judgement:
ivil Appeal No. 1312 of 1990.
From the Judgment and Order dated 6.7.
1988 of the Rajasthan High Court in D.B. Civil W.P. No. 71/77.
section Hegde, Additional Solicitor General, A. Subba Rao for C.V.S. Rao for the Appellants.
S.C. Birla for the Respondent.
The Judgment of the Court was delivered by 762 K. JAGANNATHA SHETTY, J.
Special leave granted.
Bakshi Ram respondent was a constable in the Central Reserve Police Force at Devli in Rajasthan.
On 17th March 1971 at about 8.45 p.m. he along with another constable forced entry into the room of Garib Das the constable of the CRP Group Centre band platoon.
Garib Das was then not present in the room.
His wife Savitri Devi who was inside tried to prevent their entry, but in vain.
Both the consta bles caught hold of her and misbehaved with her.
The respondent was tried for an offence under Section 10(1) of the .
Section 10 of the Act sets out less heinous offences and Section 10(1) refers to any act or omission which, though not speci fied in the Act, is prejudiciable to good order and disci pline.
On the evidence adduced in the case he was found guilty of the charge and by judgment dated 23rd March 1971 he was sentenced to four months R.I. by the Magistrate 1st Class and Commandant Group Centre, CRPF, Deoli (Rajasthan).
He was lodged in the Civil Jail, Jaipur to undergo the sentence.
In view of his conviction and sentence.
, the Department by way of disciplinary action dismissed him from service.
This action was taken when his appeal against the conviction and sentence was pending before the Sessions Judge.
The learned Judge by judgment dated 22 September 1971 upheld the conviction but released him under the ("the Act").
Apparently he was released under Section 4 of the Act upon furnishing bonds to keep peace and be of good behaviour for a period of six months.
The re spondent complied with those conditions.
After expiry of the period of good conduct, he moved the High Court with Writ Petition under Article 226 of the Constitution challenging his dismissal from service.
The High Court relying upon Section 12 of the Act has set aside the dismissal and di rected that he should be reinstated into service with all consequential benefits.
The High Court has expressed the view that the sole reason for dismissal of the respondent was his conviction under Section 10(1) of the Central Re serve Police Force Act but in view of Section 12 of the Probation of Offenders Act, 1968, there was no disqualifica tion for him to continue in service.
This is how the High Court observed: "The clear language of Section 12 of the Probation of Of fenders Act, 1958 which provides that a person dealt with under the provisions of Section 3 or Section 4 of that 763 Act shall not suffer disqualification, if any, attaching to a conviction under any law, notwithstanding anything con tained in any other law.
This provision has the effect of removing disqualification attaching to the petitioners ' conviction under Section 10(n) of the C.R.P.F. Act.
Section 12 of the Probation of Offenders Act dealing specifically with this situation clearly provides that the provisions therein is 'notwithstanding any thing contained in any other law. ' Hence, effect has to be given to the same.
" The judgment of the High Court has been challenged in this appeal.
Since the result of the appeal turns on the scope and meaning of Section 12 of the Probation of Offenders Act, it is necessary to set out the Section.
Section 12 is in these terms: "12.
Removal of disqualification attaching to conviction Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer dis qualification, if any, attaching to a conviction of an offence under such law, Provided that nothing in this section shall apply to a person who, after his release under Section 4, is subse quently sentenced for the original offence.
" Section 3 of the pro vides power to the Court to release certain offenders after admonition.
Section 4 provides power to the Court to release certain offenders on probation of good conduct.
Under the disposition made by the Court under Section 4 the sentence is suspended during the period of probation and the offender is released on his entering into a bond to keep peace and be of good behaviour.
Section 9 provides for procedure in case of offender failing to observe conditions of bond.
The Court, if satisfied, that the offender has failed to observe any of the conditions of bond for keeping good behaviour could sentence him for the original offence or where the failure is for he first time, then, without prejudice to the continuance in force of the bond, the Court may impose upon him a penalty not exceeding fifty rupees.
764 It will be clear from these provisions that the release of the offender on probation does not obliterate the stigma of conviction.
Dealing with the scope of Sections 3, 4 and 9 of the , Fazal Ali, J., in The Divisional Personnel Officer, Southern Railway and Anr.
T.R. Challappan etc.
, at 596 speaking for the Court observed: "These provisions would clearly show that an order of re lease on probation comes into existence only after the accused is found guilty and is convicted of the offence.
Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order or release on proba tion of the offender.
The order of release on probation is merely in substitution of the sentence to be imposed by the Court.
This has been made permissible by the Statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals.
The provisions of Section 9(3) of the Act extracted above would clearly show that the control of the offender is retained by the criminal court and where it is satisfied that the condi tions of the bond have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence.
This clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on proba tion.
Under sections 3, 4, or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof.
In these circumstances, therefore, we are unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction.
" As to the scope of Section 12, learned Judge went on (at 596): "It was suggested that Section 12 of the Act completely obliterates the effect of any conviction and wipes out the disqualification, attached to a conviction of an offence under such law.
This argument, in our opinion, is based on a gross misreading of the provisions of Section 12 of the Act, the words "attaching to a conviction of an offence 765 under such law" refer to two contingencies: (i) that there must be a disqualification resulting from a conviction and (ii) that such disqualification must be provided by some law other than the .
The Penal Code does not contain any such disqualification.
Therefore, it cannot be said that section 12 of the Act contemplates an automatic disqualification attaching to a conviction and obliteration of the criminal misconduct of the accused.
It is also manifest the disqualification is essentially differ ent in its connotation from the word 'misconduct '." In criminal trial the conviction is one thing and sen tence is another.
The departmental punishment for misconduct is yet a third one.
The Court while invoking the provisions of Section 3 or 4 of the Act does not deal with the convic tion; it only deals with the sentence which the offender has to undergo.
Instead of sentencing the offender, the Court releases him on probation of good conduct.
The conviction however, remains untouched and the stigma of conviction is not obliterated.
In the departmental proceedings the delin quent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; (See Article 311(2)(b) of the Constitution and Tulsiram Patel case: [1985] Supp.
2 SCR 131 at 282).
Section 12 of the Act does not preclude the department from taking action for misconduct leading to the offence or to his conviction thereon as per law.
The section was not intended to exonerate the person from departmental punish ment.
The question of reinstatement into service from which he was removed in view of his conviction does not therefore, arise.
That seems obvious from the lerminology of Section 12.
On this aspect, the High Court speak with one voice.
The Madras High Court in R. Kumaraswami Aiyer vs The Commission er, Municipal Council Tiruvannamalai and Anr., [1957] Crl.
L. J. 225 Vol.
58 and Embaru (P) vs Chairman Madras Port Trust, Mad., the Andhra Pradesh High Court in A. Satyanarayana Murthy vs Zonal Manager, L.I.C., AIR 1969 AP 371, the Madhya Pradesh High Court in Prem Kumar vs Union of India and Ors., [1971] Lab & Ind. cases 823, the Punjab & Haryana High Court in Om Prakash vs The Director Postal Services (Post and Telegraphs Deptt.) Punjab Circle, Ambala and Ors., The Delhi High Court in Director of Postal Services and Anr.
vs Daya Nand, have expressed the same view.
This view of the High Courts in the aforesaid cases has been approved by this Courtin T.R.Challappan 's case 766 In Trikha Ram vs
V.K. Seth and Anr., [1987] Supp.
SCC 39 this Court after referring to section 12 has altered the punishment of dismissal of the petitioner therein into "removal from service", so that it may help him to secure future employment in other establishment.
Section 12 is thus clear and it only directs that the offender "shall not suffer disqualification, if any, attach ing to a conviction of an offence under such law".
Such law in the context is other law providing for disqualification on account of conviction.
For instance, if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of Section 12 stands removed.
That in effect is the scope and effect of Section 12 of the Act.
But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstate ment upon getting the benefit of probation of good conduct.
Apparently, such a view has no support by the terms of Section 12 and the order of the High Court cannot, there fore, be sustained.
In the result the appeal is allowed.
The impugned order of the High Court is set aside.
However, we alter the penal ty of dismissal from service into 'removal from service ' as it was done in Trikha Ram 's case.
In the circumstances of the case, we make no order as to costs.
T.N.A. Appeal al lowed.

