with the applications pending before it.
According to rule 57(2), where a State Government has failed to dispose of an application.
for the grant of a mining lease within the period prescribed therefor in the rules, such failure shall, for the purpose of the rules be deemed: to be refusal to grant the lease.
The rules referred therein include rule 28 as well.
This deemed refusal, if read with the mandate given to the State Government under rule 28(1 A) requiring it to dispose of the applications within 9 months of the receipt of those applications, there can be hardly any doubt that if the State Government does not dispose of the applications within the time prescribed, it is deemed to have refused those applications, for the purpose of rule 28 as well as rule 57.
The High Court was wrong in thinking that in the absence of a provision providing for deemed rejection in rule 28(1 A), the contravention of that rule does not take away the jurisdiction of the State Government.
That conclusion ignores the words in rule 57(2) that deemed rejection is 'for the purpose of these rules '.
In view of those words in rule 57(2), it was unnecessary for the rule making authority to prescribe in rule 28(1A) the consequences of the failure on the part of the State Gov ernment to implement the mandate of rule 28(1 A).
Hence, in our opinion, the Central Government 's decision that the applications made by the appellant, the 1st respondent and others for mining lease should be deemed to have been refused on March 1, 1958 is correct.
Therefore the High Court was wrong in quashing the order of the Central Government on that ground.
The High Court was also wrong in opining that in view of the representations made by the learned Government Pleader before Bhimasankaran J. on August 25, 1959, in Writ Petition No. 1237 of 1957, the State Government is estopped from con 165 tending that the application made by the 1st respondent on September 15, 1953 must be deemed to have been refused.
There can be no estoppel against a statute.
Rule 28(1 A) and rule 57 (2) are statutory rules.
They bind the Government as much as they bind others.
The requirement of those rules cannot be waived by the State Governments.
Therefore the fact that the learned Government Pleader represented to the Court that the petition filed by the 1st respondent on September 15, 1953 was still pending disposal cannot change the legal position nor could it confer on the State Government any power to act in contravention of those rules.
Yet another ground relied on by the High Court is that in view of the writ issued by Basi Reddy J. in Writ Petition No. 888 of 1957, the State Government was bound to consider the application of the 1st respondent and therefore the decision of the State Government taken in obedience to the order of the High Court could not have been set aside the Central Government.
It is true that as far as the State Government is, concerned the writ issued was binding whether the decision rendered by the court was correct in law or not; but then that decision will not bind either the appellant herein or the Central Government who were not parties to that writ petition.
It is not a judgment in rem.
In obedience to the writ issued by the court, of the State Government did consider the application of the 1st respondent.
It granted him the lease asked for by him.
Therefore the State Government has complied with the direction issued to it by the High Court.
The Central Government had been constituted as the revisional authority under rule 57.
That authority is a quasi judicial body created by statutory rules.
It is bound by law to discharge the duties imposed on it by rule 57.
Therefore it had to obey the mandate of rule 57.
In so doing, it cannot be said that it had infringed the mandamus issued by the High Court in writ petition No. 888 of 1957 to which, as pointed out before, the appellant was not a party and the order made in which could not be 'binding either on the Central Government or the appellant.
For the reasons mentioned above, we allow Civil Appeal No. 2121 of 1969 and set aside the order of the High Court and dismiss the writ petition No. 464 of 1965 but in the circum stances of the case, we make no order as to costs in these appeals.
ORDER In accordance with the opinion of the majority Civil Appeal No. 2121 of 1969 is allowed and Civil Appeal No. 2122 of 1969 is dismissed.
No order as to costs in these appeals.

summary:
In September, 1953, the first respondent applied for a mining lease for over 900 acres in the then Hyderabad State.
He was granted a lease of about 57 acres in January, 1954 by an order of the State Government which was silent as regards the other areas included in his application.
While the respondent kept pressing ' for a lease of the remaining areas, the State Government began to grant, some of these areas to other persons including the appellant.
Meanwhile,, on December 8, 1955, the respondent moved the Central Government under Rule 57 of the Mineral Concession Rules, 1949, seeking a direction to the State to grant to him the lease of the areas sought by him and to stop granting further areas to other applicants.
This review petition was dismissed on the basis that the order of the State Government granting only 57 acres by implication amounted to a rejection of the respondent 's claim for the balance area.
On September 15, 1956, the Mineral Concession Rules were amended and a new sub rule 28(1) (A) was introduced which provided that every application under Rule 27 shall be disposed of within 9 months from the date of its receipt.
The amended Rule 57 provided that the failure of the State Government to dispose of an application within the prescribed period would be deemed to be a refusal to grant a lease and that the aggrieved person may, within two months, apply to the Central Government for a review.
A further amendment of Rule 57(2) provided that any application pending with the State Government an 14th September, 1956 and remaining undisposed of on the 24th August, 1957, shall be disposed of by the State Government within 6 months from the latter date.
Prior to this amendment the respondent had filed another review petition before the Central Government and on September 26, 1957, that petition was dismissed by the Government as being premature; this was on the basis that the respondent 's original application was pending on 31st August, 1957, and the period of 6 months from that date, as prescribed by the amended Rule 57(2) had not yet expired.
