judgement:
N: Criminal Appeal Nos.
150/76 and 285 of 1976.
Appeals by special leave from the Judgment and Order dated 29.1.1976 of the Bombay High Court in Cr. A. 526/73.
section B. Bhasme, V. N. Ganpule and Mrs. V. D. Khanna for the Appellant in Cr. A. 150/76.
U. R. Lalit and K. R. Chowdhary for the Appellant in Cr.
A. 285/76 70 R. N. Sachthey and M. N. Shroff for the Respondents in both the Appeals.
The Judgment of the Court was delivered by BAHARUL ISLAM J.
These two appeals arise out of a common judgment and order passed by the High Court of Bombay, Criminal Appeal No. 150 of 1976 has been preferred by two appellants, Mohammad Usman Mohammad Hussain Maniyar (hereinafter "Usman") and Mohammad Taufik Mohammad Hussain Maniyar (hereinafter 'Taufik ') and Criminal Appeal No. 285 of 1976 has been preferred by Mohammad Hussain Fakhruddin Maniyar (hereinafter 'Fakhruddin) and Mohammad Rizwan Mohammad Hussain Maniyar (hereinafter 'Rizwan ').
All of them were convicted and sentenced by the Sessions Judge as follows: (i) Under Section 120B of the Penal Code and sentenced to suffer rigorous imprisonment for three years, each; (ii) Under Section 5 of the Explosive Substances Act and sentenced to rigorous imprisonment for three years each, and to pay a fine of Rs. 1000 each, in default, to suffer rigorous imprisonment for two months, each; (iii) Under Section 5 (3) (b) of the Explosives Act and sentenced to suffer rigorous imprisonment for six months, each, and to pay a fine of Rs. 500/ in default, to suffer rigorous imprisonment for one month, each; (iv) Under Section 3 read with Section 25(1) (a) of the Arms Act and sentenced to suffer rigorous imprisonment for two months each; (v) Under Section 30 of the Arms Act and sentenced to pay a fine of Rs. 100/ each, in default, to suffer rigorous imprisonment for two weeks, each; (vi) Under Section 6 (1) (a) of the Poisons Act read with Rule 2 of the Rules framed under the said Act and sentenced to suffer rigorous imprisonment for one month, each, and to pay a fine of Rs. 50/ each, in default, to suffer rigorous imprisonment for 15 days, each.
The substantive sentences were directed to run concurrently.
The first two preferred one appeal and the second two a separate appeal before the High Court.
The High Court by a common judgment dismissed both the appeals.
Hence this appeal before us 71 by special leave.
This common judgment of ours will dispose of both the appeals.
During the pendency of the appeal before this Court, appellant, Fakhruddin, died on 10.10.1978.
His legal representatives have been brought on record as there are sentences of fine against the deceased appellant.
The facts necessary for the purpose of disposal of these appeals may be stated thus: In the year 1967 a number of murders were perpetrated by a gang of murderers.
During the course of investigation into these offences, potassium cyanide was found to have been used for poisoning the victims.
On 11.9.1964, P.W.17, Bendre, P.S.I, who was attached to the local crime branch at Sholapur received an information that the firm known as M.F. Maniyar & Sons was selling potassium chlorate which is a highly explosive substance.
He then initiated the work of finding out the persons responsible for the supply of the explosive to the miscreants.
He received information that appellant, Fakhruddin, was the owner of the shop known as M.F. Maniyar & Sons, situated at house No. 383, East Mangalwar Peth, Sholapur, and possessed licence for sale and storage of potassium chlorate in House No. 615 in East Mangalwar Peth; Fakhruddin with the assistance of his three sons (appellants 2 to 4) and his servants stored at the place mentioned in their shop situated at house No. 383, East Mangalwar Peth, to persons who did not possess licence to purchase potassium chlorate.
P.W. 17 and Sub inspector Tasgaokar of the local Intelligence Branch proceeded to Mangalwar Peth Police Chowky and called a bogus customer 'Basanna Pujari ' by name.
He also called the local panchas.
He, then, gave a ten rupee currency note to P.W.4.
He initialled the currency note.
He also gave a bag to P.W.4. and told him to buy half kg.
of potassium chlorate from M/s. M.F. Maniyar & Sons.
P.W.4 went to the shop.
He found in the shop accused Chandra Kant (since acquitted), who was a servant of Fakhruddin.
P.W.5 gave him the ten rupee currency note and asked for half kg.
of potassium chlorate.
which he said he needed for blasting purpose.
Chandra Kant gave him half k.g of potassium chlorate and returned an amount of Rs. 2.50p.
P.W.4 took the powder in the bag and was returning.
Police challenged him and seized the bag.
Police interrogated him.
He told police in presence of the Panchas that he had purchased the powder which was inside of the bag from M.F. Maniyar and got back Rs. 2.50P. P.W.17 searched the cash box in the firm of Fakhruddin and found 72 the ten rupee currency note initialled by him.
The shop was searched and 220 grams of Black gun powder was found in the show case.
He then alongwith the panchas went up to the first floor.
They found black gun powder there also.
They found it to be a mixture of potassium chlorate and sulphate used for fire arms.
Samples were sealed and one of them was given to appellant, Fakhruddin.
A panchnama, Ex.20, was prepared.
P.W.17, thought it necessary to send for an expert to identify the powder.
He, therefore, posted some constables at the shop, sealed appellants ' godowns in Mangalwar Peth and Shukrawar Peth and made panchnamas, Exhibits 22 and 23.
Next morning, he sealed both the shops and prepared panchnamas Exhibits 24 and 25.
On 13th September, he sent the samples to the Explosives Inspector.
On the 14th he lodged a complaint at the Jail Road Police Station at Sholapur.
Police registered a case and the P.S.I started investigation.
The P.S.I sent for the Drugs Inspector and the Central Excise Inspector.
All of them, then visited the appellants ' godowns at Shukarwar Peth at Sholapur.
They found the shops in the sealed condition.
A search was conducted in the presence of the appellants.
The Police officer and others, having observed due formalities, searched the premises.
In course of the search they found and seized some powder as per Panchnama, exhibit 27.
Samples of the powder seized were also given to the appellants.
After that they went and searched the appellants ' premises in Mangalwar Peth.
Nothing incriminating was found there.
They, then, returned to the firm M/s. M.F. Maniyar and searched it.
They found and seized some powders as per Panchnama, exhibit 28.
Samples of these powders also were given to the appellants.
On the same night they found 49 percussion caps on the roof of the adjacent shop and seized them as per Ext.
On the same night P.S. I., Patil, received a panchnama made by P.S.I., Joshi, (P.W.18) under which detonators had been seized.
Acting on an information from P.W. 17.
P.W. 18 arrested appellant, Taufik on September 15, 1967.
Appellant, Taufik told the police that he had buried some detonators in the compound of his bungalow and he would produce them.
Accordingly, he led P.W. 18 to his bungalow which was admittedly in occupation of all the appellants, removed some earth under a mango tree in the premises and took out three tins containing 20 packets of detonators.
It was seized under panchnama, exhibit 33.
As the detonators were explosive they were not opened.
Taufik was arrested and produced before P.W.17.
The Explosives Inspector was of the opinion that some of the explosives seized were highly explosive.
P.W.17, then, with the 73 permission of the District Superintendent of Police destroyed the explosives as instructed by the Explosives Inspector.
During the course of investigation from 11.9.1967 to 15.9.1967 the following arms and explosives were seized: (1) 200 grams of highly explosive gun powder.
(2) 40 kg.
and 150 grams of blasting powder.
(3) 3 kg.
and 350 g. of mixture of potassium chlorate and sulphur.
(4) 54 detonators.
(5) 251 caps like contrivances containing prohibited mixture of red arsenic sulphide and chlorate used to act as improvised percussions caps.
(6) 104 kg.
and 500 g. of potassium chlorate.
(7) 37.5 kg.
of special gelatines.
(8) 300 kg. of sulphur.
(9) 2496c campion crackers of prohibited size and containing prohibited mixtures.
(10) 510 grams of potassium cyanide.
(11) About 450 kg. of sulphur.
(12) 217 caps like contrivances of the same description as is the case with item No. 5 above.
(13) 2500 detonaters.
(14) 27 live cartridges, 12 bores, and (15) Mixture of sulphur and potassium chlorate 1/2 kg.