summary:
The respondent, a constable, convicted under section 10(n) of the but released on probation under section 4 of the , was dismissed from service.
He chal lenged his dismissal before the High Court which ordered his reinstatement holding that there was no disqualification for him to continue in service, for section 12 of the has the effect of removing the dis qualification attaching to his conviction.
Hence this appeal by the Union of India.
Allowing the appeal and setting aside the order of the High Court, this Court.
HELD: 1.
Section 12 of the only directs that the offender 'shall not suffer dis qualification, if any, attaching to a conviction of an offence under such law '.
Such law in the context is the other law providing for disqualification on account of conviction e.g. if a law provides for disqualification of a person for being appointed in any office or for seeking election to any authority or body in view of his conviction, that disqualification by virtue of section 12 stands re moved.
But that is not the same thing to state that the person who has been dismissed from service in view of his conviction is entitled to reinstatement upon getting the benefit of probation of good conduct.
Section 12 does not preclude the department from taking action for misconduct leading to the offence or to his conviction theron 761 as per law.
It was not intended to exonerate the person from departmental punishment.
[766B C; 765E] R. Kumaraswami Aiyer vs The Commissioner, Municipal Council Tiruvannarnalai and Anr., ; Embaru (P) vs Chairman Madras Port Trust, Mad; A. Satyanarayana Murthy vs Zonal Manager L.I.C., AIR 1969 A.P. 371; Prern Kumar vs Union of India & Ors., [1971] Lab.
& Ind. Cases 823; Om Prakash vs The Director Postal Services & Ors., and Director of Postal Services & Anr.
vs Daya Nand, , approved.
The Divl.
Personnel Officer Southern Railway & Anr.
T.R. Challappan, , followed.
In criminal trial the conviction is one thing and sentence is another.
The departmental punishment for miscon duct is yet a third one.
The Court while invoking the provi sions of section 3 or 4 of the Act does not deal with the conviction; it only deals with the sentence which the of fender has to undergo.
Instead of sentencing the offender, the Court releases him on probation of good conduct.
The conviction, however, remains untouched and the stigma of conviction is not obliterated.
In the departmental proceed ings the delinquent could be dismissed or removed or reduced in rank on the ground of conduct which has led to his con viction on a criminal charge.
Therefore the question of respondent 's restatement into service does not arise.
Howev er, the penalty of dismissal from service is altered into removal from service.
[765C D, F; 766E] Tulsi Ram Patel vs Union of India, [1985] Suppl.
2 SCR 131 and Trikha Ram vs
V.K. Seth & Anr., , followed.


judgement:
Civil Appeal No. 1577 (NCE) of 1987.
From the Judgment and Order dated 24.4.
1987 of the Madras High Court in Election Petition No. 1 of 1986.
Ram Jethmalani, Ms. Rani Jethmalani and M.G. Ramachan dran for the Appellant.
R.K. Garg, section Padmanabhan, K. Raj.
Choudhary, R. Mohan, K. Chandrashekharan, R. Ayyam Perumal, V. Krishnamurthy, section Thananjayan, K.V. Vijaya Kumar, A.V. Rangam and V.R. Kari thi~ kayan for the Respondents.
770 The Judgment of the Court was delivered by KANIA, J.
This is an appeal from a judgment and order delivered by a learned Single Judge of the Madras High Court on April 24, 1987 dismissing an election petition filed by the appellant.
The appellant herein was the petitioner before the High Court and the respondents nos.
1 to 8 herein were arraigned as respondents in the same order in the election petition.
The dispute pertains to the election of six Members to the Rajya Sabha by the elected Members of the Tamil Nadu Legislative Assembly.
The election was held, as scheduled, on June 28, 1986.
The appellant and respondents nos.
1 to 7 were the eight candidates in the field, all the nominations having been found valid.
The 8th respondent was the Returning Officer.
The polling took place, as scheduled, on June 28, 1986 and, immediately thereafter, the ballot box was opened and the votes were sorted out.
The election was under the preferential system of voting and the particulars of the first preferences votes cast and secured by the candidates are as follows: Candidates First Preference Votes 1.
Appellant 33 2.
1st Respondent 35 3.
2nd Respondent 31 4.
3rd Respondent 33 5.
4th Respondent 32 6.
5th Respondent 34 7.
6th Respondent 34 8.
7th Respondent nil Out of the 33 first preference votes cast in favour of the appellant, one ballot paper was rejected by the 8th respondent, the Returning Officer, on the ground that the said ballot paper was marked by the voter otherwise than with the article supplied for that purpose.
It may be men tioned here that the first preference was indicated on the said ballot paper by a ball point pen with green ink whereas in the ball point pen kept along with the ballot box had blue ink.
The working result sheets of the counting were prepared and announced by the 8th 771 respondent.
The particulars of the said working result sheets are as follows: 1.
Appellant 3219 2.
1st Respondent 3301 3.
2nd Respondent 3270 4.
3rd Respondent 3300 5.
4th Respondent 3301 6.
5th Respondent 3301 7.
6th Respondent 3301 In consequence, respondents nos.
1 to 6 were declared as duly elected and the appellant was declared as having lost the election.
It is submitted by learned counsel for the appellant, that (1) the first preference vote in his favour in which first preference was indicated on the ballot paper in green ink was wrongly rejected.
The rejection of the said ballot paper by the Returning Officer was duly objected to by the appellant at the time of counting.
The said ballot paper is hereinafter referred to as "the said rejected ballot paper".
If the said rejected ballot paper had been received as valid, the appellant would have the proportionate number of preference votes and would have been declared elected.
The second contention raised by the appellant was that three ballot papers which did not contain the figure 1 in the space intended for marking the said figure should have been rejected and the same were wrongly accepted.
These ballot papers had been used for casting first preference votes in favour of the first respondent and if the same had been rejected, first respondent would not have been elected and in his place the appellant would have been elected.
Both the mistakes according to the appellant materially affected the result of the election.
Before going into the controversy raised before us, we may note the relevant provisions of the Election Law.
The election petition was filed under Chapter II of the Repre sentation of the People Act, 1951 (hereinafter referred to as "the said Act").
Section 59 of the said Act provides that at every election where a poll is taken votes shall be given by ballot in such manner as may be prescribed.
We are not 772 concerned here with the special procedure for voting pro vided in certain cases provided for under section 60 said Act.
Section leo of the said Act deals with the grounds for during elections to be void.
The relevant portion of the said section reads thus: "100(1) Subject to the provisions of sub section (2) if the High Court is of opinion (a) x x x (b) x x x (c) That any nomination has been improperly rejected; or (d) that the result of the election, in so far as it con cerns a returned candidate, has been materially affected (i) by the improper acceptance or any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Con stitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void".
Conduct of Election Rules, 1961 (referred to hereinafter as "the Election Rules") came into force on 25th of April, 1961.
Rule 30 of the Election Rules prescribes the form of the ballot papers.
Rule 31 of the Election Rules provides for arrangements at polling stations.
Sub rule (3) of Rule 31 runs as under: "(3) the returning officer shall provide at each polling station a sufficient number of ballot boxes, copies of the relevant part of the electroal roll, ballot papers, instru ments for stamping the distinguishing mark on ballot 773 papers and articles, necessary for electors to mark the ballot papers.
" Rule 39 of the Election Rules deals with the maintenance of secrecy of voting by electors within polling stations and the voting procedure.
The material portion of sub rule (2) of that rule runs as follows: "(2) The elector on receiving the ballot paper shall forth with (a) proceed to one of the voting compartments: (b) there make a mark on the ballot paper with the instru ment supplied for the purpose on or near the symbol of the candidate for whom he intends to vote." Rule 70 lays down rules for the conduct of polls.
The portion of Rule 70 material for the purposes of the case runs as follows: "(a) x x x x (b) to every election in a council unless voting by postal ballot has been directed in the whole of that constituency under clause (b) of rule 68, subject to the following modifications, namely: (i) clause (a) of sub rule (1) of rule 31 shall not apply to an election by assembly members; (ii) in lieu of rules 37 to 40, the following rules shall apply: 37A. Method of voting.
(1) Every elector has only one vote at an election irrespective of the number of seats to be filled.
(2) An elector in giving his vote (a) shall place on his ballot paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance; and 774 (b) may, in addition, place on his ballot paper the figure 2 or the figures 2 and 3 or the figures 2, 3 and 4 and so on, in the space opposite the names of the other candidates in the order of his preference.
