judgement:
Appeal No. 2139 of 1968.
Appeal by certificate from the judgment and order dated July 16, 17, 1968 of the Bombay High Court in S.C.A. No. 504 of 1967.
V. M. Tarkunde, Y. R. Dandige and A. G. Ratnaparkhi, for appellant No. 1. section V. Natu, K. K. Khamberker, P. Kesava Pillai and M. R. K. Pillai, for respondent No. 1.
B. D. Sharma, for respondent No. 2.
Y. section Dharinadhjkari, Advocate General, Madhya Pradesh and 1.
N. Shroff, for Advocate General Madhya Pradesh (InterVener) O. P, Rana, for Advocate General U.P. (Intervener).
41 D. Goburdhan, for Advocate General, Bihar (Intervener).
A. V. Rangam and A. Subhashini, for Advocate General, Tamil Nadu (Intervener).
K. M. Nair, for Advocate General, Kerala (Intervener).
O. N. Tikku and Vineet Kumar, for AdvocateGeneral, J. & K. (Intervener).
The Judgment of the Court was delivered by Sikri, C.J.
This appeal by certificate of fitness granted by the High Court of Judicature at Bombay, Nagpur Bench, is directed against the Judgment of the High Court in Writ Petition No. 504 of 1967 filed under articles 226 and 227 of the Constitution, by Vithal Rao, respondent *fore us, hereinafter referred to as the petitioner.
The petitioner was a tenant of some fields in village Binakhi in Petwari Circle No. 10, Nagpur.
He had applied to the Agricultural Lands Tribunal under a local act for fixing the purchase price of the said fields.
On May 3, 1962, a notice was issued under section 39 of the Nagpur Improvement Trust Act, 1936 hereinafter referred to as the Improvement Act.
Section 39 of this Act deals with the preparation, publication and transmission of notice as to improvement schemes and supply of documents to applicants.
On November 17, 1961 the Improvement Trust applied for sanction of its scheme by the Government, and on January 9, 1965, the Government sanctioned the scheme under section 45 of the Improvement Act.
On February 28, 1966 proceedings were started before the Land Acquisition Officer and on June 12, 1967 an award was passed by the Land Acquisition Officer fixing the compensation at Rs. 45,910/ for 44.19 acres of land acquired.
On June, 15, 1967 the petitioner filed the writ petition under articles 226 and 227 of the Constitution.
In this petition the validity of the Improvement Act was challenged on various grounds, one of the grounds being that the Improvement Act was in violation of article 14 of the Constitution inasmuch as it empowered the acquisition of lands at prices lower than those which would have been payable if they had been acquired under the Land Acquisition Act, 1894.
The High Court held that as the acquisition is by the State in all cases where the property is required to be acquired for the purposes of a scheme framed by the Trust and such being the position, it is not permissible without violating the guarantee under Article 14 of the Constitution for the State to acquire any property 42 under the provisions of the Land Acquisition Act as amended by the Improvement Trust Act in so far as they relate to the basis of determination and payment of compensation.
It must, therefore, be held that the provisions of paragraphs 10(2) and 10(3) in so far as they add a new Clause (3) (a) to Section 23 and a proviso to Sub section (2) of Section 23 of the Land Acquisition Act are ultra vires as violating the guarantee of Article 14 of the Constitution.
In the result the petition was allowed, the award set aside, and the matter was remanded to the Land Acquisition Officer for determination of compensation according to the law and in the light of the decision by the High Court.
As the case was important, the High Court granted a certifi cate under article 1 3 2 ( 1 ) and article 1 3 1 ( 1 ) (c) of the Constitution.
Before, we deal with the contentions of the learned counsel for the appellant we may briefly examine the relevant provisions of the Improvement Act.
This Act came into force on December 25, 1936.
It was passed before the Government of India Act, 1935 came into force.
The Preamble states : "Whereas it is expedient to make provision for the im provement and expansion of the Town of Nagpur in the manner hereinafter provided. " Section 3 of the Act creates the Nagpur Improvement Trust as a body corporate.
Chapter IV of the Act deals with the Improvement schemes.
Section 26 provides for the matters which may be included in an improvement scheme.
