judgement:
ON: Criminal Appeal Nos.
335 36 and 523 of 1982.
From the Judgment and order dated the 31st of March, 1982 of the High Court of Punjab and Haryana in Criminal Revision No. 977 of 1980.
R.L. Kohli, M K. Dua, S.K. Mehta, P.N. Puri and R.C. Kohli for the appellants.
S.K. Bagga for the respondents.
The Judgment of the Court was delivered by FAZAL ALI, J.
In these appeals by special leave four persons, namely, Mohinder Singh, Gurcharan Singh, Bharpur Singh and Jagvinder Singh were tried by the Sessions Judge for offences under Sections 302/34 and 307/34 IPC and also under Section 27 of the .
After recording the entire evidence the trial court convicted Mohinder Singh under section 304 IPC sentenced him to 7 years rigorous imprisonment.
The other three accused were acquitted by the Sessions Judge.
Mohinder Singh filed an appeal before the High Court of Punjab and Haryana against his conviction and sentence.
The State Government also filed an appeal against Gurcharan Singh, Bharpur Singh and Jagvinder Singh so far 490 as their acquittal was concerned and against Mohinder Singh so far as his acquittal under Section 302 IPC was concerned.
The High Court without making any real attempt to analyse and appreciate the evidence led in support of the prosecution came to a general conclusion that the judgment of the learned Sessions Judge was not in accordance with law and that he had not dealt with some points or omitted to consider some points, and remanded the case back to the trial court for writing a fresh and proper judgment.
So far as the acquitted accused were concerned although the appeal was filed by the Public Prosecutor as directed by the State Government yet the High court on its own or perhaps at the instance of the acquitted accused on a petition filed by them held that there was no proper direction by the Government for filing the appeal except in case of Mohinder Singh.
There was undoubtedly a direction to the Public Prosecutor to file appeal against acquitted accused as indicated above.
The High Court, however, at the instance of the acquitted accused tried to re open the matter in order to find out the manner and various stages through which the sanctioned to file an appeal was chanalised.
With due respects to the learned judges we feel that this was not at all proper for the High Court to do.
Whenever, a Government seeks opinion it consults various agencies, namely, the Advocate General, Public Prosecutor, Legal Remembrancer and others and thereafter the order is passed by the Government through the Secretary incharge.
In the instant case it was not disputed that the Public Prosecutor was directed by the Under Secretary to the Government in charge to file appeal against all the appellants.
The High Court, however, seems to have gone deeper into the matter by making a roving inquiry into what had happened when the matter was under consideration of the Government and how things shaped and held after making this roving inquiry, that the authority given to the Public Prosecutor was only in respect of Mohinder Singh and not others.
Therefore, the High Court was of the opinion that direction to file appeal against acquitted accused Gurcharan Singh, Bharpur Singh and Jagvinder Singh was non est and hence appeal filed by the State was not properly presented so far as they are concerned.
It appears that a clear direction has been given to the Public Prosecutor to file appeal against all the four accused, three of them against acquittal and as regards Mohinder Singh against his acquittal under Section 302 IPC.
Having gone through the entire record we are unable to agree with the High Court that there was any interpolation with 491 respect to acquitted accused.
It may be that various agencies may A have expressed different views but by and large the final decision taken by the Under Secretary prevailed as a result of which the Public Prosecutor was authorised to file an appeal before the High Court against all the acquitted accused.
In such a situation, therefore, the High Court erred in holding that the appeal presented by the State was not properly presented as against the said three accused, and it should have heard the appeal on merits alongwith the care of Mohinder Singh.
As we intend to send the case back to the High Court for fresh decision in accordance with law after taking into consideration the fact that the appeal by the State was properly constituted it is not necessary for us to give further details.
We might, however, mention that the High Court instead of analysing and appreciating evidence, remanded the case back to the Sessions Judge for writing a proper judgment.
In the first place, assuming that the High Court was right in thinking that the judgment suffered from tome infirmities and there were certain facts which were not taken into consideration they would not be grounds remanding the case to the Sessions Court to write a proper judgment.
The High Court itself was a final court of facts and it was its duty to satisfy itself regarding the correctness and acceptability of the evidence.
Thus, it was entirely open to the High Court to reappraise the evidence once again to consider the facts which may have been overlooked by the Sessions Judge and it should have decided the appeal itself instead of remanding the case to the Sessions Court.
It being a moot point, we refrain from expressing any opinion on the question whether the first appellate court of fact can in a criminal case send the case back to the Sessions Court for writing a fresh judgment.
The proper order in such a case should be either to decide the case itself or to send it for re trial.
The question of re trial does not arise in the view we have taken in this case.
We, therefore, allow one Appeal 523 of 1982 and the other appeals in part set aside the order of the High Court and direct to re hear the appeals on merits according to law.
We think it proper and expedient in the interest of justice that this appeal should be heard by a different bench of the High Court.
N.V.K Appeals allowed.

summary:
Appeal against acquittal by state Government to High Court Powers of appellate court What are High court final court of facts Correctness and acceptability of evidence Duty To be satisfied Open to re appraise evidence and decide appeal or order re trial Not proper to remand case to trial court for writing a fresh judgment Proper direction by Government to file appeal Existence of High Court whether competent to go through the sanction file.
The four appellants in the appeal were tried by the Sessions Judge for offenses under Sections 302/34 I.P.C. and also under Section 27 of the .
The court convicted the first appellant under Section 304 Part I I.P.C. and sentenced him to 7 years rigorous imprisonment and acquitted the others.
The first appellant filed and appeal before the High Court and the State Government filed appeals against the acquittal of the other appellants and also of the first appellant 's under Section 302 I. P. C.
The High Court came to a general conclusion that the judgment of the Sessions Judge was not in accordance with law and had not dealt with some of the Points raised in the appeals, and remanded the case back to the trial court for writing a fresh and proper judgment.
As far as the acquitted accused were concerned although the appeals were filed by the Public Prosecutor as directed by the State Government, the High Court hold that there was no proper direction by the Government for filing the appeals except in the case of the first appellant .
Allowing the Appeals to this Court, ^ HELD: Assuming that the High Court was right in thinking the judgment suffered from some infirmity and there were certain facts which were not taken into consideration they would not be grounds for remanding the case to the Sessions Court to writ a proper judgment.
The High Court itself was a final court of facts and it was its duty to satisfy itself regarding the correctness and acceptability of the evidence.
It was entirely open to the High Court to re appraise the evidence once again to consider the facts overlooked by the Sessions Judge and to have decided the appeal 489 itself instead of remanding the case to the Sessions Court.
The proper order in such a case should be either to decide the case itself or to send it for re trial.
The question of re trial does not arise in the instant case.
The order of the High Court is set aside and the High Court is directed to re hear two appeals on merits according to law.
[491D F] 2.
Whenever the Government seeks opinion it consults various agencies namely the Advocate General, Public Prosecutor, Legal Remembrancer and others and thereafter the order is passed by the Government through the Secretary incharge.
[490E] In the instance cases it is not in dispute that the Public Prosecutor was directed by the Under Secretary to the Government in charge to file appeals against all the appellants.
A clear direction had been given to the Public Prosecutor to file appeals against all the four accused and as regards the first appellant against his acquittal under Section 302 IPC.
The High Court at the instance of the acquitted accused tried to re open the matter in order to find out the manner and various stages through which the sanction to file an appeal was chanalised.
This was not at all proper for the High Court to do.
[490E; G; F]


judgement:
N: Criminal Appeal No. 575 of 1976.
From the Judgment and Order dated the 25th August, 1976 of the Allahabad High Court in Criminal Appeal No. 686 of 1972.
575 A.N. Mulla and ,section K. Gambhir for the Appellant.
Balveer Bhandari and H. M. Singh for the Respondent.
The Judgment of tile Court was delivered by RANGANATH MISRA, J.
This appeal is by special leave and is directed against the decision of the Allahabad High Court affirming the appellant 's conviction under section '02 read with s 34 of the Indian Penal and sentence of imprisonment of life for that offence.
Prosecution alleged that between 10 and 10.15 P.M. in the night of January 2, 1970, a little distance away from the Hindon Bridge towards Ghaziabad on the G.T. Road, the appellant along with two there killed one Om Prakash by stabbing him with a knife.
Six eye witnesses were examined to support this charge.
Of them one was the Havildar Mir Singh (PW.4) and the other was a Police Constable Gian Singh (PW.6).
These two witnesses along with one Jagdish Singh were on guard duty at the Hindon Bridge.
They were informed by some passersby that a man was being stabbed at a distance of about two furlongs from the place where the guard room was located.
On getting the information the three police personnel ran to the spot.
With the help of the torchlight which one of them held, they saw from a distance that three persons were engaged in stabbing the deceased but when the torch was focussed, the assailants started decamping.
