judgement:
Appeal No. 1672 of 1973.
Appeal by special leave from the judgment and order dated the 9th January, 1973 of the Madras High Court in C.R.P. No. 2486 of 1972.
Y. section Chitale, C. section Prakasa Rao and A. T. M. Sampath, for the appellant.
K. section Ramamurthy, V. Subramanian and Vineet Kumar, for the respondent.
The judgment of the Court was delivered by BHAGWATI J.
There were fifteen applicants before the Regional Transport Authority, Chingleput for grant of a stage carriage permit to ply a bus on the route Red Hills to Kancheepuram.
This route covers a distance of 501 miles of 81.27 kilometers and is a 'long :route, ' within the meaning of that expression as used in rule 155A of the Motor Vehicles Rules, 1940.
Out of fifteen applicants, only two are before us, namely, the appellant and the respondent.
The appellant was applicant No. 7, while the respondent was applicant No. 6.
The Regional Transport Authority, after considering the applications, made an order dated 19th June, 1971 granting the permit to the respondent, though on marking according to the provisions contained in clause (3) of rule 155A, the respondent obtained only 7.40 marks as against 9.00 marks obtained by the appellant.
The main ground ,on which the Regional Transport Authority preferred the respondent to the appellant was that the respondent was a single bus operator, while the appellant was a multi bus operator having four stage carriage permits including a stage carriage permit recently granted to him.
The appellant and seven other applicants, who were aggrieved by the decision of the Regional Transport Authority, granting a permit to the respondent, preferred appeals before the State Transport Appellate Tribunal impleading the respondent as the opposite party in the appeals.
The State Transport Appellate Tribunal took the.
view that at tile date of the consideration of the applications by the Regional Transport 93 Authority, the respondent had a workshop but it was housed only in a thatched shed and not in a pucca fire proof building and the respondent was, therefore, not entitled to two marks under clause (3) (E) of rule 155A and his total marks should, therefore, have been 5.40 and not 7.40.
The Regional Transport Authority had refused to grant two marks to the appellant on account of sector qualification on the ground that he had been plying only on temporary permits but this view did not find favour with the State Transport Appellate Tribunal which held that under clause (3) (C) of rule 155A it was immaterial whether sector experience was derived by an applicant under a temporary permit or a permanent permit and the appellant was, therefore, entitled to two marks under that clause on account of sector experience even though gained by operation on temporary permits.
So far as the past record was concerned, the State Transport Appellate Tribunal relied heavily on the fact that the history sheet of the appellant was clean without any adverse entry while the respondent had one adverse entry in the history sheet relating to his single stage carriage and four adverse entries in the history sheet relating to his lorry operation.
The State Transport Appellate Tribunal also pointed out that a portion of the route fell within the interior roads and it was, therefore, desirable in public interest to prefer "an experienced operator instead of single bus operator".
Having regard to these considerations the State Transport Appellate Tribunal set aside the order of the Regional Transport Authority granting permit to the respondent.
The State Transport Appellate Tribunal then proceeded to consider who amongst the appellants before it deserved to be granted permit.
After considering the claim of the appellants before it, the State Transport Appellate Tribunal took the view that since the appellant had higher marks which reflected his superior qualifications and was an experienced operator with a clean history sheet, he was entitled to be preferred to the other appellants and in this view, the State Transport Appellate Tribunal, by an order dated 23rd September, 1972, granted permit to the appellant.
The respondent thereupon preferred a revision application to the High Court under section 64B of the Madras Vehicles Act, 1939.
The learned Single Judge, who heard the revision application, held that the State Transport Appellate Tribunal had acted with material irregularity in exercise of its jurisdiction in preferring the appellant to the respondent for the grant of permit.
There were in the main five reasons which prevailed with the learned Single Judge in taking this view in favour of the respondent.
First, the learned Single Judge held that though according to the provisions for marking contained ' in clause (3) of rule 155A the appellant had admittedly more marks than the respondent, that was not ' a determinative factor because rule155A was itself subject to the overriding consideration of public interest emphasised in section 47(1) of the Act and public interest required that in the socialist pattern of society which we had adopted monopoly should as far as possible be avoided and a smaller operator with one stage carriage permit should be preferred to a bigger operator having three or more stage carriage permits.
This important consi deration was ignored by the State Transport Appellate Tribunal in 94 preferring the appellant to the respondent.
Secondly, the State Transport Appellate Tribunal had over looked the, fact that the appellant was a recent grantee of a stage carriage permit though it was a relevant circumstance which weighed against the appellant in the process of comparison with the respondent.
Thirdly, a proper standard of comparison was not applied in considering the rival claims of the appellant and the respondent.
Though the history sheet of the res pondent in regard to his performance, as a lorry operator was scanned by the State Transport Appellate Tribunal over a period of ten years, no such scrutiny was made in the case of the appellant of the history sheet relating to his stage carriage operation for the past ten years and this vitiated the order of the State Transport Appellate Tribunal.
Fourthly, the respondent was entitled to two marks on account of workshop under clause (3) (E) of rule 155A and these had been wrongly denied by the State Transport Appellate Tribunal, and lastly, the appellant was not entitled to two marks on account of sector experience under clause (3) (C) of rule 155A since the sector experience claimed by him was on the basis of operation on temporary permits.
The learned Single Judge accordingly allowed the revision application and set aside the order of the State Transport Appellate Tribunal granting permit to the appellant.
The result was that the order of the Regional Transport Authority granting permit to the respondent was restored.
The appellant was obviously aggrieved by this order made by the learned Single Judge and he accordingly preferred the present appeal with special leave obtained from this Court.
We will first dispose of the last two reasons which prevailed with the learned Single Judge in interfering with the order of the State Transport Appellate Tribunal.
So far as the claim of the respondent 'for two marks in respect of workshop under clause (3) (E) of rule 155A is concerned, we agree with the learned Single Judge that the 'State Transport Appellate Tribunal was in error in refusing that claim. 'The Regional Transport Officer under instructions from the Regional Transport Authority inspected the workshop of the respondent and found that it was in a pucca fire proof building and the respondent was accordingly entitled to two marks under clause (3) (E) of rule 155A.
But that would not make any difference because even with these two marks, the total number of marks of the respondent would not exceed 7.40 as against 9 marks of the appellant.
Moreover, ,these 9 marks, do not include two marks on account of sector experience under clause (3) (C) of rule 155A.
The State Transport Appellate Tribunal gave two marks to the appellant on account of sector experience but the learned Single Judge took a different view.
We do not think the learned Judge was right in refusing two marks to the appellant on this count.
Clause (3) (C) of rule 155A provides that two marks shall be awarded to the applicant who on the date of consideration of the application by the Regional Transport Authority has been plying a stage carriage on the entire route:.
It does not contain any restriction that in order to be entitled to these two marks the applicant should have been plying on the route; on the basis of a permanent permit.