One of the matters is "the acquisition by purchase, exchange, or otherwise of any property necessary for or affected by the execution of the scheme." Section 27 describes various types of improvement schemes.
They are (a) a general improvement scheme, (b) a re building scheme; (c) a re housing scheme; (d) a street scheme; (e) a deferred street scheme (f) a development, scheme; (g) a housing accommodation scheme; (h) a future expansion or improvement scheme and (i) a drainage or drainage including sewage disposal scheme.
The scheme in pursuance of which the lands in the present case were acquired was a housing accommodation scheme.
Section 3,9, as stated above, provides for the issue of a notice after an improvement scheme has been, framed.
Unders.
41, the Trust is obliged to serve a notice of the proposed acquisition of land on certain persons.
Section 43 enables the Improvement Trust to abandon an improvement scheme after considering any objection, representation or statement of dissent received and after hearing all persons, or to apply to the State Government for sanction to 43; the scheme with such modifications, if any, as the Trust may consider necessary.
The decision would be that of the Improvement Trust.
Section 44 gives wide powers to the Government to sanction with or without modification or to refuse a sanction or to return for, consideration any improvement scheme submitted to it under section 43.
Under section 45 the State Government is obliged to notify the sanction of an improvement scheme.
Section 46 enables the Trust to alter an improvement scheme 'before it has been completed, subject to certain conditions.
Chapter V deals with the powers and duties of the Trust where a scheme has been sanctioned.
Chapter VI deals with acquisition and disposal of land.
Under section 58 the Trust is enabled ' to acquire by purchase, lease or exchange any land within the area comprised in a sanctioned scheme.
Section 59 deals with, compulsory acquisition and may be set out in full : It provides "59 The Trust may, with the previous sanction of the, State Government, acquire land under the provisions of the Land Acquisition Act, 1894, as modified by the provisions of this Act, for carrying out any of the purposes of this Act.
" Section 60 says that "a Tribunal shall be constituted, as provided in section 62, for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust, under the Land Acquisition Act, 1894.
" Section 61 modifies the Land Acquisition Act in the following words: "For the purpose of acquiring land under the Land Acquisition Act, 1894, for the Trust (a), the Tribunal shall except for the purposes of section (54) of that Act, be deemed to 'he the Court, and the President of the Tribunal shall be deemed to be the Judge thereunder; (b) the Act shall be subject to the further modifications as indicated in the Schedule; (c) the President.
of the Tribunal may summon witnesses and enforce their attendance and may compel the production of documents, by the same means, and so far as may be, in the same, manner, as is provided in case of a Civil Court under the Code of Civil Procedure, 1908; and (d) the award of the Tribunal shall be deemed to be the award of the.
Court under the Land Acqui sition Act, 1894, and shall be final.
" 44 We need not deal with the provisions dealing with the constitution of the Tribunal, remuneration of its members, etc.
Section 68 enables an owner to apply to the Trust requesting that the acquisition of land not required for the purposes of a scheme may be abandoned on his executing an agreement to ,Observe conditions specified by the Trust in respect of the development of the property and to pay a charge to be calculated in accordance with subsection (2) of section 69 of the Act.
The Trust can abandon an acquisition without requiring sanction of the Government.
The Schedule modifies the Land Acquisition Act in various respects.
The relevant modifications are these : 1.
After clause (e) of section 3, the following clause shall be deemed to be inserted, namely, "(ee) the expression 'local authority ' includes the Trust constituted under the Nagpur improvement Trust Act, 1936.
(1) The first publication of a notice of an im provement scheme under section 39 of the Nagpur Improvement Trust Act, 1936, shall be substituted for, and have the same effect as publication in the official Gazette, and in the locality of, a notification under subsection (1) of section 4, except where a declaration under section 4 or section 6 has previously been made and is still in force.
(2) subject to the provisions of clauses IO and II of this Schedule, the issue of a notice under sub section (4)of section 32 of the Nagpur Improvement Trust Act, 1936, in the case of land acquired under that sub section, and in any other case the publication of a notification under section 45 of the Nagpur Improvement Trust Act, 1936, shall be substituted for, and have the same effect as a declaration by the State Government under section 6, unless a declaration under the last mentioned section has previously been made and is in force.