Out of these articles, the articles at serial Nos.
1 to 5 were found in the shop of M/s. M.F. Maniyar & Sons.
Articles at serial numbers 6 to 11 were found in the clandestine godown situated at 986, Shukarwar Peth at Sholapur on 15.9.1967.
Article at serial No. 12 was found on the roof at East Mangalwar Peth, Shukarwar which is adjacent to the shop of M/s.
M.F. Maniyar & Sons.
Article at serial number 13 were produced by appellant, Taufik, as stated earlier from the compound of their bungalow at 156A, Railway Lines, 74 Sholapur.
Articles at serial number 14 consist of 12 bore cartridges found in the house of accused Abdulla Mandolkar (since acquitted).
They were alleged to have been delivered by appellant, Fakhruddin, to accused, Fateh Ahmed Phuleri (since acquitted).
The article at serial number 15 was the one sold to P.W. 4, Basanna by accused, Chandrakant (since acquitted).
Appellant number 1 is the father of appellants 2 to 4.
Accused Chandrakant and Fateh Ahmed (both since acquitted) were the servants of Fakhruddin working in the shop.
Accused Abdula Mandolkar (since acquitted) was a relation of Fateh Ahmed.
Police after investigation submitted charge sheet.
Eventually the appellants and the three other above named co accused were committed to the court of Sessions for trial.
The allegations against the appellants in substance were that they agreed to do the following illegal acts; (i) to acquire and prepare explosives unauthorisedly and to possess and supply explosives for illegal purposes; (ii) to acquire and possess sulphur unauthorisedly and to sell the same; (iii) to acquire and possess and sell gun powder and cartridges in breach of the conditions of the licence granted under the Arms Act and Explosives Act; (iv) to acquire and stock in clandestine godown and illegally sell potassium chlorate in breach of the conditions of the licence granted under the provisions of the Arms Act; (v) to acquire without licence percussion caps and to sell them illegally; and (vi) to acquire and posssess without licence poison and to sell the same illegally.
The changes were also to the above effect.
The appellants pleaded not guilty.
In his statement under Section 342 of the Code of Criminal Procedure, appellant, Fakhruddin, additionally stated that he alone managed the shop M/s. M.F. Maniyar & Sons from which the incriminating substances were found.
He admitted his presence at the place and at the time of the first raid on the 11th September He has also admitted the search and seizure of articles as per Exhibit 28.
He has also admitted that potassium cyanide was purchased and possessed by him but he has pleaded that he was told that no licence was necessary for possessing potassium cyanide.
Mr. Lalit learned Advocate, appeared for appellants No. 1 & 2 and Mr. Bhasme, learned Advocate, appeared for appellants 3 & 4.
Learned counsel have not challenged the convictions and sentences of the appellants under Section 5(3)(b), Section 3 read 75 with Section 25(1)(a), and Section 30 of the Arms Act, and under Section 6(1)(a) of the Poison Act read with rule 2 of the rules framed under that Act.
They have only challenged the conviction and sentences under Section 5 of the Explosive Substances Act, and Section 120B of the Penal Code.
We are, therefore, called upon to examine the correctness or otherwise of the convictions under Section 5 of the Explosive Substances Act and Section 120B of the Penal Code.
Let us first consider the conviction under Section 5 of the Explosives Substances Act.
The Section reads as follows: 5. "Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with transportation for a term which may extend to fourteen years, to which fine may be added, or with imprisonment for a terms which may extend to five years, to which fine may be added" 10.
In order to bring home the offence under Section 5 of the Explosive Substances Act, the prosecution has to prove; (i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
The burden of proof of these ingredients is on the prosecution.
The moment the prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea.
Explosive substance has been defined in section 2 of the Explosive Substances Act.
The definition is as follows: "2.
In this Act the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive 76 substance; also any part of any such apparatus, machine or implement." "Explosive substance" has a broader and more comprehensive meaning than the term 'Explosive ', 'Explosive substance ' includes 'Explosive '.
The term 'Explosive ' has not been defined in the Act.
The dictionary meaning of the word 'Explosive ' is 'tending to expand suddenly with loud noise; 'tending to cause explosion ' (The Concise Oxford Dictionary).
In the Explosives Act, the terms 'explosive ' has been defined as follows: "4.
In this Act, unless there is something repugnant in the Definitions, subject or context, (1) "explosive" (a) means gunpowder, nitro glycerine, dynamite, guncotton, blasting powders, fulminate of mercury or of other metals, coloured fires and every other substance, whether similar to those above mentioned or not, used or manufactured with a view to produce a practical effect by explosion, or a pyrotechnic effect; and (b) includes fog signals, fireworks, fuses, rockets, percussion caps, detonators, cartridges, ammunition of all descriptions, and every adaptation or preparation of an explosive as above defined;" It may be mentioned that the definition of 'explosive ' under Section 4 was amended later, but we are not concerned with the amendment as the occurrence in the instant case took place before the amendment.
On a consideration of the evidence of the Explosives Inspector, and other evidence.
the Sessions Judge and the High Court have found, in our opinion correctly, that the substances in question were explosive substances within the definition of the expression.
In the instant case, appellant I has admitted, as stated earlier, that these articles were seized from his possession.
The evidence also shows that his three sons, appellants 2 to 4, used to manage and run the shop M. F. Maniyar & Sons from which the incriminating substance were seized.
It was argued by learned counsel that possession within the meaning of Section 5 of the Explosive Substances Act means 77 'conscious possession '.
There can be no doubt about it.
The substances seized were not minute or small in quantity.
They were in large quantities.
In fact half k.g. of the incriminating substance was sold to P. W. 4 by an employee of the firm.
The detonators were produced by appellant No. 3 from the premises of the Bungalow occupied by all the occupants.
It cannot but, therefore, be held that the appellants were in 'conscious possession ' of the substance seized.
The notification dated 1st of April, 1966 published by the Government of India, Ministry of Works and Housing and Urban Development (exhibit 65) reads as follows: "NOTIFICATION" No. 3/12/65 PII (IX) In exercise of the powers conferred by Section 6 of the Indian (4 of 1884), and in supersession of the notification of the Government of India in the later Department of Labour No. M 1217, dated the 9th February 1939, the Central Government is pleased to prohibit the manufacture, possession and importation of any explosive consisting of or containing sulphur or sulphurate in admixture with chlorate or potassium or any other chlorate; Provided that this prohibition shall not extend to the manufacture or possession of such explosive: (a) in small quantities for scientific purpose; (b) for the purpose of manufacturing heads of matches; or (c) for use in toy amorces (paper caps for toy pistols).
Sd/ P. Rajaratnam Under Secretary to the Government of India" The appellants had no licence or authority to make or possess the explosive substances as required by the above Government notification.
The licence possessed by them is dated 31.3.1956 (Exhibit 90) which was not in pursuance and in conformity of the aforesaid Government Notification.
The possession of the 'explosive substances ' by the appellants, therefore, were without any authority.
78 15.
Learned counsel for the appellants cited before us 1939 (2) All E. R. 641 in support of his contention.
The head note of the report reads: "Upon an indictment against an accused for knowingly having in his possession explosive substances, the prosecution has to prove that the accused was in possession of an explosive substance within the Explosive Substances Act, 1883, section 9, in circumstances giving rise to a reasonable presumption that possession was not for a lawful object.
Proof of knowledge by the accused of the explosive nature of the substance is not essential, nor need any chemical knowledge on the part of the accused be proved.
" The appellants have also cited another English decision reported in in which it has been observed: "We think that the clear meaning of the section is that the person must not only knowingly have in his possession the substance but must know that it is an explosive substance.
The section says he must knowingly have in his possession an explosive substance; therefore it does seem that it is an ingredient in the offence that he knew it was an explosive substance.
" With respect, the above decisions lay the correct legal proposition.
But the question is whether in his case appellants knew that the substances in question were explosive substances.
The knowledge whether a particular substance is an explosive substance depends on different circumstances and varies from person to person.
An ignorant man or a child coming across an explosive substance may pick it up out of curiosity and not knowing that it is an explosive substance.
A person of experience may immediately know that it is an explosive substance.
In the instant case, the appellants had been dealing with the substances in question for a long time.
They certainly knew or atleast they shall be presumed to have known what these substances they were and for what purpose they were used.