It is immaterial whether the applicant has been plying ton the route on a temporary permit or a permanent permit.
What is 95 material is that the applicant should have experience of plying on the route and this experience would be there whether plying is done on a temporary permit or on a permanent permit.
The appellant was, therefore, entitled to two marks on account of sector experience under clause (3)(C) of rule 155A and that would raise his total number of marks to 11.
The position, therefore, was that the appellant was entitled to 11 marks as against 7.40 of the respondent.
But that by itself would not be determinative of the controversy.
The paramount consideration to be taken into account in determining as to which of the applicants should be selected for grant of permit always is public interest.
Section 47(1) provides in so many words that the Regional Transport Authority shall, in considering an application for a stage carriage permit have regard inter alia, to "the interest of the public generally", and this is a consideration which must necessarily outweigh all others.
It is ultimately on the touchstone of public interest that selection of an applicant for grant of permit must be justified.
Clause (3) of rule 155A undoubtedly provides for giving of marks to the rival applicants but the number of marks obtained by each applicant can only provide a guiding principle for the grant of permit.
It can never override the consideration of public interest which must dominate the selection in all cases.
In fact clause (4) of rule 155A concedes that after the applicants are ranked according to the total marks obtained by them the applications shall be disposed of in accordance with the provisions of section 47(1).
The fact that the appellant had 11 marks as against 7.40 of the respondent would certainly be a factor in favour of the appellant, but notwithstanding his higher marks, if public interest so requires, he may have to yield place to the respondent in the matter of selection for grant or permit.
Now, two circumstances were relied upon by the learned Single Judge for outweighing the higher marks obtained by the appellant and justifying the grant of permit to the respondent in public interest.
The first was that the respondent was a single bus operator while the appellant was a multi bus operator having four stage carriage permits and the second was that one of the stage carriage permits was recently granted to the respondent and hence he was in terms of the 'motor vehicle jurisprudence ' a "recent grantee".
Both these circumstances by themselves are not sufficient to constitute such requirement of public interest as to outweigh the higher marks obtained by the appellant.
This Court had occasion to consider in Ajantha Transports (P) Ltd., Coimbatore vs M/s. T. V. K. Transport, Pulampatti, Coimbatore Dist.(1) the relevance of possession of more than one permit as also recent grant in selecting an applicant for grant of permit and Beg, J., speaking on behalf of the Court, stated the law on the subject in the following words : "It should be clear when the main object, to which other considerations must yield in cases of conflict, of the permit issuing powers under sec.
47 of the Act is the service of (1) ; 96 interest of the public generally, that any particular fact or circumstances, such as a previous recent grant in favour of an applicant or the holding of other permits by an operator, cannot by itself, indicate how it is related to this object.
Unless, there are other facts and circumstance which link it with this object the nexus will not be established.
For instance, an applicant may be a recent grantee whose capacity to operate a transport service efficiently remains to be tested so that a fresh grant to him may be premature.
In such a case, another applicant of tested efficiency may be preferred.
On the other hand, a fresh grantee may have within a short period, disclosed such superiority or efficiency or offer such amenities to passengers that a recent grant in his favour may be no obstacle in his way at all.
Again, the fact that an applicant is operating other motor vehicles on other permits may, in one case, indicate that he had excee ded the optimum, or, has a position comparable to a monopolist, but, in another case, it may enable, the applicant to achieve better efficiency by moving towards the optimum which seems to be described as a "viable unit" in the rules framed in Madras in 1968.
Thus, it will be seen that, by itself, a recent grant or the possession of other permits is neither a qualification nor a disqualification divorced from other circumstances which could indicate low such a fact is related to the interests of the public generally.
It is only if there are other facts establishing the correlationship and indicate its advantages or disadvantages to the public generally that it will become a relevant circumstance.
But, in cases where everything else is absolutely equal as between two applicants, which will rarely be the case, it could be said that an application of principle of equality of oppor tunity, which could be covered by Article 14, may enable a person who is not a fresh grantee to obtain a preference.
" It would, therefore, be seen that the mere fact that an applicant has more than one permit or he is a recent grantee cannot by itself be regarded as a factor against him in the comparative scale.
It would all depend on the facts and circumstances of each case.
As 'pointed out by Beg, J., in the case just cited : "an applicant may be a recent grantee whose capacity to operate a transport service efficiently remains to be tested so that a fresh grant to him may be premature on the other hand.
a fresh grantee may have within a short period disclosed such superiority or efficiency or offer such amenities to passengers that a recent grant in his favour may be no obstacle in his way at all a recent grant could not, considered by itself and singly, be, converted into a demerit".
Similarly, possession of more than one permit also cannot by itself, divorced from other circumstances, be regarded as a disqualification.
It may in a given case show that the applicant has already reached the viable unit of five stage carriages contemplated under 'clause (3) (F) of rule 155A or that the effect of granting permit to him would be to make him a monopolist on the route a result disfavoured by the decision of this Court in Sri Rama 97 Vilas Service (P) Ltd. vs C. Chandrasekharan & Ors.(1) as being inconsistent with the interest of the general public or, on the other hand, it may be a circumstance in his favour enabling him to achieve greater efficiency by moving towards the optimum of viable unit.
The learned Single Judge, was, therefore, in error in rejecting the claim of the appellant to the grant of permit by mechanically relying on the circumstance that the appellant was a multi bus operator having four stage carriage permits, including a recent grant without considering how in the light of the other facts and circumstances, it was correlated to the question of public interest.
There was nothing to show that this circumstance would have, any prejudicial or adverse impact on public interest, if permit were granted to the appellant notwithstanding it.
The four stage carriage, permits which the appellant had were not on the same route and there was no question of.
any monopoly being created in his favour if the permit applied for by him were granted.
In fact, possession of more than on& permit by the appellant was a circumstance in his favour, because according to clause (3)(F) of rule 155A an applicant operating in more than four stage carriages would be entitled to one mark for each stage carriage in order to have a viable unit of five carriage.
The principle laid down in clause (3) (F) of rule 155A proceeds on the hypothesis that an applicant would be able to achieve greater efficiency if he has a larger number of stage carriages, but it sets a limit of five stage carriages as it was thought that that would be sufficient to constitute a viable unit which could legitimately be permitted to an applicant, consistently with the requirement of a socialistic pattern of society that there should be distributive or social justice and no undue economic disparities.
So long, therefore, as an applicant has not more than four stage carriages, it cannot by itself be regarded as a factor against him and, as pointed out by Beg, J., in the case cited above, the rule in clause (3) (F) of rule 155A providing for giving of one mark to the applicant for each stage carriage operated by him should be taken into account unless there is good enough reason to depart from it.
"Every additional stage carriage upto four would give an applicant an additional mark so as to help him to make up a viable unit of five".