They were chased.
Two of them managed to escape but the appellant was caught with the knife stained with blood.
The other two were not traced.
The four other eye witnesses did not support the prosecution story and were declared hostile.
The appellant in his defence took the stand that was the driver of the taxi in which three persons came as passengers.
Soon after the bridge had been crossed, the passengers started quarreling among themselves.
That diverted the attention of the appellant and resulted in a cyclist being dashed against.
When the car came to a standstill the three people who were quarreling among themselves got down and two of them started assaulting the deceased with a knife after going a little away from the road.
The appellant went there to G rescue the deceased.
In that process his wearing apparel got blood soaked.
After fatally assaulting the deceased the assailants ran away when some people started collecting there.
He denied the recovery of the blood stained knife from him.
Four of the hostile witnesses supported the defence plea that the appellant had been attempting to rescue the deceased and had not himself 576 given any assault.
The trial Court held that the hostile witnesses were not speaking the truth; it relied upon the two police witnesses, accepted the prosecution version that the blood stained knife had been recovered from the appellant and drew support for the charge from the blood stained wearing apparel to hold that it was he who had stabbed the deceased to death along with two other unknown people.
Accordingly he was convicted under section 302/34.
IPC and sentenced to imprisonment for life.
The appellant appealed to the High Court against his conviction.
Of the two police witnesses, one had denied seeing the appellant giving any knife blow while the other had made a firm statement that he did see the act of giving the knife blow.
The High Court accepted the appellant 's contention that neither had seen actual infliction of knife blow by the appellant.
Once the evidence in regard to the infliction of the blows was discarded, the High Court proceeded to examine circumstantial evidence to ascertain whether the charge can be said to have been established.
These circumstances as indicated by the High Court are: (i) an attempt by the appellant to escape and his arrest after a chase; (ii) he being found to be in possession of the blood stained knife; (iii) his clothes having become blood stained: (iv) if the defence version was true, namely, that the appellant was trying to rescue the deceased, he would have received injuries in the scuffle; and (v) if the appellant had really tried to intervene in the way he claims, he being a well built man could have saved the life of the deceased.
Law is well settled that the chain of circumstances must be complete and must clearly point to the guilt of the accused.
The circumstances indicated here, in our opinion, do not really complete the chain so as to lead to the conclusion that the appellant and no other could have been the assailant.
Broad perspectives have to be kept in view The appellant was admittedly the driver of the taxi in which the others were the passengers.
From the recoveries made, it appears that two liquor bottles have been found from the car one from the back seat where the three passengers were seated and the other from the front portion.
There is no justification to discard the evidence of PW. 2, the cyclist who was injured by the appellant 's car.
Admittedly, the incident occurred at a place which was not lighted.
There is no evidence as to whether apart from the torchlight which the police witnesses focussed, if and other light was available.
Once the car stopped and the lights of the car were no more available to help seeing things around, a confusion must have prevailed when 577 the assault started.
We agree with the trial Court as also the High A Court that the two police witnesses were present at the spot and in the manner indicated by them.
The evidence regarding the directions to which the three persons ran away is discrepant.
While some said that they ran away to counter directions two to one side and the one to the other, the appellant appears to have been apprehended from the said direction.
Chase by itself does not seem to be an important feature particularly when the total distance for which chase is said to have been made was about 22 25 feet.
It is conceivable, as Mr. Mulla for the appellant has argued, that he had not moved but the police witnesses ran to reach him because they were anxious to catch hold of any one from the group who was available.
The appellant 's stand had been that he volunteered to rescue the deceased.
In that process his wearing apparel being soaked with human blood is a sufficient explanation.
The allegation that the knife was seized from him has been stoutly denied.
The evidence also seems not to be very clear.
It is some what unnatural that the appellant should be holding the knife when he was caught and would continue to carry the knife till he reached the police station quite a distance away.
When he was about to be apprehended in the dark night, he could have thrown away the knife if he had been holding it or he could have refused to carry knife to the police station in case he had really been found to be with the knife when he was arrested.
The evidence regarding the appellant holding the knife at that point of time is not impressive and does not arouse confidence in our mind, as it is against human conduct and no one would keep holding such an incriminating material as a blood stained knife.
The other two circumstances which are indeed negative in the setting are innocuous.
Merely because the appellant, a young man of about 23 at the time of occurrence, was of stout built, was not a sufficient circumstance to give him the confidence to match against two of whom one had an open knife in hand.
The fact that no injuries have been sustained by him while trying to rescue the deceased by itself is not an implicating circumstance because the assailants having no reason to injure him may have not assaulted him.
By sheer chance as well the appellant may have escaped injuries.
The two assailants may be looking for a further ride in the taxi to reach their destination and if the driver was injured that would not have been possible.
These circumstances on which the High Court has relied, therefore, are really not available to be props for the prosecution case.
There are certain other features which were placed by Mr. Mulla in support of the appeal which may be noticed in brief.
The 578 distance from the spot to the guard room is said to be 420 paces which easily works out to a furlong 's distance.
If the informants of the police had noticed the assault and then proceeded to give information to the police, the time lag between their seeing the assault and the police people reaching the spot would at least be 15 to 20 minutes.
The assailants would have been anxious to commit the crime and get away from the spot.
It is true that as many as 18 (not 16 as stated by the High Court) injuries have been found during postmortem examination of the dead body.
But for inflicting 18 injuries by two assailants armed with knife it need not have taken that length of time.
Again, when the police people were coming from Hindon Bridge side they must have already been flashing their torch from a distance and when the assailants would have noticed that light in the midst of darkness they must have been already alerted If they were to escape before the police people came close they must have left the place.
The presence of the liquor bottles as Mr. Mulla has emphasised, can have some place of importance in assessing the evidence.
We, however, do not think it is necessary to enter into the field of conjecture over the bottles of liquor.
We are of the view that the prosecution has failed to establish the charge It is pertinent to take note of the submission made by Mr. Dalveer Bhandari for the respondent before we conclude the judgment.
He contended that this Court does not, in exercise of its jurisdiction under Article 136 of the Constitution, enter into a re appreciation of the evidence and, therefore, the facts found should not be interfered with.
It is well established that the powers of this Court under Article 136 of the Constitution are plenary and restrictions in the exercise, if any, are self imposed.
We agree with Mr. Bhandari that ordinarily this Court does not enter into re appreciation of evidence but where evidence is placed and the conviction appears to the Court to be not justified in law, nothing stands in the way in directing reversal of conviction.
We allow the appeal, set aside the conviction of the appellant and direct his acquital.
He is already on bail.
We, therefore, direct G? cancellation of his bail bonds.
M.L.A. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was charged with the murder of one Om Prakash.
The prosecution story was (i) that at about 10 p.m. in the night, at a place where there was no light and which was about 2 furlongs away from the guard room at Hindon Bridge towards Ghaziabad, the appellant along with two others killed the deceased by stabbing with knife; (ii) that three police personnel posted at the guard room, one of whom had a torch, ran to the spot on being informed by some passerby and caught hold of the appellant who had a knife stained with blood; (iii) that the other two assailants managed to escape.
The appellant pleaded (1) that he was a taxi driver in which the three passengers including the deceased were traveling; (2) that after crossing the Bridge the passengers started quarreling among themselves, with the result his attention was diverted resulting in a cyclist being dashed against (3) that when the car stopped the three passengers got down, went a little away from the road and started assaulting the deceased with a knife (4) that he went there to rescue the deceased and in that process his wearing apparel got blood soaked; (5) that the assailants ran away after assaulting the deceased; and (6) that no blood stained knife was received from him.
Out of the six eye witnesses examined, four did not support the prosecution story and were declared hostile.
One of the remaining two police witnesses denied the fact of seeing the appellant giving any knife blow while the other had made a firm statement that he did see the act of giving the knife blow.
The trial court convicted the appellant section 302/34 IPC and sentenced him to imprisonment for life.
In appeal, the High Court discarded the evidence in regard to the infliction of the blows, but, affirmed the conviction on circumstantial evidence which according to the High Court was: (I) an attempt by the appellant to escape and his arrest after a chase; (ii) he being found to be in possession of 574 the blood stained knife; (iii) his clothes having become blood stained; (iv) if the appellant was trying to rescue the deceased, he would have received injuries in the scuffle; and (v) if the appellant had really tried to intervene in the way he claims, he being a well built man could have saved the life of the deceased.
Allowing the appeal by the appellant, ^ HELD: (I) There is no evidence as to whether apart from the torchlight which the police witnesses focussed, if any other light was available.
We agree with the trial Court as also the High Court that the two police witnesses were present at the spot and in the manner indicated by them.
But the evidence regarding the directions to which the three persons ran away is discrepant.
