judgement:
iminal Appeal No. 9 of 1963.
Appeal by special leave from the judgment and order dated November 9, 1962 of the Rajasthan High Court in D. B. Criminal Appeal No. 407 of 1961.
Purushottam Trikamdas, C., L. Sarren and R. L. Kohli, for the appellant.
section K. Kapur and R. N. Sachthey, for the respondent.
August 19, 1963.
The Judgment of the Court was delivered by SHAH J.
Noor Khan, resident of Kuchaman in the State of Rajasthan, and nine others were tried before the Additional Sessions judge, Sirohi in the State of Rajasthan for offences of rioting and being members of an unlawful assembly and causing in furtherance of their common object death of one Pratap, at about 2 30 p. m. on September 29, 1960 and serious injuries to four others on the same occa 523 sion.
Noor Khan was also charged for the substantive offence of causing the death of Pratap by gunshot injuries.
The .Sessions Judge acquitted all the persons accused.
at the trial.
In appeal by the State, the High Court of Rajasthan set aside the order of acquittal in favour of Noor Khan and confirmed the order in respect of the rest.
There were disputes between Noor Khan on the one hand and Pratap and his brothers on the other about a well in village Mundara.
Noor Khan claimed to have purchased a half share in the well whereas Pratap and his brothers claimed the well to be their exclusive property, and there were several court proceedings about this dispute.
It was the case for the prosecution that on September 29, 1960 at about 2 00 p.m. Noor Khan accompanied by his father Samdu Khan and eight others went to Pratap 'section field (in which there was a farm, a house, a stable and the disputed well) and called upon Pratap to deliver possession of the well and on the latter declining to do so, Samdu Khan fired a muzzle loading gun at Ganesh brother of Pratap but missed him.
Noor Khan then fired at Pratap and killed him instantaneously.
The other members of the party of Noor Khan at the instigation of Samdu Khan thereafter beat Ganesh, Prabhu, Mohan and Gulab brothers of Pratap with sticks and other weapons and caused them injuries.
After the assailants retired, Ganesh lodged a complaint against 15 persons including Noor Khan an.d Samdu Khan at the police station, Bali.
Ten out of those who were named in the complaint were arrested and tried before the Court of Session, Sirohi.
The Sessions Judge acquitted all the accused holding that the story that there was an unlawful assembly of ten or more persons who went to the well and caused the death of Pratap was not reliable, for in his view the prosecution had failed to lead evidence of independent witnesses and alterations were made in the story of the prosecution from time to time and certain persons were falsely involved.
He observed that there was enmity between the two sides and the testimony of witnesses who claimed to be present at the scene of assault was not corroborated by independent evidence and was on that .account unworthy of credit, especially because the complainant Ganesh had named several persons who were proved not to have taken part in the assault.
524 In appeal by the State, the High Court of Rajasthan convicted Noor Khan for causing the death of Pratap by firing a muzzle loading gun and causing him fatal injury and thereby committing an offence punishable under section 302 Indian Penal Gode and sentenced him to suffer imprisonment for life.
With special leave, Noor Khan has appealed to this court.
Pratap died on September 29, 1960 as a result of gun shot injury.
The testimony of Dr. Mehta who performed the post mortem examination on the dead body of Pratap disposes beside the wound of entry that the left lung of the victim was lacerated with pieces of metal.
Dr. Mehta found on the body of witness Prabhu two contusions and an incised injury, on the body of Ganesh three contusions, on Mohan one contusion and on Gulab a swelling and in the view of Dr. Mehta the injuries were, at the time when he examined the injured persons on October 1, 1960, about 48 hours old.
Prabhu, Ganesh, Mohan and Gulab were examined as witnesses for the prosecution, and they deposed that Noor Khan had caused the fatal injury to Pratap by firing a muzzle loading gun at him, and that they were injured in the same incident by the members of Noor Khan 's party.
The injuries on these four persons strongly corroborate their story that at the time of the assault made on Pratap at about 2 00 p.m. on September 29, 1960 they were present.
This story was further corroborated by two female witnesses, Bhanwari and Mathurn.
The High Court in appeal by the State held that notwithstanding the infirmities in the prosecution case that in the first information, names of certain persons who were not present at the scene of occurrence were given by the complainant Ganesh on account of enmity and that there were discrepancies between the statements of the eye witnesses at the trial and the first information on the question as to who, out of the two persons Samdu Khan and the appellant Noor Khan, fired first, the substantial case of the prosecution remained unaffected thereby, for each of the four eye witnesses Ganesh, Prabhu, Mohan and Gulab had marks of injuries the duration of which when examined by Dr. Mehta tallied with their story and the presence of the injuries lent assurance to their testimony that they were present at the occurrence, and the 525 absence of independent witnesses was not by itself a sufficient ground for discarding the testimony of the witnesses who claimed to have seen the assault on Pratap.
Relying upon the testimony of Mst.
Bhanwari 'supported by the testimony of Mohan Singh and Mst.
Mathura the High Court held that the fatal injury to.
Pratap was caused by the appellant with a gun fired from a distance of about 4 ft. from the body of Pratap.
The appeal before the High Court was one against an order of acquittal.
But as explained by the Judicial Committee of the Privy Council in Sheo Swarup and others vs King Emperor(1) :"ss, 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was rounded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed.
* * * * * But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
"It may be observed that.
in declining to accept the testimony of the witnesses who claim to have seen the assault, the Sessions Judge did not appreciate the full significance of the very important circumstance that on the person of the four eye witnesses there were injuries which on the medical evidence must have been caused at or about the time when the fatal assault was made upon Pratap.
It is highly improbable that all these witnesses who were members of :the same family suffered injuries some of which were severe in some other incident or incidents on the day and about the time when Pratap was fatally injured, and then they conspired to bear false testimony that they were present at the time of the assault upon Pratap.
The presence of the four injured persons Ganesh, Prabhu, Mohan and (1) I. L.R. 61 I.A. 398.
526 Gulab at the scene of offence is assured by the evidence of injuries, and must, as the High Court observed, be regarded as established beyond reasonable doubt.
The Sessions Judge did not found his conclusion upon the demeanour of the witnesses, except possibly of Ganesh.
He entered upon a review of the evidence and rested his conclusion primarily upon four circumstances: (i) that the persons who were proved not to be present at the time of the commission of the offence were sought to be involved in the commission of the offence; (ii) that the evidence showed that only one shot was fired even though the witnesses deposed that both Samdu Khan and Noor Khan were armed with muzzle loading guns and had used them at the time of the ass.ault; (iii) that the distance from which the gun which caused the fatal injury to Pratap was fired was estimated by the witnesses at not, less than 20 ft, whereas Dr. Mehta deposed that the gun was fired from a distance of only 4 ft.
and (iv) that the accused Noor Khan and others were deprived of the benefit of having access to the police statements recorded under section 161 Code of Criminal Procedure.
The circumstance that two persons Narpat Singh and Pratap Singh were alleged in the first information to be members of the party which arrived at the scene of offence in company of Noor Khan and Samdu Khan, is one which may require the Court to scrutinize the testimony of Ganesh the informant with great care.
But the High Court in arriving at its conclusion did not rely upon the testimony of Ganesh; that testimony was wholly discarded, and nothing more need be said about that testimony.
Inclusion of names of Narpat Singh and Pratap Singh as members of the party of Noor Khan in the first information lodged at the police station does not, however, throw any doubt upon the testimony of other witnesses who did not attempt to involve them in the commission of the offence.
The Sessions Judge also held that two other persons Kesia Choudhary and Sheonath Singh were also 527 named in the first information though they were not ' present at the scene of offence.
Ganesh admitted when cross examined that these two persons arrived at the scene of offence after the assault on Pratap and the other witnesses did not depose that they had seen them at the time of the assault.
The fact, that certain persons who were on the admission made by Ganesh not present at the time when the party of Noor Khan arrived at the scene, may raise a serious doubt about the reliability of the testimony of Ganesh, but it would not by itself be a ground for discarding the story of the other witnesses.
It is true that the witness Prabhu Singh s/o Guman Singh who was not a member of the family and who claimed to be an eye witness to the assault on Pratap and others was, found wholly unreliable, and another person cited as a witness Sohan Singh who was also not a member of the family was not examined at the trial.
But the place and the time at which the offence is alleged to be committed, were such that presence of persons who were not near relations of Pratap may least be expected.
All the eye witnesses have consistently deposed that it was Noor Khan who caused the fatal injury to Pratap.
On the evidence of the witnesses both Noor Khan and Samdu Khan were armed with muzzle loading guns at the time of the assault, and only one gun shot injury is found on the body of Pratap.