38A. x x x x 39A. Maintenance of secrecy of voting by electors within polling station and voting procedure (1) Every elector, to whom a ballot paper has been issued under rule 38A or under any other provision of these rules, shall maintain secrecy of voting within the polling station and for that purpose observe the voting procedure hereinafter laid down.
(2) The elector on receiving the ballot paper shall forth with (a) proceed to one of the voting compartments; (b) record his vote in accordance with sub rule (2) of rule 37A with the article supplied for the purpose.
(c) fold the ballot paper so as to conceal his vote; (d) insert the folded paper in the ballot box; and (e) quit the polling station: (It is not necessary to quote the rest of Rule 39A for the purposes of this Judgment) It was submitted by learned counsel for the appellant that the express on "article supplied for the purpose" used in Rule 39A(2)(b) and Rule 73(2)(e) of the Election Rules was misconstrued by the High Court.
It was submitted by him that in the context of the election law and the instructions contained in the hand books to which reference will be made that expression should be interpreted as meaning "actually given" or "handed over".
In this regard, reference was made to instructions given to the Presiding Officer in respect of elections to Lok Sabha and State Assemblies.
The relevant instructions in the said hand book provide that the proce dure followed in respect of the election to Lok Sabha and State Assemblies is that the Polling Officer or 775 Polling Assistant must give the rubber stamp properly inked to the voter before he proceeds into the voting booth for marking his choice and the Polling Officer or Polling As sistant must take back the said rubber stamp from the voter after he comes out from the voting both having cast his vote and then hand it over to the next voter and so on.
It was urged that the same procedure should have been followed mutatis matandis in the case of an election to the Legisla tive Council like the one in question before us, and if this were done, it would imply that the ball point pen for mark ing the preference should have been personally handed over to the voter with instructions to use it for marking his preference.
This argument is not worthy of acceptance.
As pointed out by the High Court, the nature of the elections to the Lok Sabha and the State Assemblies is different from that of elections to a Legislative Council or Rajya Sabha and this difference has to be taken into account in inter preting the relevant words used in the rules relating to an election.
The election to Lok Sabha and the State Assemblies is a direct election on the basis of a single member con stituency where the voter has only one choice whereas in the case of an election to the Rajya Sabha, the said election is by members of the Legislative Assemblies of the States and the election is an indirect election conducted on the prin ciple of proportional representation by means of a single transferable vote.
In the case of elections to the Lok Sabha and State Assemblies, a rubber stamp with arrow cross mark is provided with which the voter has to make a mark on the symbol of the candidate of his choice in the ballot paper.
Many of the voters are not familiar with the election proce dure and it is in these circumstances that the requirement has been provided that a rubber stamp containing the cross mark properly inked should be handed over to each voter with instructions to use the same for marking his vote or choice.
In the case of the election to the Rajya Sabha or a Legisla tive Council, the situation is entirely different.
The number of voters is limited.
One could assume that they are reasonably familiar with the procedure of voting; and the article supplied for marking the preference is a fountain pen or ball point pen.
In these circumstances, there is hardly any warrant for requiring that the procedure of handing over personally to each voter the article for mark ing his preference should be followed and it is quite/ ' adequate if the article for marking the preference, namely, the fountain pen or ball point pen is made available in the voting booth with clear instructions that the same should be used in marking the preference.
It must also be borne in mind that there is no express rule or instruction in connec tion with the elections to the RaRajya Sabha by Members of the State Assemblies or elections to the Legislative Coun cils of States which specifically requires that the arti 776 cle for marking the preference should be handed over to each voter personally.
In these circumstances, in our view, the High Court was right in interpreting the expression "article supplied for the purpose" in Rule 39A(2)(b) and Rule 73(2)(e) of the Election Rules as meaning "made available for the purpose" or "provided for the purpose".
Reliance was placed by learned counsel for the appellant on the decision of this Court in Ram Utar Singh Bhaduria vs Ram Gopal Singh & Ors., ; and particularly, the observations at page 200 of the said report.
We are of the view that that decision as well as the other decisions in this connection cited before us are in connection with the elections to the Lok Sabha or the State Assemblies and have no application to an indirect election like the election to the Rajya Sabha by Members of State Assemblies.
Rule 56 of the Election Rules deals with counting of votes.
The material portion of sub rule (2) of Rule 56 of the Election Rules runs as follows: "56.
Counting of Votes.
(1) The ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinized.
(2) The returning officers shall reject a ballot paper (a) x x (b) If it bears no mark at all or, to indicate the vote it bears a mark elsewhere than on or near the symbol of one of the candidates on the face of the ballot paper or, it bears a mark made otherwise than with the instrument supplied for the purpose, or . " Rule 73 deals with the scrutiny of opening of ballot boxes and packets of postal ballot papers.
The material portion of sub rule (2) of Rule 73 runs as follows: "(2) a ballot paper shall be invalid on which (a) the figure 1 is not marked; or (b) the figure 1 is set opposite the name or more than one candidate or is so placed as to render it doubtful to which candidate it is intended to apply; or 777 (c) x x x (d) x x x (e) there is any figure marked otherwise than with the article supplied for the purpose.
" It would now be convenient to deal with the first con tention of the learned counsel for the appellant.
As we have already pointed out, the said rejected ballot paper was rejected on the ground that it was marked otherwise than with an article supplied for the purpose.
As we have already pointed out, the figure 1 indicating the first preference in the said ballot paper was marked in green ink whereas in the ball point pen kept in the voting booth with the ballot box, the ink used was blue.
The returning officer took the view that the said marking of preference in green ink clearly established that it was done with a bail point pen other than the one which was supplied for marking the preference and hence the vote was invalid.
It was urged by Shri Jeth malani in this connection that although the marking of preference was done in green ink, there was no doubt that the intention of the over concerned was to give the first preference vote to the appellant.
It was submitted by him that the fundamental rule of election law is that effect should be given to the intention of the voter and this could be done only by treating the vote as valid, as the intention of the voter was quite clear.
Mr. Jethmalani may be right when he contends that the intention of the voter could be clearly gathered and it was to cast the first preference vote for the appellant.
However, it is not enough for the vote to be valid that it is possible to gather the intention of the voter to vote for a particular candidate as pointed out by the Constitution Bench of this Court in the leading case of Hari Vishnu Kamath vs Syed Ahmad Ishaque and Others, ; at page 1132.
This Court held that ( 1132): "But when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed.
An intention not duly expressed is, in a court of law, in the same position as an intention not expressed at all." In the present case Rule 39(2)(b) which is applicable to the election petition before us clearly prescribes that the vote must be cast by the voter in accordance with the said sub rule (2) of Rule 39 of the Election Rules, with the article supplied for the purpose.
Rule 39A(2)(b) read with Rule 37A(2)(a) prescribes that an elector in giv 778 ing his vote shall place on his ballot paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance with the article sup plied for the purpose.
Hence, unless the ball point pen kept with the ballot box is not to be regarded as the article supplied for marking the preference, the intention of the elector in the present case cannot be given effect to as it was expressed in a manner inconsistent with the provisions in the rules.
Clause (b) of sub rule (2) of Rule 56 of the Election Rules provides inter alia that if a ballot paper contains a mark made on it otherwise than with the instru ment supplied for the purpose, the returning officer shall reject the said ballot paper.
Rule 73 is included in Part VII of the Election Rules and that Part applies to the counting of votes at elections by Assembly members.
Clause (e) of sub rule (2) of Rule 73 of the Election Rules set out earlier that a ballot paper shall be invalid on which there is any figure marked otherwise than with the article sup plied for the purpose.
Rule 73 is directly applicable to the case of the election in question and as aforesaid it pre scribes that if on the ballot paper there is any figure marked otherwise than with the article supplied for the purpose, the ballot paper shall be invalid.
Assuming that the voter in this case had expressed his intention clearly by marking the figure 1 in green ink, he did so in violation of the express provisions of the Rules which have a statuto ry force and hence no effect can be given to that intention.
It was next argued in this connection that the expres sion "article supplied for the purpose" as used in the said Rules 39A(2)(b) and 73(2)(e) was misconstrued by the Presid ing Officer and the High Court in the present case.