3.The full stop at the end of section II shall be deemed to 'be changed to a semi colon, and the following shall be deemed to 'be added, namely "and (iv)the costs which, in his opinion, should be allowed to any person who is found to be entitled to compensation and who is not entitled to receive the additional,sum of fifteen percentum mentioned in sub section (2) 45 of section 23 as having been actually and reasonably in curred by such person in preparing his claim and putting, his case before the Collector.
The collector may disallow wholly or in part costs, incurred by any person, if he considers that the claim made by such person for compensation is extravagant." 4. . . . . 5.(1) In sub section (3) of section 17 after the figure "24" ' the words, figures, and letter "or section 24 A" shall be deemed to be inserted.
(2)To section 17, the following shall be deemed to be added, namely.: "(5) When proceedings have been taken under this section for the acquisition of any land, and any person sustains damage in consequence of being suddenly dispossessed of such land, compensation shall be paid to such person for such dispossession.
" Para 6 of the Schedule inserts section 17 A.
It reads : "17 A.
In every case referred to in section 16 or section 17, Collector shall, upon payment of the cost of acquisition, make overcharge of the land to the Trust and the land shall thereupon vest in the Trust, subject to the liability of the Trust to pay any further costs which may be incurred on account of its acquisition.
" Para 10 amends section 23 thus : "10(i). . . . . . 10(2) The full stop at the end of sub section (2) of section 23 shall be deemed to be changed to a colon, and the following proviso shall be deemed to be added : "Provided that this sub section shall not apply to any land acquired under the Nagpur Improvement Trust Act, 1936, ex cept (a) buildings in the actual occupation of the owner or occupied free of rent by a relative of the owner, and land appurtenant thereto, and (b) gardens not let to tenants but used by the owners as a place of resort.
" 10 (3) For the purposes of clause first of sub section (1) of this section (a) the market value of the land shall be the market value according to the use to which the land was 46 put at the date with reference to which the market value is to be determined under that clause;. . . " Another advantage which is said to accrue to these persons is provided by section 48 A, as inserted by para 14.
It reads : "48 A. (1) If within a period of two years from the date of the publication of the declaration under section 6 in respect of any land, the Collector has not made an award under section 1 1 with respect to such land, the owner of the land shall, unless he has been to a material extent responsible for the delay, be entitled to receive compensation for the damage suffered by him in consequence of the delay.
(2)The provisions of Part III of this Act shall apply so far as may be, to the determination of the compensation payable under this section.
" It would be seen that the effect of the modifications in two respe cts is tremendous.
First, the owner whose land is acquired under the Improvement Act is paid compensation not according to the market value of the land but the market value according to the use to which the land was put at the date with reference to which the market value is to be determined in that clause.
In other words, if the land is being used for agricultural purposes, even though it has a potential value as a building site, the potential value is to be ignored.
The second respect in which the owner suffers if the land is acquired under the Improvement Act is that he does not get a solatium of 1 5 % which he would have got if the land had been acquired under the Land Acquisition Act.
It is true that he has some minor advantages which have been pointed out by the learned counsel but they have no comparison in value to the loss suffered by virtue of the market value being determined according to the use to which the land was being put or the loss of 15% of the market value of the land.
The first point which was raised was : whether it is the State which is the acquiring authority or it is the Improvement Trust which is the acquiring authority, under the Improvement Act.
it seems to us that it is quite clear, especially in view of.
section 17A as inserted by para 6 of the Schedule, that the acquisition will be by the Government and it is only on payment of the cost of acquisition to the Government that the lands vest in the Trust.
It is true that the acquisition is for the Trust and may be at its instance, but nevertheless the acquisition is by the Government.
If this is so, then it is quite clear that the Government can acquire for a housing accommodation scheme either under the 'Land Acquisition Act or under the Improvement Act.
If this is 47 so, it enables the State Government to discriminate between one owner equally situated from another owner.
This Court held in Nandeshwar Prasad vs U.P. Govt.(1) that the fact that the lands could be acquired for a scheme under the Kanpur Urban Development Act.