It was deposed by the witnesses that Samdu Khan had fired the gun carried by him at Ganesh but the shot missed Ganesh.
But absence of gun shot injury on the person of Ganesh does not render the entire story so inherently improbable that it may on that account be discarded as unreliable.
Nor is the discrepancy as to the sequence of firing, between the first information and the testimony in Court, furnish a justifiable ground in support of that course.
There is discrepancy between the estimates given by witnesses about the distance from which the fatal shot was fired by Noor Khan.
Witnesses have estimated this distance as varying between 8 and 15 poundas each pounda being equal to 'a step ' or two feet.
It appears however from the appearance of the injury and especially the charring and blackening of the wound of entry that the barrel of the gun could not have been at a distance exceeding 3 or 4 ft.
But as we will presently point out, the estimate given 528 by the witnesses, examined in the light of the topography and the circumstances in which the assault took place, will not warrant undue importance being attached to the estimates of illiterate and semi literate villagers.
The judgment of the Sessions Judge suffers from the infirmity that without attempting to concentrate his attention on the evidence of witnesses in the light of certain fixed positions on the scene of offence, and without attempting to secure a scale map, he discarded the story of the witnesses because of the discrepancy in the estimate of distances stated in terms of poundas.
There were at the scene of offence, certain fixed objects such as the Peepal tree, the Ora (room), dhalia (stable),phalsa ( 'opening in the hedge), well and chabutra (platform).
If the evidence of the witnesses is examined in the light not exclusively of estimates of witnesses about the distance, which especially in.
the case of illiterate or semi literate witnesses is notoriously unreliable, we have no, doubt that the conclusion which the Sessions Judge was .persuaded to reach cannot be accepted.
The estimate of the witnesses about the distance from which the gun was stated to have been fired by Noor Khan has varied.
Ganesh deposed that the distance was about 20 ft.
The other witnesses gave the estimate that the distance was about 8 to 15 poundas.
It has to be noticed that according to the prosecution witnesses there were about ten persons present.
Two of them were armed with guns, some with axes and the remaining with sticks.
They must have spread themselves over the small area of the field in which the well, Ora and dhalia are situate.
It appears to be the consistent testimony of the witnesses that the assaulting party were at the time of the assault somewhere near the Peepal tree, the situation of which is definitely established by reliable evidence, as being at a distance of about 8 ft.
from the western end of the wall of the Ora.
The gun which was used by Noor Khan was a muzzle loading gun and the length of the barrel was 5 ft.
According to the .witnesses the party of the assailants ha.d not advanced beyond the peepal tree and if as stated by Mst.
Bhanwari .
who has been believed by the.
High Court corroborated as she was by witnesses Mst.
Mathura and Mohan Singh, it .appears that Noor Khan was near the peepal tree, the 529 inference is inevitable that the distance between the end of the barrel and Pratap did not exceed 4 ft.
The existence of charring and the lodging of the entire discharge from the gun at a single point of entry does clearly establish that the gun was fired from close range.
The evidence of the witnesses viewed in the light of the situation of the Ora, dhalia and the peepal tree as shown in the rough sketch Ext.
P 2(a), does also suggest that the estimate given by the witnesses of the distance of the assailant from Pratap cannot be accepted.
Bhanwari has stated that Noor Khan was at a distance of a pace from Samdu Khan, and that Samdu Khan and Noor Khan had fired when they were near the peepal tree.
Prabhu has given the estimate of the distance between Noor Khan and Pratap as 10 paces, but the evidence discloses that Noor Khan fired the shot from a place opposite the Ora.
Gulab stated that Samdu Khan stood at a distance of five poundas from him and Pratap was near him sitting near the.
Mohan deposed that the peepal tree is at a distance of 6 or 7 ft., and the accused persons were on the east side of the peepal tree and "in front of the centre of the Dhalia." Mst.
Mathura has stated that the accused persons ha.d come to the rear of ,the peepal tree.
Every witness has deposed that Pratap was sitting at a distance of a pace from the Ora wail facing south in which direction the peepal tree stood.
This analysis of the evidence shows that Noor Khan fired his gun from a point south of the Ora, somewhere near the peepal tree, at Pratap who was sitting at a distance of about 2 ft. from the wail of the Ora.
The High Court accepted the testimony of Mst.
Bhanwari corroborated by the testimony of Mst.
Mathura and Mohan Singh and has come to the conclusion that these three witnesses have deposed to a state of affairs which is consistent with the medical testimony.
This is not to say that the testimony of other eye witnesses is untrue, but it only discloses a faulty estimate of the distance given by illiterate villagers.
But the most important defect in the trial which, it was urged by Mr. Purshottam appearing on behalf of the appellant, vitiates the order of conviction is that the accused persons were deprived of the right to obtain and use copies of the statements made by the witnesses before ;the investigating officer Hari Singh who stated that he 530 had made: 'jottings ' or notes of the statements of witnesses, and that he did not record detailed statements in the course of the investigation, and that from these 'jottings ' head constable Kapuraram prepared the statements of the witnesses (supplied at the trial to the accused) when the witnesses were not present at the police station.
In their cross examination the witnesses who claimed to have witnessed the assault, asserted that certain statements attributed by Kapuraram to them were not made by them.
The High Court observed that as the statements were written by Kapuraram from the 'jottings ', no value could be attached to those statements and the testimony of the witnesses who denied having made certain parts of the statements found in the record prepared by Kapuraram could not render it unreliable.
On the evidence of Hari Singh the investigating Officer, the statements of which copies were supplied to the accused purporting to be copies of statements recorded under section 161 Criminal Procedure Code, were not in truth such statements, and the High Court was right in observing that the discrepancies between those statements and the evidence given by the witnesses at the trial would not necessarily support the plea of the defence that the version given at the trial was unreliable, as an afterthought.
But it was urged that under section 161 Criminal Procedure Code it is obligatory upon an investigating officer to record the statements of witnesses examined by him and if those statements are not made available to the accused at the trial, a valuable right which the Legislature has ensured in the interest of a satisfactory trial of the case is lost to the accused, and the trial must on that account alone be regarded as vitiated.
By section 161 of the Code of Criminal Procedure, a police officer making an investigation under Ch.
XIV is authorised to examine orally any person supposed to be acquainted with the facts and circumstances of the case.
The person so examined is bound to answer all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
Sub section (3) of section 161 provides that a police officer may reduce into writing any statement made 531 to him in the course of an examination under this section, .and if he does so he shall make a separate record of the statement of each such person whose statement he records.
Section 162 of the Code as amended by the Criminal Procedure Code (Amendment) Act 26 of 1955 provides: "No statement made by any person to a police officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at anT/ inquiry or trial in respect of any offence under investigation at the time when such statement was made :" By the proviso it is enacted that when a witness is called for the prosecution in such inquiry or trial, whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness.
Section 173 of the Code by sub section (4) as amended by Act 26 of 1955 provides that the officer in charge of the police station shall, ,before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused, amongst others, a copy of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements recorded under sub section (3) of section 161 of all the persons whom the prosecution proposes to examine as 1rs witnesses.
Section 207A of the Code of Criminal Procedure which is added by Act 26 of 1955 by sub section (3) provides: "At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the same to be so furnished," and the Magistrate shall then proceed to record the evidence of the witnesses produced by the prosecution and 532 he may commit the case to the Court of Session on such evidence and after considering the documents referred to.
in section 173.
The object of sections 162, 173(4) and 207A(3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry.
The sections impose an obligation upon the investigating officer to supply before the commencement of the inquiry 'copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for cross examining the witnesses to establish such defence as he desires to put up, and also to shake their testimony.
Section 161(3) does not require a police officer to record in writing the statements of witnesses examined by him in the course of the investigation, but if he does record in writing any such statements, he is obliged to make copies of those statements available to the accused before the commencement of proceedings in the Court so that the accused may know the details and particulars of the case against him and how the case is intended to be proved.
The object of the provision is manifestly to give the accused the fullest information in the possession 'of the prosecution, on which the case of the State is based, and the statements made against him.
But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial.
It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course.
The provision relating .to the making of copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach, for section 537 Code of Criminal Procedure provides, amongst other things, that subject to the provisions contained in the Code no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in .any inquiry or other proceedings under this Code, unless such 533 error, omission, irregularity or misdirection has in fact occasioned a failure of justice.
By the explanation to $. 537 it is provided that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceeding.
In the present case the statements of the witnesses prepared by Kapuraram were supplied to the accused before the committal proceedings were started.
Relying upon those statements as duly recorded under section 161(3), cross examination of the witnesses was directed.