It was submitted by learned counsel for the appellant that Rule 56(2)(b) was not complied with by making a ball point pen available in the polling compartment near the ballot box for the use of the electors in marking their preference as law required that the Polling Officer should personally hand over the bali point pen to the voter before he proceeds to the voting booth with instructions to mark his preference with that ball point pen.
He referred to the hand book dealing with the procedure prescribed in elections to the Lok Sabha and to the Legislative Assemblies and submitted that the said procedure was applicable mutatis mutandis to elections to the Rajya Sabha and the Legislative Councils.
It was urged by him that the second proviso to clause (e) of sub rule (2) of Rule 73 of the Election Rules provides that if the returning officer is satisfied that any such defect as is mentioned in the said clause has been caused by any mistake or fault on the part of the Presiding Officer or Polling Officer, the ballot paper shall not be rejected merely on the ground of the said defect.
It was contended by him that the Polling Officer was bound to hand over to 779 each voter individually the ball point pen to be used for marking his preference on the ballot paper.
He submitted that the duty of the Polling Officer was to hand over the ball point pen to the voter to use the same for marking his preference and it was also his duty to take back the said pen from the voter after he has cast his vote and given the same to the next voter.
He urged that merely providing a bail point pen for voting did not constitute substantial compliance with Rule 39A(2)(b) or Rule 73(2)(e).
He urged that the mistake in the present case, namely, marking of the preference with green ink on the ballot paper, had occurred because no bail point pen was handed over as aforesaid to the voter concerned.
We are unable to accept this submis sion.
The procedure followed in an election to the Lok Sahba or the State Assembly is to give to the voter a rubber stamp for voting with an arrow mark properly inked with instruc tions to use the same for voting before the voter enters the voting compartment to put his mark against the name of the candidate for whom he desires to vote and to take the rubber stamp back from the voter when he comes out of the voting compartment and to repeat this process for every voter.
In the first place, it must be noticed that there is no rule or standing order requiring the Presiding Officer or to follow this procedure in the case of an election to the Rajya Sabha or Legislative Council of a State.
There is a material difference between an election to Lok Sabha or a Legislative Assembly which is a direct election with one constituency for each seat and only vote is to be cast and an election to Rajya Sabha which is an indirect election with the preferen tial system of voting.
Sub rule (2) of Rule 39 which is applicable to such an election to a Legislative Assembly provide that the elector on receiving the ballot paper has to make a mark on the ballot paper with the instrument supplied for the purpose on or near the symbol of the candi date for whom he intends to vote.
It is only in the case of an election like this that it becomes necessary to provide a rubber stamp properly inked to the voter to mark his prefer ence.
It must be remembered that in such an election case, the number of voters or electors is extremely large and many of them might be unfamiliar with the voting procedure.
An election to the Rajya Sabha, on the other hand, is an indi rect election with multiple candidates ' constituency and the system of voting followed is the preferential system of voting.
Rule 37A of the Election Rules which is applicable to such an indirect election by virtue of the provisions of Rule 70 provides that an elector in giving his vote shall place on his ballot paper figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance.
This difference in the case of an election to the Rajya Sabha makes it wholly unnecessary that the Presiding Officer or the Polling Officer should hand over to 780 every voter individually a bail point pen to mark his vote and it would quite wholly be adequate if the article for marking the preference, namely, a ball point pen, is provid ed to the voter to use the same for marking his preference or if the pen is placed in such a way as to make it clear that the marking of the preference is to be done with that pen and instructions given to use that pen for marking the preference.
The evidence of the returning officer, which has been accepted by the High Court is to the effect that there were two voting compartments in the polling booth and in each of them a ball point pen with blue ink was kept as soon as an elector went into the polling booth, one Polling Assistant gave him his identity slip and another Polling Assistant gave to the elector printed copies of Rules 37A and 39A of the Election Rules and a copy of the guidelines.
Then the elector went to the first Polling Officer who obtained his signature in the counter foil of the ballot paper and instructed the elector that he should mark his preference on the ballot paper with the article kept for the purpose inside the voting compartment.
Another Polling Officer gave the ballot paper to the voter and again in structed him to go into the voting compartment and mark the ballot paper with the article kept there for that purpose, fold the ballot paper before coming out and put in into the ballot box in front of the Polling Officer.
In the light of this evidence, we are of the view that the ball point pen with blue ink kept in the voting compartment for marking the preference must be regarded as the article supplied for that purpose, namely, the purpose of the voter marking his pref erence on the ballot paper.
It was submitted by learned counsel for the appellant that it was possible that a voter might have used his own pen if the pen kept in the voting compartment was not working and such a vote cannot be re garded as invalid.
We are not concerned with a case of that kind here as there is no evidence that in any voting com partment the ball point pen kept there was not working.
It was next urged that if a voter had used another ball point pen, that is, other than the one kept in the voting compart ment containing the blue ink, it would not have been possi ble to find out that the preference marked with such a bail point pen had been used for marking the preference and not the pen supplied.
This is of no relevance here.
The possibility that in a given case a breach of the rules may be difficult to detect cannot lead to the conclusion that the mandatory requirement that preference on the ballot paper must be marked with the article supplied for the purpose should be regarded as not binding in law.
We are, therefore, of the view that the said ballot paper was right ly rejected by the returning officer and the arguments urged by learned counsel for the appellant in that contention must be rejected.
781 The next point is regarding the three first preference votes cast in favour of respondent No. 1 which were accepted by the returning officer as stated earlier.
In respect of these three votes, the figure 1 is marked, not in the right hand column opposite the name of respondent No. 1, but in the left hand column containing the name of candidate and opposite the name of respondent No. 1.
The appellant unsuc cessfully objected to the validity of these three ballot papers on the ground that the first preference had not been marked in the space provided for that purpose opposite the name of the candidate concerned, namely, respondent No. 1, as required by Rule 37A(2).
It was submitted by learned counsel for the appellant that the returning officer as well as the High Court were in error in holding that the said three ballot papers were valid.
We propose to discuss this controversy very shortly because we are in full agreement with the reasoning and conclusions given by the High Court in its impugned judgment in coming to the conclusion that the returning officer was justified in rejecting the objec tions preferred by the appellant to the said three votes and holding that the same were valid.
The relevant portion of Rule 37A(2) of the Election Rules has already been quoted earlier.
Clause (a) of sub rule (2) of that Rule only pro vides that the voter shall place on his ballot paper the figure i in the space opposite the name of the candidate for whom he wishes to vote in the first instance.
it is signifi cant that this rule does not specifically say that the figure 1 must be placed in the column earmarked for marking the preference but only requires that the figure 1 should be placed opposite the name of the candidate.
Sub rule (4) of Rule 71 which is a definition runs as follows: "71(4): 'first preference ' means the figure 1 set opposite the name of a candidate; 'second preference ' means the figure 2 set opposite the name of a candidate; 'third pref erence ' means the figure 3 set opposite the name of a candi date, and so on;" It is significant that in this sub rule also there is nothing to indicate that the preference must be indicated in the column reserved for that purpose, the only requirement being that the figure 1 should be written opposite the name of the candidate.
Similarly, sub rule (2)(b) of Rule 73 only lays down that if the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it applied, the ballot paper would be invalid.
Sub rule 12) of Rule 73 deals with the invalidity of ballot papers and that subrule nowhere states that merely by reason of the preference being 782 marked in the wrong column, if the marking is opposite the name of the candidate concerned, the ballot paper shall be rendered invalid.
It is true that the column in which the preference should have been marked and intended for that purpose was the column on the righthand side of the first column where the name of the candidate was to be put; but there is no express provision to the effect that unless the preference is marked in the correct column, the ballot paper would be invalid.
In such a situation, the principle enunci ated by this Court in several judgments and reiterated in section Sivaswami vs
V. Malaikannan & Ors., ; that the primary task of the Court in a case where the question is whether the ballot paper is invalid is to ascertain the intention of the voter, must be applied.
In that case, the Court held that the ballot paper shall not be rejected as invalid if it is reasonably possible to gather a definite indication from the marking so as to identify the candidate in favour of whom the vote had been intended to be given.
This, of course, is subject to the rule that before a ballot paper is accepted as valid the ballot paper must not be invalid under any other express provision and the intention of the voter must not be expressed in a manner which is contrary tO or totally inconsistent with the manner pre scribed under the said Act or the Election Rules for ex pressing the same.
