judgement:
Appeal No. 74 of 1956.
Appeal by special leave from the judgment and order dated September 22, 1955, of the Nagpur High Court in Letters Patent Appeal No. 2 of 1955.
C.K. Daphtary, Solicitor General for India, J. N. Bannerji and P. C. Agarwala, for the appellant.
M.C. Setalvad, Attorney General for India and Naunit Lal, for respondent No. 1. 1956.
September 30.
The Judgment of the Court was delivered by SINHA J.
This is an appeal by special leave from the judgment and order, dated September 22, 1955, passed by the Letters Patent Bench of the Nagpur High Court reversing those of a single Judge of that Court, dated December 13, 1954, refusing to issue a writ in the nature of a certiorari.
The facts of this case lie in a short compass and may be stated as follows: The Suwarna Transport Company Limited, which will be referred to as the first respondent in the course of this judgment, held seven permits for running buses on the Buldana Malkapur route, as the 100 sole operator on that route.
It applied for another permit for the same route.
The appellant, The New Prakash Transport Co. Ltd., as also another party, called the Navjivan Transport Service (not cited in this Court) applied for a similar permit on that route.
On May 26, 1953, all the three applicants aforesaid were heard by the Regional Transport Authority of Amraoti, which is the third respondent in this Court, in connection with the permit applied for.
Consideration of the several applications was postponed, but a resolution was passed to the effect that "No one service should have monopoly on Buldana Malkapur route.
" On March 30, 1954, another meeting of the Regional Transport Authority took place and the first respondent was granted the permit.
The appellant 's application was rejected on the ground that the police report was against it.
The appellant preferred an appeal to the Appellate Authority (constituted under R. 73 of the Motor Vehicles Act), Madhya Pradesh, Nagpur, which is the second respondent to this appeal.
The appellant challenged the correctness of the police report against it and applied to the District Superintendent of Police personally to verify the facts stated in the first report on the basis of which the appellant 's application for permit had been rejected, as aforesaid.
The police made a further report, which was placed before the second respondent.
That further report by the police was read out to the parties by the Chairman of the Appellate Authority at the time of the hearing of the appeal.
At the hearing no objection appears to have been raised by any of the parties to the course adopted by the second respondent.
By its order dated July 29, 1954, the second respondent set aside the order of the third respondent, allowed the appeal and ordered the permit to be issued to the appellant.
The first respondent moved the High Court at Nagpur for a writ of certiorari under article 226 of the Constitution, substantially on two grounds, namely, (1) that the order passed by the second respondent was vitiated by an error apparent on the face of the record, and (2) that it contravened the ' principles of natural justice.
The first ground was founded on the allegation that the second 101 respondent had misread the police report, and the second on the allegation that the revised report by the police had not been shown to the petitioner who had been afforded no " real and effective opportunity to deal with the report or to meet any relevant allegations made therein, and to study that report and make his submissions in regard thereto before the appeal was decided.
" The appellant and the second respondent showed cause against the rule issued by the court.
The appellant while showing cause, admitted that the third respondent had rejected its application on the basis of the police report dated March 27, 1954, which "was full of mistakes and falsehoods," that it moved the District Superintendent of Police personally to verify the contents of the said report and that the fresh report submitted by the police after due verification had absolved the appellant from the allegations of misconduct contained in the first report.
It also controverted the ground that there was any mistake apparent on the face of the record.
The fresh report submitted by the police after verification at the appellant 's request was received by the second respondent and the Chairman read the same during the hearing of the appeal and that, therefore, it was wrong to suggest that there had been a failure of justice,.
The second respondent also showed cause and corroborated the appellant 's statement that the first police report had been subsequently modified by the District Superintendent of Police by the report dated May 13, 1954, which showed that the previous report was " based on some misunderstanding.
" It was also stated that the report was actually read out to the parties by the Chairman while the appeal was being heard.
The petition under articles 226 and 227 made, as aforesaid, by the first respondent was heard by a single Judge (Mr. Justice V. R. Sen) who by his orders dated December 13, 1954, discharged the rule with costs.
In the course of his judgment the learned Judge after ' referring in detail to the orders of the authorities under the Motor Vehicles Act, that is to say, the second and third respondents, observed that there was no substance in the contention that the procedure 102 adopted by the Appellate Authority was opposed to the principles of natural justice and had operated to the prejudice of the first respondent; and that there was no error apparent on the face of the record.
The learned Judge also pointed out that when the report was brought to the notice of the first respondent, it did not indicate that it wished to controvert the report.
The first respondent preferred an appeal under the Letters Patent and repeated its grounds of attack against the orders of the Appellate Authority.
The appeal was heard by a Division Bench consisting of Chief Justice Hidayatulla and Mr. Justice section P. Kotwal.
The Letters Patent Bench seemed to be inclined to negative the plea that there was a mistake apparent on the face of the record and pointed out that though the language used by the second respondent was ambi guous and not quite accurate, it was possible to take the view that it had in fact considered the subsequent police report when it observed that the police bad practically absolved the appellant from all blame except on a minor question, not necessary to be referred to in detail here.
On the second ground it differed from the learned single Judge and came to the conclusion "that the Appellate Authority erred in rushing through without giving a proper and effective chance to the appellant to state its case.
" In the result it granted a writ quashing the order of the Appellate Authority and directing it to rehear the appeal in the light of the observations made in the course of the judgment.
The appellant made an application to the High Court for a certificate of fitness for appeal to this Court.
Having been unsuccessful there, the appellant came up to this Court and obtained special leave to appeal.
The only question which requires determination by this Court is whether or not there has been a failure of natural justice in this case as a result of the procedure adopted by the Appellate Authority.
On this question there has been a marked difference of opinion in the two stages of the case in the High Court.
It has been 103 argued on behalf of the appellant that the Appeal Bench of the Nagpur High Court has erred in coming to the conclusion that in the circumstances of this case, there has been a failure of justice, in disagreement with the learned single Judge who was clearly of the opposite opinion.
It has also been argued that there are no well defined criteria by which this question falls to be determined.
It depends upon the terms of the legislation creating the statutory body which has to function according to its obligations laid down in the statute.
If it has done all that was required by the law to do, it cannot be said that it has failed in the discharge of its statutory duty.
In this connection reference was made to the provisions of sections 47, 48 and 64 of the Motor Vehicles Act read along with the relevant rules framed under section 68 of the Act.
On behalf of the respondents it was argued that it had no opportunity of studying the subsequent police report and of making submissions thereon with the result that there has been a failure of natural justice in the sense that the respondent had been deprived of a fair and full opportunity of being heard.
Though the High Court on appeal did not base its decision on the other question, namely, whether there was any error apparent on the face of the record, it was sought to be argued that there was an error in the order of the second respondent in so far as it made reference to only the first report and read into it the maatter contained in the subsequent report.
At the outset we may observe that, in our opinion, there is no substance in the second ground sought to be resuscitated in this Court by the learned counsel on behalf of the res .
pondent.
Error apparent on the face of the record in the context of this case must mean an assumption of facts which are not borne out by the record.
We are not concerned with other grounds which may in the context of each particular case support a contention of error apparent on the face of the record.
In this case if there was any such error, it was with reference to the two police reports.
As observed by the Appellate Bench of the High Court, though the language used by the Appellate Authority with regard to strict 104 grammatical construction may refer to the first police report, it was difficult to hold that the matters referred to in the order challenged before the High Court were not contained in the subsequent report submitted by the police at the instance of the appellant.
The judgment under appeal did not take the view that there was any such mistake apparent on the face of the record as was contended for on behalf of the first respondent.
We have been referred to the orders of the Appellate Authority as read by the Appellate Bench of the High Court and, in our opinion, no such mistake has been shown to have vitiated the orders impugned before the High Court.
Coming back to the question whether or not there has been a failure of natural justice, we may shortly review the relevant provisions of the statute in order to find out the obligations imposed upon the Appellate Authority while disposing of an appeal from the orders of the Regional Transport Authority.
The matters to be considered by a Regional Transport Authority at the time of disposing of an application for a stage carriage permit are set out in section 47.
They include the interest of the public generally, the adequacy of existing road transport service and the benefits to any particular locality.
The Authority is also enjoined to take into consideration any representations made by persons already providing road transport facilities along the proposed route or by any local authority or police authority within whose jurisdiction the proposed route lies.