But in the Court of Session the investigating officer admitted that on September 29, 1960 he did not record the statements of witnesses in detail, but merely noted certain points and after reaching Thana Bali on September 30, 1960 he had got detailed statements of the witnesses written out by head constable Kapuraram in the absence of the witnesses, and had destroyed the notes and jottings thereafter.
Undoubtedly the investigating officer acted in a manner both irresponsible and improper, and thereby was instrumental in depriving the accused of the benefit of the "notes and jottings" written out by him.
He destroyed the only documents which could be regarded as statements recorded under section 161 and which are permitted to be utilized by the accused under section 161.
Counsel for the appellant relying upon the two judgments of the Nagpur High Court in Baliram vs Emperor(1) and Maganlal vs Emperor(2) submitted that omission to supply copies of the statements recorded under section 161 is repugnant to the fundamental rules of practice necessary for the due protection of prisoners and the safe administration of justice, and where the accused was deprived of his statutory rights of cross examination and thereby denied the opportunity of effectively destroying the testimony of prosecution witnesses the evidence of such witnesses whose statements have not been supplied to the accused is inadmissible at the trial.
We are unable to accept this contention for in our view the law stated by the Nagpur High Court does (1) I.L.R. (2) I.L.R. 534 not correctly interpret sections 161 and 162 Code of Criminal Procedure.
In a later case, the Nagpur High Court in Maroti Mahagoo vs Emperor(1) held that though the right which is given to the accused under section 162 Code of Criminal Procedure to use the previous statements made to the police for the purpose of contradicting a witness is a valuable right, and where the omission to give copies to the accused is proved to have caused prejudice to the accused, the testimony of such witness must be received with extreme caution and the Court would be entitled in a suitable case even to ignore altogether such evidence, but the evidence is not inadmissible and every case must be decided on its own facts.
These cases were decided before the Code of Criminal Procedure was amended by Act 26 of 1955, but on the question raised by counsel there is no material difference made by the amended provision.
After the amendment of the Code in 1955, it is the duty of the investigating officer in every case where investigation has been held under Ch.
XIV to supply to the accused copies of the statements of witnesses proposed to be examined at the trial.
Under the Code before it was amended, it was for the Court when a request was made in.
that behalf to supply to the accused statements of each witness when he was called for examination.
The effect of the breach of the provisions of section 207A and section 173 Code of Criminal ProCedure was considered by this Court in Narayan Rao vs State of Andhra Pradesh(2) and it was held that failure to comply with the provisions of section 173(4) and section 207A(3) is merely an irregularity which does not affect the validity of the trial.
It was observed, in dealing with the question whether an omission to comply with the provisions of section 173(4) read with sub section (3) of section 207A necessarily renders the entire proceeding and the trial null and void: "There is nodoubt that those provisions have been introduced by the amending Act of 1955, in order to simplify the procedure in respect of inquiries leading upto a Sessions trial, and at the same time, to safeguard_the interests of accused persons by enjoining (1) I.L.R. (2) A.I.R. 1957 S.C.737.
535 upon police officers concerned and Magistrates before whom such proceedings are brought, to see that all the documents, necessary to give the accused persons all the information for the proper conduct of their defence, are furnished.
But we are not prepared to hold that noncompliance with those provisions has, necessarily, the result of vitiating those proceedings and subsequent trial.
The word "shall" occurring both in sub section (4) of section 173 and sub section (3) of section 207A, is not mandatory but only directory, because an omission by a police officer, to fully comply with the provisions of section 173, should not be allowed to have such a far reaching effect as to render the proceedings including the trial before .the
Court of Session, wholly ineffective. .
Certainly, if it is shown, in a particular case, on behalf of the accused persons that the omission on the part of the police officers concerned or of the Magistrate before whom the committal proceedings had pended, has caused prejudice to the accused, in the interest of justice, the Court may re open the proceedings by insisting upon full compliance with the provisions of the Code.
In our opinion, the omission complained of in the instant case, should not have a more far reaching effect than the omission to carry out the provisions of section 162 or section 360 of the Code.
" The Court in that case relied upon the observations made by the Judicial Committee of the Privy Council in Pulukuri Kotayya vs Emperor(1) to the effect that when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises, but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under section 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very (1) L.R, 74 I.A. 65. 536 comprehensive provisions of the Code.
In dealing with result of failure to supply copies of statements recorded under section 161 Code of Criminal Procedure, the Judicial Committee observed in Pulukuri Kotayya 's case(1): "The right given to an accused person by this section is a very valuable one and often provides important material for cross examination of the prosecution witnesses.
However slender the material for cross examination may seem to be, it is difficult to guage its possible effect.
Minor inconsistencies in his several statements may not embarrass a truthful witness, but may cause an untruthful witness to prevaricate, and may lead to the ultimate break down of the whole of his evidence and in the present case it has to be remembered that the accused 's contention was that the prosecution witnesses were false witnesses.
Courts in India have always regarded any breach of the proviso to section 162 as matter of gravity.
A.I.R. 1945 Nag. 1 where the record of statements made by witnesses had been destroyed, and 53 All.
458, where the Court had refused to supply to the accused copies of statements made by witnesses to the police, afford instances in which failure to comply with the provisions of section 162 have led to the conviction being quashed.
Their Lordships would, however, observe that where, as in those two cases, the statements were never made available to the accused, an inference, which is almost irresistible, arises of prejudice to the accused.
" However strong the inference may be, failure to supply copies will not by itself render the trial illegal.
The Court must in each case consider the nature of the defect, the objection raised at the trial, and the circumstances which lead to an inference of prejudice.
The strength of the inference of prejudice must always be adjudged having regard to the circumstances of each particular case.
Narayan Rao 's Case(2) related to failure to comply with the provisions of sections 173 and 207A.
It appears that in that case the statements of witnesses recorded under section 161 were supplied to the accused in the Court of Session, and irregularity in the proceeding to that extent was (1) L.R. 74 I.A. 65.
(2) ; 537 mitigated.
In the present case what could be regarded as statements recorded under section 161(3) were never supplied to the accused.
But on that account the principle applicable to the consequences of deprivation of the statutory right 'is not different.
The Trial Court observed that the copies of the statements which were handed over to the accused were not the record of the statements made by the witnesses but they were dictated by the sub Inspector Hari Singh from the 'jottings ' made by him of some points, the statements having been written by head constable Kapuraram.
The Court then observed: "It is to be noted that head constable Kapuraram was not present at the place of occurrence when the investigating officer examined the witnesses on 29 9 60.
The statements of witnesses which are in the handwriting of head constable Kapuraram, therefore, could not have been written and read over to witnesses in the village Mundara station, Bali, and, therefore, the statements on which the prosecution rely were never read over to and admitted correct by the witnesses.
There are several portions in the statements witnesses which have been brought on record by the defence counsel on which there is complete contradiction between the statements of eye witnesses and the investigating officer.
" But the contradictions were, it appears, primarily as to the presence of Harpat Singh and Pratap Singh whose names were mentioned in the first information by witness Ganesh, and against whom no charge sheet was filed and as to some matters not of much importance, such as the acts and conduct of persons other than Noor Khan the appellant in this appeal.
For instance, Prabhu denied that he had stated that Prabhu Singh and Sohan Singh were eye witnesses to the assault.
Mathura denied that she had stated that the accused had 'indecently abused and threatened Ganesh and Pratap to leave the well otherwise they would kill them, and a similar denial was made by Mst.
Bhanwari.
The contradiction in the statement of Prabhu related to some proceedings in Court arising out of the disputes relating to the well.
It is of course very unsatisfactory that the notes, or .the 'jottings ' as they are 35 2 8.
C.India/64 538 called, of the statements made by the witnesses before Hari Singh were not available to the accused because they were destroyed by him and what were made available to the accused were not in truth the statements which could be utilized under section 162 Code of Criminal Procedure.
For this unsatisfactory state of affairs, sub.
inspector Hari Singh must be held responsible.
But solely on that account, as we have already observed, we are unable to hold that the trial was illegal.
No attempt appears to have been made by the Trial Court to scrutinize the diary of sub inspector Hari Singh, nor was any objection raised in the High Court that by reason of the failure to make the notes or the jottings available to the accused any prejudice was caused.
Not a single question was asked to Hari Singh about the nature of those jottings, or notes whether they were mere memoranda which the writer alone could understand, or were detailed notes of statements made to him, which were arranged into proper shape when dictated to Kapuraram.
The High Court in dealing with this objection observed: "Having regard to the manner in which the police statements are alleged to have been prepared by Kapuraram, no value can be attached to them and if the witness disowned certain portions of those statements, his evidence at the trial cannot be rendered unreliable on that account.