The State Transport Appellate Tribunal was, therefore, right, in the circumstances of the case, in not regarding possession of four stage carriage permits by the appellant, including a recent grant, as a circumstance against him, but treating it as a circumstance in his favour by adding four marks under clause (3) (F) of rule 155A, and the learned Single Judge acted erroneously in upsetting this view taken by the State Transport Appellate Tribunal.
The learned Single Judge was also in error in holding, thatthe same standard was not applied by the State Transport AppellateTribunal in comparing the history sheets of the appellant and therespondent.
The history sheet of the appellant related only to hisperformance as stage carriage operator and the entire history sheetwas before the State Transport Appellate Tribunal and it showedthat the appellant had a clean record.
On the other hand, the respondent (1) ; L379 Sup.
CI/75 98 had two history sheets, one relating to his performance as stage carriage operator and the other relating to his performance as lorry operator and both the history sheets showed adverse entries.
It can hardly be disputed that this comparison with reference to the past performance of the appellant and the respondent was relevant to the question as to who between the two should be selected for grant of permit.
It may be that the history sheet of the respondent as lorry operator related to a period of ten years while that of the appellant as a stage carriage, perator covered a shorter period, but that cannot be helped.
The comparison has to be made on the basis of the available material and if the history sheet of the respondent, which may be for a longer period, shows that the past performance of the respondent 'was not satisfactory while the history sheet of the appellant, though for a shorter period, shows that he has had a clean record of performance, that would certainly be a relevant circumstance to lie taken into ;account.
The State Transport Appellate Tribunal was plainly right in relying on this circumstance, amongst others, for the purpose of preferring the appellant to the respondent.
Before we part with this case we may point out that the learned Single, Judge overstepped the limits of his revisional jurisdiction and treated the revision application before him as if it wore an appeal.
That was clearly impermissible as the revisional jurisdiction of the High Court under section 64B is as severely restricted as that under section 115 of the Code of Civil Procedure and it is only where there is a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction that the High Court can interfere under section 64B ,with an order made by the State Transport Appellate Tribunal.
We must, therefore, set aside the judgment of the learned Single Judge and restore the order made by the State Transport Appellate Tribunal granting permit to the appellant.
The appeal is accordingly allowed.
The respondent will pay the costs to the appellant.
P.B.R. Appeal allowed.

summary:
The Regional Transport Authority granted a stage carriage permit to the respondent as against the appellant on the ground that the former was a single bus operator while the appellant was an operator having four stage carriage permits, including a stage carriage permit which was recently granted to him.
The State Transport Appellate Tribunal, on the other hand, took the view that the respondent did not have a pucca fire proof building for workshop,.
that it was immaterial whether the sector experience of the appellant was derived under a temporary permit or a permanent permit; that the appellant was entitled to two marks even though the experience gained by him was by operation of temporary permits, that the history sheet of the appellant was clean without any adverse remark and that since a portion of the route fell within the interior roads it was desirable in public interest to prefer "an experienced operator instead of single bus operator".
The Appellate Tribunal,.
therefore, found that the appellant had superior qualifications and was entitled to be preferred to others.
On a revision application under section 64B of the a single Judge of the High Court took the view that public interest required that in the socialist pattern of society monopoly should as far as possible be avoided and a smaller operator with one stage carriage permit should be preferred to a bigger operator having three or more stage carriage permits, that the appellant was a recent grantee of stage carriage permit; that a proper standard of comparison of the history sheets of the appellant and the respondent had not been made; and that the respondent was entitled to two marks on account of sector experience.
The order of the Regional Transport Authority granting permit to the respondent was, therefore, restored.
Allowing the appeal, HELD : (1) The High Court was not right in refusing two marks to the appellant.
Clause 3(c) of rule 155A provides that two marks shall be awarded to the applicant, who.
on the date of the consideration of the application by the Regional Transport Authority, has been plying a stage carriage permit on the entire route.
It does not contain any restriction that in order to be entitled ' to these two marks the applicant should have been plying on the route on the basis of a permanent permit.
What is material is that the applicant should have experience of plying on the route and this experience would be there whether plying is done on a temporary permit or a permanent permit.
[94G H] (2) The paramount consideration to be taken into account in determining as to which of the applicants should be selected for grant of permit always is public interest.
[95 B C] (3) The mere fact that an applicant has more than one permit or he is a recent grantee cannot by itself be regarded as a factor against him in the comparative scale.
Possession of more than one permit also cannot, by itself, divorced from other circumstances, be regarded as a disqualification.
[96 F; H] Ajantha Transports (P) Ltd. vs T. Y. K. Transports, ; , followed.
The High Court was in error in rejecting the claim of the appellant to the grant of permit by mechanically relying on the circumstance that the 92 appellant was a multi bus operator having four Stage carriage permits including a recent grant without considering how in the light of the other facts and circumstances, it was correlated to the question of public interest. ' The four stage carriage permits which the appellant had were not on the same route and there was no question of any monopoly being created in his favour if the permit applied for by him was granted.
The possession of more than one permit by the appellant was a circumstance in his.
favour because according to cl.
3(F) of rule 155A an applicant operating more than four stage carriages would be entitled to one mark.
[97B D] (4) The High Court was in error in holding that the same standard was not applied by the State Transport Appellate Tribunal in comparing the history sheets of the appellant and the respondents.
[97H] (5) In the instant case the, High Court overstepped the limits of the revisional jurisdiction and treated the revision application as if it were an appeal.
The jurisdiction of the High Court under section 64B is as severely restricted as that under section 115 of the Code of Civil Procedure and it is only where there is a jurisdictional error or illegality or material irregularity in the exercise of jurisdiction that the High Court can interfere under section 64B with an order made by the State Transport Appellate Tribunal.
[98D E]


judgement:
No. 522 of 1974.
Petition under Article 32 of the Constitution.
H. section Marwah for the petitioner.
section C. Majumdar, G. section Chatterjee and Sukumar Basu for the respondent.
KRISHNA IYER, J.
The detenu petitioner, challenges his detention on various rounds but Shri H. section Marwah, appearing as amicus curiae, has raised big contentions and small, some of which do not merit consideration and others need not be dealt with since, on a short point, the petition must succeed.
The scheme of the (Act No. 26 of 1971) (hereinafter called the MISA, for short) is in keeping with article 27 of the Constitution and emphasizes the various stages at which there will be consideration of the need for the detention by different authorities, such as the District Magistrate, the State Government and, ultimately, the Central Government.
For the effective exercise of this power a scheme has been built into the statute.
15 5 We are concerned at present with the power to direct release of the detenu.
We may extract the provision here : 14(1) Without prejudice to the provisions of section 21 of the , a detention order may, at any time, he revoked or modified= (b)notwithstanding that the order has been made by a State Government, by the Central Government.", With a view to posting the Central Government with the detention and the grounds t herefore, section 3(4) provides thus : "3. Power to make orders detaining certain persons.