The respondent then moved the High Court by a petition under Article 226.
making the State Government alone party and seeking a writ of mandamus to the Government to dispose of his application of September, 1953, expeditiously.
The High Court allowed this petition and did not accept the contention, on behalf of the State Government that in view of section 57(2) the respondent 's application must be L11Sup CI/11 154 deemed to have been rejected.
it held that section 57(2) was intended to be for the benefit of the applicant and did not relieve the State Government from performing the statutory function imposed on it under rule 17 of granting or refusing the licence.
During the pendency of the first petition, the respondent had also filed a second petition seeking the same relief and this was disposed of in August, 1959 on the basis of a statement by the Government Advocate that the State Government was prepared to dispose of the first respondent 's application on the merits without relying on rule 57(2).
By an order on May 27, 1961, the State Government granted on.
mining lease to the, respondent all the areas for which he had applied in September, 1953 excluding those areas which had been earlier leased to others.
, However.
the Central Government allowed a review petition under Rule 57 filed by the appellant and set aside the order on the ground that the application made by the appellant, the first respondent, as well as others which were pending before the State Government 'should be deemed to have been rejected on 1st March, 1958 in view of rule 57(2).
The 1st respondent then challenged this order by a writ petition in the High Court which was allowed and the order was quashed.
The court held that rule 57(2) was enacted only for the benefit of the applicants and did not take away the power of the State Government to dispose of applications even after expiry of the prescribed period; that in view of the Government Advocate 's concession the State Government Was stopped from contending that the respondent 's application of September, 1953 must be deemed to have 'been refused; and furthermore that in view of the writ of mandamus issued in the first writ petition, the State Government was bound to consider the application of the 1st respondent and the decision of the State Government taken in obedience to the order of the High Court could not have been set aside by the Central Government.
HELD : (Per Hedge and Grover, JJ); The appeal must be allowed (By the Court) (1) Reading rule 28 (1 A) and rule 57 (2) together, there is no doubt that after the period prescribed, the State Government is incompetent to deal with the applications ' pending before it.
The High Court was, therefore, wrong in holding that even if an application stands rejected for failure to pass an order within the time prescribed, the State Government has power to issue a licence.
[164 C] Dey Gupta & Company vs State of Bihar A.I.R. 1961 Pat. 487; referred to.
(2) There can be no estoppel against a statute.
Rule 28(1 A) and rule 57(2) are statutory rules.
They bind the Government as much as they bind others.
The requirement of those rules cannot be waived by the State Governments.
Therefore the fact that the Government Advocate represented to the Court that the 1st respondent 's application was still pending could not change the legal position nor could it confer on the State Government any power to act in contravention of those rules.
[165 A B] (3)Per Hegde and Grover JJ.); As far as the State Government was concerned the writ issued was binding whether the decision rendered by the Court was correct in law or not; but that decision could not bind the appellant or the Central Government who were not parties to that writ petition.
It was not a judgment in rem.
In obedience to the writ issued by the court, the State Government did consider the 155 application of the 1st respondent and granted him the lease asked for by him.
The Central Government had been constituted as the revisional authority under rule 57.
That authority is a quasi judicial body created by statutory rules.
It is bound by law to discharge the duties imposed on it by rule 57.
Therefore it had to obey the mandate of rule 57.
In so doing it cannot be said that it had infringed the mandamus issued by the High Court.
[165 D F] (Per Shah J, dissenting) : The appeal must be dismissed, Granting that the High Court erroneously issued a writ of mandamus directing the State Government to perform its functions it was, not open to the Central Government in effect to exercise appellate authority over the judgment of the High Court.
To accede to the contention that the executive has the power, when exercising quasi judicial functions, to sit in appeal over the decision of the High Court is to destroy the scheme of division of powers under our Constitution.
There was no distinction between the effect of an order made by the High Court and carried out by the State, and an order made by the High Court and confirmed in appeal by this Court and carried out by the State.
Article 141 of the Constitution has no bearing on that question.
If this Court decided a question of law or of fact or a mixed question of law and fact arising in an appeal against an order passed by the High Court in a writ petition against the action of the State Government granting or refusing to grant a licence, it would not be open to the Central Government, hearing a review petition against the order of the State Government in compliance with the order of this Court, to set aside the order so as to upset the order of this Court.
[156 H] It is well settled that a person who has not been made a party to a proceeding may still appeal with leave of the Appellate Court provided he might have properly been made 'a party to the proceeding.
The appellant could undoubtedly have been made a party to the petition before the High Court.
He could, therefore, challenge the correctness of the order and no objection could be raised against the granting of leave to him to appeal on the ground that he was not a party to the writ petition.
C] Re.
"B" an Infant C.A., The Province of Bombay vs Western India Automobile Association I.L.R. ; Ponnalagu vs State of Madras I.L.R. [1953] Mad. 808; Pullayya vs Nagbhushanain I.L.R. F.B.; referred to.