" The High Court has carefully analysed and considered the evidence of the witnesses who deposed that they had seen the assault and it was assured that four out of the witnesses who had received injuries on their person must have been present on the scene of offence and the testimony of three out of those witnesses was acceptable viewed in the light of the evidence of Mst.
Bhanwari and Mst.
Mathura.
We have gone through the material parts of the evidence of the witnesses to which our attention was directed, and after carefully scrutinising the evidence in the light of the infirmities pointed out, especially the denial of the copies of the notes or jottings made by Hari Singh, we are unable to disagree with the High Court.
The Sessions Judge discarded the testimony of the witnesses, in view of discrepancies on matters of compara 539 tively minor importance and because the witnesses were relatives of the deceased, and they made statements as to the distance from which the assault was made which could not be true in the light of the medical evidence.
The High Court did not accept this view of the Trial Court.
In an appeal with special leave we do not think that we would be justified in interfering with the conclusion of the High Court especially when our attention has not been invited to any substantial infirmity in the reasoning of that Court.
We may repeat that the provisions of section 162 Code of Criminal Procedure provide a valuable safeguard to the accused and denial thereof may be justified only in exceptional circumstances.
The provisions relating to the record of the statements of the witnesses and the supply of copies to the accused so that they may be utilised at the trial for effectively defending himself cannot normally be permitted to be whittled down, and where the circumstances are such that the Court may reasonably infer that prejudice has resulted to the accused from the failure to supply the statements recorded under section 161 the Court would be justified in directing that the conviction be set aside and in a proper case to direct that the defect be rectified in such manner as the circumstances may warrant.
It is only where the Court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the Court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction.
This, in our judgment, is one of those cases in which such a course is warranted.
The action of the sub inspector Hari Singh in destroying the notes cannot but be deplored.
But the destruction of the notes recorded by him appears to be the result of ignorance, not of any dishonesty.
Even so, if on a careful scrutiny of the evidence we felt that there was reasonable ground for holding that the appellant Noor Khan was prejudiced because he was deprived of the right which the Legislature had ensured him in making his defence, we would have set aside the conviction.
We have however considered the evidence of the witnesses 540 carefully and examined it in the light of the criticism offered by counsel for Noor Khan, and after giving due weight to the opinion of the High Court and the Trial Court have come to the conclusion on the facts of this case that no prejudice appears to have been caused.
As we have already pointed out, the plea of prejudice caused to_the accused does not appear to have been raised in the High Court, and apart from the general plea 'of illegality of the trial because of the failure to supply the copies of the record of the statements made to Hari Singh, no substantial argument in support of the plea of prejudice has been advanced.
On the view we have taken, this appeal fails and is dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant and nine others were tried before the Sessions Judge for offences of rioting and being members of an unlaw ful assembly and causing in furtherance of their common object death of one person and serious injuries to four others.
The appellant was also charged for the substantive offence of causing the death by gun shot injuries.
All the accused persons were acquitted at the trial.
In appeal against acquittal by the State, the High Court set aside the acquittal of the appellant and sentenced him to imprisonment for life under section 302 Indian Penal Code and confirmed the order in respect of the rest.
The appellant 's main con tention in this Court was that under section 161 of the Code of Criminal Procedure it was obligatory upon an investigating officer to record the statements of witnesses examined by him and if those statements were not made available to the accused at the trial, a valuable right was lost to the accused, and the trial must on that account alone be regarded as vitiated.
34 2 section C. India/64 522 Held : (i) Where the circumstances are such that the court may reasonable infer that prejudice has resulted to the accused from the failure to supply the statements recorded under section 161, the court would be justified in directing that the convict on be set aside and a proper case to direct that the defect be rectified in such manner as the circumstances, may warrant.
It is only where the court is satisfied, having regard to the manner in which the case has been conducted and the attitude adopted by the accused in relation to the defect, that no prejudice has resulted to the accused that the court would, notwithstanding the breach of the statutory provisions, be justified in maintaining the conviction.
On the facts of the present case no prejudice was caused to the accused and the plea of prejudice was neither raised in the High Court, nor any substantial argument in support of the same was advanced in this Court.
Narayan Rao vs State of Andhra Pradesh, A. I. R. 1957 section C. 737 and Pulukuri Kotyya vs Emperor, L. R. 74 I. A. 65, relied on.
Baliram vs Emperor, I.L.R. , Maganlal vs Em peror, I.L.R. and Maroti Mahagoo vs Emperor, I.L.R. , disapproved.
(ii) In the present case the Sessions Judge did not found his conclusion upon the demeanour of the witnesses and the High Court rightly observed that the presence of the four injured persons at the scene of offence was assured by the evidence of injuries, and must be regarded as established beyond reasonable doubt.
Sheo Swarup vs King Emperor, L. R. 61 I. A. 398, referred to.


judgement:
Criminal Appeal No. 54 of 1963.
Appeal by special leave from the judgment and order dated September 13, 1962, of the Allahabad High Court in Criminal Appeal No. 877 of 1962 and Referred No. 79 of 1962.
O. P. Rana, for the appellant.
G.C. Mathur and C. P. Lal, for the respondent.
May 10.
The judgment of the Court was delivered by SHAH J.
The appellant Kirpal Singh and his two brothers Arjun Singh and Sarwan Singh, 994 were tried by the Sessions judge, Pillibhit for causing the death of one Karam Singh with gunshot injuries in the evening of March 26, 1961 at Village Shanti Nagar.
The Sessions judge acquitted Arjun Singh and Sarwan Singh and convicted the appellant Kirpal Singh of the offence charged against him and sentenced him to suffer the penalty of death subject to confirmation by the High Court.
The High Court of Allahabad confirmed the order of conviction and sentence.
With special leave, Kirpal Singh has appealed to this Court.
The case for the prosecution was as follows The appellant and his father in law Rakkha Singh were refugees from West Pakistan.
A block of agricultural land, allotted by the Government to Rakkha Singh and the appellant was partitioned but no boundary marks were erected on the line dividing the lands.
In December 1960 there was a dispute between Rakkha Singh on the one hand and the appellant and his brothers on the other about the harvesting of sugarcane planted in the land.
This dispute was settled on the intervention of one Sardar Ajit Singh, and Rakkha Singh agreed to give seven hundred maunds of sugarcane to the appellant and his brothers.
The appellant and his brothers went to the house of Rakkha Singh on March 22, 1961 and complained that they were not given four hundred maunds of sugarcane out of the seven hundred maunds promised to them.
There was a quarrel on that occasion between Karam Singh eldest son of Rakkha Singh and the appellant, the former saying that the appellant and his brothers were "behaving like dishonest persons '.
Rakkha Singh intervened and nothing untoward happened on that occasion.
On March 26, 1961 at about 6 p.m. when Rakkha Singh and his two sons Karam Singh and Manjit Singh and their neighbour Sardar Anokh Singh were sitting in a thatched hut, the appellant 995 armed with a gun, and his two brothers armed with lathis arrived near the hut, and the appellant shouted to Karam Singh asking him to come out of the hut.
On Karam Singh 's emerging from the hut the appellant told him that since he (Karam Singh) "did not settle the dispute regarding the sugarcane he would settle his account just then", and opened fire causing injuries to Karam Singh on the chest which resulted in death instantaneously.
On hearing the report of gun fire Rakkha Singh, his son Manjit Singh and Sardar Anokh Singh came out of the thatched hut.
Manjit Singh tried to catch hold of the appellant and his brothers but without success.
Rakkha Singh then went to the police station Puranpur and lodged the first information at 7 45 a.m.
At the trial of the appellant and his brothers before the Court of Session, Manjit Singh, Anokh Singh and Rakkha Singh were examined as persons who were present at the scene of offence and witnessed the assault on Karam Singh.
Manjit Singh and Anokh Singh however did not support the prosecution case.
They stated that at about 8 or 9 p.m. on March 26, 1961 when they were in their respective houses they heard report of gun fire and on coming out came to learn from some person that Karam Singh was fired upon by 'some Sardar who was wearing a mask '.
The witnesses were cross examined by the prosecutor with leave of the Court in the light of their statements recorded by the sub inspector of police in the course of his investigation but they denied having made the statements that the appellant and his two brothers had come to Shanti Nagar at 6 p.m. on the day of occurrence and that the appellant had killed Karam Singh by causing him gunshot injuries.
But Rakkha Singh supported the prosecution case.
He spoke about the dispute about sugarcane, and also about the quarrel between Karani Singh and the appellant on March 22, 1961.
He then stated that on March 26,1961 at about 6 p.m. the appellant and his two brothers had 996 come near his hut, that the appellant had called out Karam Singh and after shouting that as Karam Singh was not settling the matter of sugarcane they "were going to settle his matter" had fired a shot killing Karam Singh instantaneously.