In the case of the said, three votes in question, the figure 1 was clearly marked opposite the name of respondent No. 1, being the candidate concerned, as required by the express provision of the said Rule 37A and the intention of the voter was clearly to cast the first preference in favour of respondent No. 1.
In these circum stances, the ballot papers were rightly accepted by the returning officer as valid and the High Court was justified in coming to the conclusion to which it has arrived.
In the result, the appeal fails and is dismissed.
Howev er, considering the facts and circumstances of the case, there will be no order as to costs.
R.S.S. Appeal dis missed.

dataset_name: IN-Abs

summary:
Election of six Members to the Rajya Sabha by the elect ed Members of the Tamil Nadu Legislature Assembly was held in June 1986.
The appellant and respondent nos.
1 to 7 were the eight candidates in the field.
Respondent Nos. 1 to 6 were declared duly elected and the appellant was declared as having lost the election.
The appellant thereupon filed an election petition which was dismissed by the High Court.
Before this Court it was contended on behalf of the appellant that: (1) the first preference vote in his favour in which the first preference was marked on the ballot paper in green ink had been wrongly rejected on the ground that it was marked otherwise than with the article supplied for the purpose, i.e., the ball point pen with blue ink which had been kept in the voting booth; and (2) the three ballot papers indicating the first preference in favour of the first respondent, which did not contain the figure 'I ' in the space intended for marking the said figure, had been wrongly accepted.
In support of the first contention it was argued that: (1) the expression "article supplied for the purpose" used in Rule 39A(2)(b) and Rule 73(2)(e) of the Conduct of Election Rules, 1961, was misconstrued by the High Court; (2) in the context of the election law, the instructions contained in the hand books, and the procedure followed in respect of the election to Lok Sabha and State Assemblies, the expression "article supplied for the pur pose" should be interpreted as meaning "actually given" or "handed over", and as such the ball point pen for marking the preference should have been personally handed over to the voter with instructions to use it for marking his pref erence; (3) the mistake in the present case, namely, marking 768 of the preference with green ink on the ballot paper, had occurred because no bail point pen was handed over to the voter concerned; and (4) the fundamental rule of election law is that effect should be given to the intention of the voter and this could be done only by treating the vote as valid.
Dismissing the appeal, this Court, HELD: (1) There is a material difference between an election to Lok Sabha or a Legislative Assembly which is a direct election with one constituency for each seat and only the vote is to be cast, and an election to Rajya Sabha which is an indirect election with the preferential system of voting.
This difference has to be taken into account in interpreting the relevant words used in the Rules relating to an election.
[779D E] (2) Rule 39A(2)(b) read with Rule 37A(2)(a) of the Conduct of Election Rules 1961 prescribes that at an elec tion in a council an elector in giving his vote shall place on his ballot paper the figure 'I ' in the space opposite the name of the candidate for whom he wishes to vote in the first instance with the article supplied for the purpose.
Further, Rule 73 which is directly applicable to the count ing of votes at elections by Assembly Members, prescribes that if on the ballot paper there is any figure marked otherwise than with the article supplied for the purpose, the ballot paper shall be invalid.
[777H; 778A; D] (3) The High Court was right in interpreting the expres sion "article supplied for the purpose" in Rule 39A(2)(b) and Rule 73(2)(e) of the Election Rules as meaning "made available for the purpose" or "provided for the purpose.
" [778E] Ram Utar Singh Bhaduria vs Ram Gaopal Singh & Ors., ; distinguished.
(4) The difference in the case of an election to the Rajya Sabha makes it wholly unnecessary that the Presiding Officer or the Polling Officer should hand over to every votor individually a hall point pen to mark his vote and it is enough if the article for marking the preference, namely, bail point pen, is provided to the voter to use the same for marking his preference or if the pen is placed in such a way as to make it clear that the marking of the preference is to be done with that pen and instructions given to use that pen for marking the preference.
[779H; 780A B] (5) It is not enough for the vote to be valid that it is possible 769 to gather the intention of the voter to vote for a particu lar candidate.
When the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed.
[777E G] Hari Vishnu Kamath vs Syed Ahmad Ishaque & Ors., ; , refterred to.
(6) Assuming that the voter in this case had expressed his intention clearly by marking the figure 1 in green ink, he did so in violation of the express provisions of the Rules which have a statutory force and hence no effect can be given to that intention.
[778D] (7) Clause (a) of sub rule (2) of Rule 37A only provides that the voter shall place on his ballot paper the figure 1 in the space opposite the name of the candidate for whom he wishes to vote in the first instance.
It is significant that this rule does not specifically say that the figure 1 must be placed in the column earmarked for marking the preference but only requires that the figure 1 should be placed oppo site the name of the candidate.
[781D E] (8) In the case of the three first preference votes cast in favour of respondent No. 1 the figure 1 was clearly marked opposite the name of respondent No. 1, being the candidate concerned, as required by the express provision of the said Rule 37A, and the intention of the voter was clear ly to cast the first preference in favour of respondent No. 1.
[782E] section Sivaswami vs V. Malaikannan & Ors., ; , referred to.


judgement:
Criminal Appeal No. 359 of 1989.
From the Judgment and Order dated 29.7.1988 of the Andhra Pradesh High Court in Crl.
Petition No. 1023 of 1987.
K. Madhava Reddy and G. Prabhakar for the Appellant.
H.S. Gururaj Rao, Subodh Markandeya, Mrs. C. Markandeya, W.A. Nomani and G. Seshagiri Rao for the Respondent.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The State of Andhra Pradesh represented by the Director, Anti Corruption Bureau, Hydera bad has filed this criminal appeal challenging the correct ness of the Order dated 29.7.1988 of the High Court of Andhra Pradesh in Crime No. 7/ACB/Cr.
II/84 dated 8.3.1984 on the file of the Special Judge for ACB & SPE quashing the First Information Report in exercise of its inherent powers under Section 482 of the Code of Criminal Procedure.
A few facts relevant to decide this case may be stated: The respondent was selected to the Indian Police Service in the year 1953 and he worked in various capacities at different places.
While he was working as Commissioner of Weights & Measures, Government of Andhra Pradesh, on a report dated 7.3.
1984 submitted by the Deputy Superintend ent of Police, Anti Corruption Bureau, a case was registered against him on 8.3. 1984 in Crime No. 7/ACB/Cr.
II/84 under Section 5(2) read with Section 5(1)(e) of the prevention of Corruption Act, 1947 on the allegations that while function ing as Commissioner of Police and later as Vice Chairman of Andhra Pradesh Housing Board during the years 1978 82, he ingulged in corrupt practices and acquired immovable assets either in his name or 749 in the name of his wife.
The Anti Corruption Bureau after completing its investigation submitted its report on 22.4.1987 to its DirectorGeneral who in turn sent the same to the Government on 17.9.
The Government accorded the necessary sanction for prosecution in G.O.Ms.
525 and 526 dated 16.9.
In the meantime, the respondent filed the criminal petition for quashing further proceedings pursuant to the registration of the First Information Re port, inter alia, contending that there had been lull in the investigation for fairly long spell causing inordinate delay and that the prosecution had not filed its report contem plated under Section 173 Cr.
P.C. till he filed the petition for quashing the proceedings in November 1987 though the case was registered even in March 1984.
The plea of the respondent was stoutly resisted by the appellant stating that the delay was occasioned on account of the dilatory tactics adopted by the respondent and the case was a complicated and timeconsuming one.
The High Court has quashed the First Information Report on the ground that there was inordinate delay in the inves tigation.
Aggrieved by that judgment, the State has pre ferred this Criminal appeal.
Mr. Madhava Reddy, learned senior counsel appearing on behalf of the appellant took an exception to the observation of the learned Single Judge of the High Court reading: " . .
I hold that wherever there is an inordinate delay on the part of the investigating agency in completing investigation, the case merits quashing of the First Infor mation Report even . . . Generally.
this Court will not quash the F.I.R. because it amounts to stopping of investigation, but where there is an inordinate delay, the same is a ground to quash even the F.I.R." and contended that the above observation is too wide a proposition and it will be detrimental to the prosecution in future under all circumstances, regardless of the reasons therefor.