In fact, when P. W. 4 Basanna asked for half k. g. of blasting powder, appellants ' servant, accused Chandrakant, immediately supplied the requisite powder to P. W. 4 from the shop.
This evidence clearly establishes that the appellants did know the nature and character of the substance.
In other words, they knew that the substances in question were explosive substances.
The courts below therefore, were right in holding that an offence under Section 5 of the Explosive Substances Act was committed.
79 16.
Learned Counsel submitted that the evidence on record shows that appellant, Fakhruddin, alone acquired and possessed the substance in question.
That was the plea of Fakhruddin.
It also might be true that Fakhruddin also had acquired the substances but the evidence on record clearly shows that all the appellants were in possession and control of the substances in question.
The submission of the appellants has no substance and all the four persons are liable for the offence.
Now to turn to the conviction under Section 120B of the Penal Code.
Section 120B provides: "120B. (1) Whoever is a party to a criminal conspiracy to commit an offence punishable. . . " `Criminal conspiracy ' has been defined under Section 120A of the Penal Code as follows: "120 A.
When two or more persons agree to do, or cause to be done. (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some tact besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.
It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object," The contention of learned counsel is that there is no evidence of agreement of the appellants to do an illegal act.
It is true that there is no evidence of any express agreement between the appellants to do or cause to be done the illegal act.
For an offence under section 120B, the prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done the illegal act; the agreement may be proved by necessary implication.
In this case, the fact that the appellants were possessing and selling explosive substances without a valid licence for a pretty 80 long time leads to the inference that they agreed to do and/or cause to be done the said illegal act, for, without such an agreement the act could not have been done for such a long time.
Mr. Lalit additionally submitted that appellant No. 2 Rizwan did not do any overt act.
He was a mere partner of M/s. M.F. Maniyar & Sons and as such his conviction has been bad in law.
The submission is not correct.
For, appellant Rizwan himself in his statement under Section 342, Cr. P. C., has stated "Myself (and) accused Nos. 1 and 4 looked after the business of the Firm.
M.F. Maniyar & Sons".
The learned courts below on a consideration of the evidence on record have come to the conclusion that he also occasionally used to work in the firm.
We do not have valid reason to differ from them.
Now comes the question of sentence.
The real man in the entire clandestine trade was appellant No. 1, who is now dead.
The three other appellants being his sons were merely assisting him.
We are told that appellant No. 2, Rizwan, has already served 81/2 months of imprisonment and appellants 3 and 4, Usman and Taufik, six months of imprisonment each.
In our view ends of justice will be met if the sentences of imprisonment are reduced to the periods already undergone by the three living appellants.
In addition to the sentence of imprisonment there was a fine of Rs. 1000/ each for the offence under Section 5 of the Explosive Substances Act and also sentence of fine against the appellants under Section 5(3) (b) of the and under Section 30 of the Arms Act.
In our opinion, ends of justice will be met if the fine under Section 5 of the Explosives Substances Act is remitted in case of all the appellants, including appellant No. 1, Fakhruddin.
With the above modification in the sentence the appeals are dismissed.
section R. Appeals dismissed.

summary:
Government of India, Ministry of Works & Housing and Urban Development Notification No. 3/12/65 PII(IX) dated 1st April, 1966, requiring a licence to make or possess the explosive substances Possession without such a licence, of the explosive substances is unauthorised.
Penal Code, section 120B Criminal conspiracy Nature of proof.
Fakhruddin, the owner of the shop, known as M. F. Maniyar & Sons, Sholapur, along with his three sons, was tried for offences under section 120B of the Penal Code, section 5 of the Explosive Substances Act, section 3 read with section 25 of the Arms Act and section 6(1)(a) of the Poisons Act.
All the four were convicted and sentenced by the Sessions Judge, Sholapur, to sentences of different durations under these Acts and also to fine.
The substantive sentences were directed to run concurrently.
The appeals before the High Court having failed the appellants have come in appeal by special leave to this Court.
Dismissing the appeals, the Court while remitting the sentences of fine and reducing the sentences of imprisonment to the periods already undergone by the three living appellants. ^ HELD:1 :1.
In order to bring home the offence under section 5 of the Explosive Substances Act, the prosecution has to prove: (i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
[75D G] 1: 2.
The burden of proof of the ingredients of section 5 of the Explosive Substances Act, is on the prosecution.
The moment prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea.
[75F G] 2.
On a consideration of the evidence of the Explosive Inspector, and other evidence, the substances in question which were recovered from the appe 69 llants were "explosive substances" within the definition of that expression in section 2 of the Explosive Substances Act.
[76F G] 3: 1.
The factum of the recovery of the said articles from the possession of appellant No. 1 and also the evidence that his three sons, appellants 2 to 4, who were managing and running the shop of M. F. Maniyar and Sons from which the incriminating substances were seized clearly show that all of them were guilty.
[76 G H, 77A] 3: 2.
The several substances seized, not being minute or small in quantity, make it clear that the appellants were in "conscious possession" of the substances seized within the meaning of section 5 of the Explosive Substances Act.
[77A B] 3: 3.
The possession of the explosive substances by the appellants were without any authority since the appellants had no licence or authority to make or possess the explosive substances as required by the Government of India.
Ministry of Works & Housing and Urban, notification dated 1st April, 1966.
The licence possessed by them is dated 31 3 1956 which was not in pursuance and in conformity of the said Government notification.
[77G H] 3: 4.
The knowledge that the particular substance is an explosive substance depends on different circumstances and varies from person to person.
Unlike an ignorant man or a child coming across an explosive substance who picks it up out of curiosity not knowing that it is an explosive substance, a person of experience may immediately know that it is an explosive substance.
In the instant case, as the appellant had been dealing with the substance in question for long time, they certainly knew or at least they shall be presumed to have known what those substances were and for what purpose they were used.
The said presumption is further fortified from the fact that a half K.G. of blasting powder/ potassium cyanide was sold to the decoy witness by the appellants.
[78E F, G] 4.
For an offence under section 120B of the Penal Code the prosecution need not necessarily prove that the perpetraters expressly agreed to do or cause to be done the illegal act: the agreement may be proved by necessary implication.
In this case, the fact that the appellants were possessing and selling explosive substances without a valid licence for a pretty long time leads to the inference that they agreed to do and/or cause to be done the said illegal act, for, without such an agreement the act could not have been done for such a long time.[79G H, 80A]


judgement:
ition No. 397 of 1981.
(Under Article 32 of the Constitution) Mrs. Shyamala Pappu, M. section Mann, S Shukhar, Miss Raj Shree and Mrs. Indra Sawhney for the Petitioner.
section K. Gambhir and Vijay Hansaria for the Respondent.
82 The Judgment of the Court was delivered by CHINNAPPA REDDY J.
Shiv Prasad Bhatnagar is under preventive detention pursuant to an order made by the District Magistrate, Vidisha, Madhya Pradesh.
The order and the grounds of detention were served on him on November 28, 1980.
The District Magistrate made a report of the order to the State Government and the latter approved the detention order on December 2, 1980.
The approval was communicated to the detenu on December 5, 1980.
A representation was submitted by the detenu on December 13, 1980.
The Advisory Board constituted by the State Government met on January 3, 1981, considered the material placed before it by the detaining authority as well as the representation and the written arguments submitted by the detenu.
The detenu was also given a personal hearing.
The Advisory Board submitted its report to the State Government on January 4, 1981.
Thereafter the State Government confirmed the order of detention on February 3, 1981 under Sec.
12 (1) of the National Security Act.
The period of detention was stipulated as one year from the date of the order of detention.
The order confirming the detention was communicated to the detenu on February 12, 1981 and he was also informed that the Advisory Board had opined that there was sufficient cause for his detention.
Shyamla Pappu, learned counsel for the detenu made a number of submissions.
In the view that we are taking of one of the primary submissions, we do not think it necessary to consider the rest of the submissions.
The primary submission that we have in mind is that the grounds of detention suffer from the vice of either vagueness or staleness.
The first ground mentions that the detenu alongwith his friends, in the second week of November, 1980, indulged in filthy abuse of Muslims, threatened their lives and performed "mar pit ' '.
Details of incidents were given to substantiate the ground.
As many as six incidents were mentioned and in everyone of them it was said that the detenu alongwith his associates had indulged in this or that violent action.