In cross examination he stated that from the hut in which he was sitting he could not see the faces of the assailants but on hearing the report of gun fire he came out of the hut and saw the assailants running away, and that he was able to recognise them by "their gait and voice".
The learned Sessions judge accepted the testimony of Rakkha Singh and, in so for as it inculpated the appellant, convicted him of the offence of causing the death of Karam Singh.
He however held that the two brothers of the appellant were not proved to be guilty of the offence charged against them and acquitted them.
The High Court of Allahabad agreed with the finding recorded by the Court of First Instance and confirmed the sentence of death passed against the appellant.
The conclusion recorded by the Court of First Instance and affirmed by the High Court is based upon appreciation of evidence and no question of law arises therefrom.
Normally this Court does not proceed to review the evidence in appeals in criminal cases, unless the trial is vitiated by some illegality or irregularity of procedure or the trial is held in a manner violative of the rules of natural justice resulting in an unfair trial or unless the judgment under appeal has resulted in gross miscarriage of justice.
Rakkha Singh deposed that he had been able to recognise the appellant from his "voice and gait".
Rakkha Singh was the father in law of the appellant, and had during the last few days before the death of Karam Singh seen the appellant frequently.
Only four days before the incident there was a quarrel between Kararn Singh and the appellant about the 997 delivery of sugarcane crop and the appellant and his brothers had retired from the scene at the intervention of Rakkha Singh, greatly annoyed.
It is true that the evidence about identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.
But the appellant was intimately known to Rakkha Singh and for more than a fortnight before the date of the offence he had met the appellant on several occasions in connection with the dispute about the sugarcane crop.
Rakkha Singh bad heard the appellant and his brothers calling Karam Singh to come out of the hut and had also heard the appellant, as a prelude to the shooting referring to the dispute about sugarcane.
In the examination, in chief Rakkha Singh has deposed as if he had seen the actual assault by the appellant, but in cross examination he stated that he had not seen the face of the assailant of Karam Singh.
He asserted however that he was able to recognize the appellant and his two brothers from their 'gait and voice '.
It cannot be said that identification of the assailant by Rakkha Singh, from what he heard and observed was so improbable that we would be justified in disagreeing with the opinion of the Court which saw the witness and formed its opinion as to his credibility and of the High Court which considered the evidence against the appellant and accepted the testimony.
Manjit Singh and Anokh Singh have tried to shield the appellant by deposing that the assault took place at about 9 p.m. and that they were informed that the assailant had put on a mask.
Their statements recorded in the course of investigation were inconsistent with the tenor of their evidence in Court.
It is true that there was some delay in lodging the first information, the offence took place according to Rakkha Singh at 6 p.m. ,on March 26, 1961 and 998 information at the police station Puranpur was lodged at 7.45 a.m. on March 27, 1961.
The distance between the police station and the village Shanti Nagar, as the crow flies, is about 15 miles but by the public transport system one has to take a long detour to reach Puranpur Police Station.
Rakkha Singh says that to avoid delay and to secure the presence of a Police Officer he secured a jeep from Sampurna Nagar Union and proceeded to the police brought the sub inspector of police to in the same jeep.
We do not think, station and santi Nagar having regard to the circumstances, that there has been any such gross delay in lodging the first information as would justify us in throwing doubt on the truth of the story of Rakkha Singh.
It appears that there are two police outposts near Shanti Negar one at a distance of about two miles and another at a distance of five miles but the officer in charge of the police outposts had, it is conceded by counsel for the appellant, no authority to record a first information.
Rakkha Singh desired to lodge a complaint About the commis sion of the offence of murder, he was not apprehensive of any violence at the hands of the appellant and his brothers, and if he did not contact the officer at the police outposts, who could not record his complaint, no fault can be found.
against him.
The postmortem examination of the stomach contents of Karam Singh disclosed that there was 8 ozs.
of half digested food and that indicated that the death was caused some two hours after the last meal was taken by Karam Singh; Counsel for the appellant said that the condition of the stomach supported the version of Manjit Singh and Anokh Singh, but Rakkha Singh has deposed that Karam Singh had taken at about 4 p.m. tea and pakadas.
That explains the presence of ' half digested food in the stomach.
The case for the prosecution undoubtedly depends for its support upon the testimony of a single witness, who did not claim to have identified 999 the assailant by seeing his face.
But we do not think that is a circumstance which would justify us in departing from the rule normally followed by this Court.
The offence was committed when there was sufficient daylight : the assailant was intimately known to Rakkha Singh and the witness had heard the appellant 's voice speaking about the dispute which was pending between him and the appellant.
We do not think that the circumstance that Rakkha Singh had not seen the face of the appellant when the latter was running away is a ground for discarding his testimony.
The conviction of the appellant must therefore be confirmed.
Sentence passed by the Trial Court is, in the circumstances of the case the only appropriate sentence.
Before parting with the case, we think it necessary to observe that the committing Magistrate in this case erred in committing the accused to the Court of Session without recording the evidence of all the witnesses to the actual commission of the offence, Under the Code of Criminal Procedure as amended by Act 26 of 1955, the Magistrate holding committal proceedings is required to take the evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the Magistrate is of opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also: section 207A (4).
The Magistrate has in the enquiries relating to charges for serious offences like murder the power and indeed a duty in the interest of the accused, as well as in the larger interest of the public to record the evidence of other witnesses who throw light on the case.
Examination of witnesses to the actual commission of the offence should in inquiries, for committal on charges for such serious offences, be the normal rule.
The prosecutor is expected ordinarily to examine in the Court of the 1000 committing Magistrate all witnesses to the actual commission of the offence: if without adequate reasons he fails to do so, the Magistrate is justified and in enquiries on charges for serious offences is under a duty to call witnesses who would throw light upon the prosecution case.
Before the Code was amended by Act 26 of 1955 it was necessary for the Magistrate holding the inquiry to record the evidence of all the important witnesses.
With a view to shorten delays in the proceeding preliminary to bringing the accused to trial, the Legislature has by enacting section 207A conferred a discretion upon the Magistrate in the matter of examination of witnesses not produced by the prosecutor.
Exercise of that discretion must be judical : it is not to be governed by any set rules or standards, but must be adjusted in the light of circumstances of the case.
The Magistrate is again not to be guided by the attitude of the prosecutor.
He must of course consider the representation relating to the examination of witnesses by the prosecutor, but in considering whether it is necessary in the interest of justice to take evidence of any one or more of the other witnesses for the prosecution, he must have due regard to the nature and gravity of the offence, the interest of the accused and the larger interest of the public, and the defence if any disclosed by the accused.
A Magistrate failing to examine witnesses to the actual commission of the offence because they are not produced, without considering whether it is necessary in the interest of justice to examine such witnesses, in our judgment, fails in the discharge of duties.
There is nothing in the decision of this Court in Sriram vs The State of Bombay (1), which may support the view that in the matter of examination of witnesses, especially in the inquiry relating to serious charges like murder and culpable homicide, the Magistrate is to be guided by the prosecutor.
It is (1) [1961]2 S.C.R. 890.
1001 the duty of the Magistrate to examine all such witnesses as may be produced by the prosecutor as witnesses to the actual commission of the offence alleged, but his duty does not end with such examination.
He must apply his mind to the documents referred to in section 173, and the testimony of witnesses, if any, produced by the prosecutor and examined, and consider whether in the interest of justice it is necessary to re.
cord the evidence of other witnesses.
In inquiries relating to charges for serious offences like murder, normally the Magistrate should insist upon the exa mination of the principal witnesses to the actual commission of the offence.
Failure to examine the witnesses may be justified only in exceptional cases.
This is so because the Magistrate in committing a person accused of an offence for trial has to perform a judicial function which has a vital importance in the ultimate trial, and slipshod or mechanical dealing with the proceeding must be deprecated.
The appeal fails and is dismissed.
Appeal dismissed.

summary:
The appellant was convicted by the Sessions judge of the offence of murder of K and sentenced to death, and the con viction and sentence were confirmed by the High Court.
The committal proceedings disclosed that the Magistrate committed the accused to the Court of Session without recording the evidence of the witnesses to the actual commission of the offence.
Held that under section 207A of the Code of Criminal Pro cedure, 1898, as amended by Act 26 of 1955, a Magistrate., has 993 been given a discretion in the matter of examination of witnesses not produced by the prosecutor.
The prosecutor is expected ordinarily to examine in the court of the committing Magistrate all witnesses to the actual commission of the offence, but if without adequate reasons he fails to do so, the Magistrate is justified and, in enquiries on charges of serious offences like murder, is under a duty to call witnesses who would throw light upon the prosecution case.