Though we have decided to dispose of this appeal on some other ground, the submission of Mr. Madhava Reddy on the above extracted observation of the High Court makes it necessary to examine the ques 750 tion whether a mere delay in the investigation of a criminal proceeding will by itself serve as a sufficient ground for quashing the proceedings in pursuance of the registration of the case notwithstanding whatever may be the reasons for the delay.
This question has come up for determination in a number of cases wherein this Court has examined the right of an accused for a speedy investigation and trial in a crimi nal case in the light of Article 21 of the Constitution of India.
There is no denying the fact that a lethargic and lacka daisical manner of investigation over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis.
Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence or ineffi ciency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvan tage to the accused, the Court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation.
While so, there are offences of grave magnitude such as diabolical crimes of conspiracy or clandestine crimes com mitted by members of the underworld with their tentacles spread over various parts of the country or even abroad.
The very nature of such offences would necessarily involve considerable time for unearthing the crimes and bringing the culprits to book.
Therefore, it is not possible to formulate inflexible guidelines or rigid principles of uniform appli cation for speedy investigation or to stipulate any arbi trary period of limitation within which investigation in a criminal case should be completed.
The determination of the question whether the accused has been deprived of a fair trial on account of delayed or protracted investigation would also, therefore, depend on various factors including whether such delay was unreasona bly long or caused deliberately or intentionally to hamper the defence of the accused or whether such delay was inevi table in the nature of things or whether it was due to the dilatory tactics adopted by the accused.
The Court, in addition, has to consider whether such delay on the part of the investigating agency has caused grave prejudice or disadvantage to the accused.
The assessment of the above factors necessarily vary from case to case.
It would, therefore, follow that no general and wide proposition 751 of law can be formulated that wherever there is inordinate delay on the part of the investigating agency in completing the investigation, such delay, ipso facto, would provide ground for quashing the First Information Report or the proceedings arising therefrom.
Our above view is supported by a decision of this Court in Raghubir Singh vs State of Bihar, [1986] 4 SCC 481.
Reference may also be had to Bell vs Director of Public Prosecutions of Jamaica and another, [1985] 2 All England Law Reports 585 and the article in captioned 'The Power of the Courts to stay a Criminal Prosecution. ' It follows from the above observations that no general and wide proposition of law can be formulated that wherever there is any inordinate delay on the part of the investigat ing agency in completing the investigation, such delay is a ground to quash the F.I.R. Reverting to the present case, the respondent was placed under suspension pending enquiry into certain irregularities in the purchase of land as pointed out in the earlier part of this judgment.
The State Government on the basis of the enquiry report passed orders for stopping further action and directed re instatement of the respondent into service with immediate effect by Order dated 5th September 1984.
Accord ingly, he was re instated and allowed to function as Con troller, Weights & Measures, Andhra Pradesh.
However, by subsequent order dated 5th July 1985, the appellant (State Government) cancelled the aforesaid order dated 5th Septem ber 1984 and directed the respondent to show cause as to why the penalty of compulsory retirement should not be imposed on him.
Thereupon, the respondent filed Writ Petition No. 10670 of 1985 before the High Court of Andhra Pradesh, seeking a writ of mandamus declaring the orders of the appellant contained in G.O. Rt.
No. 2930, GA (SC.
C) Depart ment dated 5th July 1985 as arbitrary and unconstitutional, and consequently to set aside the same by holding that the appellant was bound to give effect to the Orders contained in G.O. Rt.
No. 4572, GA (SC.
C) Department dated 5th Sep tember 1984.
This writ petition was transferred to the Central Administrative Tribunal, Hyderabad Bench.
The Tribu nal allowed the petition holding that the impugned order in G.O.Rt.
No. 2930 dated 5th July 1985 is illegal and beyond the powers of the State Government.
Aggrieved by the judgment of the Tribunal, the State of Andhra Pradesh preferred a Special Leave Petition (Civil) No. 405 of 1987 752 before this Court, and this Court by its Order dated 16.11.1988 dismissed the same.
The said order reads as follows: "Having regard to the facts and circumstances of the case and specialty in view of the facts that the respondent has retired from service on attaining the age of superannuation, we do not consider it a fit case for interference.
It is accordingly dismissed.
" Admittedly, the appellant notified the date of retire ment of the respondent w.e.f. 30th April 1988 by G.O.Rt.
No. 866 dated 10th March 1988.
Accordingly, the respondent was allowed to retire peacefully from service on attaimng the age of superannuation.
The First Information Report and the consequent proceedings on the registration of the case were quashed by the High Court on 29.7.1988.
Surprisingly, the appellant accorded sanction for prosecution in G.O.Ms.
525 & 526 dated 16.9.1988 i.e. after nearly 50 days of the quashing of the First Information Report.
In view of the above facts and circumstances and the various events following the suspension of the respondent culminating in his being allowed to retire on attaining the age of superannuation, we are of the view that it is not a fit case for interference.
The appeal is accordingly dismissed.
N.P.V. Appeal dis missed.

summary:
A case was registered against the respondent, an officer of the Indian Police Service, under Section 5(2) read with Section 5(1)(e) of the Prevention of Corruption Act, 1947, on 8.3.1984 but the investigation report was submitted to the Government on 17.9.1987.
In November, 1987, the respond ent filed a criminal petition for quashing further proceed ings pursuant to the registration of the First Information Report contending that there had been inordinate delay in the investigation and that the prosecution had not filed the report as contemplated under Section 173 Cr.
P.C. till he filed the petition.
The appellant contended that the delay was occasioned on account of dilatory tactics adopted by the respondent and that the case was a complicated and time consuming one.
The High Court quashed the First Information Report and observed that wherever there was an inordinate delay on the part of the investigating agency in completing investigation, the case merited quashing of the First Infor mation Report even.
The State preferred an appeal in this Court contending that the High Court 's observation was too wide a proposition and it would be detrimental to the prosecution in future under all circumstances, regardless of reasons therefor.
Dismissing the appeal, this Court, HELD: 1.1 No general and wide proposition of law can be formulated that wherever there is inordinate delay on the part of the 747 investigating agency in completing the investigation, such delay, ipso facto, would provide ground for quashing the First Information Report or the proceedings arising there from.
[750H, 751A] 1.2 A lethargic and lackadaisical manner of investiga tion over a prolonged period makes an accused in a criminal proceeding to live every moment under extreme emotional and mental stress and strain and to remain always under a fear psychosis.
Therefore, it is imperative that if investigation of a criminal proceeding staggers on with tardy pace due to the indolence and inefficiency of the investigating agency causing unreasonable and substantial delay resulting in grave prejudice or disadvantage to the accused, the Court as the protector of the right and personal liberty of the citizen will step in and resort to the drastic remedy of quashing further proceedings in such investigation.
However, there are offences of grave magnitude which would necessari ly involve considerable time for unearthing the crimes and bringing the culprits to book.
Therefore, it is not possible to formulate inflexible guidelines or rigid principles of uniform application for speedy investigation or to stipulate any arbitrary period of limitation within which investiga tion in a criminal case should be completed.
[750B F] 1.3 The determination of the question whether the ac cused has been deprived of a fair trial on account of de layed or protracted investigation would also, therefore, depend on various factors including whether such delay was unreasonably long or caused deliberately or intentionally to hamper the defence of the accused or whether it was due to the dilatory tactics adopted by the accused.
The Court, in addition, has to consider whether such delay on the part of the investigating agency has caused grave prejudice or disadvantage to the accused.
The assessment of these factors necessarily vary from case to case.
[750G H] Raghubir Singh vs State of Bihar, [1986] 4 SCC 481, relied on.
Bell vs Director of Public Prosecutions of Jamaica and another, [1985] 2 All England Law Reports 585, referred to.
The Power of the Courts to stay a Criminal Prosecution, ' , referred to.
In the instant case, the respondent was placed under suspension pending enquiry but was reinstated on the basis of enquiry report and further action was stopped.
However, by a subsequent order dated 5th July, 1985 the earlier order was cancelled and a show cause notice for 748 his compulsory reitrement was issued.
The Central Adminis trative Tribunal held that the order dated 5th July, 1985 was illegal and beyond the powers of State Government.
This Court dismissed State 's Special Leave Petition.
In the meantime, the respondent was allowed by the appellant to retire peacefully from service on attaining the age of superannuation and the First Information Report and conse quent proceedings were quashed by the High Court.