Chase by itself does not seem to be an important feature particularly when the total distance for which chase is said to have been made was about 22 25 feet.
It is conceivable that he had not moved but the police witnesses ran to reach him because they were anxious to catch hold of any one from the group who was available.
[576H; 577 AB;] (2) The appellant 's stand that in the process of rescuing the deceased his wearing apparel were soaked with human blood is a sufficient explanation The fact that no injuries have been sustained by him while trying to rescue the deceased by itself is not an implicating circumstance because the assailants having no reason to injure him may not have assaulted him.
By sheer chance as well the appellant may have escaped injuries.
[577E; and G] (3) The evidence regarding the appellant holding the knife in the dark night is not impressive and does not arouse confidence as it is against human conduct and no one would keep holding such an incriminating material as a blood stained knife.
Moreover, there is no justification to discard the evidence of PW. 2, the cyclist who was injured by the appellant 's car.
[577E and 576G] (4) In a case of circumstantial evidence law is well settled that the chain of circumstances must be complete and must clearly point to the guilt of the accused.
Broad perspectives have to be kept in view.
In the instant case, the circumstances do not really complete the chain so as to lead to the conclusion that the appellant and no other could have been the assailant.
[576F and G] (5) It is well established that the powers of Supreme Court under Article 136 of the Constitution are plenary and restrictions in the exercise, if any, are self imposed.
Ordinarily Supreme Court does not enter into re appreciation of evidence but where evidence is placed and the conviction appears to the Court to be not justified in law, nothing stands in the way in directing reversal of conviction.
[578F]


judgement:
N: Criminal Appeal No 69 of 1 975 .
From the Judgment and Order dated 13th May, 1974 of the Allahabad High Court in Criminal Appeal No. 269 of 1973.
M.R. Sharma, Dalveer Bhandari, H.M. Singh and Miss Rachna Joshi, for the Appellant R.K Garg, V J. Francis and N.M. Popli for the Respondents.
624 The Judgment of the Court was delivered by CHANCRACHUD, C.J.
This is an appeal by the State of U.P., against the judgment of a learned single Judge of the Allahabad High Court, setting aside the order of conviction and sentence passed by the learned Sessions Judge, Fatehpur against the four respondents.
Respondents 1 and 2, Ram Sagar Yadav and Shobha Nath alias Pujari were convicted by the learned Sessions Judge under section 304.
Part 2, of the Penal Code and were sentenced to rigorous imprisonment for seven years.
Respondent 1 was also convicted under section 220 of the Penal Code for keeping a person in confinement corruptly and was sentenced to rigorous imprisonment for five years Respondents 3 and 4 were convicted under section 304, Part 2 of the Penal Code and were sentenced to rigorous imprisonment for three years.
Respondent l, Ram Sagar Yadav, was the Station House Officer of the Hussainganj Police Station, District Fatehpur, while the remaining three respondents were attached to that police station as constables.
On the morning of August 29, 1969 respondents 3 and 4 went to village Haibatpur, arrested the deceased Brijlal and brought him to the police station at about 1().()0 A.M. Brijlal died the same day at about 6.00 P.M. due to the injuries which were caused to him between the time that he was brought to the police station and the forenoon of August 29.
The case of the prosecution is that the respondents wanted to extort illegal gratification from Brijlal in connection with a complaint which was filed against him by one Faheeman Faqirin for cattle trespass.
Respondent 2, Shobha Nath, had succeeded in obtaining a sum Of Rs. 100 from Brijlal with an assurance that no steps will be taken against him in that complaint.
Respondent 2 demanded a further sum of Rs. 200 from Brijlal for hushing up the case.
which the latter refused to pay.
Instead, on August 7, 1969 he sent a complaint (Exhibit Ka 2) to the Superintendent of Police, Fatehpur, complaining that a bribe was being demanded from him by respondent 2, a policeman of the Hussainganj Police Station.
That complaint was forwarded by the Superintendent of Police to respondent I for inquiry and report.
Being incensed by the 'audacity ' of Brijlal in complaining against a policeman under his charge, respondent I sent respondents 3 and 4 to bring Brijlal to the police station in order that he could be taught a proper lesson.
That is the genesis of Brijlal 's arrest.
Apart from Faheeman Faqirin 's complaint that Brijlal 's bullock had damaged her crop, there was no complaint or charge against him.
625 We have heard this appeal at reasonable length and both Shri M.R. Sharma, who appears on behalf of the appellant and Shri R.K. Garg who appears on behalf of the respondents, have taken us through the relevant evidence and the judgments of the High Court and the Sessions Court.
Upon a consideration of that evidence, we find it impossible to sustain the judgment of the High Court.
Ii has totally overlooked crucial evidence led by the prosecution in support of its case and, with respect, taking an unrealistic view of unequivocal facts, it has not even adverted to the reasons given by the trial court in support of its conclusion that the respondents are guilty of the offences of which it convicted them.
The record of the case is disproportionately bulky to the narrow point which is involved in the case.
It is not an unusual experience that the wood is missed for the trees when a Judge is confronted with a jumbled up mass of data, relevant and irrelevant.
It is necessary in such cases to find out the central point of the case and to concentrate upon evidence which bears upon that point.
Petty details which befog the real issue and minor contradictions in the evidence which are inevitable when a story is narrated under the stress of a grave crime, ought not to be permitted to tilt the scales o justice.
The more a Judge gets bogged down in superfluous details, the greater is the likelihood of his straying away from evidence which can clinch the issue.
In the instant case, the High Court missed or mistook the salient features of the case and, in the result, embacked upon a hair splitting exercise while appreciating the evidence.
We do not propose to discuss more than is strictly necessary since it is quite clear that upon the evidence led by the prosecution only one conclusion is possible, which is, that the respondents inflicted injuries upon Brijlal while he was in their custody, thereby causing his death.
Brijlal was hale and hearty on the morning of August 29, 1969.
He was ploughing his field when respondents 3 and 4 reached Haibatpur in order to arrest him.
They took him on foot to the Hussaniganj Police Station which is about 3 km away from Haibatpur.
They reached the police station at 10.00 A.M.
Two hours later, Brijlal was taken in a police van to the Court of the learned Additional District Magistrate for obtaining remand.
Shri R.C. Nigam, the Presiding Officer of the Court, had finished the winding list of the remand applications, at the end of which the Moharir of the 626 Court informed him that a remand order had remained to be passed against an accused who was brought from the Hussainganj Police Station and that the accused could not be produced in Court since he was lying in the verandah in a badly injured condition.
Shri Nigam (P.W. 5) says in his evidence that since the accused could not be brought to the Court room, he himself went to the verandah where the accused was lying and he asked him his name.
The accused was unable to respond at first since his condition was "very serious" but, on repeated inquiries, the accused told Shri Nigam that his name was Brijlal.
On being questioned as to how he came to receive the injuries, Brijlal replied that 'the Darogah of Hussainganj and the constables had beaten him very badly '.
Shri Nigam made a note of the statement made by Brijlal on the remand application (Exhibit Ka l).
That application bears Shri Nigam 's signature and the thumb impression of Brijlal.
Shri Nigam 's evidence is of a crucial character since it establishes , beyond any doubt, that Brijlal had extensive injuries on his person and that, at the earliest opportunity, he involved the policemen of the Hussainganj Police Station as the authors of those injuries, It is as transparent, as any fact can be, that the injuries which were found on the person of Brijlal were caused to him at the Hussainganj Police Station.
The few and simple steps in the logical process leading to that conclusion are that Brijlal had no injuries on his person when he was arrested at Haibatpur in the morning or when he was brought to the police station at about 10.00 A.M, and that, when he was sent for remand he had a large number of injuries on his person which had induced a state of shock.
We are unable to see what other explanation can reasonably be given of this chain of facts except that the injuries were caused to Brijlal by the policemen attached to the Hussainganj Police Station.
Who, from amongst them, is or are responsible for causing the injuries has undoubtedly to be considered.
But, there is no escape from the conclusion that Brijlal was assaulted while he was in custody of the respondents at the Hussainganj Police Station.
The evidence of Laxmi Narain, P.W. No. 17, who was one of the constables attached to the Hussainganj Police Station has an important bearing on the guilt of the respondents, an aspect which has escaped the attention of the High, Court.
Laxmi Narain says that when he went to the police station at about 10.45 a.m.
On August 29,1969, respondent 1, the Station House Officer, and the other three respon 627 dents were present at the police station; that Brijlal was lying in the lock up of the police station shrieking in pain; and that, when Brijlal was handed over to his custody for being taken to the Magistrate, there were a number of injuries on his arms and legs.
According to Laxmi Narain, and that is undisputed, respondent 1 also accompanied him and Brijlal to the Magistrate 's court.