(4)When any order is made or approved by the State Government Under this section, the State Government shall, within seven days, report the fact to the Central Government together with the grounds on which the order has been made and such other particulars as in the opinion of the State Government have a bearing on the necessity for the order." (emphasis, ours) A fair reading of section 3 indicates that the State Government may directly issue an order of detention or, if it is done by a lesser authority, approve of such detention order as provided in the statute.
Sub section
(4) of section 3, which we have extracted, obligates the State Government to communicate, within seven days of the order of detention it makes or it approves, that fact to the Central Government, together with the grounds on which the order has been made and other relevant particulars.
Even assuming that the order is made by the District Magistrate and is approved by the State Government, the communication has to be made to the Central Government within the time specified.
This procedural mandate is inviolable except on peril of the order being voided.
In the present case it is obvious that the detention order was made on November 21, 1972 by the District Magistrate and approved by the State Government on December 2, 1972.
It is curious that on the State 's own showing the communication to the Central Government in compliance with section 3(4) of the MISA has been made on December 1, 1972.
This date is beyond seven days of the District Magistrate 's order and it could not have been in compliance with the seven days ' spell after the approval by the State Government, that having been done only a day after the alleged communication to the Central Government.
It is thus plain that the State Government before the approval itself was made.
Secondly, if what it communicated was the order of the District Magistrate, it, was not sufficient compliance with the statutory requirement.
Moreover, it was beyond the seven, days ' period.
156 In short, there has been an infringement of the procedural safeguard.
This has, in several rulings, held that the liberty of the citien is a priceless freedom, sedulously secured by the Constitution.
Even so, during times of emergency, in compliance with the provisions of the Constitution, the said freedom may be curtailed, but only in strict compliance with statutory formalities which are the vigilant concern of the Courts to enforce.
We have pointed out how in the present case there has been a failure on the part of the State Government to comply with s.3(4).
Judicial engineering prevents breaches of constitutional dykes protecting fundamental freedoms.
The order of detention is invalid and the detenu is liable to be ,released.
The rule is made absolute.
Petition allowed.

dataset_name: IN-Abs

summary:
Section 3 of the , indicates that the State Government may directly issue an order of detention or, if it is done by a lesser authority, approve of such detention order as provided.
Section 3(4) obligates the State Government to communicate, within 7 days of the order of detention it makes or approves, that fact to the Central Government, together with the grounds and other relevant particulars.
The procedural mandate is inviolable except on peril of the order being avoided.
In the present case, the order of detention was made by the Dt.
Magistrate on November 21, 1972 and the order was approved by the State Government on December 2, 1972.
The order was however communicated to the Central Government on December 1, 1972.
HELD : There was no strict compliance with statutory formalities and since there has been ail infringement of the procedural safeguard, the order of detention is invalid.
[155H 156A] (a) The communication to the Central Government by the State Government of its approval was not within 7 days after its approval, as required by section 3(4), because, the approval by the State Government was only a day after the communication to the Central Government.
[155G] (b)If what is communicated is only the order of the District Magistrate, this was not sufficient compliance with the statutory requirement, and it further was also beyond the 7 days ' period [155 G H]


judgement:
No. 429 of 1974.
Under article 32 of the Constitution of India.
Shiv Pujan Singh, for the petitioner.
G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by KRISHNA IYER, J.
Shri section P. Singh, appearing as amicus curiae has urged a few points in support of his submission that the petitioner detenu, very poor and not fallen into criminal company, is entitled to be set free, the order being illegal.
The obnoxious acts, with futuristic import, relating to the detention, have been set out in the grounds annexed to the order and are repeated in the affidavit of the Deputy Secretary, Home (Special) Department, Government of West Bengal, based on the records available in the Secretariat.
The District Magistrate of Purulia, nearly three long years ago, passed the order of detention against the petitioner on February 2, 1972 on receipt of materials regarding the pre judicial activities of the detenu and on being subjectively satisfied of the need for the detention under s.3 of the Maintenance of internal Security Act, 1971 (Act of 1971) (her r called the MISA, for short).
293 The two criminal adventuress of the petitioner which persuaded the District Magistrate to prognosticate about his prejudicial activities were allegedly indulged in on September 3, 1971.
The grounds of detention are that on that date, in two separate dramatic sallies, the detenu and his associates went armed with hacksaws, lathis etc., and what not, committed theft of overhead copper catenary wires and certain other items from a place between Anaka and Bagalia railway stations.
On the first occasion, which was during broad daylight, the miscreants were challenged 'by the R. section Members ' but were scared away by the petitioner and his gang repeated the theft of traction wire etc.
, at stone throw.
On the second occasion, which was at about mid night about the same spot 'When resisted by the duty RPF Rakshaks with the help Of villagers, ballasts were pelted at them by the violent in uders who made good their escape with the gains of robbery.
on these two frightful episodes, the detaining authority came to the requisite conclusion about danger to the community, which is recited in the order.
The question is whether, in the facts and circumstances of the case, the order can be impugned as colorable or exercise of power based on illusory or extraneous circumstances and therefore void.
An examination of the surrounding set of facts, serving as backdrop or basis, becomes necessary to appreciate the argument that the subjective satisfaction of the authority did not stem from any real application of his mind but as a ritualistic recital in a routine manner.
It is admitted in paragraph 6 of the counter affidavit that the two incidents were investigated as GRPS Case No. 1 and No .2.
The petitioner was arrested in connection with the said cases on September 9. 1971 and the police submitted a final report in both the cases on January 6, 1972 and February 9, 1972 respectively, 'not because there was no evidence against the petitioner but because the detenu petitioner being a dangerous person, witnesses were afraid to depose against him in open Court '.
It may be mentioned here that the petitioners name was not in the FIR but is alleged to have been gathered in the, course of the investigation.
However, be was discharged from the two cases on February 9, 1972 but was taken into custody the same day pursuant to the detention order.
Thereafter the prescribed formalities were followed and there is no quarrel about non compliance in this statutory sequence.
The crucial submission that deserves close study turns on the colorable nature or mindless manner of the impugned order.
What are the facts germane to this issue? It is seen that the petitioner 's name is not in the first information statements.
Had a court occasion to adjudge the guilt of an accused person charged with serious crime committed in the presence of quasi police officers and his name is not seen in the earliest report, to the police, that would have received adverse notice unless explained.
Likewise, the circumstance that the final report to the Court terminated the criminal proceedings may, unless other reasons are given, militate against the implication of the petitioner since section 169 Cr.
P.C. refers to two situations one of which at least nullifies possible inference of incrimination i.e., that 294 there is no 'reasonable ground of suspicion to justify the forwarding of the accused to a magistrate '.
It behoves the detaining authority to tell this Court how he reached his mental result in the face of a 'release report ' by the police.
For, the legal label that the satisfaction of the executive authority about potential prejudicial activity is 'subjective ' does not mean that it can be irrational to the point of unreality.