Section 48 empowers a Regional Transport Authority, after taking into consideration matters set forth in section 47, to restrict the number of stage carriages and to impose conditions on stage carriage permits.
Section 64 provides for right of appeal against specified kinds of orders passed by the Provincial or Regional Transport Authority to the "prescribed authority".
It also in terms provides that on an appeal being filed to the prescribed authority, it shall give the appellant and the original authority, that is to say, the authority against whose orders the appeal had been brought., "an opportunity of being heard.
" Section 64 which creates the right of appeal does not in terms speak of a like 105 opportunity being given to the persons against whom the appeal had been filed.
But r. 73 framed by the Government in pursuance of its rule making power conferred by section 68, lays down that the authority to decide ' an appeal against the orders of a Regional Transport Authority under section 64 of the Act shall be the Chairman and two members of the Provincial Transport Authority.
The rule further provides that on receipt of an appeal, the Chairman shall appoint the time and place for hearing the appeal and shall give not less than thirty days notice to the appellant, the original authority, and "any other person interested in the appeal" and on such appointed or adjourned date the Appellate Authority "shall hear such persons as may appear and, after such further enquiry, if any, as it may deem necessary, confirm, vary, or set aside the order against which the appeal is preferred and make any consequential or incidental order that may be just or proper".
It will.
thus be seen that though the substantive section creating the right of appeal does not in terms create any right in a respondent to be heard, the rules framed providing for the procedure before the Appellate Authority contemplate that sufficient notice shall be given to " any other person interested in the appeal" which expression must include persons other than the appellant who may be interested in being heard against the points raised in support of the appeal.
Neither the sections nor the rules framed under the Act contemplate anything like recording oral or documentary evidence in the usual way as in courts of law.
Besides, the parties interested in the grant of stage carriage permits or those interested against it, the police authority of the locality is also entitled to be heard both at the original stage and at the appellate stage.
Thus the Motor Vehicles Act and the rules framed thereunder with particular reference to the Regional Transport Authority and the Appellate Authority do not contemplate anything like a regular hearing in a court of justice.
No elaborate procedure has been prescribed as to how the parties interested have to be 14 106 heard in connection with the question, who is to be granted a stage carriage permit.
The judgment of the High Court under appeal has made copious quotations from the decisions of the House of Lords and the Court of Appeal in support of its conclusion that the principles of natural justice had not been sufficiently complied with in the present case by simply reading out the subsequent police report at the time the Appellate Authority was hearing the appeal.
The learned Judges of the Appeal Court have observed that the contents of a long report such as the second report was, could not be carried in one '. , head.
They also observed that in order to present its case effectively the first respondent was entitled not only to have the report read out but also to study it so that it could understand it and state its case fully and effectively before the Appellate Authority.
We have to examine those several precedents relied upon by the High Court to see how far its conclusions are supported by authority.
But before we do that, it has got to be observed that the question whether the rules of natural justice have been observed in a particular case must itself be judged in the light of the constitution of the statutory body which has to function in accordance with the rules laid down by the legislature and in that sense the rules themselves must vary.
The Regional Transport Authority is charged with the duty of granting or refusing a stage carriage permit, only to mention the matter with which we are immediately concerned.
In that connection the statute requires that authority to have regard to the matters set forth in section 47 of the Act, as already indicated.
The police authority within whose local jurisdiction any part of the proposed route lies, has also been given the right to make representations.
But the police report submitted to the Regional Transport Authority or to the Appellate Authority, if it requires the police authority to do so, is not intended to be anything more than an expression of opinion by an authority interested in the maintenance of law and order, with particular reference to the question as to whether any of the applicants for a permit had anything to its credit or discredit as 107 supplier of transport facilities.
Such a report is meant more for the use of the authority in making or refusing a grant than for the use of the several applicants or any one of them.
In other words, it is in the nature of information supplied by the police in order to assist the authority in making up its mind.
In the present case when the subsequent police report was read out by the Chairman, neither the appellant nor the first respondent, nor for the matter of that any of the other parties, raised any objection to the use of that document or asked for an adjournment on the ground either that it had been taken by surprise or that it had materials to offer in opposition to the report.
The learned Judges of the High Court have observed in the course of their judgment under appeal that though it is the essence of the business of tribunals like the one under the Motor Vehicles Act to transact business expeditiously, the business of the authority would not have suffered much if a copy of the report had been given to the parties concerned and the case adjourned for a short time.
It appears that no such adjournment had been prayed for on behalf of any of the parties who, it appears, had been represented by counsel.
But then the High Court has observed further that "the duty is laid not upon counsel who appears but upon the tribunal which administers justice.
It is incumbent on every tribunal which acts judicially to see that justice is not only done but is seen to be done, arid that the elementary rule of natural justice of giving a fair and proper hearing to every one concerned is followed.
We think that the Appellate Authority erred in rushing through without giving a proper and effective chance to the appellant to state its case.
" In our opinion, the High Court has made a number of assumptions in making those observations which do not appear to be justified by the scheme of the legislation we are dealing with or by any a priori considerations of what has been characterized as "natural justice".
The tribunal in question was not administering justice as a court of law, though while deciding as between the rival claims of the applicants for a permit it had to deal with them in a fair and just manner.
108 But a tribunal even acting " judicially " is not obliged to grant an adjournment suo motu without any application on behalf of any of the parties interested.
We do not find that any of the parties made at that time any grievance about the procedure adopted by the Appellate Authority.
But the question appears to have been raised for the first time before the High Court after the Appellate Tribunal had decided to grant the permit to the appellant.
In this connection it has also to be observed that the subsequent police report had said nothing directly against the first respondent which it would be interested in controverting.
The subsequent police report had only withdrawn some of the adverse comments against the conduct of the appellant which had been found to have been made under a misunderstanding.
But the subsequent report still contains some minor complaints against the appellant.
Those matters were apparently considered by the Appellate Authority not to be so serious as to stand in the way of the appellant getting the permit, especially when that authority had previously decided upon the policy that monopoly of supplying transport facility should not be allowed to continue in favour of the first respondent.
Hence, in our opinion, there was nothing in the rules requiring a copy of the police report to be furnished to any of the parties, nor was there any circumstance necessitating the adjournment of the hearing of the appeal, particularly when no request for such an adjournment had been made either by the first respondent or by any other party.
At that time none of the parties appears to have made any grievance about the police report only being read at by the Chairman or any request for an adjournment in order to adduce evidence pro and con.
The rules framed under Chapter IV for "the conduct and hearing of the appeals that may be preferred under this chapter (section 68 (2) (b)) " do not contemplate any such facilities being granted to the parties, though it is open to the Appellate Authority to make any such " further enquiry, if any, as it may deem necessary.
" But the High Court Bench appears to have, taken the view that, rule or no rule, request or no request for an 109 adjournment,the rules of natural justice made it incumbent upon the Appellate Authority to stay its hands in order that " a proper and effective chance was given to the first respondent to state its case.
" There was not much of a case to state because, each party applying for the permit must be presumed to have pressed its claim upon the Appellate Authority.
We have therefore to examine the precedents discussed in detail in the judgment under appeal to see how far the Appellate Bench was justified in holding that the rules of natural justice had been contravened by the Appel late Authority.
The earliest decision of the House of Lords brought to our notice in this connection is the case of Spackman vs
Plumstead Board of Works (1).
In that case the question arose on a prosecution for infringement of an Act of Parliament making provision for fixing the " general line of buildings " in a road.
The certificate of the superintending architect as to the general line of buildings came in for discussion as to whether the architect, before deciding as to how the general line has to be fixed, had to hear the parties concerned.
In that connection the Earl of Selborne, L.C., made the following observations : " No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated.
He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view.
He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons, to whom the authority is not given by law.
There must be no Malversation of any kind.
There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.
But it appears to me to be perfectly consistent with reason, that the statute may have intentionally (1) , 240.
110 omitted to provide for form, because this is a, matter not of a kind requiring form, not of a kind requiring litigation at all, but requiring only that the parties should have an opportunity of submitting to the person by whose decision they are to be bound such considerations as in their judgment ought to be brought before him.
When that is done, from the nature of the case no further proceeding as to summoning the parties, or as to doing anything of that kind which a judge might have to do, is necessary.
" Another leading case on the subject is the decision of the House of Lords in the well known case of Board of Education vs Rice (1).
Their Lordships in that case had to discuss the duty of the Board of Education under section 7 of the Education Act, 1902.