It seems to us surprising that respondent I was nowhere on the scene in the Magistrate 's court, especially in the light of the fact that Brijlal 's was an unusual case in which, the prisoner for whom remand was to be obtained was in a precarious condition due to the injuries suffered by him.
It was respondent I who, being the S.H.O., had the custody and care of Brijlal.
Instead of making himself available to the Magistrate for explaining how Brijlal came to be injured, he resorted to the expedient of deputing Laxmi Narain to face the Magistrate.
Laxmi Narain has also stated in his evidence that Brijlal told the Magistrate that the Darogah and the constables of the Hussainganj Police Station had assaulted him.
It is notorious that remand orders are often passed mechanically without a proper application of mind.
Perhaps, the Magistrates are not to blame because, heaps of such applications are required to be disposed of by them before the regular work of the day begins.
Shri Nigam has to be complimented for the sense of duty and humanity which he showed in leaving his seat and going to the verandah to see an humble villager like Brijlal.
It is obvious that he was led into passing an order of remand on the basis of the usual statement that the offence of which the accused was charged was still under investigation.
What is important is that Brijlal had not committed any offence at all for which he could be remanded and, far from being an accused, he was in the position of a complainant.
Respondent I was the architect of his remand and the motive for obtaining the remand order was to keep Brijlal in custody so as to prevent him from disclosing to his people who beat him and where.
After obtaining the remand order, Brijlal was sent to the Fatehpur District Jail at 3.40 p.m. Sheo Shanker Sharma, P.W.8, who was the Assistant Jailor of the Fetehpur Jail, says that when he examined Brijlal at about 3.45 p.m. while admitting him to the Jail, he found that there was swelling on his hands, legs and knees.
Brijlal was unable to get up and on being questioned, he told Sharma that the policemen belonging to the Police Station arrested him H 628 from his field, took him to the Police Station and committed "marpit" on him, as a result of which the was unable to stand.
Finding that Brijlal 's condition was serious, he called the Jail Doctor.
Dr. section C. Misra P W. 21, went to the District Jail at about 5.20 IS p.m.
He found that there were 19 injuries on the various parts of Brijlal 's person.
On being questioned, Brijlal told him in a faltering voice that he had been beaten by the policemen.
Dr. Misra says that Brijlal 's condition was precarious but that, he had neither any fever nor any symptoms of Pneumonie.
The evidence of Dr Misra proves that Brijlal died on account of the injuries received by him and that, the suggestion made by the defence that he died on account of some kind of a fever or on account of the pneumonic condition of his lungs, is utteiy baseless.
The congestion in his lungs was the result of the beating administered to him.
It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration.
(See Khushal Rao vs The State of Bombay(1);Harbans Singh vs
State of Punjab,(2) and Gopalsingh vs State of M.P.)(3) There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated.
The primary effort of the Court has to be to find out whether the dying declaration is true.
If it is, no question of corroboration arises.
It is only if the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration.
The ease before us is a typical illustration of that class of eases in which, the Court should not hesitate to act on the basis of an uncorroborated dying declaration.
Brijlal had no reason for involving the policemen falsely for having assaulted him.
There was no possibility of anyone tutoring him, for the simple reason that he was in the exclusive custody of the policemen of Husssainganj Police Station.
It is the respondents who were in a position to exert influence over him.
No one else had access to him, which not only excludes the possibility of his being tutored, but which also excludes the possibility that he was assaulted by any one else.
Indeed, the circumstances of the case leave no doubt that the dying declaration (1) ; (2) [19621 Supp. 1 SCR 104, (3) 119721 3 SCC 268.
629 made by Brijlal to Shri Nigam is true in every respect.
We consider it safe to accept the statement made by Brijlal to Shri Nigam that he was beaten by the 'Darogah and the constables ' of the Hussainganj Police Station.
The only question which remains for consideration is as to the identity of the persons belonging to the Hussainganj Police Station who participated in the assault on Brijlal.
Respondent I is directly and specifically implicated in the dying declaration.
He was the "Darogah` ' of that Police Station.
Laxmi Narain says in his evidence that at 10.45 a.m. when Brijlal was brought to the police station by respondents 3 and 4 respondent I was present.
It is difficult to believe that The police constables would beat an accused so mercilessly in the police station without the connivance, consent or coollaboration of the Station House Officer.
The Police Station of Hussainganj is not so large that the Station House Officer would not know what is happening there during his presence.
The possibility of any other officer being a "Darogah" is removed by the evidence of S.I. Bajrang Bahadur Singh, P.W. 19, who says that, at the relevant time, there was no other Second Officer at the Hussainganj Police Station except him.
Any doubt lurking about the involvement of respondent I in the incident is removed by his own conduct.
Though he was unquestionably present at the police station at the material time, he prepared a false record in order to show that he had gone for the purpose of an identification parade to another place.
We agree with the leaned Sessions Judge that the record was thus prepared by respondent 1 falsely in order to support the defence of alibi.
That, indeed, was his defence at the trial.
He also prepared false record to show that Brijlal was involved in a dacoity case and was brought to the police station for that reason.
There was no such charge against Brijlal and yet, respondent ], as the S.H.O., authorised or allowed respondents 3 and 4 to go Haibatpur for arresting Brijlal.
The true reason for arresting him was that the respondent were incensed at the complaint made by Brijlal against respondent 2 for extorting a bribe.
In so far as respondent 2 is concerned, he is truly the cause of the assault on Brijlal.
It was he who had extorted a bribe from Brijlal and was attempting to get some money from him.
Brijlal sent a complaint on August 7, 1969 to the Superintendent of Police, Fatehpur, complaining against respondent 2.
That complaint having 630 been referred for inquiry and report to the Hussainganj Police Soltion, respondents hatched a conspiracy to put Brijlal under arrest, bring him to the police station and assault him.
In so far as respondents 3 and 4 are concerned, it is they who arrested Brijlal on a false charge of dacoity and brought him to the police station at 10 a.m., on August 29.
Shortly thereafter, constable Laxmi Narain found that Brijlal was lying in the lock up in a badly injured condition and was shrieking in agony.
In the light of these findings, it is unnecessary to refer to the evidence of P.Ws. 6. 7 and 9 who are respectively the nephew, the daughter and the wife of Brijlal.
We agree with the learned Sessions Judge that these persons went to the police station immediately after Brijlal was taken there under arrest.
It is not, however, possible to say with a reasonable amount of certainty that they saw the respondents assaulting Brijlal.
They reached the police station quite some time after Brijlal was taken there and it would be too much of a coincidence to suppose that they arrived at the police station precisely at the time when Brijlal was being beaten.
They might have heard the shrieks of Brijlal who was writhing in pain.
But, standing outside the police station, as they were, it could not have been possible for them to see who was assaulting Brijlal.
The limited relevance of their evidence is for showing, apart from the other circumstances stated above, that Brijlal was lying injured in the police station.
For these reasons, we allow this appeal, set aside the judgment of the High Court and affirm that of the Sessions Court.
It is to be greretted that the learned Sessions Judge convicted the respondents under section 304 instead of convicting them under section 302 of the Penal Code.
The distinction between murder and culpable homicide not amounting to murder is often lost sight of, resulting in undue liberality in favour of undeserving culprits like the respondent police officers, Except in cases covered by the five exceptions mentioned in section 300 of the Penal Code, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or if the act falls within any of the three clauses of section 300, namely, 2ndly, 3rdly and 4thly.
In this case, the injuries suffered by Brijlal would appear to fall under the clause '2ndly ' of section 300, since the act by which his death was caused was done with the intention of causing such bodily injury as the respondents knew to be likely to cause his death.
However, we will not pursue that matter 631 any further since the State did not file an appeal against the judgment of the learned Sessions Judge asking that the respondents should be convicted under section 302 of the Penal Code and since the prosecution did not lead sufficient evidence through the Medical Officer in order to bring out the true nature of the injuries suffered by Brijlal.
Before we close, we would like to impress upon the Government the need to amend the law appropriately so that policemen who commit atrocities on persons who are in their custody are not allowed to escape by reason of paucity or absence of evidence.
Police Officers alone, and none else, can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody.
Bound by ties of a kind of brotherhood, they often prefer to remain silent in such situations and when they choose to speak, they put their own gloss upon facts and pervert the truth.
The result is that persons, on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station, are left without any evidence to prove who the offenders are.
The law as to the burden of proof in such cases may be re examined by the legislature so that hand maids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protect on.
It is ironcial that, in the instant case, a person who complained against a policeman for bribery, was done to death by that policeman, his two companions and his superior officer, the Station House Officer.
The vigilant Magistrate, Shri R.C. Nigam, deserves a word of praise for dutifully recording the dying declaration of the victim, which has come to constitute the sheet anchor of the case of the prosecution.