No mention was made of the name of even a single associate.
The argument was that the reference to 'associates ' without naming even one rendered the ground vague and, therefore, vitiated it.
Similarly, it was said the second ground also referred to the detenu and his accociates without naming even a single associate and for that reason the second ground also was vague.
The further submission was that the incidents enumerated in second ground were of the years 1974, 1975, 1977 and 1978 and could by no means be said to be proximate 83 enough to sustain an order of preventive detention.
The second ground was to the effect that the detenu and his associates had terrorized the common man in the Vidisha area by their various criminal acts which caused disturbance to public peace and public safety.
Several incidents were narrated to substantiate this ground.
The first incident was of the year 1974, the second incident was of the year 1975, the next three incidents were of the year 1977 and the rest of the incidents barring the last one were of the year 1978.
A perusal of the incidents enumerated to substantiate the second ground show that apart from the vice of staleness from which they appear to suffer, the incidents are related to "law and order" and not to the maintenance of public order.
The incidents appear to bear a striking resemblance to the grounds of detention which were considered In Re: Sushanta Goswami & Ors., (1) particularly in the cases of Debendra Nath Das, Abdul Wahab, Anil Das, Dilip Kumar Chakraborty and Ashoka Kumar Mukherjee.
It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not stale, precise and not vague.
Irrelevance, staleness and vagueness are vices any single one of which is sufficient to vitiate a ground of detention.
And, a single vicious ground is sufficient to vitiate an order of detention.
In the present case we are satisfied that the second ground of detention suffers both from the vice of staleness, because of the passage of time since the happening of some of the incidents and the vice of irrelevance because they relate to 'law and order ' and not to 'the maintenance of public order '.
The detenu is entitled to be released.
He is directed to be released forthwith.
The petition is allowed.

dataset_name: IN-Abs

summary:
The petitioner was detained under section 12 (1) of the National Security Act on the grounds that he, alongwith his friends, in the second week of November, 1980 indulged in filthy abuse of Muslims, threatened their lives and performed "marpeet" and that he and his associates terrorised the common man in the area by their various criminal acts which caused disturbance to the public peace and public safety.
In support of the petition it was contended on behalf of the petitioner that the reference to associates without naming even one rendered the ground vague and, therefore, vitiated the order of detention and (2) that the incidents enumerated in the second ground related to the years 1974, 1975, 1977 and 1978 which could not be said to be proximate enough to sustain the order of detention.
Allowing the petition, ^ HELD: The detenu is entitled to be released.
It is now well settled that grounds of detention must be pertinent and not irrelevant, proximate and not state, precise and not vague.
Irrelevance, staleness and vagueness are vices any single one of which is sufficient to vitiate the order of detention.
[83 D] In the instant case the incidents enumerated to substantiate the second ground show that apart from the vice of staleness from which they suffer, they were related to "law and order" and not to the maintenance of public order.
They are stale because of the passage of time since the happening of some of the incidents; they are irrelevant because they related to law and order and not to maintenance of public order.
[83 E] In Re: Sushanta Goswami and Ors., ; followed.


judgement:
tition Nos. 293,391 and 392 of 1981.
(Under Article 32 of the Constitution) 138 M.M. Abdul Khader and Shakeel Ahmed for the Petitioners.
R.K. Bhatt, D. Goburdhan and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
These three Writ Petitions may be disposed of by a single judgment since the principal question argued in all the three cases is one.
The question is whether delay in considering the representation made by a detenu under article 22(5) of the Constitution vitiates a detention under the National Security Act and entitles the detenu to be released on that ground alone.
As a result of a series of decisions of this Court,( ') it is now well settled that the representation made by a detenu under article 22(5) of the Constitution against his detention under the , must be considered by the detaining authority with the ut most expedition and that any unexplained delay in considering the representation will be fatal to the detention.
The learned counsel for the State of Uttar Pradesh urged that the rule requiring expeditious consideration of a detenu 's representation is a judge made rule based on provisions of the Conservation of Foreign Exchange and Prevention of the Smuggling Activities Act, 1974, and that the extension of the application of the rule to cases of detention under the National security Act was unwarranted.
The learned counsel contrasted the provisions of the National Security Act and the provisions of the Conservation of Foreign Exchange & Prevention of Smuggling Activities Act, 1974, and urged that in the case of detention under the National Security Act, a certain amount of delay was inevitable having due regard to the procedure prescribed by the Act and, 139 therefore, delay in consideration of the representation should not be allowed to prejudice the detention.
We are unable to agree with the submission of the learned counsel.
We will presently give our reasons for our inability to accept the learned counsel 's submissions but we will first like to refer to a few facts.
In Writ Petition (Criminal) No. 293 of 1981 the order and the grounds of detention were served on the detenu on October 30, 1980 and November 12, 1980 respectively.
The detenu made a representation on November 12, 1980.
Though according to the detenu he has received no communication from the Government about his representation, the Additional District Magistrate has stated in his counter affidavit that the representation was rejected on December 9, 1980 and that it was communicated to the detenu through the Superintendent of the Central Jail.
The counter affidavit mentions not a word to explain the delay in considering the representation.
The only reference to the representation in the counter affidavit is in these two sentences: "It is admitted that the detenu made a representation to the Home Secretary on November 12, 1980, and the same was rejected on December 9, 1980.
The rejection of the representation was communicated to the detenu through Superintendent, Central Jail by the Government".
Similarly in Writ Petition (Criminal No. 391 of 1981, the order and the grounds of detention were served on the detenu on November 12, 1980.
The representation was rejected on December 10, 1980.
In the counter affidavit filed by the Section Officer, Confidential Department, of the Government of Uttar Pradesh, it is stated that on receipt of the representation, the Secretary ' Home Department, forwarded it to the District Magistrate for his comments.
In order to meet the allegations in the representation, the District Magistrate had to gather information from many sources and the representation alongwith his comments was returned to the Home Secretary by the District Magistrate on November 25, 1980.
Thereafter Law Department was consulted and the file could reach the Home Minister on December 5, 1980 only.
The representation was rejected by the Home Minister on December 8, 1980 and then communicated to the detenu through the Superintendent, Central Jail.
In Writ Petition (Criminal) No. 392 of 1981 the order and the grounds of detention were served on the detenu on October 16, 1980.
The detenu made a representation on October 24, 1980.
It was rejected on November 25, 1980.
The counter 140 affidavit filed by the Additional District Magistrate does not offer any explanation for the delay in the consideration of the representation.
He has satisfied himself with the statement "as regards the representation of the detenu to the Home Secretary this fact is admitted.
" The question for consideration is whether a person preventively detained under the provisions of the National Security Act is entitled to be released if there is delay in the consideration of the representation made by him to the detaining authority.
It is true that the series of cases where delay in the consideration of the representation made by a detenu was held to be fatal to detention were cases which arose under the .
We are however, unable to see how that would make any difference.
The right of detenu to have his representation considered "at the earlier opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the , or the National Security Act or, for that matter any other Parliamentary of State law providing for preventive detention.
They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law.
article 22(5) enjoins a duty on the authority making the order of detention to afford the detenu "the earliest opportunity of making a representation against the order".
The right and obligation to make and to consider the representation at the earliest opportunity is a Constitutional imperative which cannot be curtailed or abridged.
If the Parliament or the State legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate.
It is essential that any law providing for preventive detention and any authority obliged to make orders for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus.
It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable.
The learned counsel for the State of Uttar Pradesh pointed out certain differences between the and the National Security Act which according to him make delay inevitable in 141 the consideration of representations in cases of detention under the National Security Act.
We think that the differences pointed out are irrelevant.
The constitutional mandate brooks no unreasonable delay in the consideration of a representation.
In the cases before us, in Criminal Writ Petition Nos. 293 of 1981 and 392 of 1981 no explanation was offered by the detaining authority for the delay in the consideration of representations and in Criminal Writ Petition No. 391 of 1981, administrative red tape was the only explanation offered.
We are satisfied that in all the three cases there was unreasonable delay in the consideration of the representations and the detenus are, therefore, entitled to be released.
They will be released forthwith.
The Writ Petitions are allowed.

summary:
Allowing the appeals, the Court ^ HELD: 1: 1.