Lord Loreburn, L.C., in the course of his speech referred to the provisions of the Act and made the following observations as to the duty to decide certain questions relating to nonprovided schools: " Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon department.
,; or officers of State the duty of deciding or determining questions of various kinds.
In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law.
It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone.
In such cases the Board of Education will have to ascertain the law and also to ascertain the facts.
I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who decides anything, But I do not think they are bound to treat such a question as though it were a trial.
They have no power to administer an oath, and need not examine witnesses.
They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view." (1) ,182.
How far judicial opinion may vary as to the content of the rule of natural justice is amply illustrated by the case of Rex vs Local Government Board, Ex parte Arlidge (1), at different stages.
The rule nisi for a certiorari was first heard by Ridley, Lord Coleridge and Bankes, JJ.
The case related to the powers of the, Local Government Board under the Housing, Town Planning, etc.
Act, 1909 (9 Edw. 7, c. 44) refusing to terminate its orders closing a dwelling house as unfit for habitation and the procedure for hearing an appeal against such an order.
Section 29 of the Act provided that such an appeal shall be heard and disposed of according to the procedure laid down by the Local Government Board, provided that the rules shall provide that the Board shall not dismiss any, appeal without having first held a public local inquiry. , It was unanimously held by the Court discharging the rule that the Local Government Board was not bound to hear the appellant or any one on his behalf after the report of the inspector on the public local inquiry had been received, before dismissing the appeal.
At the public local inquiry the owner of the house affected by the closing order had been represented.
But at the time the appeal was finally disposed of, there was no hearing of the appellant or his representative as in a court of law.
The Court repelled the argument that the appellant had a right to be heard by the Local Government Board and to know the contents of the report made by the inspector who had held the public local inquiry.
Rely Vingmainly upon the judgment of Lord Loreburn, L.C, in the case of Board of Education vs Rice (supra), the Court decided that the procedure indicated by the rules framed under the statute in question had been followed and that there was no other or further obligation on the Board to hear the appellant either personally or through his representative or counsel, because there was no indication in the statute to that effect.
The matter was taken in appeal in Rex vs Local Government Board, Ex parte A rlidge (2), and the Court of Appeal by a majority (Vaughan Williams and Buckley, L.JJ., Hamilton, L.J. dissenting (1) (2) , 112 allowed the appeal holding that it was contrary to the principles of natural justice that the Board should have dismissed the appeal without disclosing to the appellant the contents of their inspector 's report and without giving the appellant an opportunity of being heard in support of the appeal.
They, therefore, quashed the order dismissing the appeal.
The majority judgment pointed out that the Act and the rules framed thereunder except for certain matters were silent as to the procedure and that in the absence of such specific provisions the non disclosure of the `nspector 's report was contrary to principles of natural justice on which English law is based.
It further held that the appellant before the Board was entitled to a hearing and that as the appellant had not the opportunity of seeing and considering the report and the documents which the deciding authority had before it, the appellant had been denied full opportunity of being heard.
It went to the length of observing that the nondisclosure of the report and the documents which were taken into consideration by the Board when the disclosure had been asked for, was itself inconsistent with natural justice.
Hamilton, L.J., in his dissenting judgment pointed out that the report of the inspector in the case, as in other Government departments, is only a statement of facts made for the information of the officials of the department and that it could not be assumed that the legislature meant all such reports to be communicated to those interested where it does not say the contrary.
He further pointed out that the practice was the other way, namely, to specify how and to whom such reports were to be communicated, (when they are intended to be communicated at all.) Dealing with the question how far the requirements of natural justice had been fulfilled, the Lord Justice observed at p. 199 that "It has often been pointed out that the expression (natural justice) is sadly lacking in precision.
" Then he referred to a number of precedents dealing with the question of natural justice as to how the connotation of the expression differed in different contexts.
He further observed at pp.
201 & 202: 113 " The Local Government Board here is a statutory tribunal, anomalous as compared with common law Courts, created by the Legislature for a special class of appeals and endowed by it with the power of formulating its own procedure.
" He also adopted the dictum of Loreburn, L.C., in Board of Education vs Rice (supra) that the Board must " act in good faith and fairly listen to both sides.
" Against the judgment of the majority of the Court quashing the determination of the appeal by the Board there was an appeal to the House of Lords.
The House of Lords unanimously adopted the opinion of Hamilton, L.J. (later Lord Sumner), allowed the appeal and set aside the majority decision.
[Vide Local Government Board vs Arlidge (1)].
In the course of his speech Viscount Haldane, L.C., made the following observations: " My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially.
, They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made.
The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice.
But it does not follow that the procedure of every such tribunal must be the same.
" His Lordship adopted the dictum of Lord Loreburn, L.C., in the leading case of Board of Education vs Rice (supra).
Lord Shaw in his speech made the following observations which are very apposite to the facts and circumstances of this case: " The judgments of the majority of the Court below appear to me, if I may say so with respect, to be dominated by the idea that the analogy of judicial methods or procedure should apply to departmental action.
Judicial methods may, in many points of administration, be entirely unsuitable, and produce delays, expense, and public and private injury.
The department must obey the statute." (1) , 132.
15 114 He further observed at p. 138 as follows " And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded.
This is expressly applicable to steps of procedure or forms of pleading.
In so far as the term 'natural justice ' means that a result or process should be just, it is a harmless though it may be a high sounding expression; in so far as it attempts to reflect the old jus naturale it is a confused and unwarranted transfer into the ethical sphere of a term employed for other distinctions; and, in so far as it is resorted to for other purposes, it is vacuous." Lord Parmoor in his speech also reiterated the principle governing the procedure of a quasi judicial tribunal in these words: " Where, however, the question of the propriety of procedure is raised in a hearing before some tribunal other than a Court of law there is no obligation to adopt the regular forms of legal procedure.
It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice." Another recent decision of the House of Lords in the case of General Medical Council vs Spackman (1) was relied upon by the High Court in the judgment under appeal.
In that case the General Medical Council, which had been constituted a domestic forum to determine whether a case had been made out for striking off the name of a medical practitioner from the medical register " for infamous conduct in a professional respect," was the appellant before their Lordships, and the respondent had been found guilty by the Divorce Court of having committed adultery.
In the proceedings before the Medical Council the medical practitioner proceeded against desired to call fresh evidence on the issue of adultery and requested the Council to rehear that issue.
The Council declined to reopen the issue and to hear fresh evidence and directed his name to be erased from the register.
The Court of Appeal unanimously affirmed the view of the dissenting Judge in the Court of first instance that there had been no (1) 115 " due inquiry " as required by section 29 of the Medical Act, 1858.
The Appeal Court set aside the majority decision of Viscount Caldecote, C.J., and Humphreys, J., who had held that the requirements of the law had been satisfied by adopting the judgment and decree of the Divorce Court.
On appeal by the Medical Council to the House of Lords, the House unanimously agreed with the unanimous decision of the Appeal Court and held that the requirement of due inquiry enjoined by the Act creating the Tribunal had not been satisfied.
Viscount Simon, L.C., examined the provisions of the Act and the relevant rules and pointed out that they require the practitioner proceeded against " to state his case, and to produce the evidence in support of it." The Lord Chancellor in the course of his speech observed that the General Medical Council was not a judicial body in the ordinary sense, was master of its own procedure and was not bound by strict rules of evidence.
It was bound to satisfy the requirements of the law and the rules made thereunder.
The Council had to decide on sworn testimony after due inquiry.
He also adopted the language of Lord Loreburn, L.C., in the aforesaid case of Board of Educatian vs Rice (supra).
Lord Atkin in the course of his speech pointed out that the rules under the Act provided that the Council was bound, if requested, to hear all the evidence that the practitioner charged wished to bring before them.
He also pointed out the antithesis between convenience and justice by saying " convenience and justice are often not on speakin terms." His Lordship further pointed out the difference between the procedure which may be prescribed in respect of different tribunals which were creations of statutes, in these words: " Some analogy exists, no doubt, between the various procedures of this and other not strictly judicial bodies, but I cannot think that the procedure which may be very just in deciding whether to close a ,school or an insanitary house is necessarily right in deciding a charge of infamous conduct against a professional man.
I would, therefore, demur to any suggestion that the words of Lord Loreburn, L.C., in Board of Education vs Rice (supra) afford a complete guide to 116 the General Medical Council in the exercise of their duties.