A. P. J. Appeal allowed.

summary:
Respondent 1 was the Station House Officer and Respondents 2 to 4 were attached as constables to the Police Station.
The prosecution alleged that a complaint was filed against the deceased for cattle trespass.
The Respondent pursuant to the said complaint sought to extort illegal gratification from the deceased for hushing up the case.
Respondent 2 succeeded in obtaining Rs. 100 and made a further demand of Rs. 200.
The deceased refused to oblige him and made a complaint to the Superintendent of Police, who forwarded it to Respondent 1 for inquiry and report.
This incensed Respondent 1.
The deceased was arrested and brought to the Police Station by Respondents 3 and 4 at about 10.00 A.M. Same day at about 6.00 P.M. the deceased succumbed to injures which were caused to him by Respondents while he was in their custody.
The Sessions Court tried the four Respondents, convicted each of them under section 304, Part 2 of the Penal Code while Respondent I was also convicted under section 220 of the Penal Code and all were sentenced to different terms of imprisonment.
The Respondents appealed to the High Court and a Single Judge set aside their order of convictions and sentences.
Allowing the Appeal of the State, 622 ^ HELD: 1.
It is impossible to sustain the judgment of the High Court as it has totally overlooked crucial evidence led by the prosecution and taken an unrealistic view of unequivocal facts.
It has not even adverted to the reasons given by the trial court for holding the Respondents guilty of the offences of which they were convicted.
[625B C] 2.
It is quite clear that upon the evidence led by the prosecution only one conclusion is possible, which is, that the Respondents inflicted injuries upon Brijlal while he was in their custody, thereby causing his death.
[635F] 3.
It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration.
There is not even a rule of prudence which has harden d into a rule of law that a dying declaration cannot be acted upon unless it is corroborated.
The primary effort Or the Court has to be to find out whether the dying declaration is true.
If it is, no question of corroboration arises.
It is only If the circumstances surrounding the dying declaration are not clear or convincing that the Court may, for its assurance, look for corroboration to the dying declaration.
[628D E] The instant case.
is a typical illustration of that class of cases in which the Court should not hesitate to act on the basis of an uncorroborated dying declaration The circumstances leave no doubt that the dying declaration made by the deceased to the Judicial Magistrate to the effect that he was beaten by Darogah and the constables at the Police Station is true in every respect and it is safe to accept the same.
[628F; G; 629A B] Khushal Rao vs The State of Bombay, ; , Harbans Singh vs State of Punjab, [1967] Supp.
ISCR 104 and Gopalsingh vs State of M.P, , followed.
The distinction between murder and culpable hom cide not amounting to murder is often lost sight of, resulting in undue liberality in favour of undeserving culprits like the respondent police officers Except in cases covered by five exceptions mentioned in section 300 of the Penal Code, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death, or if the act falls within any of the three clauses of section 300, namely, 2ndly, 3rdly and 4thly.
[630 F G] The instant case, appears to fall under the clause '2ndly ' of section 300 since the act by which the death of was caused, was done with the intention of causing such bodily injury as the Respondents knew to be likely to cause his death.
It is regrettable that the Sessions Court convicted the Respondents under section 304 instead of convicting them under sect on 302 of the Pen 11 Code.
This Court, would not however pursue the matter further since the State did not fled an appeal against the judgment of the Sessions Court.
[630H; 631A] 5.
The record of the case is disproportionately bulky to the narrow Point which is involved in the case.
It is not an unusual experience that the wood is missed for the trees when a Judge is confronted with a jumbled up mass of data 623 relevant and irrelevant.
it is necessary in such cases to find the central point of the case and to concentrate upon evidence which bears upon that point.
Petty details which befog the real issue and contradictions in the evidence which are inevitable when a story is narrated under the stress of a grave crime, ought not to be permitted to tilt the scales of justice.
The more a Judge gets bogged down in superfluous details the greater is the likelihood of his straying away from evidence which can clinch the issue.
[625C E] R In the instant case, the High Court missed or mistook the salient features of the case and embarked upon a hair splitting exercise while appreciating the evidence.
Remand orders are often passed mechanical,y without a proper application of mind.
In this case, the Magistrate was led into passing an order of remand on the basis of the usual statement that the offence of which the accused was charged was still under investigation.
What is important is that deceased had not committed any offence at all for which 1 could be remanded and, far from being an accused, he was in the position of a complainant.
Respondent 1 was the architect of his remand and the motive for obtaining the remand order was to keep him in custody so as to prevent him from disclosing to his people who beat him and where.
[627D F] 7.
It is necessary that the Government amends the law appropriately so that policemen l who commit atrocities on persons who are in their custody are not allowed to escape by reason of paucity or absence of evidence.
Police Officers alone and none else.
can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody.
Bound by ties of a kind of brotherhood, they often prefer to remain silent in such situations and when they choose to speak they put their own glass upon facts and pervert the truth.
The result is that persons on whom atrocities are perpetrated by the police in the sanctum sanctorum OF the Police Station, are left without evidence to prove who the offenders are.
The law as to the burden of proof in such cases may be re examined by the legislature so that hand maids of law and order do not use their authority and opportunities for oppressing the innocent citizens, who look to them for protection.
[631C E]


judgement:
: Special Leave Petition (Civil) No. 5523 of 1984.
From the Judgment and Order dated 28th November, 1983 of the High Court of Gujarat in Special Civil Application No. 4649 OF 1981.
Vimal Dave for the Petitioner.
The Judgment of the Court was delivered by DESAI, J.
Petitioner is shown to be guilty of suppression of a material fact which would weigh with any employer in giving him employment and therefore, the case of the petitioner does not merit consideration under article 136 of the Constitution and his petition for special leave to appeal against the decision of a Division Bench Of 558 the Gujarat High Court in Special Application No 4649 of 1981 dated November 28,1983 must accordingly fail but this short epistle became a compelling necessity in view of the statement of law appearing in the judgment of the High Court which if permitted to go uncorrected, some innocent person may suffer in future.
That is the only justification for this short order.
The petitioner on his application was recruited in the Sales Tax Department on September 30, 1950 and at the relevant time he was working as Sales Tax Inspector.
By an order dated January, 31 1964 of the Commissioner of Sales Tax, Gujarat State, the petitioner who was at the relevant time working as Sales Tax Inspector was charged with misconduct of gross negligence and acted with gross impropriety in demanding illegal gratification, and as these charges were held proved, the Commissioner of Sales Tax imposed a penalty of removal from service.
This is not in dispute and therefore it can be safely stated that the petitioner was removed from the service of the Sales Tax Department on account of the proved misconduct.
After being removed from the Sales Tax Department, the petitioner joined service in Bhakta Vallabh Dhola College, Ahmedabad ( 'college ' for short) on May 15, 1964.
While continuing his service with the college, the petitioner applied on January 13, 1968 for the post of Head Clerk with Ahmedabad Municipal Corporation.
The application had to be made in the prescribed form, Column No. 14 of which required the applicant to state whether the applicant had been removed from service and if so, reasons for removal and if the applicant had voluntarily left previous service, reasons for leaving the service should be stated.
While answering this column, the petitioner stated that he had served in the Sales Tax Department from September 30, 1950 to January 31,1964 and that he has resigned from service due to transfer.
It thus appeared that the petitioner was guilty of suppressio veri and suggestio false inasmuch as he suppressed the material fact that he was removed from service on the ground of proved misconduct and that he made a false suggestion that he had voluntarily left service because of transfer.
Ultimately when these facts came to light, he was charge sheeted and removed from service.
A petition to the Labour Court was rejected on the ground that the misconduct alleged against the petitioner is proved.
His writ petition to the High Court proved unsuccessful.
Hence he filed this petition for special leave.
559 The High Court while dismissing the petition held that even if A the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations yet the employer can attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same.
This proposition appears to us to be startling because even though either under the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against.
If after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer.
It is a well settled canon of penal jurisprudence removal or dismissal from service on account of the misconduct constitutes penalty in law that the workmen sought to be charged for misconduct must have adequate advance notice of what section or what conduct would constitute misconduct.
The legal proposition as stated by the High Court would have necessitated in depth examination, but for a recent decision of this Court in Glaxo Laboratories vs The Presiding Officer, Labour Court Meerut & Ors.(1) in which this Court specifically repelled an identical contention advanced by Mr. Shanti Bhushan, learned counsel who appeared for the employer in that case observing as under: "Relying on these observations, Mr. Shanti Bhushan urged that this Court has in terms held that there can be some other misconduct not enumerated in the standing order and for which the employer may take appropriate action.
This observation cannot be viewed divorced from the facts of the case.
What started in the face of the court in that case was that the employer had raised a technical objection ignoring the past history of litigation between the parties that application under Sec.
33A was not maintain able.