Article 22 (5) of the Constitution enjoins a duty on the authority making the order of detention to afford the detenu the earliest opportunity of making a representation against the order.
The right and obligation to make and to consider the representation at the earliest opportunity is a constitutional imperative which cannot be curtailed or abridged.
[140 E] 1: 2.
If the Parliament or the State Legislature making the law providing for preventive detention devises a circumlocutory procedure for considering the representation or if the inter departmental consultative procedures are such that delay becomes inevitable, the law and the procedures will contravene the constitutional mandate.
It is essential that any law providing for preventive detention and any authority obliged to make order for preventive detention should adopt procedures calculated towards expeditious consideration of representations made by detenus.
It will be no answer to a demand for liberty to say that administrative red tape makes delay inevitable.
The constitutional mandate brooks no unreasonable delay in the consideration of a representation.
[140 G, 141A] 1: 4.
The right of detenu to have his representation considered "at the earliest opportunity" and the obligation of the detaining authority to consider the representation "at the earliest opportunity" are not a right and an obligation flowing from either the Conservation of Foreign Exchange and Prevention of Smuggling Activities, 1974 or the National Security Act or, for that matter any other Parliamentary or State law providing for preventive detention.
They are a right and an obligation created by the very Constitution which breathes life into the Parliamentary or State law.
[140 D] Jayanarayan Sukul vs State of West Bengal, ; ; Narendra Purshotam Umrao etc.
vs B.B. Gujral and Ors.,[1979] 2 SCR 315; V.J. Jain vs Pradhan, ; ; Smt.
Ichhu Devi Choraria vs Union of India and Ors.; ; ; Ramachandra A. Kamat vs Union of India and Ors. ; ; Frances Coralie Mullin vs W. C. Khambra and Ors. ; , referred to.


judgement:
ION: Criminal Appeal No.390/75.
Appeal by special leave from the Judgment and Order dated 2.7.1975 of Punjab & Haryana High Court in Cr. A. No. 1554/74.
Kapil Sibal, Subhash Sharma and Ravindra Bana for the Appellant.
K.G. Bhagat and R. N. Poddar for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
What is the true role of a judge trying a criminal case ? Is he to assume the true role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland(1) point out, the question 'How is that ', or, is he to, in the words of Lord Kenning 'drop the mantle of a judge and assume the role of an advocate ?(2) Is he to be a spectator or a participant at the trial ? Is passivity or activity to mark his attitude ? If he desires to question any of the witnesses, how far can he go ? Can he put on the gloves and 'have a go ' at the witness who he suspects is lying or is he to be soft and suave ? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses.
14 The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive element entering the trial procedure.
If a criminal court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine.
He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
As one of us had occasion to say in the past. "Every criminal trial is a voyage of discovery in which truth is the quest.
It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice.
For that purpose he is expressly invested by section 165 of the Evidence Act with the right to put questions to witnesses.
Indeed the right given to a Judge is so wide that he may 'ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant.
Section 172 (2) of the Code of Criminal Procedure enables the Court to send for the police diaries in a case and use them to aid it in the trial.
The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial." (1) With such wide powers, the Court must actively participate in the trial to elicit the truth and to protect the weak and the innocent.
It must, of course, not assume the role of a prosecutor in putting questions.
The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were.
Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate the witnesses.
The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett: "People accustomed to the procedure of the Court are likely to be over awed or frightened, or confused, or distressed when under the ordeal of prolonged questioning from the presiding Judge.
Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is 15 not only that witnesses will be unable to present the evidence they may wish, but the parties may begin to think, quite wrongly it may be, that the judge is not holding the scales of justice quite eventually"(1) In Jones vs National Coal Board Lord Justice Denning observed: "The Judge 's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been over looked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies.
If he goes beyond this, he drops the mantle of the judge and assumes the role of an advocate; and the change does not become him well.
" We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant" (Sec.
165 Evidence Act).
But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses.
He must take the prosecution and the defence with him.
The Court, the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge.
The judge, 'like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old '.
Let us now take a look at the facts of the case before us.
Ram Chander and Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni.
Both were convicted under Sec.
302 read with Sec.
34 Indian Penal Code and sentenced to imprisonment for life.
On appeal the High Court acquitted Mange but confirmed the conviction of Ram Chander.
The prosecution case was that on February 14, 1974, at about 11 a.m. Dunni was proceeding from his field towards the village, Sucha Khera and was 16 passing near the field of Ram Chander and Mange when he was attacked by them with Jatus (wooden pegs fixed to a cart).
They inflicted several injuries on Dunni.
Mewa (P.W.9) who was working in his field tried to rescue Ram Chander.
He was given a lathi blow on his head.
On hearing the alarm raised by Dunni, Hari Chand (P.W.8) and Jiwana (P.W.2) and others came there and witnessed the occurrence.
The assailants ran away.
Jiwana the Lambardar proceeded to the village to inform the relatives of Dunni.
On the way he met Dhan Singh (P.W. 10), and told him about the occurrence.
Jiwana thereafter went to the Police Station at Narwana and lodged the First Information Report at about 5.15 p.m.
The Sub Inspector of Police went to the village.
He held the inquest and sent the dead body for post mortem examination.
He looked for Mewa and Hari Chand.
Both of them were not available in the village.
A constable was sent to fetch them from Sucha Khera.
Neither of them was brought that night.
Next morning he was able to examine Mewa but Hari Chand was not to be found.
Hari Chand was finally examined on 16th.
The Doctor who conducted the autopsy found thirteen injuries on the body of Dunni.
There were fractures of the left partial, frontal and occipital bones.
According to the Doctor that was due to "compression of brain with multiple fractures of skull".
On February 15, 1974, at about 4 P.M. the Doctor also examined Mewa and found on the right side of his head an abrasion 1" x 1/4".
In support of its case the prosecution examined P.Ws. 2, 8 and 9 as eye witnesses to the occurrence.
P.W. 10 was examined to speak to the information alleged to have been given to him by P.Ws. 2 and 8 that the deceased had been beaten by the two accused persons.
P.W. 2 did not support the prosecution case and was declared hostile.
P.Ws. 8 and 9, the remaining eyewitnesses seemingly supported the prosecution case in varying degrees in the examination in chief, but they made some damaging admissions in cross examination.
P.W. 9 even in examination in chief stated that Mange was not armed with any weapon though he was present alongwith Ram Chander.
The learned Sessions Judge convicted both Ram Chander and Mange but having regard to the evidence of P.W. 9 the High Court acquitted Mange and confirmed the conviction of Ram Chander.
It was argued by Shri Kapil Sibal, learned Counsel for the appellant that in view of the several statements made by P.Ws. 8 and 9 in their cross examination, their evidence should not have been 17 accepted by the Courts below.
Shri Sibal also submitted that the accused did not have a fair trial as the learned Sessions Judge particularly assumed the role of a Prosecutor.
Hari Chand, P.W. 8 said in his examination in chief that when he was working in his field he heard a noise from the side of the field of Mange.
He and Jiwana (P.W. 2) went in that direction.
From a distance they saw Mange and Ram Chander giving blows to Dunni with dandas.
By the time they went near, Ram Chander and Mange ran away.
They saw Mange tying a piece of cloth round the head of Dunni.
Dunni was bleeding and was hardly able to breathe.
They went to the village to inform the people about the occurrence.
On the way they met P.W. 10 and told him about Dunni.
having been beaten by the two accused.
Later that day he went to Sucha Khera for official work.
The police examined him on 16.2.74.
We have already referred to the circumstance that he was not available for examination by the Police on 14th and 15th.
He sought to explain his absence from the village by stating that he went to Sucha Khera in connection with his official work.
In cross examination he admitted that he did not mention this fact in the Roznamcha (daily diary).
He also admitted that the village Sucha Khera was not within his jurisdiction.
He further admitted that the notice for serving which he went to Sucha Khera was with regard to water shoot No. 14750 at Sucha Khera.
In answer to a question whether he only saw the accused running away or doing something else, he categorically stated that he did not see those persons causing injuries but only saw them running away.
Thereupon the Sessions Judge told him that in his examination in chief he had said that he had seen Mange and Ram Chander causing injuries and that if he made inconsistent statements on material points he could be prosecuted for perjury.
The Sessions Judge has made a note to this effect in the deposition itself.
In answer to a further question P.W. 8 stated that when they were running away their backs were towards him.