As I have said, it is not correct that I they need not examine witnesses. ' They must examine witnesses if tendered, and their own rules rightly provide for this.
Further it appears to me very doubtful whether it is true that 'they have no power to administer an oath '.
" It may be noticed that the Lords who sat on that case particularly emphasized the requirements of the law as laid down in the statute and the rules framed thereunder.
In view of those statutory provisions they found it necessary to uphold the decision of the Court of Appeal which had set aside the judgment and orders of the King 's Bench Division which had taken the con tarry view, to the effect that the decree in the Divorce Court was conclusive evidence on which the Medical Council could act.
The case is therefore authority for the proposition that the rules of natural justice have to be inferred from the nature of the tribunal, the scope of its enquiry and the statutory rules of procedure laid down by the law for carrying out the objectives of the statute.
There is another class of cases which lay down that if a person is to be deprived of his professional status, he must be heard and be given effective opportunity of meeting any allegation made against him on the question of his fitness to pursue his profession.
If the tribunal constituted by the statute in question to decide about the fitness of an individual to pursue that profession, decides against him without giving him an opportunity of meeting any allegations against him bearing on his capacity or qualification for the profefession to which he claims admission, it has been held that it was improper for the tribunal acting in a quasi judicial capacity to act to his prejudice upon evidence or adverse report without his having an opportunity of meeting such relevant allegations made against him.
To that class belongs the case of R. vs Architects Registration Tribunal (1).
In that case the King 's Bench Division issued an order of certiorari to, quash (1) 117 the tribunal 's decision refusing an application for registration as an architect.
The cases of Leeson vs General Council of Medical Education and Registration (1), and Allinson vs General Council of Medical Education and Registration (2) also belong to that category.
They deal with the power of the General Council of Medical Education under the Medical Act (21 & 22 Viet.
c. 90) to strike off a medical practitioner for unprofessional conduct.
Those were cases in which the Medical Council had to function as a quasi judicial body and had to proceed according to the procedure laid down in the rules framed under the Act aforesaid.
They had therefore to function, not exactly as courts of law, but as domestic tribunals created by the statute to function according to the statutory rules in a fair and just manner, that is to say, that they should have no personal interest in the con;, troversy and should have given a full and fair opportunity to the person proceeded against to place his case before the tribunal.
Another class of cases is illustrated by the decision of the Court of Appeal in R. vs Archbishop of Canterbury(3).
In that case the Archbishop of Canterbury reviewing the order of the Bishop refused to approve the clerk presented by the patron to a benefice.
Acting under section 3 of the Benefices (Exercise of the Rights of Presentation) Measure, 1931, the Court repelled the argument on behalf of the disappointed patron that as the decision involved a deprivation of property rights there was an obligation upon the Archbishop to act in a quasijudicial manner.
Lord Greene, M.R., who delivered the judgment of the Court, observed that there was no " justification for regarding the matter when it comes before the Archbishop as in any sense, or by any remote analogy, a his inter parties".
Hence the Court on a true construction of a. 3 of the Measure came to the conclusion that the Archbishop was not required to arrive at his decision by conducting a quasi judicial enquiry.
This case, therefore, is an authority for the (1) (2) (3) 118 proposition that simply because property rights are involved, the authorities charged with the duty of deciding claims to such rights are not necessarily, apart from the provisions of the statute, required to function as quasi judicial tribunals.
As already pointed out, the Appellate Authority had to function in a quasi judicial capacity in accordance with the rules made under the Motor Vehicles Act.
That Act has made ample provisions for safeguarding the interests of rival claimants for permits.
The provisions of the Act were examined in detail by a Bench of five Judges of this Court in the case of Veerappa Pillai vs Raman & Raman Ltd. (1).
This Court examined elaborately the provisions of the Act vis a vis the authorities created by the Act to administer its provisions relating to the grant of stage carriage permits.
It also examined how far the High Court exercising its special powers to issue writs under article 226 of the Constitution could interfere with the orders made by those authorities.
In the course of its judgment this Court made the following observations at page 596, which are very relevant to the present purpose : " Thus we have before us a complete and precise scheme for regulating the issue of permits, providing what matters are to be taken into consideration as relevant, and prescribing appeals and revisions from subordinate bodies to higher authorities.
The remedies for the redress of grievances or the correction of errors are found in the statute itself and it is to these remedies that resort must Generally be bad.
" Keeping in view the observations of this Court quoted above and the principles of natural justice discussed in the several authorities of the highest Courts in England, we have to see how far the provisions of the Motor Vehicles Act and the rules framed thereunder justify the criticism of the High Court that the Appellate Authority did not give full and effective opportunity to the first respondent to present his point of view before it.
As already indicated, the statutory (1) ; 119 provisions do not contemplate that either the Regional Transport Authority or the Appellate Authority had to record evidence or to proceed as if they were functioning as a court of law.
They had to decide between a number of applicants as to which of them was suitable for the grant of the fresh permit applied for.
They took into consideration all the relevant matters and came to their decision which has not been attacked as partial or perverse.
The only ground which survived before the Appellate Bench of the High Court was that the requirements of natural justice had not been satisfied.
The only question that we have to determine is whether the Appellate Authority was justified in using the second report made by the police, though it had not been placed into the hands of the parties.
That report did not directly contain any allegations against the first respondent.
Hence there was nothing in that report which it could be called upon to meet.
The only effect of the report was that many of the objections raised against the suitability of the appellant had been withdrawn by the police on further consideration of their records.
The police report is more for the information of the authorities concerned with the granting of permits than for the use of the several applicants for such permits.
In our opinion, therefore, the fact that the Appellate Authority had read out the contents of the police report was enough compliance with the rules of natural justice.
We have also pointed out that no grievance was made at the time the Appellate Authority was hearing the appeal by any of the parties, particularly by the first respondent, that the second report should not have been considered or that they wished to have a further opportunity of looking into that report and to controvert any matter contained therein.
They did not move the Appellate Authority for an adjournment of the hearing in order to enable it to meet any of the statements made in that report.
But the learned counsel for the respondent suggested that the requirements of natural justice could not be waived by any of the parties and that it was incumbent upon the Appellate Authority to observe the so called rules of natural justice.
In our 120 opinion, there is no warrant for such a proposition.
Even in a court of law a party is not entitled to raise the question at the appellate stage that he should have been granted an adjournment which he did not pray for in the court of first instance.
Far less, such a claim can be entertained in an appeal from a tribunal which is not a court of justice, but a statutory body functioning in a quasi judicial way.
For the reasons aforesaid, in our opinion, the judgment under appeal is erroneous and must be set aside and we are further of the opinion that the judgment of the learned single Judge of that Court had taken the more correct view of the legal position.
The appeal is accordingly allowed with costs throughout.
Appeal allowed.

summary:
Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature under which they have to act, and the question whether in a particular case they have been contravened must be judged not by any preconceived notion of what they may be but in the light of the provisions of the relevant Act.
Case law discussed.
The provisions of sections 47, 48, 64 and the rules framed under section 68 of the Motor Vehicles Act make it abundantly clear that a Regional Transport Authority and an Appellate Authority in hearing an appeal, function in a quasi judicial capacity and not as courts of law and are not required to record oral or documentary evidence and, in deciding as between the rival claims of applicants for stage carriage permits, what they are required to do is to deal with such claims in a fair and just manner.
The Act, however, amply provides for the safeguarding of their interests.
Veerappa Pillai vs Raman & Raman Ltd, ; , referred to, 99 Consequently, in a case where the Regional Transport Autho rity refused to grant a permit to an applicant on account of an adverse police report and the Appellate Authority granted the same on the basis of a further report by the police, whereby all material allegations against him were withdrawn and nothing was said against his rival which would require to be controverted by him, and the Chairman read out such report at the hearing of the appeal without any objection by any of the interested parties or any request for adjournment and a Division Bench of the High Court in appeal, reversing the decision of a single judge made under articles 226 and 227 Of the Constitution, held that the rules of natural justice had been contravened by reason of the failure on the part of the Appellate Authority to adjourn the proceeding suo motu in order to afford the rival claimant an opportunity to meet the revised police report, its decision was erroneous and must be set aside.
Held, further, that the reading out of the contents of the poiice report by the Chairman at the hearing of the appeal was enough compliance with the rules of natural justice as there was nothing in the rules requiring a copy of it to be furnished to any of the parties.