It is in this context that this Court observed that the previous action might have been the outcome of some misconduct not enumerated in the standing order.
But the extracted observation cannot be elevated to a proposition of law that some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex post facto would expose the workman to a (1) [1984]1 S.C.R. 230.
560 penalty.
The law will have to move two centuries back ward to accept such a construction.
But it is not necessary to go so far because in Salem Erode Electricity Distribution Co. Ltd. vs Salem Erode Electricity Distribution Co. Ltd. Employees Union,(1) this Court in terms held that the object underlying the Act was to introduce uniformity of terms and conditions of employment in respect of workmen belonging to the same category and discharging the same or similar work under an industrial establishment, and that these terms and conditions of industrial employment should be well established and should be known to employees before they accept the employment.
If such is the object, no vague undefined notion about any act, may be innocuous, which from the employer 's point of view may be misconduct but not provided for in the standing order for which a penalty can be imposed, cannot be incorporated in the standing orders.
From certainty of conditions of employment, we would have to return to the days of hire and fire which reverse movement is hardly justified.
In this connection.
we may also refer to Western India Match Company Ltd vs
Workmen(2) in which this Court held that any condition of service if inconsistent with certified standing orders, the same could not prevail and the certified standing orders would have precedence over all such agreements.
There is really one interesting observation in this which deserves noticing Says the Court: "In the sunny days of the market economy theory people sincerely believed that the economy law of demand and supply in the labour market would settle a mutually beneficial bargain between the employer and the workman Such a bargain, they took it for granted, would secure fair terms and conditions of employment to the workman.
This law they venerated as natural law.
They had an abiding faith in the verity of this law.
But the experience of the working of this law over a long period has belief their faith.
" Lastly we may refer to Workmen of Lakheri Cement Works (1) ; (2) ; 561 Ltd. Associated Cement Companies Ltd(1) This Court repelled the contention that the Act must prescribe the minimum which has to be prescribed in an industrial establishment, but it does not exclude the extension other wise.
Relying upon the earlier decision of this Court in Rohtak Hissar District Electricity Supply Co. Ltd. vs State of Uttar Pradesh & Ors(2) the Court held that everything which is required to be prescribed with precision and no argument can be entertained that something not prescribed can yet be taken into account as varying what is prescribed.
In short it cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant standing order is none the less a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty.
Accordingly, the contention of Mr. Shanti Bhusan that some other act of misconduct which would per se be an act of misconduct though not enumerated in S.O. 22 can be punished under S.O. 23 must be rejected.
It is thus well settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct.
The High Court fell into error when is observed that: "The conduct of the petitioner in suppressing the material facts and misrepresenting his past on the material aspect cannot be said to be a good conduct.
On the contrary it is unbecoming of him that he should have deliberately suppressed the material fact and tried to obtain employment by deceiving the Municipal Corporation.
It is clearly a misconduct " After thus holding that the suppressio very and suggestio false would constitute misconduct, the High Court held even if it (1) [1970] 20 Indian Factories & Labour Reports, 243.
(2) ; 562 does not fall in any of the enumerated misconducts, yet for the purpose of service regulation, it would none the less be a misconduct punishable as such.
We are unable to accept this view of law and it has to be rejected.
Having clearly restated the legal position, we reject this special leave petition.
M.L.A. Appeal dismissed.

summary:
The petitioner applied for the post of Head Clerk with Ahmedabad Municipal Corporation in a prescribed form which contained a column requiring the applicant to state whether he had been removed from service and, if so, reasons for such removal.
The petitioner, who had earlier been removed from service of the Sales Tax Department on the ground of proved misconduct, made a false suggestion that he had voluntarily left service because of transfer.
Ultimately, when these facts came to light, he was charge sheeted and removed from service.
The Labour Court rejected his petition against removal from service on the ground that the misconduct alleged against him is proved.
Thereupon, he filed a writ petition in the High Court.
The High Court while dismissing his petition held that even if the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations yet the employer can attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same.
Dismissing the petition by the petitioner, ^ HELD: (1) It is a well settled canon of penal jurisprudence that removal or dismissal from service on account of the misconduct constitutes penalty in law and therefore the workman sought to be charged for misconduct must have adequate advance notice of what action or what conduct would constitute misconduct.
Therefore, under, the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against.
But, if after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer.
Therefore, it cannot be left to the vagaries of management to say ex post facto 557 that some acts of omission or commission nowhere found to be enumerated in A the relevant standing order is none the less a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty.
[559C E; B C; 561C and D] Glaxo Laboratories vs The Presiding Officer Labour Court Meerut & Ors. ; followed.
Salem Erode Electricity Distribution Co. Ltd vs Salem Erode Electricity Distribution Co. Ltd. Employees Union ; , Western India Match Company Lid.
vs Workman ; , Workmen of Lakheri Cement Works Ltd. vs Associated Cement Companies Ltd. 1970 20.
Indian Factories & Labour Reports 243 & Rohtak Hissar District Electricity Supply Co. Ltd. vs State of Utter Pradesh & Ors. ; referred to.
(2) It is thus well settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct.
[561E] (3) In the instant case, the petitioner is shown to be guilty of suppression of a material fact which would weigh with any employer in giving him employment and therefore, the case of the petitioner does not merit consideration under article 136 of the Constitution and his petition for special leave to appeal must accordingly fail.
The High Court was right in holding that the suppresio veri and suggestion falsi would constitute misconduct.
But, the finding of the High Court that even if the misconduct does not fall in any of the enumerated misconducts, yet for the purpose of service regulation, it would none the less be a misconduct punishable as such is not the correct view of law and it has to be rejected.
[557H; 561H; 562 A, B]


judgement:
Civil Appeal No. 682 of 1981.
From the Judgment and Order dated the 21st June, 1980 of the High Court of Bombay in Special Civil Application No. 2039 of 1975.
V.M. Tarkunde, P.H. Parekh and R.N. Karanjawala for the Appellant.
Soli J. Sorabjee, V.N. Ganpule and Mrs V.D. Khanna for the Respondents.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave arises out of a suit for a declaration and injunction and aises questions concerning the interpretation and application of certain provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
566 Peerbhoy Mansion is a building situated at Vithalbhai Patel Road in the city of Bombay.
It was let to a partnership firm, Gold Field Leather Works.
Gold Field sublet a portion of a shop on the ground floor to Manekchand Bhikabhai.
The sub tenant Manekchand sublet it further to Sardar Tota Singh in 1952.
Gold Field filed a suit in 1962 against Manekchand for possession of the premises on the ground of unlawful subletting and carrying out unauthorised structural alterations.
Manekchand resisted the suit and filed a written statement During the pendency of the suit Tota Singh applied to the Court for being added as a defendant, but the application was opposed by Gold Field and was rejected.
Gold Field 's suit was ultimately decreed for possession in accordance with a compromise between the parties.
Tota Singh then filed Suit No. 2454 of 1966 for a declaration that he was a lawful tenant in possession of the premises and for an injunction restraining Gold Field from executing the decree which that firm had obtained against Manekchand It was pleaded that he was in occupation and exclusive possession as a lawful sub tenant for more than fifteen years to the knowledge of Gold Field, that the decree in Gold Field 's suit was a collusive decree, that as the decree had been passed against Manekchand he, Tota Singh, had become a direct tenant of Gold Field under section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the "Bombay Rent Act") and that therefore he was entitled to the declaration and injunction sought in the suit.
Gold Field filed a written statement in the suit and pleaded that they were tenants of the entire building and had sublet the premises to Manekchand, that Manekchand as sub tenant could not sub let the premises further to Tota Singh, and therefore Tota Singh 's sub tenancy was invalid.
The Court of Small Causes tried the suit and decreed it on April 17, 1973.
Gold Field appealed.
The Appellate Bench of the Court of Small Causes dismissed the appeal on April 30, 1975.
The Appellate Bench affirmed the trial Judge 's finding that the premises had been sublet by Manekchand to Tota Singh in 1952, and that on May 21, 1959, when the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959 was promulgated and sub section
(2) of section 15 was introduced into the Bombay Act, Manekchand was not in possession.
In the attempt to prove that he was a lawful 567 sub tenant, Tota Singh urged before the Appellate Bench that Gold A Field had permitted Manekchand to sublet the premises to him, but this contention was not entertained by the appellate Bench as there was neither any plea nor any evidence to support it.
The Appellate Bench also rejected the submissions of Tota Singh that he had paid rent directly to Gold Field and therefore had been accepted as a tenant by them.
It found that no rent had paid by Tota Singh to Gold Field after Manekchand 's statutory tenancy, which followed the termination of this contractual tenancy by service of notice had itself been terminated by the decree for possession in Gold Field 's suit One road seemed still open to Tota Singh to establish the validity of his tenancy.
fore the Appellate Bench a concession had been made by counsel for Gold Field.