In these circumstances, this is not a fit case for interference.
[751D, E, G, 752A, C E]


judgement:
Criminal Appeal No. 750 of 1989.
From the Judgment and Order dated 11.4.1988 of the Gujarat High Court in Spl.
Application No. 733 of 1987.
Kapil Sibal, Additional Solicitor General, A. Subba Rao and P. Parmeshwaran for the Appellants.
Vineet Kumar and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
This criminal appeal preferred by the appellants, namely, Union of India and the Additional Secretary to the Government of India is against the judgment of the High Court of Gujarat at Ahmedabad in Special Crimi nal Application No. 733 of 1987 dated 11.4.
1988 quashing the order of detention dated 19.6.
1987 passed by the second appellant in exercise of the powers under subsection (1) of Section 3 of the Conservation of Foreign Exchange and Pre vention of Smuggling Activities Act, 1974 with a view to preventing the first respondent, Vasanbharthi Jivanbharthi from engaging in transporting smuggled goods.
It seems that the first respondent (detenu) has challenged the detention on numerous grounds, one of which being that none of the members of his household had been informed of the passing of the impugned order of detention and of the fact that the detenu had been taken into custody and also of the place where the detenu was detained.
This ground was only subse quently added by an amendment with the permission of the Court.
The High Court holding that the detenu 's relatives were not informed about the detention order or about the place where the detenu was detained in compliance with the observation by this Court in A.K. Roy vs Union of India, ; , concluded that the order has been vitiated by such non compliance.
Further, the High Court has rejected the plea of 744 the appellants that the relatives of the detenu knew about the detention order as well the place of detention and stated as follows: "Hence if the relatives of the detenu have not been informed and even if from the record, it is found that the relatives had come to know about it from some source, the order of detention would most certainly be invalidated.
" In the result, the order of detention was quashed and the detenu was directed to be set as liberty.
Mr. Kapil Sibal, the learned Additional Solicitor Gener al has assailed the finding of the High Court stating that the respondent No. 1 (detenu) was already an undertrial prisoner and his relatives inclusive of his maternal uncle had visited him at the jail within two days and, therefore, that the non communication of a written intimation about the fact of passing of the order of detention and of the place of detention in pursuance of the detention order have no significance, and as such the observation made in A.K. Roy 's case can hardly by availed of by the detenu and the order cannot said to be invalidated on that ground.
This plea is taken specifically in paragraph 21 and in Grounds I & II in paragraph 23 of the Special Leave Petition.
Besides the above stand taken in the SLP, the appellants have reiterat ed.
the same in paragraph 9 of the application for ex parte stay of the Order of the High Court, the relevant portion of which reads thus: "The affidavit in opposition was filed on behalf of the Union of India that the detenu was already under trial prisoner and his relatives in fact knew that and also that the maternal uncle had immediately, within two days, visited him at the jail.
Therefore.
it was not necessary to inform the relatives of his detention and place of detention, as contemplated in the decision of the Supreme Court reported in ; K. Roy 's case).
" No counter is filed by the first respondent (detenu) in opposition to the above plea of the appellants.
In the above background, we shall now examine whether the High Court is justified in setting aside the Order for the reasons mentioned supra on the basis of the decision in A.K. Roy 's case The relevant portion of the observation in A.K. Roy 's case reads thus: 745 "In order that the procedure attendent upon detentions should conform to the mandate of Article 21 in the matter of fairness, justness and reasonableness, we consider it imper ative that immediately after a person is taken in custody in pursuance of an order of detention, the members of his household, preferably the parent, the child or the spouse, must be informed in writing of the passing of the order of detention and of the fact that the detenu has been taken in custody.
Intimation must also be given as to the place of detention, including the place where the detenu is trans ferred from time to time.
The object and purpose of the above observation, in our view, seem to be that the family members of the detenu should not be kept in darkness by withholding the informa tion about the passing of the order of detention and the place of detention thereby preventing them from having any access and from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of meeting their relations and getting any help or assistance.
Coming to the present case, we are satisfied that the family members had sufficient knowledge about the detention of the detenu by virtue of the mittimus issued as well the place of detention.
Therefore, no legitimate grievance can be made that there is contravention to the observation in A.K. Roy 's case.
Hence for the reasons mentioned above, we are unable to agree with the view taken by the High Court and accordingly we set aside the impugned Judgment and remit the matter to the High Court of Gujarat for consideration of the other contentions raised by the detenu challenging the order of detention and to dispose of the case on its merit.
We hope that the High Court will give priority to this matter and dispose of the same expeditiously.
Taking into consideration of the fact that the detenu is now enlarged consequent upon the judgment of the High Court which we have set aside, the detenu shall not be taken into custody to serve the unexpired period of detention till the matter is finally disposed of by the High Court.
The Criminal Appeal is disposed of accordingly.
P.S.S. Appeal allowed.

summary:
The respondent was taken into custody in exercise of the powers under sub section
(1) of section 3 of the with a view to preventing him from engaging in trans porting smuggled goods.
In the special criminal application preferred by him the High Court held that the detenu 's relatives were not informed about the detention order or about the place where the detenu was detained.
Consequently, the order of detention was quashed and the detenu was di rected to be set at liberty.
In this appeal by special leave, it was contended for the Union of India that the detenu was already an undertrial prisoner and his relatives had visited him at the jail within two days and, therefore, the non communication of a written intimation about the fact of passing of the order of detention and of the place of detention in pursuance of the detention order had no significance, and as such the order cannot be said to be invalidated on that ground.
Allowing the appeal, the Court, HELD: 1.
The family members of the detenu should not be kept in darkness by withholding the information about the passing of the order of detention and the place of detention thereby preventing them from having any access and from rendering any help or assistance to the detenu and similarly the detenu should not be deprived of the privilege of meet ing their relations and getting any help or assistance.
[745C D] A.K. Roy vs Union of India, ; , followed.
In the instant case, however, the family members of the detenu 743 had sufficient knowledge about his detention by virtue of the mittimus issued as well the place of detention.
The High Court was, therefore, not justified in setting aside the order.
[745D E] 2.
The matter is remitted to the High Court for consid eration of the other contentions raised by the detenu.
He shall not be taken into custody to serve the unexpired period of detention till the matter is finally disposed of.
[745F G]


judgement:
ivil Appeal No. 823 of 1981.
738 From the Judgment and Order dated 16.10.1979 of the Punjab & Haryana High Court in Civil Revision No. 2300 of 1979.
V.C. Mahajan (NP), Ms. Urmila Kapoor, Ms. section Janani and Ms. Meenakashi for the Appellant.
M.L. Verma and P.C. Kapur for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by a tenant defendant is directed against the decree for his eviction from a shop on the ground mentioned in section 13(2)(v) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as the Act) which renders the tenant liable for eviction if he has ceased to occupy the rented premises for a continuous period of four months without reasonable cause.
The questions which are involved in this case are whether a tenant can be said to have ceased to occupy a building merely for the reason that he temporarily suspends the actual physical user there of; and whether a landlord is entitled to a decree even if the tenant has re occupied the premises before the eviction proceeding was commenced.
The landlord respondent filed the present application for eviction of the appellant before the Rent Controller in March, 1973and inter alia pleaded that for a continuous period of more than four months the appellant had ceased to occupy the shop during 1969 to 1971 and he was, therefore, liable to be ejected.
The appellant disputed the allegation, but, the Rent Controller as well as the Appellate Authority rejected the defence and accepted the plaintiff 's plea.
After unsuccessfully moving the High Court under section 15(5) of the Act, the tenant had filed the present appeal by special leave.
The grounds on which a tenant can be asked to quit are mentioned under section 13(2) of the Act, and under clause (v) thereof the Controller may pass an order for the ten ant 's eviction if he is satisfied, "13(2)(v): That where the building is situated in a place other than a hill station, the tenant has ceased to occupy the building for a continuous period of four months without reasonable cause," Mrs. Urmila Kapoor appearing in support of the appeal con tended that the appellant has all along been in possession of the shop which 739 was never vacated and merely for the reason that the shop remained closed for a temporary period he cannot be said to have ceased to occupy the same.
The argument is that the appellant 's occupation of the shop was never interrupted as it was in his effective control, although closed and secured under the appellant 's lock which nobody ever disturbed.