The Sessions Judge once again repeated the warning which he had given earlier.
The Sessions note with regard to the first warning is in the following words: "The witness has been explained right here his statement which has gone on record and he has been told that in examination in chief he has said that he had seen Mange and Ram Chander causing injuries.
He had also been informed that 18 a person can be prosecuted for perjury if on material points in consistent statements are made.
" The second warning which was given by the learned Sessions Judge has been recorded by the learned Sessions Judge in the following words: "As was pointed out to you yesterday also, it is once more pointed out to you that in examination in chief yesterday, you clearly stated before the Court that you saw Ram Chander and Mange causing injuries to Dunni.
Later on in cross examination by Shri Shamsher Singh you said that you saw the accused persons running away.
You have already been warned about the consequences of inconsistent replies.
Without fear or favour tell the Court, which of the two statements is correct and whether you saw Mange and Ram Chander causing injuries to Dunni or not.
" To this question the answer of the witness was that when he was at some distance he saw them causing injuries but by the time he went near they had run away.
P. W. 9 stated even in his chief examination that when he saw Mange and Ram Chander, they were running in the direction of Denuda.
Ram Chander had a danda.
Mange was empty handed.
They started beating a person who was coming from Denuda side.
He tried to rescue, the person.
He was given a blow on his head with a stick.
He felt giddy and sat down.
He did not know what happened afterwards because he was feeling faint.
He came to his senses when Lambardar and Patwari came there.
Then he went to his village.
He stated in cross examination that on 15th he was called by the Police and taken to the field and from the field he was taken to Narwana where he was kept in the Police Station upto 16th.
He was allowed to go away after his statement was recorded by the Magistrate under section 164 Cr.
Procedure Code.
Jiwana was also there at that time.
When he was asked whether the statement which he made to the Magistrate was tutored his reply was "Yes, the statement was told".
Later again he said "I gave the statement as told by the police." He stated that he was not beaten but only threatened.
He further stated that the day before he gave evidence in Court he was threatened by the Police that if he did not give the statement he would himself be involved in a case.
He also said that he wanted to say whatever he actually saw but the police did not agree and said that he must give the entire statement as mentioned by them.
During the course of the cross examination of 19 the witness the learned Sessions Judge made two notes which may be extracted here.
The first note runs: "This time the witness says that the police said that the police will make a case against him.
Previously the witness was not prepared to go to that extent.
I wonder whether the witness understands the difference between two things namely that the Police will make a case against him and between this that if he changed his statement he will involve himself in a case.
The matter to be appreciated at appropriate stage.
The second note is as follows: "I will examine the witness through Court questions as to which part of the statement he admits to be correct without fear of the police.
The learned defence counsel may proceed further to build up his defence.
" Thereafter the learned Sessions Judge himself put some questions to the witness.
The witness said that he did not tell the Magistrate that he was making the statement under the pressure of the Police.
The learned Sessions Judge then put him the following question: "You have said that even before me you are making a statement under the pressure of the police.
Please state whether you mean it.
and you were giving the statement under pressure of the police.
" The answer was that "I am giving the statement freely.
" The learned Sessions Judge put him a few more questions one of which was whether he was honestly stating that Mange was bare headed and Ram Chander had a dunda.
The witness answered that he said so honestly.
The questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecutions for perjury were certainly intimidating, coming as they did from the presiding judge.
The learned Sessions Judge appeared to have become irate that the witnesses were not sticking to the statements made by them under sections 161 and 164 and were probably giving false evidence before him.
In an effort to compel them to speak what he thought must be the truth, the learned Sessions Judge, very wrongly, in our opinion, firmly rebuked them and virtually threatened them with prosecutions for perjury.
He left his seat and entered the ring, we may say.
The principle of 'fair trial ' was abandoned.
We find it impossible to justify the attitude adopted by the Sessions Judge and we also find it 20 impossible to accept any portion of the evidence of P.Ws 8 and 9, the two alleged eye witnesses.
Shri Bhagat very ingeniously argued that the evidence of P.Ws 8 and 9 could yet be acted upon to the extent their evidence was substantiated by the first information report given by P.W.2.
When we pointed out that neither PW 8 nor PW9 was the author of the first information report and, therefore, the report could not be used to corroborate their evidence, Shri Bhagat suggested that we could do so by invoking the provisions of Section 11 of the Evidence Act.
He relied upon the following observations of Beg J. in Ram Kumar Pande vs The State of Madhya Pradesh: (1) "No doubt, an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it.
But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23 3 1970, were bound to have been communicated.
If his daughters had seen the appellant inflicting a blow of Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities, of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case".
Beg, J, apparently had the first part of Section 11 in mind and thought that the presence of the daughters at the scene was inconsistent with the failure of the father to refer to their presence in the first information report having regard to the circumstances under which the report must have been made.
Even assuming that under certain circumstances it is permissible to use the first information report under the first part of Section 11 (we say nothing about the correctness of the view), there is in the present case no question of invoking the first part of Section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case.
Nor do we think that the first information report can be used by resort to the second part of section 11, The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses.
These 21 provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness, on the ground that such former statement renders the evidence highly probable or improbable.
We can do no better than to refer to Stephen, the framer of the Section who said: "It may possibly be argued that the effect of the second paragraph of Section 11 would be to admit proof of such facts as these (viz. statements as to facts by persons not called as witness; transactions similar to but unconnected with the facts in issue; opinions formed by persons as to facts in issue or relevant facts).
It may, for instance, be said: A (not called as a witness) was heard to declare that he had seen B commit a crime.
This makes highly probable that B did commit that crime.
Therefore A 's declaration is a relevant fact under Section 11 this was not the intention of the section as is shown by the elaborate provision contained in the following part of Chapter 11 (Sections 31 to 39) as the particular classes of statements, which are regarded as relevant facts either because the circumstances under which they are made invest them with importance, or because no better evidence can be got.
The sort of facts which the section was intended to include are facts which either exclude or imply more or less distinctly the existence of the facts sought to be proved".
We, therefore, do not think that section 11 may be invoked in the present case, in the manner suggested by the learned counsel.
In the result we accept the appeal, set aside the conviction and sentence and direct the appellant to be set at liberty forthwith.
V.D.K. Appeal allowed.

summary:
The appellant Ram Chander and Mange were tried by the learned Additional Sessions Judge, Jind, for the murder of Dunni.
Both were convicted under section 302 read with section 34 Indian Penal Code and sentenced to imprisonment for life.
On appeal the High Court acquitted Mange but confirmed the conviction and sentence of Ram Chander.
In appeal by special leave it was contended that the conviction and sentence were vitiated as the principle of fair trial was abandoned by the Sessions Judge who rebuked the witnesses and threatened them with prosecution for perjury and based his conviction on such extorted evidence.
Allowing the appeal, the Court ^ HELD: 1: 1.
If a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine.
He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
The Court has wide powers and must actively participate in the trial to elicit the truth and to protect the weak and the innocent.
It is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness, or of the parties, about any fact, relevant or irrelevant".
But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten, coerce, confuse, intimidate or bully witnesses.
He must take the prosecution and the defence with him.
The Court.
the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge.
The judge, "like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous, encourage the timid, conspire with the young, flatter and old.
" F] Sessions Judge, Nellore vs Intna Ramana Reddy and Anr.
, I.L.R. , approved.
Jones vs National Coal Board, ; , quoted with approval.
In the instant case, the questions put by the learned Sessions Judge, particularly the threats held out to the witnesses that if they changed their statements they would involve themselves in prosecution for perjury were certainly intimidating, coming as they did from the presiding judge.
In an effort to compel 13 the witnesses to speak what he thought must be truth, the learned Sessions Judge, very wrongly, firmly rebuked them and virtually threatened them with prosecutions for perjury.
He left his seat and entered the ring.
The principle of "fair trial" was abandoned.
[19 F H] 2.
The Evidence Act contains detailed provisions dealing with statements of persons who cannot be called as witnesses and former statements of persons who are called as witnesses.
These provisions would appear to become redundant if the evidence of a witness is to be tested and accepted or rejected with reference to the former statement of another witness on the ground that such former statement renders the evidence highly probable or improbable.