It was conceded on behalf of Gold Field that Manekchand was their lawful sub tenant.
On that Tota Singh urged that if Manekchand, although a sub tenant, was regarded as a "tenant" by reason of sub section (11) of section 5 of the Bombay Rent Act, then the benefit of sub section
(2) of section 15 should be extended to him.
He was in possession on May 21, 1959 as the sub tenant of a lawful tenant and, therefore, the submission proceeded, his subtenancy would be deemed to be valid This contention found favor with the Appellate Bench.
It held that as Tota Singh was undisputedly in possession on May 21, 1959, the sub tenancy in his favor by Manekchand must be deemed to be a valid sub tenancy.
At this point a debate was raised whether the benefit of sub section
(2) of section 15 had to be confined to a sub tenancy created by a tenant or could be extended to a sub tenancy created by a sub tenant.
Following the view taken by the Bombay High Court in Josephy Santa Vincent v Ambico Industries.(1) the Appellate Bench answered that question in favor of Tota Singh and dismissed Gold Field 's appeal.
Gold Field filed a Special Civil Application in the High Court against the order of the Appellate Bench of the Court of Small Causes and on June 21, 1980 the High Court set aside the decree passed by the Appellate Bench and dismissed Tota Singh 's suit.
The High Court took the view that having regard to certain observations made by this Court in Jai Singh Morarji and Ors.
vs M/s Sovani Pvt. Ltd. and Ors.(2) an extended construction of sub section (2) of section 15 of the Bombay Rent Act so as to include a sub tenancy created by a sub tenant was not justified.
(1) 70 Bombay Law Reporter 224.
(2) ; 568 Tota Singh died during the pendency of the appeal in the High Court, and accordingly this appeal has been preferred by his legal representatives.
The material question before us is whether Tota Singh could rightly claim tenancy rights in the premises and therefore nullify the enforcement as against him of the decree in Gold Field 's suit.
It appears that sub section
(I) of section 15 of the Bombay Rent Act as originally enacted prohibited the sub letting by a tenant of premises let to him, except in the particular cases notified by the State Government under the proviso to that sub section.
A sub letting by the tenant constituted a ground for his eviction under clause (e) of sub .
(1) of section 13.
The rigour of the provision was relaxed by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959, which was brought into force on May 21, 1959.
The Ordinance was replaced by the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act 1959 In consequence, sub section
(1) of section 15 of the Act stood amended from the inception of the Bombay Rent Act so that the prohibition against sub letting incorporated in it operated 'subject to any contract to the contrary".
Simultaneously, sub section
(2) was inserted in section 15.
That provision was subsequently substituted by Maharashtra Act 38 of 1962 by the following provision with effect from May 21, 1959: "15 (2) The prohibition against the sub letting of the whole or any part of the premises which have been let to any tenant, and against the assignment or transfer in any other manner of the interest of the tenant therein, contained in sub section (1), shall, subject to the provisions of this sub section, be deemed to have had no effect before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959, in any area in which this Act was in operation before such commencement; and accordingly, notwithstanding anything contained in any contract or in the judgment, decree or order of a court, any such sub lease assignment or transfer or any such purported sub lease, assignment or transfer in favor of any person who has entered into possession despite the prohibition in sub section (1), as a purported sub lease, assignee or transferee and has continued in possession at the commencement of the said Ordinance, shall be deemed to be valid and effectual for all purposes, and any tenant 569 who has sub let any premises or part thereof, assigned or A transferred any interest therein, shall not be liable to eviction under clause (e) of sub section (1) of section 13".
It is contended for the appellant that as the respondent conceded before the Court of Small Causes that Manekchand was a lawful sub tenant, the High Court should have held that a sub tenancy created by such sub tenant must be deemed valid by reason of sub section
(2) of section 15 of the Bombay Rent Act.
It is urged that the High Court erred in construing Jai Singh Morarji (supra) as laying down the contrary.
The case for the respondent is that sub section
(2) of section 15 benefits a sub tenancy created by the original tenant only and does not extend to a sub tenancy created by a sub tenant.
There can be no doubt that upon the amendment of sub section (1) of section 15 by the Ordinance and by its related Act the prohibition against sub letting did not operate in those cases where the sub letting was permitted by contract between the landlord and tenant.
In all such cases, if the landlord had permitted the tenant under a contract between them to sublet the premises, no question would arise of a need to validate those sub tenancies.
The relevant amendment in subs.
(1) of section 15 was deemed to have always been part of the sub section.
It is in this light that we must determine the scope of sub section
(2) of section 15.
Sub section
(2) of section 15 raises the ban from all sub letting effected before May 21, 1959, the date of commencement of the Ordinance, provided the provisions of that sub section are fulfilled.
Any such sub lease shall be deemed to be valid provided the sub lessee has entered into possession before the date of commencement of the Ordinance and has continued in possession on such date.
This is an especial provision and marks a departure from the general law.
It does not refer to sub tenancies which are permitted by contract between the landlord and the tenant, but relates to sub tenancies which are not so protected.
It will be noted that the removal by sub section
(2) of section 15 of the prohibition is limited only to those sub tenancies which were created before May 21, 1959.
Such a limitation would be inappropriate to sub tenancies permitted by contract which could be created regardless of whether they were brought into existence before May 2l, 1959 or after that date.
Also, the sub tenancies covered by sub s (2) of section 15 would be regarded as valid only if the sub tenant had entered into possession before May 21, l959 and was continued in possession on that date.
Such a requirement would be wholly inconsistent in the case of sub tenancies permitted by contract.
Inasmuch as sub s.(2) of section 15 specifically attaches the condition that the 570 sub tenant should have been in possession before the commencement of the Ordinance and should have continued in possession on that date, it is apparent that such a provision could be related only to illegal sub tenants, that is to say sub tenants who were let in and given possession without any contractual right conferred by the land lord on the tenant to do so.
The protection conferred by sub section
(1) of section 15 is necessary for such tenancies only, and not for a sub tenancy which is permitted by the terms of the contract and which therefore falls altogether outside the prohibition embodied in sub s.(l) of section 15.
The result, therefore, is that sub section
(2) of section 15 relates to sub tenancies not permitted by contract between the landlord and tenant and which would.
but for the said sub section
(2), fall within the prohibition enacted in the amended sub section (1) of section 15.
In the present case, it was conceded on behalf of Gold Field before the Appellate Bench of the Court.
Of Small Causes that Manekchand was a lawful sub tenant He could not have been a lawful sub tenant by virtue of sub section
(2) of section 15 because on May 21, 1959 he was not in possession of the premises, which in fact had already passed as early as 1952 into the possession of Tota Singh.
Manek chand could have been lawful sub tenant only on the assumption that the sub tenancy was permitted under the contract between Gold Gold Field and their landlord.
As the existence of such a term in the contract would be a question of fact, the concession by counsel for Gold Field must be regarded as binding in this case on Gold Field.
It is urged for the respondent that the concession made by counsel for Field can be of no avail because any agreement by a tenant creating a sub tenancy, being directly opposed to sub section
(I) of section 15 as originally enacted, would be void The submission, it seems to us, is without force.
It must be remembered that sub section
(I) of section 15 was amended by inserting the words "but subject to any contract to the contrary" in 1959 retrospectively, the words being deemed always to have been inserted in that sub section.
We must take it by reason of the legal fiction employed that those words were already part of the sub section when Gold Field agreed to sub let the premises to Manekchand.
The cases, P.D. Aswani vs Kavashah Dinshah Mulla(l) and Waman Shriniwas Kini vs Ratilal Bhagwandas and Co.,(2) on which learned counsel for the respondent relies, were decided before sub section
(1) of section 15 was amended and therefore did not take into account the effect of such amendment.
(1) [1953] 56 Bombay Law Reporter 467.
(2) [1969] supp.
2 S.C.R. 217.
571 Therefore, the present case is one where Gold Field is a tenant, A Manekbhai is a lawful sub tenant and the latter has created a further sub tenancy in favor of Tota Singh.
The question is whether the further sub tenancy can fall within the scope of sub section
(2) of section 15.
Now, if regard be had to clause (I) of sub s (l l) of section 5, it is apparent that in respect of the subsequent subtenancy Manekbhai could be described as a tenant and Tota Singh as his sub tenant And if that is so, there is no reason why Tota Singh 's sub tenancy should not be regarded as a valid sub tenancy in as much as it was created before May 21, 1959 and he had entered into possession of the premises before that date and was continuing possession on that date.
But it is urged on behalf of Gold Field that this Court has held in Jai Singh Morarji (supra) that sub s (2) of section 15 does not validate a sub tenancy created by a sub tenant.