Subjective satisfaction is actual satisfaction, nevertheless.
The objective standards which courts apply may not be applied, the subject being more sensitive; but a sham satisfaction is no satisfaction and will fail in court when challenged under article 32 of the Constitution.
If material factors are slurred over, the formula of 'subjective, satisfaction ' cannot salvage the deprivatory order.
Statutory immunology hardly saves such invalidity.
After all, the jurisprudence of 'detention without trial is not the vanishing point of judicial review.
The area and depth of the probe, of course, is conditioned by the particular law, its purpose and language.
But our freedoms axe not wholly free unless the judiciary have a minimal look at their executive deprivation, even though under exceptional situations.
We may here refer to what a bench of five Judges of this Court observed in the vintage ruling Rameshwar Shaw(1) : "It is however necessary to emphasise in this connection that though the satisfaction of the detaining authority contemplated by section 3 (1) (a) is the subjective satisfaction of the said authority, cases may arise where the detenu may challenge the validity of his detention on the ground of mala fides and in support of the said plea urge that along with other which show, mala fides, the Court may also consider his grievance that the grounds served on him cannot possibly or rationally support the conclusion drawn against him by the detaining authority.
It is only in this incidental manner and in ' support of the plea of malafides that this question can become justiciable; otherwise the reasonableness or propriety of the said satisfaction contemplated by section 3 (1) (a) cannot be questioned before the Courts.
" Back to the facts.
Of course, the mere circumstance that the aim of the petitioner was gathered in the course of the investigation is neither here nor there and cannot help him in the tall contention that for that reason the order of detention is a make believe.
The conspectus of circumstances placed before the authority and his rational response, having regard to the duty to immobilise dangerous delinquents from molesting the community these are pertinent factors to decode the responsible reality of the satisfaction, although not the plenary rightness of the detention order.
There are a few vital facts which loom large in this context.
One is that court discharged the accused, the reason alleged in the counter being that ; , 926. 295 "The police submitted final report in those cases on 6 1 72 and 9 2 72 respectively not because there was no facts which show malafides, the Court may also consider his evidence against the petitioner but because the detenu petitioner being a dangerous person witnesses were afraid to depose against him in open court.
" What is the impact of a discharge of the accused by the criminal court based on police reports on the validity of the detention order against the same person based on the same charge in the context of a contention of a non application of the authority 's mind ? The two jurisdictions are different, the two jurisprudential principles diverge, the objects of enquiry and nature of mental search and satisfaction in the two processes vary.
The argument that detention without trial, for long spells as in this instance, is undemocratic has its limitations in modern times when criminal individuals hold the community to ran som, although vigilant check of executive abuse becomes a paramount judicial necessity.
We, as judges and citizens, must remember that, in law as in life, the dogmas of the quiet past are not adequate to the demands of the stormy present and the philosophy and strategy of preventive detention has come to stay.
We may merely observe that we are not legally impressed with counsel 's persistent point that solely or mainly because the petitioner has been discharged in the two criminal cases he is entitled to be enlarged from preventive captivity.
Even so, it does not follow that the extreme view propounded by the counsel for the State that the termination of the proceedings in a criminal case on identical facts is of no consequence is sound.
In this connection, we may draw attention to a few decisions of this Court cited at the bar.
Chandrachud J., speaking for the Court, recently observed in Srilal Shaw vs The State of West Bengal(1), dealing with a situation somewhat like the one in this case, thus): "This strikes us as a typical case in which for no apparent reason a person who could easily be prosecuted under the punitive laws is being preventively detained.
The Railway Property (Unlawful Possession) Act, 29 of 1966, confers extensive powers to bring to book persons who are found in unlawful possession of railway property.
The first offence is punishable with a sentence of five years and in the absence of special and adequate reasons to be mentioned in the judgment the imprisonment shall not be less than one year.
When a person is arrested for an offence punishable under that Act, officers of the Railway Protection Force have the power to investigate into the alleged offence and the statements recorded by them during the course of investigation do not attract the provisions of section 162, Criminal Procedure Code.
(See Criminal Appeal No. 156 of 1972 decided on 23 8 1974).
If the facts stated in the ground are true, this was an easy case to take to a successful termination.
We find it impossible of accept that the prosecution could not be proceeded with as the witnesses (1) Writ Petition No. 453 of 1974, decided on 4 12 74.
296 were afraid to depose, in the public against the petitioner.
The Sub inspector of Police who made the Panchnavna, we hope, could certainly not be afraid of giving evidence against the petitioner.
He had made the Panchnama of seizure openly and to the knowledge of the petitioner.
Besides, if the petitioner 's statement was recorded during the course of investigation under the Act of 1966, that itself could be relied upon by the prosecution in order to establish the charge that the petitioner was in unlawful possession of Rail , way property." (emphasis ours) Again, in Noorchand 's case(1) Gupta J., delivering judgment for Court, held: "We do not think it can be said that the fact that the petitioner was discharged from the criminal cases is entirely irrelevant and of no significance; it is a circumstance which the detaining authority cannot altogether disregard.
In the case of Bhut Nath Mate vs State of West Bengal ; this Court observed: ".
detention power cannot be quietly used to subvert, supplant or to substitute the punitive law of the Penal Code.
The immune expedient of throwing into a prison cell one whom the ordinary law would take care of, merely because it is irksome to undertake the inconvenience of proving guilt in court is unfair abuse.
" If as the petitioner has asserted, he was discharged because t 'here was no material against him and not because witnesses were afraid to give evidence against him, there would be apparently no rational basis for the subjective satisfaction of the detaining authority.
It is for the detaining authority to say that in spite of the discharge he was satisfied, on some valid material, about the petitioner 's complicity in the criminal acts which constitute the basis of the detention order.
But, as stated already, the District Magistrate Malda, who passed the order in this case, has not affirmed the affidavit that has been filed on behalf of the State.
" There was reference at the bar to the ruling reported as Golam Husvain vs Commissioner of Police(2) where the Court clarified that there was no bar to a detention order being made after the order of discharge by the criminal court, but emphasized the need to scan the ,order to prevent executive abuse in the following words: "Of course, we can visualise extreme cases where a Court has held a criminal case to be false and a detaining authority with that judicial pronouncement before him may not reasonably claim to be satisfied about prospective prejudicial activities based on what a Court has found to be baseless.
" (1) A.I.R. 1974 S.C. 2120.
(2) [1974]4 S.C.C. 530.
297 Maybe, we may as well refer to the, vintage ruling in Jagannath 's care(1) where Wanchoo J., (as he thn was) spoke for a unanimous Court : order of detention should show that it had acted with all due care and caution and with the sense of responsibility necessary when a citizen is deprived his liberty without trial.
We have therefore to see whether in the present case the authority concerned has acted in this manner or not.
If it has not so acted and if it appears that it did not apply its mind properly before making the order of detention the order in question would not be an order under die Rules and the person detained would be entitled to release.