(U.P. Act VI of 1945) did not preventthe Government from acquiring the lands for the same purposeunder the Land Acquisition Act (as amended by the Kanpur Act).
We may mention that the Kanpur Act amended acquisition of land for the Board in a similar manner as in the Nagpur Improvement Trust Act.
A similar point was abandoned in P. Vaijravelu Mudaliar vs Special Deputy Collector, Madras(2) by Mr. Viswanatha Sastri in view of the above decision of this Court in Kanpur case.
The question then arises whether the High Court is right in holding that the impugned provisions were hit by article 14 of the Constitution.
It is now well settled that the State can make a reasonable classification for the purpose of legislation.
It is equally wellsettled that the classification in order to be reasonable must satisfy two tests (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question.
In this connection it must be borne in mind that the object itself should be lawful.
The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the, object sought to be achieved.
What can be reasonable classification for the purpose of determining compensation, if the object of the legislation is to compulsorily acquire land for public purposes ? It would not be disputed that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is.
old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it With his own efforts, or whether the owner is 'a politician or an advocate.
Why is this sort of classification not sustainable ? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type or another type.
Can classification be made on the, basis of the public purpose for the purpose of compensation for which land is acquired ? In (1) ; (1) ; , 619.
48 other words can the legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government building ? can the legislature.
say that for a hosPital land will be acquired at 50% of the market value for a school at 60% of the value and for a Government building at 70% of the, market value ? All three objects are Public Purposes and as far as ' the owner is concerned it does not matter to him whether it is one Public Purpose or other.
article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right.
It seems to us that ordinarily a classification based on the public purpose is not permissible under article 14 for the purpose of determining Compensation.
The Position is different when the owner of the land himself is the, recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation.
Can classification be made on the basis of the authority acquiring the land ? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government ? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired.
If the existence of two Acts enables the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of article 14.
It was said that if this is the true position the State would find it impossible to clear slums, to do various other laudable thing,.
If this argument were to be accepted it would be totally destructive of the protection given by article 14.
It would enable the State to have, one law for acquiring lands for hospital, one law for acquiring lands for schools, one law acquiring lands for clearing slums, anoth er for acquiring lands for Government buildings; one for acquiring lands in New Delhi and another for acquiring lands in old Delhi.
It was said that in many cases, the value of the land has increased not because of any effort by the owner but because of the general development of the city in which the land is situated.
There is no doubt that this is so, but article 14 prohibits the expropriation of the un earned increment of one owner while leaving his neighbour untouched.
This neighbour could sell his land reap the unearned increment.
If the object of the legislation is to tax unearned increment it should be done throughout the State.
The State cannot achieve this object piece meat by compulsory acquisition of land of some owners leaving others alone.
If the object is to clear 49 slums it cannot be done at the expense of the owners whose lands are acquired, unless as we have said the owner are directly benefited by the scheme.
If the object is to build hospitals it cannot be done at the expense of the owners of the land which is acquired.
The hospital, schools etc.
must be built at the expense of the whole community.
It will not be denied that a statute cannot tax some owners of land leaving untaxed others equally situated.
If the owners of the land cannot be taxed differently how can some owners be indirectly taxed by way of compulsory acquisition ? It is urged that if this were the, law it,will tic the hands of the State in undertaking social reforms.
We do not agree.
There is nothing in the Constitution which debars the State from bettering the lot of millions of our citizens.
For instance there is nothing to bar the State from taxing unearned increment if the object is to deny owners the full benefit of increase of value due to development of a town.
It; seems to us, as we have already said that to accede to the contentions of the appellant and e States would be destructive of the protection afforded by article 14 of the Constitution.
The States would only have to constitute separate acquiring bodies for each city, or Division or indeed to achieve one special public purpose and lay down different principles of compensation.
In P. Vajravelu Mudaliar vs Special Deputy Collector, Madras(1) there were two Acts under which the land of an owner could be acquired.
The land could have been acquired for various schemes under the Land Acquisition Act, referred to as the Principal Act, in the judgment, and the Amending Act (The Land Acquisition (Madras Amendment) Act, 1961).