judgement:
N: Criminal Appeal No. 320/75.
Appeal by special leave from the Judgment and Order dated 2.4.1975 of the Punjab and Haryana High Court in Criminal Appeal No. 1044/74 and Murder Reference No. 50/74.
3 K.G. Bhagat and R.N. Poddar for the Appellant.
Mrs. Urmila Sirur for the Respondents.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
This appeal by special leave by the State of Haryana is directed against the judgment and order of the Punjab and Haryana High Court setting aside the conviction and and sentence passed by the Session Judge, Karnal.
Respondents Balkar Singh and Dalel Singh are the sons of respondent Sher Singh.
The Session Judge convicted all the three under Section 302/34 of the Penal Code, and sentenced Sher Singh to death and the other two to imprisonment for life.
On a reference by the Sessions Judge for the confirmation of the sentence of death inflicted on Sher Singh and appeal filed by the respondents the High Court set aside the order of conviction and sentence and acquitted the respondents.
The material facts may be stated thus: On 17th of October, 1973 at about 12 A.M. Mst.
Narman, widow of Danna (deceased) submitted the first information report to A.S.I. Ram Sarup (P.W. 12) at village Pai.
Her material allegations in the first information report were that the previous day, respondent Sher Singh and his two younger half brothers, namely, Danna, her husband, and Hukmi, had effected a family partition amongst themselves and they started living separately.
That day, namely 17th of October, at about 6.00 A.M. her husband, Danna, along with his brothers Hukmi and respondents Sher Singh came to their bagichi nearby from the house in order to milk cattle.
She followed them in order to fetch milk.
Respondent Sher Singh, then along with his sons Dalel, Balkar, Keni, Prem and Parwana surrounded her husband and her husband 's younger brother, Hukmi, in the courtyard.
Sher Singh had a Gandasi in his hand, Dalel a lathi shoded with iron blade, the other three had lathis in their hands.
Sher Singh dealt a Gandasa blow on the head of her husband Danna, who immediately fell down on the ground.
Dalel then dealt a blow with iron shoded lathi on the head of Hukmi who also fell down on the ground.
The other accused then inflicted blows with lathis on the persons after they had already fallen down.
Respondent Sher Singh dealt another Gandasi blow on her husband.
She has further stated in the first information report that Mst.
Danni, sister of respondent Sher Singh, was also with her and witnessed the occurrence.
They screamed seeing the assaults, whereupon they were directed on pain of death to sit in the corner of the court yard.
4 Out of fear they obliged.
Thereafter, it has further been alleged, the accused persons dragged the dead bodies to their nearby heap of cow dung cakes.
Sher Singh spread kerosene on the heap of the cakes and Dalel set fire to it lighting a match stick.
As a result, the two bodies were charred.
P.W. 12 sent the F.I.R. to the police station where the case was registered.
Police, after investigation, submitted charge sheet and arrested the accused persons.
Eventually, the accused persons were charged under Section 302/34 of the Penal Code, and tried in the court of Sessions.
The accused persons pleaded not guilty to the charges.
According to them the three brothers were joint in residence, mess and cultivation till the date of the occurrence.
The defence of respondent, Sher Singh, was that his two sons, Dalel and Balkar, and the deceased brothers Danna and Hukmi, used to sleep in the Bagichi during the night to keep watch over their cattle tethered there.
On October 16, 1973 he and his two deceased brothers were in their fields during the day and in the evening he went to their field where cotton was ripe and he remained there to keep watch over the cotton till next morning.
That field was at a distance of about 1 1/2 miles from their Bagichi.
About 1 1/2 hours after sun rise on October 17, 1973, he returned to the Bagichi where he found the heap of cow dung cakes in the enclosure of Bagichi burning.
Police then arrested him.
The defence of respondent Dalel was that two days before the date of occurrence he went to his maternal uncle, Lalji, at Narwara to borrow a tractor.
He returned home on the 17th of October, 1973 at about sun set.
He found the heap of cow dung burning and police inside the Bagichi where he was arrested by the police.
The defence of respondent Balkar was that he was a student of 9th class and on 16th of October, 1973 he had been to school to witness some sports.
He passed the following night in village, Diwali, where his sister was married.
He returned home on October 17, 1973 and when he reached the Bagichi he found the heap of cow dung burning and, he was arrested by the police there.
Thus the defence of all the respondents was alibi.
When an accused pleads alibi, the burden is on him to prove it under Section 103 of the Evidence Act which provides: "103.
The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
5 Illustrations: (a) A prosecutes B for theft, and wishes the court to believe that B admitted the theft to C. A must prove the admission.
B wishes the court to believe that, at the time in question, he was elsewhere.
He must prove it.
" In this case defence did not adduce any evidence to prove the alibi.
On the contrary the evidence of P.W. 11, Lila, is that on 21st October, 1973, all the accused were produced by Lalji, the brother of the wife of respondent, Sher Singh in village Nand Karan Majra around 8 a.m., when they were arrested.
This was in presence of P.W. 11 and several others.
Police had been there the witness says, from October 17 to 20, 1973.
This evidence of P.W. 11 remains unrebutted.
The plea of the respondents that they had been elsewhere at the time of the occurrence and returned to the place of occurrence by themselves on October 17, when they were arrested by police, is untrue.
Let us now turn to and examine the prosecution case and see whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
The death of Danna and Hukmi is not in dispute.
That the dead bodies were burnt on the cow dung heap by the side of the Bagichi is also not in dispute.
The only question for decision is whether Danna and Hukmi were murdered and their dead bodies were burnt by the respondents as alleged by the prosecution.
The prosecution relies on the following piece of evidence: (i) Motive of the murder; (ii) Direct evidence of the alleged eye witnesses, P.W. 3 and 4; (iii) Extra Judicial Confession alleged to have been made by respondent Sher Singh before P.W. 10; and (iv) Recoveries of incriminating articles on disclosure statements alleged to have been made by the respondents.
(i) Motive: P.W. 3 Mst.
Narman has deposed that two days before the day of occurrence, deceased Danna, Hukmi and respondent Sher Singh made an amicable partition of their property.
They divided their land (except Shamlat land), house, cattle, utensils and grains.
Respondent Sher Singh, however, refused to part with joint 6 cash and jewellery.
Danna refused to part with any share of the Shamlat land unless the cash and jewellery were divided.
P.W. 4 Mst.
Danni and Jhanda (P.W. 10) support, P.W. 3, It therefore, appears, that there was some sort of hitch between respondent Sher Singh on the one hand and his half brothers Danna, and Hukmi on the other.
The High Court declined to accept the evidence of P.W. 10 in as much as he had not mentioned the fact of partition in his statement before the police.
The prosecution is not bound to prove motive of any offence in a criminal case, in as much as motive is known only to the perpetrator of the crime and may not be known to others.
If the motive is proved by prosecution, the Court has to consider it and see whether it is adequate.
In the instant case the motive proved was apparently inadequate, although it might be possible.
(ii) Direct Evidence: P.W. 3 Mst.
Narman has deposed that 15 days before the date of occurrence, P.W. 4 Danni who was at her husband 's house to help her as she was expecting a child one of these days.
In fact she delivered a child 12 days after the occurrence.
She has supported the prosecution case in its entirety.
She says that in the morning about the time of sun rise on the date of occurrence, deceased Danna and Hukmi went to the Panchayat land where their cattle had been tethered in order to milk them.
She followed them to bring milk home.
Danna also accompanied her to make cow dung cakes.
At that time she found that the respondents had been standing in the Panchayat land armed with dangerous weapons.
Respondent Sher Singh gave Gandasi blow on the head of Danna who immediately fell down on the ground.
Dalel also gave a blow on the head Hukmi who also fell down.
All of them thereafter indiscriminately assaulted the two injured persons.
Both of them died as a result.
She and Danna began to scream whereupon the culprits asked her and Danna to keep quiet on pain of death and they asked them to sit on one side of the place.
Both of them out of fear did as directed.
She has further deposed that the respondents including the other miscreants dragged the two dead bodies to the nearby heap of cow dung cakes and placed the dead bodies on it.
Respondent Sher Singh then brought a tin of kerosene oil and sprinkled it on the heap of the cow dung cakes.
Respondent Dalel put fire to the cow dung cakes.
When the heap of the cow dung cakes was burning they set weeping there while the respondents were scrapping the blood stains on the earth and throwing them to the burning cow dung cakes.