" The precedential backdrop help crystallize the jurisprudence of, preventive detention, an odd but inevitable juridical phenomenon, in a suicide manner and to the extent relevant to the case.
Although.
the circumstances of each case will ultimately demarcate the callous, or colorable exercise of power from the activist or alert application of the executive 's mind in making the impugned order, some clear.
guidelines, though overlapping, help application of the law: (1) The discharge or acquittal by a criminal court is not necessarily a bar to preventive detention on the same facts for 'security ' purposes.
But if such discharge or acquittal proceeds on the footing that the charge is false or baseless, preventive detention on the same condemned facts may be vulnerable on the ground that the power under the MISA has been exercised in a malafide or colorable manner.
(2) The executive may act on subjective satisfaction and is immunised from judicial dissection of the sufficiency of the material.
(3) The satisfaction, though attenuated by 'subjectivity ' must be real and rational, not random divination, must flow from an advertence to relevant factors, not be a mock recital or mechanical chant of statutorily sanctified phrases.
(4) The executive conclusion regarding futuristic prejudicial activities of the detenu and its nexus with his past conduct is acceptable but not invulnerable.
The court can lift the verbal veil to discover the true face.
(5) One test to check upon the recolourable nature or mindless mood of the alleged satisfaction of the authority is to see if the articulate 'grounds ' are too groundless to induce credence in any reasonable man or to frivolous to be brushed aside as fictitious by a (1) ; ,138.
298 responsible instrumentality.
The court must see through mere sleights of mind played by the detaining authority. ' (6) More concretaly, if witnesses are frightened off by a desperate criminal, the court may discharge for deficient evidence but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to protect society.
(7) But if on a rational or fair consideration of the police version or probative circumstances he would or should necessarily have rejected it, the routinisation of the satisfaction, couched in correct diction, cannot carry conviction about its reality or fidelity, as against factitious terminological conformity.
And on a charge of malafides or misuse of power being made, the court can go behind the facade and reach at the factum.
So viewed, how does the petitioner 's case stand? The petitioner 's identity and involvement must, in some manner, brought home, sufficient for the subjective satisfaction of a responsible officer not merely for his hunch or intuition.
Let us assume in favour of the officer that such material was present before him when he passed the order of detention.
This should be revealed to the court hearing the habeas corpus motion, in a proper return in the shape of an affidavit.
While we agree that the detainer 's own oath is not always insisted on as the price for sustaining the order, subjective satisfaction, being a mental fact or state is best established by the author 's affidavit, not a stranger in the Secretariat familiar with papers, but the mind of the man who realised the imperativeness of the detention.
This is not a formality when the subject matter is personal liberty and the more 'subjective ' the executive 's operation the more sensitive is procedural insistence.
Here the District Magistrate 's affidavit is unavailable.
Another obstacle in the way of the State, which has to be surmounted, consists in the circumstances that both the criminal occurrences took place in the presence of public servants, members of the para police forces attached to the railway administration.
Indeed, the case is that some of these officials were terrorized and over awed before the stolen articles were removed.
Naturally, one would expect a serious crime like railway property being removed by show of violence being the subject matter of the prosecution.
In the present case.
the District Magistrate does not swear an affidavit himself and what is stated is that he is now posted in Sikkim and is not 'presently available for affirming the affidavit '.
In a case where a personal expla nation is necessary, Sikkim is not too distant and so we have to see Whether the District Magistrate has, in the instant case, to show why, 299 when the cases were discharged by the trying magistrate, he thought there was enough material for preventive detention.
True, the Home Department official, informed by the records, has sworn that the police report for non prosecution was 'not because there was no offence against the petitioner but because the detenu petitioner being a Jangerous person witnesses were afraid to depose against him in open court '.
Maybe this is true, but the subjective satisfaction of the District Magistrate must be spoken to by him, particularly in a situation where the circumstances of the non prosecution strongly militate against the reality of the petitioner 's involvement in the occurrence.
After all, merely to allege that witnesses were panicked away from Testifying to truth cannot be swallowed gullibly when the witnesses Themselves are members of a railway protection force and the offenses against public property are of a grave, character.
The observations of Chandrachud J. in Srilal Shaw, quoted earlier, are in point.
In the case of non officials, maybe they are afraid to give evidence against dangerous characters for fear of their life but such an excuse or alibi is ordinarily unavailable where the witnesses are para police public servants.
If the District Magistrate had sworn an affidavit that he identity of the petitioner, as participant in the crime, was not known of the railway protection force and that other villagers made them out is the gang was decamping with the booty, something may be said for he plea.
There is no such averment in the counter affidavit and the pare ipse dixit of the Deputy Secretary in the Home Department that witnesses were afraid to depose is too implausible and tenuous to be acceptable even for subjective satisfaction.
After all, freedom is not bubble to be blown away by executive whif or whim.
For, as pointed put by Gajendragadkar J. (as he then was) in Rameshwar Shaw (supra) it p. 930 : "At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the authority is dealing with a person already in detention.
" Had the statement been of the detaining authority, had the deponent furnished some fact which would or could make any reasonable man believe that the witnesses were likely to shy away from the court for far of the petitioner, bad the affidavit thrown some light on the dark lint behind the non prosecution in court due to non disclosure of evidence or to indicate that the final report of investigation was not on account of the absence of any reasonable suspicion but because of the deficiency of evidence (section 169 Cr.
P.C. contemplates both types of situations and the copy of the report was easy to produce), we might have upheld the detention.
In Dulat Roy vs The District Magistrate Burdwan(1) this question has been dealt with in some detail.
The flaw in the order flows from non explanation of how the District Magistrate has made his inference in the circumstances indicated.
(1) ; 300 Without more, we are inclined to the view that the observations of Wanchoo J. (as he than was) in Jagannath (supra), at p. 138, applies "This casualness also shows that the mind of the authority concerned was really not applied to the question of detention of the petitioner in the present case.
In this view of the matter we are of opinion that the petitioner is entitled to release as the order by which he was detained is no order under the Rules for it was passed without the application of the mind of the authority con In the present case, on account of the special reasons set out above, who are far from satisfied that the detention order is not a cloak to avoid the irksome procedure of a trial in Court.
There are two social implications of dropping prosecutions and resorting to substitutive detentions which deserve to be remembered.
Where a grievous crime against the community has been committed, the culprit must be subjected to condign punishment so that the penal law may strike a stem blow where it should.
Detention is a softer treatment than stringent sentence and there is no reason why a dangeral should get away with it by enjoying an unfree but unpaid holiday.
Secondly, if the man is innocent, the process of the law should give him a fair chance and that should not be scuttled by indiscriminate resort to easy but unreal orders of detention unbound by precise time.
That is a negation of the correctional humanism of our system and breeds bitterness, alienation and hostility within the cage.
We accordingly allow me writ petition, make the rule absolute and ' direct that the petitioner set free.