Court observed : "The land could have been acquired for all the said purposes under the Principal Act after paying the market value of the land.
The Amending Act empowers the State to acquire land for housing scheme at a price lower than that the State has to pay if the same was acquired under the Principal Act.
" The Court examined various justifications for the classi fications which were put forth by the State, and then con cluded: "From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved.
It is said that the object of the Amending Act in itself may project the differences in the lands sought to be , acquired under the two Acts.
This argument puts the cart before the horse.
It is one thing to say that the existing differ (1) ; L631 Supreme Court/73 50 ences between persons and properties have a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself created the differences.
Assuming that the said proposition is sound, we cannot discover any differences in the people owning lands or in the lands on the basis of the object.
The object is to acquire lands for housing schemes at a low price.
For achieving that object, any land falling in any of the said categories can be acquired under the Amending Act.
So, too, for a public purpose any such land can be acquired under the principal Act.
We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principal of reasonable classification.
We, therefore, hold that the Amending Act clearly infringes article 14 of the Constitution and is void".
In Balammal & Ors.
vs State of Madras(1) in which the facts are substantially similar, the Board constituted under the Madras City Improvement Trust Act, (Madras Act 16 of 1945) was authorised by virtue of sec.
71, with the previous sanction of the Government, to acquire land under the provisions of the Land Acquisition Act, 1894 for carrying out any of the purposes of the Act which included Town Expansion Scheme (This sec.
71 is equivalent to see.
59 of the Improvement Act).
For the purpose of acquiring land for the Board under the Land Acquisition Act, 1894 sec.
73 provided inter alia, that the, said Act shall be subjected to the modifications specified in the Schedule (This section 73 corresponds to sec.
61 of the Improvement Act).
The Schedule to the Act provided for modification in the Land Acquisition Act for certain specific purposes.
The Madras Act of 1945 as replaced by the Madras City Improvement Trust Act (Madras Act 37 of 1950) made an important change inasmuch as the result was that by the change persons whose lands were compulsorily acquired under the Madras Act 37 of 1950 were deprived of the right to the solatium which would be awardable if the lands were acquired under the Land Acquisition Act.
In this connection this Court observed : "But, in our judgment, counsel for the owners is right in contending that sub cl.
(2) of cl. 6 of the Schedule to Act 37 of 1950, insofar as it deprived the owners of the lands of the statutory addition to the market value of the lands under section 23 (2) of the Land Acquisition Act is violative of the equality clause of the Constitution, and is on that account void.
If the (1) ; 51 State had acquired the lands for improvement of the town under the Land Acquisition Act, the acquiring authority was bound to award in addition to the market value 15% statutory under section 23(2) of the Land Acquisition Act.
But by acquiring the lands under the Land acquisition Act as modified by the Schedule to the Madras City Improvement Trust Act 37 of 1950 for the Improvement Trust which is also a public pur pose the owners are, it is claimed, deprived of the right to that statutory addition.
An owner of land is ordinarily entitled to receive the solatium in addition to the market value for compulsory acquisition of his land, if it is acquired under the Land Acquisition Act, but not if it is acquired under the Madras City Improvement Trust Act.
A clear case of discrimination which infringes the guarantee of equal protection of the law arises, and the owners of the lands which are compulsorily acquired must on the decisions of, it his Court, be deemed invalid".
After reviewing some earlier cases, the Court held: " We.
therefore, hold that cl. 6 sub cl.
(2) of the Schedule read with section 73 of Madras Act 37 of 1950 which deprives the owners of the statutory right to solarium at the rate of 15% on the market value of the lands, is invalid, and the owners of the lands are entitled to the statutory solatium under section 23(2) of the Land Acquisition Act in consideration of compulsory acquisition of their land.
" The learned counsel was not able to satisfy us that the above case was distinguishable.
We are of the opinion that the case was rightly decided and must govern this case.
In this view of the matter, it is not necessary to refer to all the cases referred to us at the Bar.
We may mention that Mr. Tarkunde also placed reliance on article 31 (A) (1) (a) of the Constitution.
It is now well settled that article 3 1 (A)( 1 )(a) has relevance to agrarian reforms and development.