After some time P.W. 10 Jhanda and 7 one Bhagtu came to the place of occurrence after the dead bodies were put to fire.
They inquired of Sher Singh as to why they were burning the cow dung cakes.
Sher Singh replied that he had murdered his two brothers and was burning their dead bodies.
He, however threatened them to mind their own business and said that if they raised any alarm, they would be similarly murdered and put to fire.
P.W. 10 Jhandu and Bhagtu then left the place.
The process of burning took about three hours.
All this time the culprits were at the place of occurrence scraping the blood stained spots.
They then changed their blood stained clothes, threw them to the fire and put on new clothes and left the place with weapons in hands towards village Bhana.
After the departure of the culprits the witness along with P.W. 4 left for the nearby village.
They narrated the occurrence to the villagers and told them as to how her husband and brother in law had been murdered and their dead bodies burnt.
But they remarked that that was a dispute between brothers and they could not do anything.
The witness then left the village for police station at Pundri to lodge an offence report.
On the way falls village Pai, at the distance of about 4 5 miles from the place of occurrence, she met at village Pai a police officer and two constables to whom she narrated the occurrence.
Her statement was recorded by P.W. 12, Ram Sarup, an Assistant Sub inspector of Pundri Police Station, who was at Pai.
She was then accompanied home by two constables.
While P.W. 12 sent the F.I.R. to the police station for registering a case.
They reached the place of occurrence, after some time.
A short while after the arrival of the witness and the two constables at the place of occurrence, a senior police officer arrived at the place of occurrence.
They with the help of some other persons who had gathered there in the mean time started to extinguish the fire by putting buckets of water on it.
P.W. 4 Danni corroborates P.W. 3 on the commission of murder of the two deceased by the respondents and a few others.
P.W.10 who came to the place of occurrence on seeing smoke from the heap of cow dung cakes, inquired of Sher Singh as to what was happening.
He has deposed that he was told by Sher Singh that he had killed his two brothers and was burning their dead bodies and that he was asked on pain of murder to mind his own business, and not to raise alarm.
He and Bhagtu then left the place.
P.Ws. 3 and 4 were cross examined at great length by the defence counsel but nothing significant could be brought out in order to demolish their basic and substantial evidence given in examination 8 in chief.
Only some minor discrepancies with regard to omissions of details in their statements to the police were brought out.
These omissions in our opinion were not contradictions and insignificant.
The High Court has rejected the evidence of P.Ws. 3 and 4 on the ground (a) that they were close relations of the two deceased; (b) that P.W. 3 had omitted to mention in the F.I.R. that she had informed any person of the village before leaving for the police station; (c) that it was 'highly improbable and unnatural ' that P.W. 3 would go to the place of occurrence from her home when she was in advance pregnancy; (d) that she was not accompanied to the police station by anybody; (e) that none of the villagers came to the place of occurrence; and (f) that she and P.W. 4 did not physically attempt to save the two deceased who were respectively their husband and brother.
Ultimately the High Court found that "most probably both Smt.
Nariman and Danni were not present on the spot and had not witnessed the occurrence.
" In our opinion the conclusion arrived at by the learned High Court is untenable.
The learned High Court has taken a very unrealistic view of the situation and of the facts and circumstances of the case.
There is no evidence that P.Ws 3 and 4 could or did raise any alarm.
When they were about to scream they were threatened on pain of murder, to keep quiet and sit.
There is evidence that both the deceased as well as P.Ws 3 and 4 were unarmed, whereas the respondents were armed with dangerous weapons.
In such a situation it will be too much to expect of P.Ws 3 and 4 to try to physically intervene and save the two deceased.
Although it is true that P.Ws 3 and 4 were close relations of the two deceased, their evidence could not be rejected on that ground.
They were also related to the respondents and there is nothing on record to show that they were inimically disposed to the respondents to falsely implicate the respondent in a murder case like this.
They were the most natural witnesses.
Although it was not the case of defence that some of the people of the Panchayat conspired with P.Ws 3 and 4 to implicate the respondents in this murder case the High Court made out its own theory to that effect.
There is no evidence or circumstances from which that inference could be drawn.
It was a pure conjecture that "it was best opportunity for the Panchas and Sarpanch and other respectables of the village to take special interest in bringing the culprits to book by contacting the police at the earliest if the culprits were not other persons than the appellants.
" The High Court has also based its finding on conjecture that the two deceased were murdered by unknown culprits and they were falsely implicated by the village 9 respectables" on suspicion.
This hypothesis does not stand any scrutiny.
Respondent Sher Singh in his statement says "It was routine for me and my two elder sons and two step brothers to sleep in the Bagichi during night where we used to tie our cattle." Even the High Court has found ". . that they (deceased) like Sher Singh or Sher Singh 's sons used to sleep in the Bagichi in the night to keep watch over them (cattle).
" If that be so, had the murder been perpetrated by unknown culprits, there was no reason as to why the the respondents did not intervene and inform any of the neighbours.
The learned High Court, as stated above, has rejected the evidence of P.W. 3 on the ground that she did not mention in the F.I.R. that she had informed any person of the village before she lodged the F.I.R. The F.I.R. need not contain the details of the occurrence.
The omission referred to by the High Court is an omission of details and not really a contradiction.
The High Court also was not right in observing that it was surprising 'that as stated by Mst.
Narman nobody in the village listened to her story nor did anybody go to her help when she went to Abadi land of the village after the departure of the appellants from the place of occurrence." In fact P.W. 10 had come to the place of occurrence before P.Ws 3 and 4 left the place of occurrence for the village.
The way P.W. 10 was treated by respondent, Sher Singh, was sufficient to deter any other villager to come to the place of occurrence.
The High Court has also found it a 'mystery ' that none of the villagers came to the place of occurrence and intervened in the matter.
There is no evidence on record to show that when the assaults on the deceased were in progress or the dead bodies were being burnt, any of the villagers in fact knew about the occurrence.
In fact P.W. 10 and Bhagtu had seen the smokes from the cow dung cakes, and came to the place of occurrence.
The High Court has also observed that it was unlikely that P.W. 3 would go to the Bagichi in such an advance stage of pregnancy in order to bring milk from there at sun rise in as much as P.W. 4 had already come there to help her in domestic work.
It is common experience that in villages women who regularly attend to their domestic chore and work in the field, work some time till the very moment of actual child birth.
P.W. 4 was brought to help her as in her advance stage of pregnancy she could not work as briskly as before.
The learned High Court has also observed that presence of P.W. 4 Danni at the place of occurrence was "not natural because had she been present there she would have out of love for her real brothers physically intervened and tried to save them from the clutches of assaults.
" It has been observed before that they were asked to keep 10 quiet and sit on pain of murder.
It cannot be forgotten that Danni was also an unarmed village women and the first instinct of a being is the instinct of self preservation.
In our opinion, therefore, it was not, "unnatural" that she would not, as she could not, attempt to save the two deceased from murder.
The High Court has also observed that in any case P.W. 4 would have raised hue and cry.
She could not raise an outcry as she was told by Sher Singh that she would be murdered and burnt, if she did so.
It was therefore but natural that she did not raise any hue and cry.
(iii) Extra Judicial Confession: The evidence of P.W. 10 has also been referred to above.
He has deposed that when seeing the smoke he went to the place of occurrence and inquired of Sher Singh as to why they were burning the heap of cow dung cakes, he replied that he had murdered his two brothers and was burning their dead bodies.
This is an extrajudicial confession so far as Sher Singh is concerned.
The High Court has not accepted the evidence of P.W. 10 on the ground that this was not mentioned by P.W. 3 in the first information report.
This was an omission.
That apart, it must be remembered that P.W. 4 who saw with her own eyes such a brutal murder of her husband and brother in law must have been dazed and at her wits end.
In such a situation, it could not be expected of her to give all the details in the first information report.
And on account of the omission, P.W. 10 could not be disbelieved.
(iv) Recoveries of incriminating articles : The last piece of evidence on which reliance has been taken by the prosecution is the recoveries of incriminating weapons.
The evidence of P.W. 13, the Investigating Officer, is that respondent Sher Singh on 23rd of October, 1973 made a disclosure statement which is Exhibit PL.
The disclosure was that Sher Singh had kept concealed a Gandasi in the bundle of sugar cane in his field and he could get the same recovered.
In pursuance of his disclosure the Gandasi exhibit P. 26 was recovered from that place.