Even assuming that under certain circumstances it is permissible to use the first information report under the first part of section 11 there is in the present case no question of invoking the first part of section 11, which is inapplicable since the first information report is now not sought to be used as being inconsistent with the prosecution case.
Nor can first information report be used by resort to the second part of section 11.
[20 H 21 A; 20 F G] Ram Kumar Pande vs The State of Madhya Pradesh, ; @ 522, discussed.


judgement:
Appeal No. 162 of 1954.
Appeal by special leave from the judgment and order dated the 21st day of July 1953 of the Labour Appellate Tribunal of India, Lucknow in Miscellane ous Case No. C III 33 of 1952.
H.J. Umrigar and R. A. Govind for the appellant B.P. Maheshwari for the respondent.
October 4.
The Judgment of the Court was delivered by BHAGWATI J.
The Labour Appellate Tribunal of India at Lucknow dismissed the application of the appellant made under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to dismiss the respondent, its workman, and the appellant obtained from this Court Special Leave to Appeal against that order.
The respondent has been working as a Steno typist with the appellant since 3rd December, 1946, and is also the Vice President of the Union of workers which is affiliated to the Indian National Trade Union Congress and is known as Chini Mills Mazdoor Sangh One M. P. Singh has at all relevant times been and is still the General Manager of the appellant.
The relations between the appellant and its work men are governed by the Standing Orders framed by mutual agreement between the Labour and the Sugar Mills in Uttar Pradesh which have been approved by 97 748 the Government of Uttar Pradesh.
ClauseL(1)(j)of the said Standing Orders runs as under: "Drunkenness or gambling or riotous or disorderly behaviour while on duty in factory premises, or in quarters provided by the mills or elsewhere or any act subversive of discipline".
These are among the items of misconduct which would entitle the appellant, after due enquiry, to dismiss a workman from its employ.
There were longstanding disputes between the appellant and its workmen since October, 1946, and on the 23rd February, 1949, Kedar Nath Khetan, one of the partners of the appellant, wrote to Shri Kashi Nath Pandey, General Secretary, Indian National Sugar Workers Federation, promising to remove the General Manager as soon as the season of the Chhitauni factory was over.
There was, however, an agreement arrived at between the partners of the factory and the Chini Mills Mazdoor Sangh on the 13th September, 1949, under which the demand for the removal of the General Manager was withdrawn by the workers.
The disputes, however, continued and matters came to a head in 1952.
In May, 1952, the management charged 76 members of the Union for participation in a 'Tools down 'strike.
The matter went up to the Labour Appellate Tribunal which, by its award, reinstated all the 76 workmen.
The management preferred writ petitions Nos. 402 and 409 in the Allahabad High Court but the same also were dismissed.
Special Leave was obtained from this Court against those decisions of the Allahabad High Court and the same are pending.
During the pendency of the application of the management for the discharge of the said 76 workmen before the Labour Appellate Tribunal., the workers held a meeting on the 10th June, 1952, near an old mosque outside the factory area to consider the situation arising out of the suspension of the 76 workmen and the ways and means of meeting the same.
The respondent participated in the said meeting as the Vice President of the Union and made a speech criticising the attitude of the General Manager in terms 749 which were set out in the report dated the 10th June, 1952 submitted by two workers by name Ganga Dhar Tewari and Jamuna Prasad to the General Manager.
The speech of the respondent as reported there was to the following effect: "The General Manager of this factory wants to crush the Labour movement from the very beginning.
He allowed some of his intermediaries to join strike when Shri Shibban.
Lal Saxena had served a strike notice.
His men had also persuaded some of our members to join the strike.
As a result of this we had decided to launch a strike.
On the other hand, the Manager Sahib was sitting on the phone for the permission of the Collector to dismiss all our fellow workers.
Shri Moti Lal Singh was able to discover this conspiracy and he at once prevented us from going on strike.
Then Manager Sahib could not succeed in his plan.
This time he has falsely accused 76 of our workers of resorting to Tools down strike.
These workers will surely be reinstated.
But our efforts are rendered useless due to the acts of the Government Officers; the Collector of this District is getting some thing secretly from the Manager Sahib.
We have only one alternative open to us, let us again agitate for his dismissal.
Many of the proprietors have written to me against him".
A resolution was moved at that meeting for the reinstatement of the 76 workers and dismissal of Shri Madan Pal Singh, the General Manager and the same was passed.
As stated above, the two workers Ganga Dhar Tewari and Jamuna Prasad reported the proceedings of the said meeting to the General Manager on the very same day.
The General Manager thereafter addressed a letter to the respondent on the 16th July, 1952 stating that he, the respondent, was present in and addressed a meeting held on the 10th June, 1952, wherein, among other matters, a resolution for the reinstatement of the 76 suspended workers and the removal of the General Manager was passed.
He asked the respondent to give him information regard 750 ing the above mentiond facts within 24 hours of the receipt of the letter.
The respondent replied on the 17th July, 1952, stating that he never attended any meeting whatever in his capacity as the Steno typist of the factory and expressed his inability, therefore, to say anything in the capacity in which the letter dated the 16th July, 1952, had been addressed by the General Manager to him.
Not being content with bypassing the whole issue in this manner, he proceeded to observe that it was none of the factory 's business to seek information from him for his personal, social or political activities outside the factory area.
He stated that as a matter of courtesy any information asked for would have been supplied by him, but, as the things stood, he very much regretted his inability to comply with the wishes of the General Manager.
The General Manager again addressed a letter to the respondent on the 17th July, 1952, stating that he was entitled to seek the information from him even in his personal capacity and asked him to let him have the reply to the queries contained in the letter dated the 16th July, 1952.
The respondent, in his letter dated the 17th July, 1952 in reply, observed that some of the conclusions drawn by the General Manager were "simply out of self complacency" and he respectfully begged to differ from the General Manager.
He stated that he had nothing further to add to his earlier reply dated the 17th July, 1952.
The General Manager waited for a while and on the 1st August, 1952, served upon the respondent a chargesheet calling upon the respondent to show cause why action should not be taken against him under clause L(1)(j) of the Standing Orders for making a speech in a meeting held near the local mosque on the 10th June, 1952, 'wherein, among other defamatory remarks he, the respondent, instigated the workers to take steps for the removal of the General Manager.
The respondent was asked to submit his explanation latest by 10 a.m. on the 2nd August, 1952.
The respondent submitted his written statement accordingly wherein he stated that there was absolutely no justification whatsoever for charging him with broach of 751 the Standing Orders under clause L(1)(j).
He denied the allegations contained in the charge sheet and wound up by asking the General Manager to enlighten him as to under what rules of the Factories Act, Commercial Establishments Act or the Standing Orders, written replies in the matters other than one 's daily routine work of the factory were demanded at such short notice.
The General Manager fixed 10 a.m. on Monday the 4th August, 1952, for the holding of the enquiry and the respondent was called upon to present himself in time and he was also intimated that he would be at liberty to produce oral or documentary evidence in defence against the charges framed against him.
An enquiry was accordingly (held by the General Manager on the 4th August, 1952.
The proceedings thereat were recorded in the form of questions and answers.
The respondent adopted an attitude which was consistent with the one which he had adopted in the course of the correspondence above referred to.
He refused to answer the questions which were categorically put by the General Manager to him and stated that he had nothing to add to his written statement.
He also took up the attitude that if he had taken part in any meeting held under the auspices of the Chini Mills Mazdoor Sangh outside the factory, the General Manager should write to the officials of the Sangh for necessary information.
When it was specifically put to him that no confidential work was taken from him as he had been taking active interest in the anti management activities maliciously and had been exploiting the poor labour to force himself being confirmed by the management, he said that he did not agree with it and it was not a question which needed any reply.
As a result of the enquiry, the General Manager made his report on the 24th October, 1952, wherein he found that the respondent had made a speech exhorting the workmen of the factory to pass a resotion for the removal of the General Manager, that the management was bound to lose confidence if a worker who had excited other workers against the General 752 Manager of the concern refused to give a direct reply to direct questions, that, in the absence of a Stenotypist who could enjoy the confidence of the management, it was impossible to run the factory without the risk of any trouble and that the respondent was thus guilty of misconduct and acts subversive of discipline.
As, however, there was a pendency of a proceeding before the Labour Appellate Tribunal, an application should be made to that authority for permitting his dismissal.
This report was accepted by the management and the appellant made the application under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to dismiss the respondent from its employ.