A Magistrate failing to examine witnesses to the actual commission of the offence because they are not produced, without considering whether it is not necessary in the interests of justice to examine such witnesses, fails in the discharge of his duties.
The Magistrate must apply his mind to the documents referred to in section 173 of the code and the testimony of witnesses, if any, produced by the prosecutor and examined, and consider whether in the interests of justice it is necessary to record the evidence of other witnesses.
A Magistrate in committing a person accused of an offence for trial has to perform a judicial function which has a vital importance in the ultimate trial, and a slipshod or mechanical dealing with the proceeding must be deprecated.
Shriram Daya Ram vs The State of Bombay, [1961] 2 S.C.R. 890, considered.


judgement:
Appeal No. 874 of 1962.
Appeal from the judgment and order dated January 15, 1962, of the Madras High Court in Writ Appeal No. 82 of 1959.
A. V. Viswanatha Sastri, G. B. Pai and B. N. Ghosh, for the appellant.
267 B. R. Dolia, M. Rajagopalan and K. R. Chaudhuri, for the respondents.
August 2, 1963.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
The principal question which arises in this appeal relates to the true scope and effect of the provisions contained in section 73 of the (hereinafter called the Act).
The appellant, the Buckingham & Carnatic Co. Ltd., is a company registered under the Indian Companies Act and its registered office is at Madras.
It has a Textile Mill in Madras City which employs 14,000 workmen.
On January 10, 1957, the respondent Venkatiah whose case is sponsored by the respondent Union, the Madras Labour Union, had gone on leave for six days.
Taking into account the intervening holidays, the said leave expired on January18, 1957.
He, however did not join duty on the 19th January as he should have, but remained absent without leave without sending to the appellant any communication for extending his leave.
On the 11th March 1957 he sent a letter to the appellant stating that sometime after reaching his village near Kanigiri he suffered from fever and dysentery and was treated by the Civil Assistant Surgeon, Kanigiri.
This letter was accompanied by a certificate issued by the said Civil Assistant Surgeon.
In this certificate it was stated that Venkatiah suffered from chronic malaria and dysentery from January 15 to, March 7, 1957.
When he appeared before the Manager of the Company, he was asked to go to the Senior Medical Officer of the appellant for examination.
The said Officer examined him and was unable to confirm that he had been ailing for a period of nearly two months.
Acting on that opinion ' the appellant refused to take back Venkatiah and when Venkatiah pressed to be taken back, the appellant informed him on March 23, 1957 that he could not be reinstated as his explanation for his absence was un satisfactory.
The case of Venkatiah was treated by the appellant under Standing Order No. 8(ii) of the Standing Orders of the appellant.
Meanwhile, Venkatiah had applied to the Employees State Insurance Corporation and on or about the 15th June 1957 he obtained cash sickness benefit for the period covered by the medical certificate issued.
by the Civil Assis 268 tant Surgeon, Kanigiri.
The Regional Director to whom Venkatiah had applied for the said assistance accepted the said certificate as alternative evidence and directed that payment may be made to him to the extent permissible under the Act.
Accordingly, Rs. 82 14 00 were paid to him.
When the appellant refused to take back Venkatiah in its employment, the respondent Union took up his case and it was referred for adjudication to the Labour Court at Madras as an industrial dispute (S.P.O. No. A 5411 of 1958).
Before the Labour Court the appellant urged that the reference made was invalid and it also contended that the termination of Venkatiah 's services was 'Justified.
The Labour Court rejected the appellants preliminary object ion about the invalidity of the reference.
It held that if the matter had to be considered solely by reference to the Standing Orders, the appellant was entitled to succeed, because it was justified in acting upon the opinion given by its Medical Officer in regard to the alleged illness of Venkatiah.
When the said opinion was attacked before the Labour Court, it observed that it was easy to make, such an attack and it held that "he was not inclined to accept the correctness of the criticism in the a absence of any strong evidence to show that the Medical Officer was prejudiced against the worker and was motivated with the idea of victimisation".
The respondent, however, succeeded before the Labour Court primarily on the ground that the decision of the appellant not to take back Venkatiah was inconsistent with the provisions of section 73 of the Act.
That is why the Labour Court directed the management of the appellant to reinstate Venkatiah within two weeks after its award came into force without liability to pay back wages, but with continuity of service.
After this award was pronounced by, the Labour Court, the appellant moved the Madras High Court by 2 writ petition and prayed that the said award be quashed (W.P. No. 716 of 1958).
This writ petition was allowed by Mr. Justice Balkrishna Ayyar.
The learned Judge held that section 73 of the Act was inapplicable to the present case and found that, in substance, the labour court had made its award on grounds of sympathy for Venkatiah rather than on the merits of the case.
In the result, the said 269 award was set aside by the learned judge.
The respondent challenged the correctness of this decision by a Letters Patent Appeal before a Division Bench of the Madras High Court (No. LPA 82 of 1959).
The respondent 's appeal was allowed by the Division Bench and in consequence, the award passed by the Labour Court has been restored.
The Division Bench has held that section 73 applied to the present case and that made the refusal of the appellant to take back Venkatiah in its employment illegal.
It has also observed that in refusing to take back Venkatiah the appellant had not properly discharged its obligation of examining Venkatiah 's explanation reasonably and that introduced an infirmity in its decision not to take him back.
In ,other words, according to the Division Bench, the action of the management amounted to contravention of the provisions of section 73 of the Act and was otherwise not fair.
It is against this decision that the appellant has come to this Court with a certificate issued by the Madras High Court under article 133(1)(c) of the Constitution.
Mr. Sastri for the appellant contends that the case of Venkatiah falls squarely within the provisions of Standing Order 8(ii) and the High Court was in error in holding that the decision of the appellant in refusing to condone the absence of Venkatiah was either unfair or improper, or that it contravened the provisions of section 73 of the Act.
Let us first examine Standing Order No. 8(ii) before proceeding any further.
The said Standing Order reads thus: "Absent without Leave: Any employee who absents himself for eight consecutive working days without Leave shall be deemed to have left the Company 's service without notice thereby terminating his contract of service.
If he gives an explanation to the satisfaction of the management, the absence shall be converted into leave without pay or dearness allowance.
Any employee leaving the Company 's service in this manner shall have no claim for re employment in the Mills.
But if the absence is proved to the satisfaction of the Management to be one due to sickness, then such absence shall be converted into medical leave for such period as the employee is eligible with the permissible allowances.
" 270 This Standing Order is a part of the certified Standing Orders which had been revised by an arbitration award between the parties in 1957.
The relevant clause clearly means that if an employee falls within the mischief of its first part, it follows that the defaulting employee has ter minated his contract of service.
The first provision in clause (ii) proceeds on the basis that absence for eight consecutive days without leave will lead to the inference that the absentee workman intended to terminate his contract of service.
The certified Standing Orders represent the relevant terms and conditions of service in a statutory form and they are binding on the parties at least as much, if not more, as private contracts embodying similar terms and conditions of service.
It is true that under common law an inference that an employee has abandoned or relinquished service is not easily drawn unless from the length of absence and from other surrounding circumstances an inference to that effect can be legitimately drawn and it can be assumed that the employee intended to abandon service.
Abandonment or relinquishment of service is always a question of intention, and normally, such an intention cannot be attributed to an employee without adequate evidence in that behalf.
But where parties agree upon the terms & conditions of service and they are included in certified Standing Orders, the doctrines of common law or considerations of equity would not be relevant.
It is then a matter of construing the relevant term itself.
Therefore, the, first part of Standing Order 8(ii) inevitably leads to the conclusion that if an employee is absent for eight consecutive days without leave, he is deemed to have terminated his contract of service and thus relinquished or abandoned his employment.
The latter part of this clause, however, provides that the employee can offer an explanation as to his absence and if Ms explanation is found to be satisfactory by the management, his absence will be converted into leave without pay or dearness allowance.
Now this clause is in substance a proviso to its first part.
Before effect is given to the inference of relinquishment of service which arises from the first part of the clause, an opportunity is given to the employee to offer an explanation and if the said explanation is treated as satisfactory by the management, 271 the inference of termination of contract of service is rebutted and the leave in question is treated as leave without pay or dearness allowance.
This latter clause obviously postulates that if the explanation offered by the employee is not found to be satisfactory by the management, the inference arising from the first part prevails and the employee shall be deemed to have terminated his contract of service with the result that the relationship of master and servant between the parties would be held to have come to an end.
With the remaining part of the said Standing Order we are not concerned in this appeal.
It is true that absence without leave for eight consecutive days is also treated as misconduct under cl.
13(f) of the Standing Orders.
The said clause refers to the said absence and habitual absence without leave.