The Gandasi was stained with blood and was seized under seizure memo exhibit PL/1.
On the same day respondent Dalel Singh made a disclosure statement exhibit PM and disclosed that he had kept concealed a lathi to which an iron piece was attached in his Gowar field and he could get the same recovered.
In pursuance of his disclosure, lathi exhibit P. 27 which was stained with blood was recovered.
It was seized under seizure memo exhibit PM/1.
On the same day respondent, Balkar Singh made a disclosure statement, exhibit PN that he had kept concealed a lathi in his kikar branches fence and he could get the same recovered.
In pursuance of his disclosure 11 statement, lathi exhibit P. 28 which was stained with blood was recovered.
It was seized under seizure memo exhibit PN/1.
These discoveries were made in presence of P.W. 11 Lila, who was Sarpanch of the local panchayat.
The High Court declined to put any importance to the recoveries as the respondents were not interrogated by Police from October 20 to 24.
In our opinion that cannot be a sufficient justification to hold that the recoveries were 'fake '.
The weapons were recovered at the pointing of the respondents.
In addition the Investigating Officer seized an empty kerosenetin lying at the place of occurrence, The tin was emitting smell of kerosene oil and it was seized under seizure memo exhibit PJ which was attested by P.W. 11.
In addition another circumstance tends to support the complicity of the respondents in the offence.
It is the conduct of the respondents.
The two deceased who had been murdered, by whomsoever it might be, were near blood relations of the respondents.
If the murder had been committed by some others, as supposed by the High Court, they would not have kept quiet.
Of course, they have stated in their defence that they were away from home in some other places and returned to the place of occurrence on 17th October, 1973 which has been found by us to be untrue.
This conduct of the respondents is incriminating.
As a result of the above discussions we, hold agreeing with the learned Sessions Judge, that the guilt of the respondents has been established by the prosecution beyond all reasonable doubt.
In the result we allow, the appeal, set aside the judgment and order of acquittal of the High Court and convict the respondents under Section 302/34 of the Penal Code.
Now comes the question of sentence.
The murder is ghastly and brutal.
Respondent Sher Singh deserved the extreme penalty provided by law, The learned Sessions Judge was right in imposing death sentence on him.
But in view of the fact that the learned Sessions Judge passed the order of conviction and sentence as early as 27th July, 1974 and the High Court passed the order of acquittal as early as 2nd of April, 1975, we refrain from visiting respondent Sher Singh with the extreme penalty provided by law for murder.
We sentence all the respondents to imprisonment for life.
We are told that respondents Balkar Singh and Dalel Singh are on bail.
Their bail bonds are cancelled.
They shall surrender forthwith to serve out their sentences.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The two deceased were the two younger half brothers of the first respondent.
A day before the day of the murder of the two deceased, the brothers had divided the family properties and started living separately.
P.W. 3, the wife of one of the deceased, in the F.I.R. given to the police, stated that on the day of the occurrence when the two deceased and she went to the bagichi for milking the cattle, the first respondent and his sons surrounded the two deceased in the court yard, the first respondent dealt a blow on the head of her husband with a gandasi while the others gave lathi blow on the second deceased.
Both of them succumbed to the injuries.
It was also stated in the F.I.R. that P.W. 4, the sister of the deceased, was with her at the time of the occurrence and that when they screamed, the assailants asked them to keep quiet on pain of death to them.
The assailants, it was alleged, thereafter dragged the two dead bodies and burnt them in the nearby heap of cow dung cakes after pouring kerosene on the heap.
The defence of the two accused was alibi.
All the accused, who were charged of offences under section 302 read with section 34 of the Penal Code were sentenced; the first respondent to death and the others to imprisonment for life.
On appeal, the High Court set aside the conviction and sentences and acquitted all of them.
Allowing the State 's appeal, ^ HELD : 1.
When an accused pleads alibi, the burden of proof under section 103 of the Evidence Act is on the accused.
The plea of all the accused that they were elsewhere at the time of the offence is not true.
[4 G, 5 C] 2.
The guilt of the two respondents had been established beyond all reasonable doubt.
The High Court rejected the evidence of P.W. 10 on the ground that he had not stated in the statement before the police that in the partition of the family properties among the brothers, there was a hitch.
The prosecution is not bound to prove motive of any offence in a criminal case, for motive is known only to the perpetrators of the crime and may not be known to others.
If the motive is proved by the prosecution, the Court has to consider it and see whether it is adequate.
[11E, 6 B C] 2 In the instant case the motive proved is apparently inadequate, although it might be possible.
[6 C] 3.
The High Court had taken a wrong view in rejecting the evidence of P.Ws. 3 and 4 on the ground that they were close relations of the deceased; that it was highly improbable that P.W. 3 who was in advance stage of pregnancy would go to the place of occurrence.
[8F; 9F G] 4.
Although both the witnesses P.Ws. 3 and 4 were close relations of the deceased, their evidence could not be rejected solely on that ground.
They were also related to the respondents and there is nothing on record to show that they were inimically disposed towards the respondents to falsely implicate them in the murder.
Secondly, it was a pure conjecture of the High Court when it said that panchas and sarpanchas and other respectables of the village took an opportunity to implicate the respondents.
It was also a conjecture on the part of the High Court to say that the deceased were murdered by unknown culprits and that the respondents were falsely implicated by the village respectables.
The High Court found as a fact that the respondents and the deceased slept in the bagichi during nights to keep watch over the cattle.
Had the murder been perpetrated by unknown persons, the respondents would have intervened and informed the neighbours.
[8F 9B] 5.
The fact that P.W. 3 did not mention in the F.I.R. that she had informed some persons of the village before the lodging of the F.I.R. and that for this reason her statement could not be relied on is not correct.
The F.I.R. need not contain all details of the occurrence nor does the omission to mention the name of persons whom she informed in the village detract from the credibility of the report.
The omission is a mere omission of details and not a contradiction.
[9 C] 6.
The High Court was not right in disbelieving the evidence of P.W. 4 on the ground that had she been present at the scene of occurrence, she would have out of love for her real brothers, intervened and tried to save them.
There is nothing unnatural if she had out of a sense of self preservation at the threat of the assailant refrained from attempting to save the two deceased from the murder.
P.W. 3 must have been dazed at the brutal murder of her husband and brother in law.
In such a situation she could not be expected to mention all the details, in the F.I.R. and therefore, the High Court was not right in rejecting the evidence of P.W. 10 solely on the ground that no mention of the extra judicial confession of Respondent No. 1 had been made in the F.I.R. [9H 10B; 10D E] 7.
In view of the fact that the conviction and sentence were passed by the Session Judge in July, 1974 and the High Court passed the order of acquittal in 1975, the extreme penalty of death given to the first respondent is not called for now; ends of justice will be met if all the respondents are sentenced to imprisonment for life.
[11 G]


judgement:
Civil Appeal No. 396 of 1980.
Appeal by Special Leave from the Judgment and Order dated 3.10.
1979 of the Bombay High Court (Nagpur Bench) in Special Civil Application No. 1501 of 1977.
G.S. Sanghi, Mrs. Jayashri Wad and Mrs. Urmila Sirur for the Appellants.
P.V. Holay, T.G. Narayana Nair, M.S. Gupta and G.S. Sathe for Respondent No. 1 & 2.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against an order of the High Court of Bombay of 2/3rd October, 1979 by which an order passed suspending the two respondents was quashed on the ground that the order of suspension pending a departmental inquiry was passed by the Municipal Commissioner who was not competent to suspend the respondents pending a departmental inquiry.
The High Court was of the view that under the Rules and Bye laws of the City of Nagpur Corporation Act, 1948(hereinafter referred to as the 'Act ') as amended uptodate, the competent authority to pass orders of suspension against the respondents was the Corporation itself and not the Chief Executive Officer.
It appears that originally the order of suspension was passed by the Municipal Com 24 missioner on the 23rd September, 1974 which was confirmed by the Corporation by its order dated 23rd September, 1974.
It is alleged by the respondents that latter order was not communicated to them.
The suspension was ordered in connection with a departmental inquiry relating to two accidents which occurred during the construction of a stadium called the Yeshwant Stadium, which was being looked after by the respondents and which resulted in the death of seven persons and injuries to eight others.
A complaint was also filed before the police as a result of which a charge sheet under section 304 A I.P.C. was filed against the respondents, on the 25th September, 1976.