V.P.S. Petition allowed.

summary:
The petitioner was detained under section 3 of the .
The grounds of detention were that twice on the same day he and his associates, armed with dangerous weapons, committed thefts of overhead copper wire, the first time in broad day light and then at about mid night.
On both occasions they were challenged by public servants, members of the para police force, attached to the railway administration but the petitioner and his associates escaped after attacking the members of the Railway Police Force.
The petitioner was arrested in connection with the two incidents.
His name was not in the F.I.R. but was gathered in the course of investigation.
The police, how ever reported that the petitioner being a dangerous person, witnesses were afraid to depose against him in open court and so he was discharged.
He was, however, taken into custody the same day of discharge pursuant to the detention order.
Allowing the petition challenging the detention.
HELD : 1(a) The discharge or acquittal by a criminal court is not necessarily a bar to preventive detention on the same facts for 'security ' purposes.
But if such discharge or acquittal proceeds on the footing that the charge is baseless or false, preventive detention on the same condemned facts may be vulnerable on the ground that the power of detention has been exercised in a mala fide or colorable manner.
(b) The executive authority may act on subjective satisfaction and is immunised from judicial dissection of the sufficiency of the material.
But the executive conclusion regarding futuristic prejudicial activities of the detenu and its nexus with his past conduct though acceptable is not invulnerable.
(c) The satisfaction though attenuated by 'subjectivity ' must be real and rational, must flow from an advertence to relevant factors, and not be a mockery or mechanical chant of statutorily sanctified phrases.
The subjective satisfaction must be actual satisfaction.
(d) One test to check upon the colorable nature or mindless mood of the alleged satisfaction of the authority,is to see if the articulated 'grounds ' are too groundless to induce credence in any reasonable man or too frivolous to be brushed aside as fictitious by a responsible instrumentality.
(e) If witnesses are frightened off by a desperate criminal, the court may discharge for deficient evidence but on being convinced (on police or other materials coming within his ken) that witnesses had been scared of testifying, the District Magistrate may still invoke his preventive power to protect society.
(f) But if on a rational or fair consideration of the police version or probative circumstances he should have rejected it the routinisation of the satisfaction, couched in correct diction.
cannot carry conviction about its reality and on a charge of mala fides or misuse of power being made, the court can examine the circumstances.
[297 D 298 C] (2) Merely to allege that witnesses were panicked away from testifying to truth cannot be swallowed gullibly when the witnesses are members of the Railway Protection Force and the offenses against public property were of grave character.
[299 B C] 292 (3)In a case like the present, where the circumstances Of the non prosecution strongly militate against the reality of the petitioner 's involvement in the occurrence, the subjective satisfaction of the District Magistrate must be spoken to by him.
While the detainer 's on oath is not always insisted on as the price for sustaining the order, subjective satisfaction, being a mental fact or state is best established by the author 's affidavit and not that of a stranger in the secretariat familiar with the papers.
But in the present case, the District Magistrate 's affidavit is not available and the reason given for his not filing his affidavit is not convincing.
If the District Magistrate had sworn an affidavit that the identity of the petitioner as participant in the two incidents was not known to the Railway Protection Force and that other villagers made them out as the gang was decamping with the booty, the detention might have been upheld.
But there is no such averment and the bare ipse dixit of the Deputy Secretary in the Home Department that witnesses were afraid to depose is too implausible and tenuous to be acceptable even for subjective satisfaction.
[298 E F; 299 A B, C E] [Were a grievous crime against the community has been committed the culprit must be subjected to condign punishment so that the penal law may strike a stern blow where it should.
Detention is a softer treatment.
Further, if the is innocent the process of the law should give him a fair chance and that should not be scuttled by indiscriminate to easy but unreal orders of detention un bound by precise time.].
[300 C E] Srilal Shaw vs The State of West Bengal Writ Petition No. 453 of 1974.
decided on 4 12 74 and Jaganath 's case ; and 138, followed.
Rameshwar Shaw ; 926.
Hoorchand 's cast A.I.R. 1974 S.C. 2120; Golam Hussain vs Commissioner of Police ; , 534 and Dulal Roy vs The District Magistrate, Burdwan ; referred to.


judgement:
iminal Appeal No. 22 of 1971.
(Appeal by Special Leave from the Judgment & Order dated the 30th March, 1970 of the Madhya Pradesh High Court in Criminal appeal No. 536 of 1966).
P. P. Juneja for the appellant.
Ram Punjwani and H. section Parihar, for the respondent.
The Judgment of the Court was delivered by BEG, J.
This is an appeal by special leave by one out of 118 persons who were prosecuted for participation in a serious riot on August 1, 1965, in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pradesh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them.
Five accused persons were discharged by the Committing Magistrate.
One hundred and thirteen persons were jointly tried for various offences punishable under Sections 147, 148, 302, 307, 325 and 323 Indian Penal Code.
Charges were also alternatively framed under Section 464 302/149, 307/149, 323/149 and 325/149 against all of them.
An Additional Sessions ' Judge of Bilaspur acquitted sixty one accused persons And convicted fifty two persons.
He found all the convicted persons guilty under Section 147 P.C. and sentenced them to two years rigorous imprisonment.
We need only mention the other convictions of the appellant before us.
He was held guilty under Section 304(1)/149 IPC and sentenced to five years rigorous imprisonment and under Section 325/149 IPC and sentenced to two years rigorous imprisonment, and under Section 323/149 IPC and sentenced to a month 's rigorous imprisonment.
On appeals by the convicted persons as well as by the State Government, the High Court, while convicting only fourteen persons, including the appellant, altered his conviction under section 304(1) /149 IPC into three convictions under Section 302/149 for the murder of three persons Badlu, Santu, Chhote Bhurwa, but it made the sentences of life imprisonment concurrent for the three offences.
It main tained the other convictions and sentences passed by the learned Sessions ' Judge.
Learned Counsel for the appellant has tried to advance some ,arguments to assail the conviction of the appellant for participation in rioting.
But, we are not impressed by any of the criticisms leveled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7.
The unshaken evidence, of these witnesses had established that the appellant had participated in the riot, and chased the victims, and even inflicted some minor injuries on Baliram, PW 1.
But, beyond that, the participation of the appellant in the actual acts of cutting the limbs of the three persons, who eventually died of profuse bleeding, was not deposed to by any prosecution witness.
Although we are unable to disturb the concurrent finding of the fact by the Trial Court and the High Court of the participation of the appellant in the serious riot which took place on 1 8 1965 in village Ganiari, we are also unable to concur with the view of the High Court that, on facts established, the common object of the unlawful assem bly was necessarily to cause the death of the three individuals who, unfortunately, lost their lives as a result of the out burse of frenzy of ,an outraged mob against persons who, according to the learned Session ' Judge, had given cause to the villagers to be seriously displeased with their nefarious activities.