In other words, the position under the Standing Orders appears to be that absence without leave for more than eight consecutive days can give rise to the termination of the contract of service either under Standing Order 8(ii) or may lead to the penalties awardable for misconduct after due enquiry is held as required by the relevant Standing Order.
The fact that the same conduct is dealt with in two different Standing Orders cannot affect the applicability of S.O. 8(ii) to the present case.
It is not as if the appellant is bound to treat Venkatiah 's absence as constituting misconduct under S.O. 13(f) and proceed to hold an enquiry against him before terminating his services.
Dismissal for misconduct as defined under S.O. 13 may perhaps have different and more serious consequences from the termination of service resulting from S.O. 8(ii).
However that may be, if S.O. 8(ii) is applicable, it would be no answer to the appellant 's case under S.O. 8(ii) to say that S.O. 13(f) is attracted.
This position is not seriously in dispute.
The High Court appears to have taken the view that the appellant did not act fairly in rejecting Venkatiah 's case that he was ill and in refusing to act upon the certificate produced by him in support of his case.
It is necessary, in the first instance, to examine the correctness of this con clusion.
As we have already indicated, the Civil Assistant Surgeon no doubt certified on March 7, 1957 that Venkatiah had suffered from chronic dysentery from janu 272 ary 15 to March 7, 1957, and he added that he was then completely free from the ailments and was in a fit state of health to join duty on the 9th March 1957.
Incidentally, the certificate has been granted at the end of the treatment and specifically avers that he was fit enough to join on March 9, 1957.
When Venkatiah was examined by the Medical Officer of the appellant on the 22nd March 1957, thr Medical Officer was unable to confirm that he was ill for a period of nearly two months.
The High Court has criticised this certificate as being vague.
In our opinion, by this certificate the Medical Officer politely suggests that having regard to the opinion which he formed on examining Venkatiah on March 22, he was unable to confirm the certificate issued by the Civil Assistant Surgeon.
What struck the High Court as vague in the certificate is obviously the result of the desire of the appellant 's Medi cal Officer to observe professional courtesy in dealing with the certificate on which Venkatiah relied.
Apart from I this aspect, however, we do not see how it was open to the High Court to consider the propriety of the conclusion reached by the Labour Court on this point.
We have already noticed that the Labour Court has specifically repelled the criticism made by the respondent against the conduct of the appellant 's Medical Officer and has held that if the matter had fallen to be considered only in the light of Standing Order 8(ii), the appellant would have succeeded.
That being so, it is not easy to see how the respondent 's grievance against the said finding of the Labour Court could have been properly upheld by the High Court in exercising its writ jurisdiction under article 226 of the Constitution.
Whether or not the appellant should have accepted the certificate of the Civil Assistant Surgeon was primarily for the appellant to consider.
It is significant that there is no allegation about mala fides in this case, and so, we do not think that the High Court was justified in making a finding against the appellant on the ground that the appellant had not discharged its obligation under the Standing Orders of properly considering the explanation of Venkatiah in regard to his absence.
The High Court was apparently aware of this position and so, it has stated in the course of its judgment that it would rest its decision on what it regarded to be the effect of 273 section 73 "even assuming that the discharge of the worker in the instant case was automatic by virtue of the operation of Standing Order 8(ii), and so, it is to this part of the case that we must now turn.
Before doing so, however, we may refer to the argument urged before us by Mr. Dolia for the respondent that it would be anomalous if it is open to the appellant to reject Venkatiah 's case that he was ill during the relevant period when the said case had been accepted by the Corporation when it gave him relief under section 73 and the regulations framed under the Act.
Mr. Dolia relies on the fact that Venkatiah satisfied the relevant authorities administering the provisions of the Act that he was ill during the relevant period, and had, in fact, been given assistance on that basis, so that for the purposes of the Act he is held to be ill during that period, and yet the appellant for the purpose of Standing Order 8(ii) holds that Venkatiah was not ill.
during the same period.
It could not be the intention of the legislature to allow such a glaring anomaly to prevail, says Mr. Dolia, and so, he suggested that the appellant was bound to hold that Venkatiah was ill during the relevant period, having regard to the fact that his illness had been accepted by the relevant authorities under the Act.
This argument is no doubt, prima facie, attractive, but before accepting it, it would be necessary to find out whether there is any specific provision in the Act which compels the appellant to accept the view taken by the relevant authority under the Act when it decided to give assistance to Venkatiah.
Section 73 of the Act reads asunder : "Employer not to dismiss or punish employee during period of sickness, etc. (1)No employer shall dismiss, discharge, or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit, nor shall he, except as provided under the regulations, dismiss, discharge or reduce or otherwise punish an employee during the period he is in receipt of disablement benefit for temporary disablement or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out 274 of the pregnancy or confinement rendering the employee unfit for work.
(2)No notice of dismissal or discharge or reduction given to an employee during the period specified in sub section (1) shall be valid or operative." Mr. Dolia contends that since this Act has been passed for conferring certain benefits on employees in case of sickness, maternity and employment injury, it is necessary that the operative provisions of the Act should receive a liberal and beneficent construction from the court.
It is a piece of social legislation intended to confer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to construe the relevant provisions in a technical or a narrow sense.
This position cannot be disputed.
But in dealing with the plea raised by Mr. Dolia that the section should be liberally construed, we cannot overlook the fact that the liberal construction must ultimately flow from the words used in the section.
If the words used in the section are capable of two constructions one of which is shown patently to assist the achievement of the object of the Act, courts would be justified in preferring that construction to the other which may not be able to further the object of the Act.
But, on the other hand, if the words used in the section are reasonably capable of only one construction and are clearly intractable in regard to the construction for which Mr. Dolia contends, the doctrine of liberal construction can be of no assistance.
Mr. Dolia 's suggestion is that the general policy of section 73 is to prevent dismissal, discharge, reduction or other punishment being imposed or,.
an employee who is ill if it is shown that he has received sickness benefit.
There are other cases mentioned in this section to which it is not necessary to refer for the purpose of dealing with Mr. Dolia 's argument.
According to Mr. Dolia, the operation of section 73 is confined to cases of illness for instance, and it prohibits the imposition of any penalty wherever it is shown that in respect of the illness in question, the employee has received sickness benefit.
In the present case, the employee has received sickness benefit, and so, for the said sickness, no penalty can be imposed on him.
That, in brief, is the contention which Mr. Dolia has pressed 275 before us.
On the other hand, Mr. Sastri argues that the words used in the section are capable of only one construction.
The section merely prohibits any punitive action being taken against the employee during the period of his illness, and he urges that the prohibition is not confined to punitive action in respect of illness alone but extends to punitive action in respect of all kinds of misconduct whatever.
What the section says is, during the period that the employee is ill, no action can be taken against him whatever may be the cause for the said action.
Mr. Sastri also contended that the clause "during the period the employee is in receipt of sickness benefit" can cover the period during which the sickness benefit is actually received by him, and so, he suggests that since during the period of Venkatiah 's illness itself no sickness benefit had been received by him, section 73(i) is wholly inapplicable.
We are not impressed by this argument.
In our opinion, the clause "during the period the employee is in receipt of sickness benefit" refers to the period of his actual illness and requires that for the said period of illness, sickness benefit should have been received by him.
It is quite clear that in a large majority of cases, sickness benefit would be applied for and received by the employee after his sickness is over, and so, to hold that the period there referred to is the period during which the employee must be ill and must also receive sickness benefit, would make the section wholly unworkable.
That is why we do not think that the limitation which Mr. Sastri seeks to introduce by suggesting that sickness benefit must be paid during the course of illness itself, can be read into the section.
Even so, what is the effect of section 73(1) ? In considering this question, it would be useful to take into account the provisions of sub section
This sub section provides that no notice given to an employee during the period specified in sub section
(i) shall be valid or operative.
Thus, it is clear that the giving of the notice during the specified period makes it invalid, and it is remarkable that the notice is not in regard to dismissal, discharge or reduction in respect of sickness alone, but it includes all such notices issued, whatever may be the misconduct justifying them.
Thus, 276 there can be no doubt that the punitive action which is prohibited by section 73(1) is not confirmed to punitive action proceeding on the basis of absence owing to sickness; it is punitive action proceeding on the basis of all kinds of misconduct which justifies the imposition of the penalty in question.
What section 73(1) prohibits is such punitive action and it limits the extent of the said prohibition to the period during which the employee is ill.
We are free to confess that the clause is not very happily worded, but it seems to us that the plain object of the clause is to put a sort of a moratorium against 211 punitive actions during the pendency of the employee 's illness.
If the employee is ill and if it appears that he has received sickness benefit for such illness, during that period of illness no punitive action can be taken against him.