In view of the charge sheet submitted by the police another order of suspension was passed by the Municipal Commissioner on 13.1.77 with effect from 8.10.76.
The respondents filed an appeal to departmental appellate authority which was dismissed on the 20th July, 1977.
Thereafter, the respondents filed a writ petition in the High Court which allowed the petition and quashed the order of suspension and directed the respondent to be paid their full salary and further directed the reinstatement of the respondents.
Hence this appeal.
The short point taken by Mr. Sanghi was that under section 59 (3) of the Act, the Municipal Commissioner is the competent authority to suspend the respondents pending a departmental inquiry.
On a perusal of section 59 (3) we are of the opinion that the contention is well founded and must prevail.
Section 59 (3) may be extracted thus: "Section 59 (3) : Subject, whenever it is in this Act expressly so directed to the approval or sanction of the Corporation or of the Standing Committee, and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Commissioner who shall also (a). . (b) exercise supervision and control over the acts and proceedings of all municipal officers and servants and subject to the rules or bye laws for the time being in force, dispose of all questions relating to the services of the said officers and servants and their pay, privileges and allowances. "(Emphasis ours)" Thus clause (b) of section 59(3) in express terms authorises and clothes the Municipal Commissioner with the power to exercise supervision 25 and control over the acts of Municipal officers and servants.
It may be noticed that the said clause (b) is preceded by the words 'vest in the Commissioner '.
When the words 'control ' and 'vests ' are read together they are strong terms which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the control of the servants and officers of the Municipal Corporation.
In the case of State of West Bengal vs Nripendra Nath Bagchi(1) while interpreting a similar language employed in article 235 of the Constitution of India which confers control by the High Court over District courts, this Court held that the word 'control ' would include the power to take disciplinary action and all other incidental or consequential steps to effectuate this end and made the following observations: "The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word.
It shows that the High Court is made the sole custodian of the control over the judiciary.
Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge," . . "In our Judgment, the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges.
Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal.
" This view was reiterated in High Court of Andhra Pradesh & Ors.
vs V.V.S. Krishnamurhty & Ors.(2) where this Court clearly held that 'control ' included the passing of an order of suspension and that the power of control was comprehensive and effective in operation.
In this connection, Sarkaria, J. speaking for the Court, observed as follows: "The interpretation and scope of Article 235 has been the subject of several decisions of this Court.
The position 26 crystalized by these decisions is that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation.
It comprehends a wide variety of matters.
Among others, it includes: (a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges.
In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal. . (ii) In Article 235, the word 'control ' is accompanied by the word "vest" which shows that the High Court alone is made the sole custodian of the control over the judiciary.
The control vested in the High Court, being exclusive, and not dual, an inquiry into the conduct of a member of judiciary can be held by the High Court alone and no other authority. . (iii) Suspension from service of a member of the judiciary, with a view to hold a disciplinary inquiry.
" It is thus now settled by this Court that the term 'control ' is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned.
In the aforesaid case, suspension from service pending a disciplinary inquiry has clearly been held to fall within the ambit of the word 'control '.
On a parity of reasoning, therefore, the plain language of clause (b) of section 59 (3), as extracted above, irresistibly leads to the conclusion that the Municipal Commissioner was fully competent to suspend the respondents pending a departmental inquiry and hence the order of suspension passed against the respondents by the Municipal Commissioner did not suffer from any legal infirmity.
The High Court was, therefore, in error in holding that the order of suspension passed by the Municipal Commissioner was without jurisdiction.
In this view of the matter the order of the High Court cannot be maintained and has to be quashed.
We might, however, mention that although in the criminal case charge sheet was submitted as far back as September, 1976 we 27 understand that no charges have been framed so far.
Criminal cases should be disposed of as quickly as possible so as to protect the accused from unnecessary harassment.
We therefore direct the Judicial Magistrate First Class of Nagpur to dispose of the Criminal Case No. 1902 of 1976 pending in his file with the utmost expedition and if possible within six months from today.
Mr. Sanghi on behalf of the Municipality, states that he will fully cooperate with the prosecution in producing all the available evidence before the court and bringing the case to a final conclusion within the period mentioned above.
The other question that remains is if the respondents are acquitted in the criminal case whether or not the departmental inquiry pending against the respondents would have to continue.
This is a matter which is to be decided by the department after considering the nature of the findings given by the criminal court.
Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains, however, that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction in any way fettered.
However, as quite some time has elapsed since the departmental inquiry had started the authority concerned will taken into consideration this factor in coming to the conclusion if it is really worth while to continue the departmental inquiry in the event of the acquittal of the respondents.
If, however, the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so.
In case the respondents are acquitted we direct that the order of suspension shall be revoked and the respondents will be reinstated and allowed full salary thereafter even though the authority chooses to proceed with the inquiry.
Mr. Sanghi states that if it is decided to continue the inquiry, as only arguments have to be heard and orders to be passed, he will see that the inquiry is concluded within two months from the date of the decision of the criminal court.
If the respondents are convicted, then the legal consequenses under the rules will automatically follow.
We might mention that at the time when special leave was granted by this Court, it was ordered that the respondents should be paid a lump sum of Rs. 10,000/ each apart from the 75% allowance.
We think that in the interest of justice the department may not insist on the refund of the amount of Rs. 10,000/ until the 28 result of the departmental inquiry and if the departmental inquiry concludes in their favour, the amount will be either refunded or adjusted against their dues.
With these observations, the appeal is accepted and the judgment of the High Court is quashed.
Parties will bear their own costs throughout.
S.R. Appeal allowed.

summary:
During the construction of a stadium called the Yeshwant Stadium, which was being looked after by the respondents, two accidents occurred resulting in the death of seven persons and injuries to eight persons.
Pending a departmental inquiry in the said connection, an order of suspension was passed by the Municipal Commissioner on the 23rd of September, 1974 which was confirmed by the Corporation by its order of the same date.
According to the respondents the later order was not communicated to them.
Pursuant to a criminal complaint filed before it, the police filed a charge sheet under section 304 A Penal Code against the respondents on the 25th of September, 1976.
In view of the charge sheet submitted by the police another order of suspension was passed by the Municipal Commissioner on 13 1 1977 with effect from 8 10 76.
The respondents filed an appeal to departmental appellate authority which was dismissed on the 20th of July, 1977.
Thereafter the respondents filed a writ petition in the High Court which allowed the petition taking the view that under the rules and byelaws of the City of Nagpur Corporation Act, 1948, as amended upto date, the competent authority to pass orders of suspension against the respondents was the Corporation itself and not the Chief Executive Officer.
The High Court quashed the orders of suspension and directed the reinstatement of the respondents and payment of their full salary to them.
Hence the appeal by special leave.
Allowing the appeal, the Court ^ HELD: 1:1.
Clause (b) of Section 59(3) of the City of Nagpur Corporation Act, 1948 in express terms authorises and clothes the Municipal Commissioner with the power to exercise supervision and control over the acts of Municipal Officers and servants and hence he is fully competent to suspend the Municipal Officers and servants, pending a departmental inquiry.
[24 H 25A: 2.
The term "control" is of a very wide connotation and amplitude and includes a large variety of powers which are incidental or consequential to achieve the powers vested in the authority concerned.
Clause (b) of the City of Nagpur Corporation Act is preceded by the Words "vests in the commissioner".
When the words "control" and "vests" are read together they are strong terms 23 which convey an absolute control in the authority in order to effectuate the policy underlying the rules and makes the authority concerned the sole custodian of the servants and officers of the Municipal Corporation.
[28 E, 25 A B] State of West Bengal vs Nripendra Nath Bagchi, ; ; High Court of Andhra Pradesh and Ors.
vs V.V.S. Krishnamurthy and Ors., , followed.
Whether or not the departmental inquiry pending against its servants, if he is acquitted in the criminal case, would have to continue is a matter to be decided by the department after considering the nature of the findings given by the criminal court.
Normally where the accused is acquitted honourably and completely exonerated of the charges it would not be expedient to continue a departmental inquiry on the very same charges or grounds or evidence, but the fact remains that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its direction in any way fettered.
However, whether it is really worthwhile to continue the departmental inquiry in the event of the acquittal after the lapse of number of years since the departmental inquiry has started is a relevant factor to be considered.
[27 C E] Observation: Criminal cases should be disposed off as quickly as possible so as to protect the accused from unnecessary harassment.
[27 A]