The learned Sessions ' Judge, while convicting the appellant under Section 304(1), had observed "I am inclined to take a lenient view of these killings because the persons killed had become a nuisance to the village community and their criminal acts knew no bounds or rationality.
A time comes when even an orderly society revolts finding no relief in the regular course.
Though such acts are not permissible even in such cases and cannot be encouraged yet due discrimination was not lost sight of by 4 65 the assailants and severe penalty is thus not called for in the present case. ' We do not consider these reasons of the learned Sessions Judge, who had given them for convicting the appellant together with other accused persons under Section 304 (1) /149 IPC and sentencing them to five years ' rigorous imprisonment, to be at all sound or relevant in justifying a conviction under Section 304(1)/149 IPC.
The learned Sessions ' Judge had relied upon Kapur Singh vs State of Pepsu(1), to hold that, as injuries were inflicted upon the limbs of the three men, who died of bleeding, but infliction of injuries on vital parts of the body was deliberately avoided, an intention of anybody to murder was not established.
The learned Session 's Judge appears to have overlooked the various clauses of Section 300 IPC.
An intention to kill is not required in every case.
A knowledge that the natural and probable consequences of an act would be death will suffice for a conviction under Section 302 IPC.
The question on which we entertain serious doubts, after examining the nature of the case and the relevant evidence on record is whether the killing of any of the three men who died was within the common object of the large number of persons who.
took part in the riot in various ways in a fairly wide spread area.
It may well be that those who actually inflicted the injuries on the three men who died could be held liable for causing death in a particularly cruel manner.
The( question, nevertheless, remains whether each of the large number of other rioters in the village, who took part in various ways in what appeared to be an upsurge of resentment and hostility against a party three of which lost their lives, shared the common object to kill them or to do acts whose natural and probable results would be their deaths.
A reference made to Chikkarange Gowda & Ors.
vs State of Mysore(2), would show that each member of a mob need not be necessarily be held liable for the actions of every other member of that mob.
It may be easier, in some respects, to prove a common object as a basis for a vicarious liability under Section 149 IPC, than to establish a common intention within the meaning of Section 34 IPC.
Nevertheless, as was pointed out by this Court in Chikkarange Gowda 's case (supra), the principle has been well recognised, since the decision in 1873 in Queen vs Sabed Ali(3), that every offence which may be committed by a member of an unlawful assembly will not be necessarily ascribed to or vicariously fastened upon every other member of that assembly by using Section 149 IPC.
The likelihood of causing of death by the nature of the actions of the members of the assembly must be shown to be within the knowledge of a member who is to be made vicariously liable for a death.
Such knowledge may be inferred from the nature of the actions committed by others in an unlawful assembly which the member held vicariously liable continues to associate himself with despite these actions seen by him or known to him.
In a case such as the one before us, in which there were two factions in a village, one of the oppressors and the other of the oppressed, (1) AIR 1956 S.C. 654.
(2) AIR 1956 S.C. 731.
(3) 20 Sut.
W.R. (Cr.) 5 (A).
466 smarting under the pain of injuries inflicted by their oppressors, the intention of a member of an assembly could be initially quite lawful.
His object may not go beyond joining a procession for purposes of protest.
We are convinced, on the evidence on record, that the participation of the appellant before us went beyond,exhibiting a mere intention to protest.
It not only embraced knowledge of likelihood of hurt of some kind to members of the party attacked, but it included an attack by the appellant on Baliram, PW 1.
The nature of that attack was, however, relatively mild.
At most, from the, concerted action of so many men a member of the unlawful assembly, on the facts and circumstances of the case before us, could be reasonably held to be aware that grievous hurt would result.
After examining all the evidence relating to the participation of the appellant and others in the riot we are left in grave doubt whether the assembly had a common object of killing any one at all, ' even if such was really the object of any particular member or members of the unlawful assembly.
It may be that those who cut the limbs of men who lost their lives due to bleeding could reasonably be held liable for murder.
But, it seems to be unlikely that each member, considering the nature of the riot and the different acts of different members of the riotous assembly, had such an object.
This was exactly the view adopted by this Court in Chikkarange Gowda 's case (supra).
As we are doubtful whether the appellant could be held guilty of participation in an unlawful assembly which had the common object of killing or even maiming the three men who lost their lives, we think that the appellant could not be convicted under Section 302/149 IPC.
We also think that the learned Sessions ' Judge was in error in holding that the appellant could be convicted under Section 304 (1) /149 IPC.
For a conviction under Section 304(1) IPC., it has to be shown that the case of the convicted person falls within one of the five Exceptions found in Section 300 IPC.
It is obvious that the case of the appellant does not fall under any of these Exceptions.
If it is doubtful whether the common object of the unlawful assembly joined by the appellant was to commit any acts which were either intended to cause death, or, from which knowledge of likelihood of death could be inferred, we think that persons other than those who actually committed the acts resulting in death could not be held vicariously liable for murder.
The result is that we allow this appeal to the extent that we set aside the convictions and sentences of the appellant under Section 302/149 IPC.
We maintained his convictions and sentences under Section 147, 323/149 and 325/149 IPC.
Subject to the modification indicated here this, appeal is dismissed.
We, understand that the appellant has already undergone imprisonment longer than the longest one imposed for the convictions sustained by us.
We therefore, direct that he be released forthwith unless wanted in some other connection.
P.H.P. Appeal allowed.

summary:
118 persons were prosecuted for participation in a serious riot.
5 accused were discharged by the Committing Magistrate.
The Additional Sessions Judge acquitted 61 accused and convicted 52 under section 147 and sentenced them to 2 years ' rigorous imprisonment.
The appellant was held guilty under section 304(1) read with 149 and sentenced to 5 years rigorous imprisonment, under section 325/149 sentenced to 2 years rigorous imprisonment and under section 323/149 sentenced to a month 's rigorous imprisonment.
The convicted persons and the State filed appeals before the High Court.
Tile High Court convicted 14 persons including the appellant and altered his conviction under section 304/1/149 into 302/149 for the murder of 3 persons and sentenced the appellant to life imprisonment.
The Learned Counsel for the appellant before this Court contended that the appellant did not participate in the riot.
HELD : This Court is unable to disturb the concurrent findings of the two courts below about appellant 's participation in the riot.
The High Court however, was wrong in holding that the common object of the unlawful assembly was necessarily to cause death of three individuals.
In a case like the present there were two factions; one of the oppressors and the other of the opp ressed, and the intention of members of the oppressed faction could be initially, to demonstrate quite lawfully.
The circumstances showed that the appellant 's intention may have been confined to joining a procession for purposes of protest.
If it is doubtful that the common object of the unlawful assembly was to cause death, persons other than those who actually committed the acts resulting in death could not be held vicariously liable for murder.
[464F G; 564H466D] [The judgment of the High Court as far as appellant is concerned was set aside and that of the Sessions Court restored.] [446G]