That was a case where the original landlord filed a suit against the tenant Ochhavlal for possession on the ground, inter alia, of illegal subletting by Ochhavlal.
The suit was decreed, and the plaintiff obtained possession.
Ochhavlal had sub l t the premises to Sovani and Sovani had sub let them to a private limited company.
On application by the Company against dispossession in the execution proceedings, the trial court upheld the Company 's claim to possession, but this Court ultimately rejected the Company 's claim and upheld the right of the original landlord to possession.
The facts of that case disclose that there were two prohibited" sub tenancies, the first was created by Ochhavlal in favor of Sovani and the subsequent was created by Sovani in favor of the Company.
The benefit of sub section
(2) of s 15 could have been extended to Sovani only if the conditions of the sub section were satisfied If they were satisfied in the case of Sovani, the benefit could not be extended again in favor of the Company.
That would obviously be so because the condition as to possession on May 21, 1959 could not possibly be satisfied by the subsequent sub tenant if the original subtenant was in possession on that date.
If, however, the subsequent sub tenant was in possession on May 21, 1959, then clearly neither sub tenancy can be regarded as valid.
To be valid, the first subtenancy had to satisfy the condition of possession by that sub tenant on May 21, 1959, which ex hypothesi was not possible.
And if the original sub tenancy was invalid the subsequent sub tenancy would also be invalid.
The subsequent sub tenancy would be valid only if the original sub tenant had legal interest to transfer to the subsequent sub tenant.
It is in the light of this analysis that the decision of this Court in Jai Singh Morarji (supra) needs to be appreciated, in particular the passage on page 607 of the Report which reads: 572 "The answer to the question is whether the respondent Private Company was a sub tenant prior to 1959 and continued in possession at the commencement of the Ordinance in 1959.
Ochhavlal in the present case gave the sub lease to Sovani before the Ordinance.
It is an indisputable feature in the present case that Sovani did not continue in possession at the commencement of the Ordinance of 1959.
Sovani became a Director of the Private Company.
It is the Private Company which claims to be a sub lessee.
The Private Company was in the first place not a sub lessee of the tenant but a subsequent assignee from the sub lessee.
Secondly, SOvani who was the sub lessee not in possession on the date of the Ordinance on 21 May, 1959.
It was the Private Company which was in possession.
Therefore, the Private Company is not within the protection of section 15 (2) of the Act " The learned Judges were not unaware of the terms of sub section
( 1) of section 5, as is evident from the passage on page 608 of the Report.
It is then urged by learned counsel for the respondent that clause (a) of sub section
(11) of section S of the Bombay Rent Act cannot be called in aid by the appellant as sub section
(1) of section 15 applies to contractual tenants only.
We are referred to Anand Nivas (P) Ltd. vs Anandji,(1) where this Court laid down that the expression "tenant" in sub section
(1) of section 15 of the Bombay Rent Act means a contractual tenant and not a statutory tenant.
The submission can be of no assistance to the respondent.
Having regard to the concession made by counsel for Gold Field in the court below that Manekchand was a lawful tenant, which position, as we have discussed earlier, necessarily implies a valid contract of tenancy between Gold Field and Manekchand the latter must be regarded as a contractual tenant when he sublet the premises to Tota Singh.
No question arises of a statutory tenant purporting to sub let his interest to a sub tenant.
Upon the aforesaid considerations, in our judgment the appeal must succeed.
The appeal is allowed with costs.
N.V.K. Appeal allowed.
(1) [196414 S.C.R. 892.

summary:
The respondent filed a suit in 1962 against the subtenant for possession of the premises on the ground of unlawful subletting and carrying out unauthorised structural alterations.
The sub tenant resisted the suit and filed a written statement.
During the pendency of the suit the appellant applied to the Court for being added as a defendant but the application was opposed by the respondent and was rejected.
The respondent 's suit was ultimately decreed for possession in accordance with a compromise between the parties.
The appellant thereafter filed a suit in 1966 for a declaration that he was a lawful tenant in possession of the premises and for an injunction the restraining respondent from executing the decree he had obtained against the sub tenant.
It was pleaded that he was in occupation and exclusive possession as a lawful subtenant for more than fifteen years to the knowledge of the respondent and that the decree in the respondent 's suit was a collusive one and that he had become a direct tenant of the respondent under section 14 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The respondent filed a written statement and pleaded that they were tenants of the entire building and that they had sublet a portion of the premises to a sub tenant who could not sub let the premises further to the appellant and therefore the appellant 's subtenancy was invalid.
564 The Court of Small Causes decreed the suit.
The respondent filed an appeal before the Appellate Bench of the Court of Small Causes which dismissed the appeal and affirmed the trial judge 's finding that the premises had been sublet by Manekchand to the appellant, and that on May 21, 1959 when the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance 1959 was promulgated and sub s.(2) of section 15 was introduced into the Bombay Rent Act the subtenant was not in possession.
the Appellate Bench rejected the submission of the appellant that he had paid rent directly to the respondent and therefore had been accepted as a tenant.
It found that no rent had been paid by the appellant to the respondent after Manek Chand statutory tenancy which followed the termination of his contractual tenancy by service of notice had itself been terminated by the decree for possession in the respondent 's suit.
It further held that as the appellant was undisputably in possession on May 21, 1959, the sub tenancy in his favor by Maneck Chand must be deemed to be a valid sub tenancy and followed the view in Josephy Santa Vincent vs Ambico Industries.
70 Bombay LR 224 while dismissing the respondent 's appeal.
The respondent filed a Special Civil Application in the High Court and the High Court set aside the order of the Appellate Bench and dismissed the appellant 's suit, taking the view that having regard to certain observations made in Jai Singh Moraji & Ors vs M/s. Sovani Pvt Ltd. & Ors ; , an extended construction of sub section
(2) of section 15 of the Bombay Rent Act so as to include a sub tenancy created by a sub tenant was not justified.
In the appeal to this Court, on the question whether the appellant could rightly claim tenancy rights in the premises and therefore nullify the enforcement as against him of the decree in the respondent 's suit.
Allowing the Appeal, ^ HELD: 1.
There can be no doubt that upon the amendment of sub section
(I) of s.l5 by the Bombay Rents, Hotel and Lodging House Rates Control Amendment Ordinance 1959, which was brought into force on May 21, 1959 and by its related Act, the prohibition against sub letting did not operate in those cases, where the sub letting was permitted by contract between the landlord and tenant.
In all such cases, if the landlord had permitted the tenant under a contract between them to sub let the premises, no question would arise of a need to validate those subtenancies.
The relevant amendment in sub section
(1) of s.15 was deemed to have always been part of the sub section.
[569C D] 2.
Sub section
(2) of s.l5 raises the ban from all sub letting effected before May 21, 1959, the date of commencement of the Ordinance, provided the provisions of that sub section are fulfilled.
Any such sublease shall be deemed to be valid provided the sublessee has entered into possession before the date of commencement of the Ordinance and has continued in possession on such date.
This is an special provision and marks a departure from the general law.
It does not refer to sub tenancies which are permitted by contract between the landlord and the tenant, but relates to sub tenancies which are not so protected.
[569F F] 565 3.
Sub section
(2) of s.15 relates to sub tenancies not permitted by contract A between the landlord and tenant and which would, but for the said sub section
(2), fall within the prohibition enacted in the amended sub section (I) of section 15.
[570C] 4.
In the instant case, the respondent Goldfiled was a Tenant, Manik Chand was a lawful sub tenant and the latter had created a further sub tenancy in favor of the appellant.
If regard be had to clause (a) of sub section (ii) of section 5 it is apparent that in respect of the subsequent sub tenancy Manek Chand could be described as a tenant and the appellant as his sub tenant.
And if that is so, there is no reason why the appellant 's sub tenancy should not be regarded as a valid sub tenancy inasmuch as it was created before May 21, 1959 and he entered into possession of the premises before that date and was continuing in possession on that date.
[571A B] Jai Singh Morarji & Ors.
vs M/s Sovani Pvt. Ltd. & Ors, [197312 S.C.R. 603, referred to.
P.D. Awani vs Kavashah Dinshah Mulla, (1953) 56 Bombay Law Reporter 467 and Woman Shrinivas Kini vs Ratilal Bhagwandas & Co., [1959] Supp.
2 S.C.R. 217, held inapplicable.
[572F] In the instant case, having regard to the concession made on behalf of the respondent in the Court below that Manekchand was a lawful tenant, which necessarily implies a valid contract of tenancy between the respondent and Manek Chand, the latter was to be regarded as a contractual tenant when he sub let the premises to the appellant.
No question, therefore arises of a statutory tenant purporting to sub let his interest to a sub tenant.
[572F] Anand Nivas (P) Ltd. vs Anandji, ; , referred to.