We do not find ourselves in a position to accept the interpre tation of the section as attempted on behalf of the appel lant.
The reason of including the clause (v) in section 13(2) is to ensure that buildings, which are scarce in number spe cially in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need them.
A tenant who is in possession of a building in the legal sense only cannot be said to be in occupation thereof for the purpose of section 13(2)(v); otherwise a question of his eviction as envisaged in that section would not arise.
The section, by making provisions for his ejectment, assumes that he is in possession, but, still includes cessation of occupation as one of the grounds.
The clause, therefore, has to be interpreted in this background and it ,must take colour from the context.
We, therefore, hold that if a tenant stops the business which he is carry ing on in a shop and closes the premises continuously for a period of four months without a reasonable cause he will be liable for eviction.
The other point urged by Mrs. Kapoor needs more serious consideration.
The non occupation of the premises by the tenant did, not continue after 197 1, and the eviction petition was filed in 1973.
Is it permissible to hold, in this situation, that the ground mentioned in section 13(2)(v) has been made out? On behalf of the respondent it has been contended that since in a number of Rent Acts of other States a similar ground specifically requires such non occupation for a period immediately preceding the date on which the ejectment application is filed, the present Act which does not use identical language should be interpreted differently.
Reliance has also been placed on the observa tions of this Court in Gajanan Dattatraya vs Sherbanu Hosang Patel & Ors., [1976] 1 S.C.R. 535; a case arising under the ' Bombay Rents, Hotel & Lodging House Rates Control Act, 1947.
The prayer for eviction, in the above case, was rounded on a plea of subjetting, and the ground in this regard, as mentioned in section 13(1)(e), is "that the tenant has, since the coming into operation of the Act, unlawfully sublet" the premises.
The Court rejected a similar conten tion of the tenant, as in the present case, by holding that, "To accede to the contention of the appellant would mean 740 that a tenant would not be within the mischief of unlawful subletting if after the landlord gives a notice terminating the tenancy on the ground or unlawful subletting the subten ant vacates.
The landlord will not be able to get any relief against the tenant in spite of unlawful subletting.
In that way the tenant can foil the attempt of landlord to obtain possession of the premises on the ground of sublet.ting every time by getting the sub tenant to vacate the premises.
" The observations, and consequently the decision were based on the law requiring service of notice to quit before start ing an action for ejectment as assumed earlier before the decision of 7 learned Judges in V. Dhanpal Chettiar vs Yesodai Ammal; , holding otherwise was given.
The provisions of section 13 had, then, to be construed in a manner which did not render the same completely ineffec tive.
Now, that is not the position.
It is true that the Court in the former decision also observed that the tenant 's liability to eviction arose once the fact of unlawful sub letting is proved, but, the very next sentence further clarifies the position in the following words: "At the date of the notice, if it is proved that there was unlawful subletting, the tenant is liable to be evicted.
" It is significant to note that according to the decision the subletting had to continue till the date of the notice.
If the requirement of notice disappears the above observation must be read as referring to the application for eviction and not the notice.
The observations in an earlier case of this Court in Goppulal vs Thakurji Shriji Shriji Dwarkadheeshji & Anr., ; ; may be of some help in the present context.
This decision was discussed in Gajanan Dattatraya 's case (supra) and was distinguished on the ground that the Court there had no occasion to consider the question as to whether subletting to be within the mischief of the relevant statute is to subsist at the date of the suit.
It is true that the Court did not have to consider and decide directly the present controversy, but, the comment made on the lan guage of the statute concerned is helpful to the tenant.
The dispute, in that case, depended on the interpretation of section 13(1)(e) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 which forbids the Court to pass a decree for eviction unless inter alia "the tenant has assigned, sublet or otherwise parted with the possession" of the disputed premises.
There the words "has sublet" needed construing, while in the case before us they are 741 "has ceased to occupy".
In this background, the Court said that the use of present perfect tense contemplates a period even connecting in some way with the present time.
So far as the language of some rent Acts, specifical ly indicating that the period of non occupation should be one immediately preceding the suit, is concerned, the learned counsel is right that a comparison of the language of the present Act lends some support to his stand, but this alone does not outweigh the other relevant circumstances.
On the other hand, if the provisions of several other Acts are examined, it will be seen that the section has been phrased in a way which avoids the use of present perfect tense.
As an illustration, the provisions of the Bihar Rent Act may be seen, which forbids the eviction of a tenant "except in execution of a decree passed" for subletting (or for other grounds mentioned therein).
Besides, as pointed out in Nathia Agarwalla and Another vs Musst.
Jahanara Begum and Others, ; ; comparing statutes of 'different States is not to be commended because similarity or varia tion in the laws of different States is not necessarily indicative of a kindered or a different intention.
The reason for this view was expressed in the following lan guage: 'Enactments drafted by different hands, at different times and to satisfy different requirements of a local character, seldom afford tangible or sure aid in construction.
We would, therefore, put aside the Rent Control Acts of Madras, Bihar, Delhi and other States because in these States the problem of accommodation in relation to the availability of lands and houses and the prior legislative history and experience, cannot be same as in Assam.
On an examination of all the provisions of the Act and on taking into account the other relevant considera tions, we are of the view that the non occupation of the premises by a tenant must continue till the date of the filing of the application for his eviction on the ground covered by section 13(2)(v).
Accordingly, the appeal is allowed and the decision of the courts below is set aside.
The parties shall bear their own costs throughout.
N.P.V. Appeal al lowed.

summary:
On an application flied by the respondent landlord in March 1973 for eviction of the appellant tenant on the ground that for a continuous period of more than four months the appellant had ceased to occupy the shop during 1969 71, the Rent Controller passed a decree for eviction under Section 13(2)(v) of the East Punjab Rent Restriction Act, 1949.
The appellate authority affirmed the decree.
The High Court rejected the tenant 's appeal.
In the appeal before this Court, the appellant tenant contended that though the shop had remained closed for a temporary period, it Was in his effective control and that since the non occupation did not continue when the eviction petition was filed, the ground mentioned in Section 13(2)(v) had not been made out.
On behalf of respondent landlord, it was contended that since in a number of Rent Acts, the ground specifically required such nonoccupation for a period immediately preced ing the date on which the ejectment application was filed, the Act which did not use identical language, should be interpreted differently.
Allowing the appeal, this Court, HELD: 1.1 If a tenant stops the business which he is carrying on in a shop and closes the premises continuously for a period of four months without a reasonable cause he will be liable for eviction.
However, the non occupation of the premises by a tenant must continue till the date of.
filing of application for his eviction on the ground covered by section 13(2)(v).
[739D] 737 1.2 The reason of including clause (v) in section 13(2) is to ensure that buildings, which are scarce in number specially in the towns, necessitating rent control legislation, do not remain unused at the instance of tenants who do not actually need them.
A tenant who is in possession of a building in the legal sense only cannot be said to be in occupation thereof for the purpose ors.
13(2)(v); otherwise a question of his eviction as envisaged in that section would not arise.
The section, by making provisions for his ejectment, assumes that he is in possession, but, still includes cessa tion of occupation as one of the grounds.
The clause, there fore, has to be interpreted in this background and it must take colour from the context.
[739B C] However, the use of present perfect tense in the words 'has ceased to occupy ' contemplates a period even connecting in some way with the present time.
[741A] Goppulal vs Thakurji Shriji Shriji Dwarkadheeshji & Anr., ; , relied on.
V. Dhanpal Chettiar vs Yesodai Ammal, ; and Gajanan Dattatraya vs Sheroani Hosang Patel & Ors., [1976] 1 SCR 535, referred to.
1.3 Though a comparison of the language of the Act with that of other Rent Acts specifically indicating that the period of non occupation should be one immediately preceding the suit supports the view that the period of non occupation need not subsist at the date of the suit, that alone does not outweigh the other relevant circumstances.
If, on the other hand, provisions of several other Acts are examined it would be seen that the Section has been framed in such a way which avoids use of present perfect tense.
Besides, compar ing statutes of different States is not to be commended because similarity or variation in the laws of different States is not necessarily indicating.
of a kindered or different intention.
[741 B D] Nathia Agarwalla and Another vs Musst.
Jahanara Begum and Others, ; , followed.
In the circumstances, the decision of the courts below that the tenant is liable to be ejected is set aside.
[741G]