The Labour Appellate Tribunal embarked on the freedom of speech vouchsafed to the citizens of India under article 19(1)(a) of the Constitution, observed that the making of the speech in question at the meeting held by the respondent as the Vice President of the Union was within the scope of the legitimate activities of the Union and held that the speech said to have been made by the respondent at the meeting could not be said to be an act subversive of discipline.
The application of the appellant was accordingly dismissed.
Hence this appeal before us.
The only question for determination before us is whether the speech made by the respondent at the meeting held on the 10th June, 1952, was an act subversive of discipline.
The respondent was the Vice President of the Union and, prima facie, any resolution passed by the Union asking for the removal of the General Manager would be perfectly legitimate if the members of the Union thought that there were circum stances warranting the same.
The correctness or otherwise of the reasons given for such removal would not be liable to scrutiny by the Court, the only thing requisite being that the Union was not acting mala fide or was not actuated by any malice or illwill against the General Manager in passing such resolution.
The resolution by itself would not have the effect of harming the General Manager at all, 753 It would have to be forwarded to the management and the management would take such steps as it may be advised on receipt of the resolution.
It would then be for the management to find for itself whether the reasons given for the removal of the General Manager were such as to warrant his removal.
The management would then, if it thought necessary, institute proper enquiries and come to his own conclusion as to the desirability or otherwise of the re moval of the General Manager.
So far as the Union is concerned, apart from mala fides or malice or illwill, the act of its passing the resolution would be innocuous and would not be liable to be visited with any punishment and the members of the Union would no be committing any breach of the Standing Orders nor would they be guilty of any act subversive of discipline.
The gravamen of the charge made by the management against the respondent, however, was that the latter was not merely responsible for the passing of such resolution, but, in the speech which he made in support, he gave vent to such expressions as were quite false and defamatory and was actuated by malice against the General Manager.
He Edited the members of the Union who were there assembled against the General Manager with the result that his act was thus subversive of discipline.
The speech had the effect of lowering the General Manager in the esteem of the workmen and subjecting him to hatred or ridicule and the necessary effect of making such speech before the workmen would be that they would look down upon the General Manager and would not be amenable to discipline and it would be impossible to conduct the management with efficiency with such disgruntled workmen in the factory.
The words used by the respondent were, therefore, it was urged, calculated to undermine the discipline in the factory and his act was, therefore, subversive of discipline bring ing him well within the mischief of clause L(1) (j).
of the Standing Orders.
It was further urged that the conduct of the respondent in the course of the correspondence which took place between the General Manager and himself 754 was, to say the least, impudent.
He relied upon his dual personality distinguishing between his capacity as the Steno typist and his capacity as the Vice President of the Union.
The act complained of was attributed to his capacity as the Vice President of the Union and he refused to give any reply to the queries addressed to him because in the letter; addressed by the General Manager to him he was described as the Steno typist.
He refused to give any information to the General Manager and asked him to communicate with the Sangh or the Union if any information was required by the General Manager in the matter of what took place at the meeting of the Union on the 10th June, 1952.
In the enquiry also, he adopted a similar attitude and refused to answer the direct questions addressed to him by the General Manager in regard to the proceedings of that meeting.
It was strenuously urged before us by the learned counsel for the appellant that this conductor the respondent was subversive of discipline and amounted to such misconduct as would entitle the appellant to dismiss him from its employ.
There is considerable force in this argument and we are of the opinion that the respondent adopted an attitude unbecoming an employee of the appellant.
He adopted a truculent attitude in the course of the correspondence and resorted to the theory of his dual personality refusing to answer the queries addressed to him by the General Manager.
This attitude was, to say the least, reprehensible.
Even though he happened to occupy what he considered to be the august position of the Vice President of the Union he did not cease to be an emPloyee of the appellant and the attempt to distinguish between his capacity as the Steno typist and his capacity as the Vice President of the Union was absolutely puerile.
He ought to have realised that he was first and foremost an employee of the appellant and owed a duty to the appellant to answer all the queries which had been addressed to him by the General Manager.
His evasion to give such replies on the pretext of shielding himself under his capacity as the Vice President of the Union was absolutely 755 unjustifiable and if such insubordination and breach of discipline had been the subject 'Matter of the charges made against him, we do not see how the respondent could have escaped the punishment of dismissal.
Similar is the position in regard to the attitude which the respondent adopted at the enquiry.
He refused to answer the direct questions which were addressed to him and had the temerity to ask the General Manager to see his written statement and find out for himself the answers to the same.
To say the least, the respondent was guilty of insubordina tion and if his attitude was such as would not conduce to the maintenance of discipline in the factory, here also we would have found it difficult to resist the appellant 's claim for his dismissal if he had been charged with having been guilty of such misconduct.
The charge sheet, however, only complained about the speech which he had made on the 10th June, 1952, wherein, among other defamatory remarks, he, the respondent, had instigated the workers to take steps for the removal of the General Manager.
The enquiry which was held on the 4th August, 1952, also concentrated on this particular charge and the report which was made by the General Manager on the 24th October, 1952, also found that the respondent had made a speech exhorting the workers to pass the resolution for the removal of the General Manager.
The acts of insubordination calculated to undermine the discipline in the factory which we have adverted to above were neither the subject matters of the charge nor were they relied upon by the General Manager in his report as the grounds of misconduct entitling the management to dismiss the respondent ' from its employ.
The passing of the resolution for the removal of the General Manager by itself was not, as already stated, an act subversive of discipline and would not entitle the management to dismiss him and we are of the opinion that, on the record as it stood, the Labour Appellate Tribunal was justified in refusing to the appellant the permission to dismiss the respondent from its employ.
The charge sheet which was furnished by the appel 98 756 lant to the respondent formed the basis of the enquiry which was held by the General Manager and the appellant could not be allowed to justify its action on any other grounds than those contained in the chargesheet.
The respondent not having been charged with the acts of insubordination which would have really justified the appellant in dismissing him from its employ, the appellant could not take advantage of the same even though these acts could be brought home to him.
We have, therefore, come to the conclusion 'that the order made by the ' Labour Appellate Tribunal was correct even though we have done so on grounds other than those which commended themselves to it.
We accordingly dismiss this appeal but having regard to the conduct of the respondent which We have characterised above as reprehensible we feel that the ends of justice will be met if we ordered that each party do bear and pay its own costs of this appeal.
Appeal dismissed.

summary:
The respondent, a stenotypist and the Vice President of the Labour Union, was charged by the appellant with misconduct and indiscipline under clause L(1)(j) of the Standing Orders of the Government of Uttar Pradesh for instigating the workmen to pass a resolution for the removal of the General Manager by a defamatory speech delivered at a meeting of the Union.
The question in issue was whether the respondent by doing so had committed "any act subversive of discipline" within the meaning of that clause.
In course of the correspondence with the General Manager over the matter, as also during the enquiry made by him, the respondent took up the attitude that he, as a stenotypist, was not answerable to his employers for his activities as Vice President of the Union outside the factory area and persistently refused to answer questions categorically put to him by the General Manager.
The appellant applied to the Labour Appellate Tribunal under section 22 of the Industrial Disputes (Appellate Tribunal) Act of 1960 for permission to dismiss the respondent.
That application having been refused the appellant obtained Special Leave to appeal to the Supreme Court and it was contended that the passing of the resolution and the refusal to answer questions in course of the correspondence,and the enquiry amounted to acts subversive of discipline and the respondent was liable to be dismissed.
Hold, that it was perfectly legitimate for the Union to pass the, resolution they did and no guilt either of a breach of the Standing Orders or of committing an act subversive of discipline could attach to the respondent for what part he took in the meeting as Vice President of the Union and the order of dismissal passed by the Labour Appellate Tribunal must be affirmed.
That where, as in the present case, the members of the Union were of opinion that the circumstances warranted the resolution, it 747 was not for the court to scrutinies the correctness or otherwise the reasons for it.
Held further, that the respondent was primarily an employ of the appellant before he could be anything else and was in dut bound to answer such queries as were put to him by the Gener Manager and his persistent refusal to do so, on the pretext of a dual capacity, amounted to insubordination which would have justifie his dismissal but the appellant having omitted to include this as ground in the charge sheet, which was served on the responds and formed the basis of the enquiry, could not be allowed to rel on it.