That appears to us to be the effect of that part of section 73(1) with which we arc concerned in the present appeal.
If that be so, it is difficult to invoke section 73 against the appellant, because the termination of Venkatiah 's services has not taken place during the period of his illness for which he received sickness benefit.
There is another aspect of this question to which it is necessary to refer.
Section 73(1) prohibits the employer from dismissing, discharging, reducing or otherwise puni shing an employee.
This seems to suggest that what is prohibited is some positive act on the part of the employer, such as an order passed by him either dismissing, discharg ing or reducing or punishing the employee.
Where ter mination of the employee 's services follows automatically either from a contract or from a Standing Order by virtue of the employee 's absence without leave for the specified period, such termination is not the result of any positive act or order on the part of the employer, and so to such a termination the prohibition contained in section 73(1) would be inapplicable.
Mr. Dolia no doubt contended that the word 'discharge ' occurring in section 73(1) should be liberally construed and he argued that termination of service even under Standing Order 8(ii) should be held to be a discharge under section 73(1).
We are not prepared to accept this argument.
In considering the question about the true denotation of the word "discharge" in section 73(1), it is relevant to bear in mind the provisions of section 85(d) of the Act.
277 Section 85(d) provides that if any person in contravention of section 73 or any regulation, dismisses, discharges, reduces or otherwise punishes an employee, he shall be punishable with imprisonment which may extend to three months or with fine which may extend to five hundred rupees, or with both.
In other words, the contravention of section 73(1) is made penal bys.
85(d), and so, it Would not be reasonable to put the widest possible denotation on the word "discharge" ins.
73(1).
The word "discharge" in section 73(1) must,therefore, in the context, be taken to be a discharge which is the result of a decision of the employer embodied in an order passed by him.
It may conceivably also include the case of a discharge where discharge is provided for by a Standing.
Order.
In such a case, it may be said that the discharge flowing from the Standing Order is, in substance, discharge brought about by the employer with the assistance of the Standing Order.
Even so, it cannot cover the case of abandonment of service by the employee which is inferred under Standing, Order 8(ii).
Therefore, we do not think the High Court was justified in taking the view that the termination of Venkatiah 's services under S.O. 8(ii) to which the appellant has given effect by refusing to take him back, contravenes the provisions of section 73(1).
Mr. Dolia argued that on the appellant 's construction 73(1) would afford very unsatisfactory and poor protection to the employees.
If all that section 73(1) does is to prevent any punitive action being taken against the employee during the period that he is ill, there is not much of protection given to him at all, says Mr. Dolia.
There is no doubt some force in this argument: but as we have already observed, the words used in section 73(1) read with subs.
(2) cannot reasonably lead to the construction for which, Mr. Dolia contends.
It would, we think, be unreasonable, if not illegitimate, to construe the relevant section merely on the hypothesis that the legislature intended to provide a larger protection to the employees when the said hypothesis cannot be worked out in the light of the words used by the statute.
By virtue of the power conferred on the State Government by section 96 to make rules, certain regulations had been framed under the Act in 1950.
Chapter III of these 278 Regulations deals with the benefit claims.
Regulations 53 to 86 in this Chapter are concerned with the certification and claims for sickness and temporary disablement.
Regu lation 54 provides for the persons competent to issue medi cal certificate and Regulation 55 required that the Medical Certificate should be filled in the prescribed form.
Regu lation 57 deals with the Medical Certificate on first exa mination and Regulation 58 refers to the final Medical Certificate.
Regulation 63 prescribes the form of claim for sickness or temporary disablement.
An insured person intending to claim sickness benefit has to submit the said form to the appropriate Local Office by post or otherwise.
Regulation 64 lays down that if such a claimant fails to submit to the appropriate Local Office by post or otherwise the first medical certificate or any subsequent medical certificate within the period therein prescribed, he shall not be eligible for that benefit in respect of the period indicated thereunder.
It is in the light of these regulations that Regulation 53 has to be considered.
This regulation provides that every insured person claiming sickness benefit shall furnish evidence of sickness in respect of the days of his sickness by means of a medical certificate given by an Insurance Medical Officer in accordance with the Regulations in the appropriate form.
There is, however, a proviso to Regulation 53 which says that the Corporation may accept any other evidence of sickness or temporary disablement if in its opinion the circumstances of any particular case so justify.
In the present case, the Regional Director has accepted the Civil Assistant Surge 'on 's certificate under the proviso to regulation 53 when he directed that cash benefit may be paid to Venkatiah under section 73(1).
Having regard to these Regulations, it is difficult to see how the view taken by the Regional Directors about the effect of the certificate issued by the Civil Assistant Surgeon can be said to be binding on the appellant.
There is no provision in the Act or the Regulations, to which section 73(1) refers by which it could be contended that once the illness of an insured employee is accepted by the appropriate authority under the Act, it must automatically be accepted by the employer in dealing with the said employee 's case under the Standing Orders.
Therefore, the argument that inconsistent results may follow if two views 279 are allowed to be taken about the illness of a given em ployee, does not help the appellant.
Besides, as we have already indicated, this argument has hardly any relevance in view of the construction which we are inclined to put on section 73(1) of the Act.
In view of our construction of the said section, Mr. Dolia 's argument that there is inconsistency between the said section and Standing Order 8(ii) also has no validity.
Before parting with this case, we ought to add that at the very outset, Mr. Sastri for the appellant made it clear to us that the appellant was fighting this appeal not so much to resist the order of reinstatement passed in favour of Venkatiah as to get a decision from this Court about the true scope and effect of section 73(1) of the Act.
In other words, he argued that this case was fought as a test case on the question of the construction of the said section.
Therefore, when we suggested to Mr. Sastri that the appel lant who is a very big prosperous employer should not resist the reinstatement of a single employee whose case has been brought to this Court, he assured us that he would recommend to the employer to take Venkatiah back on the terms prescribed by the Labour Court in the first instance in this case.
In the result, the appeal is allowed, the order passed by the Division Bench of the Madras, High Court is set aside and that of the Single Judge restored.
There would be no order as to costs.
Appeal allowed.

summary:
The respondent Venkatiah went on leave for six days and did not join duty on the expiry of the leave period but remained absent without sending to the appellant any communication for extending his leave.
Later, he sent 2 letter to the appellant accompanied by a medical certificate issued by a Civil Assistant Surgeon in respect of his illness for a period of nearly two months.
The Medical Officer of the appellant was unable to confirm that he was ailing for a period of two months.
Finding the explanation for his absence unsatisfactory the appellant refused to take him back in its employment.
Meanwhile he had applied to the Regional Director of the Employees ' State Insurance Corporation and obtained cash sickness benefit for the period covered by the Medical Certificate issued by the Civil Assistant Surgeon.
On the appellant 's refusal to take him back in its employment, the respondent union, referred his case for adjudication 18 2 section C. India/64 266 to the Labour Court and the management of the appellant was directed to reinstate him.
The appellant then moved a writ petition in the High Court and it was allowed by the learned single Judge.
The respondent then preferred a Letters Patent Appeal before a Division Bench of the High ' Court.
The appeal was allowed by the Division Bench and the award passed by the Labour Court was restored.
In his appeal against the said decision the appellant 's main contention in this Court was that the case of Venkatiah fell squarely within the provisions of Standing Order 8(ii) and the High Court was wrong in holding that the decision of the appellant in refusing to condone the absence of Venkatiah was either unfair or improper, or that it contravened the provisions of section 73 of the .
The respondent mainly contended that in the present case the employee received sickness benefit, and so, for the said sickness, no penalty could be imposed on him.
Held : (i) Standing Order 8(ii) was applicable to the present case and the fact that the same conduct was dealt with in two different standing orders, could not affect the applicability of Standing Order 8(ii) to the present case.
(ii) Whether or not the appellant should have accepted the certificate of the Civil Assistant Surgeon was primarily for the appellant to consider; as there was no allegation about mala fides in this case, it was not open to the High Court, in exercise of its writ jurisdiction, to consider the propriety of the conclusion reached by the Labour Court on this point.
(iii) On a proper construction of section 73(1) read with sub section
(2), it was impossible to invoke section 73 against the appellant, because the termination of Venkatiah 's services had not taken place during the period of his illness for which he received sickness benefit; the High Court was not justified in taking the view that the termination of Venkatiah 's services under S.O. 8(ii) contravened the pro visions of section 73(1).
(iv) The view taken by the Regional Director about the effect of the Civil Assistant Surgeon 's certificate under the proviso to regulation 53 could not be said to be binding on the appellant and in view of the construction put on section 73(1), there was no inconsistency between the said section and Standing Order 8(ii).