It has nothing to do with acquisition of land for building of a capital of a State.
In the result the appeal, fails and is dismissed with costs.
U.C. Appeal dismissed.

summary:
The petitioner was tenant of some fields in a village in Patwari Circle 10, Nagpur.
He had applied to the Agricultural Lands Tribunal under a local Act for fixing the purchase price of the said fields.
The land in question was however acquired under the Nagpur Improvement Trust Act; 1936.
Dissatisfied with the compensation awarded the petitioner filed a petition under articles 226 and 227 of the Constitution.
In this petition the validity of the Improvement Act was challenged on various grounds, one of the grounds being that the Improvement Act was in violation of article 14 of the Constitution inasmuch as it empowered the acquisition of lands at prices lower than those which would have been payable if they had been acquired under the Land Acquisition Act 1894.
The High Court allowed the petition and set aside the award.
Appeal in this Court against the High Court 's judgment was filed with certificate.
Dismissing the appeal.
HELD : The effect of the modifications made by Improvement Act in the Land Acquisition Act in two respects is tremendous.
First the owner where land is acquired under the Improvement Act is paid compensation not according to the market value of the I and but the market value according to the use to which the land was put at the date with reference to which the market value is to be determined in that clause.
In other words, if the land is being used for agricultural purposes even though it has a potential value as a building site, the potential value is to be ignored.
The second respect in which the owner suffers if the land is acquired under the Improvement Act is that he does not get a solatium of 15% which he would have got if the land had been acquired under the Land Acquisition Act.
It is true that be has some minor advantage but they have no comparison in value to the loss suffered by virtue of the market value being determined according to the use to which the land was being put or the loss of 15% of the market value of the land.
[146D] It is quite clear especially in View of section 17A as inserted in the Land Acquisition Act by para 6 of the Schedule to the Improvement Act, that the acquisition will be by the Government and it is only on payment of the cost of acquisition by the Government that the land vest in the Trust.
It is true that the acquisition is for the Trust and may be at its instance, but nevertheless the acquisition is by the Government.
If this is so, it enables the State Government to discriminate between one owne 'r equally situated from another owner.
[45G] 40 It is now well settled that the State can make a reasonable classification for the purpose of the legislation provided it is based on intelligible differentia having a rational relation with the object sought to be achieved by the legislation in question.
In this connection it must be home in mind that the object itself should be lawful.
[47D] The legislature cannot lay down different principles of _ compensation for lands acquired say for a hospital or a school or a Government building.
An three objects are public purposes and so far as the owner is concerned it does not matter to him whether it is one public purpose or the other.
article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right.
Ordinarily a classification based on the public purpose is not permissible under article 14 for the purpose of determining compensation.
[48A] Similarly different principles cannot be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or Government because so far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.
[48D] It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired; if the existence of two Acts enables the State to give one owner different treatment from another ,equally situated the owner who is discriminated against can claim the protection of article 14.
[48E] TO accede to the contention of the appellant and the intervening states would be destructive of the protection afforded by article 14 of the Constitution.
The States would only have to constitute separate acquiring bodies for each city, or Division or indeed to achieve one special public purpose and lay down different principles of compensation.
[49D] Nandeshwar Prasad vs U.P. Govt.
, ; , P. Vairavelu mudaliar vs Special Deputy Collector, Madras; , ; 619 and Balammal & Ors.
vs State of Madras, ; ,


judgement:
minal Appeal No. 281 of 1971.
Appeal by special leave from the Judgment and order dated May 18, 1971 of the Bombay High Court in Cr. A. No. 262 of 1971 and confirmation case No. 57of 1971.
section K. Dholakia and R.C. Bhatia, for the appellant.
H. R. Khanna and B. D. Sharma, for the respondent.
DUA, J.
The appellant in this appeal by special leave (accused No. 1 in the trial court) was convicted by the Second Additional Sessions Judge of Thana of offences under sections 148, 323 and 302, I.P.C. and was sentenced to death under section 302 and to various terms of rigorous imprisonment under sections 148 and 323 of the said Code.
The High Court maintained his conviction and confirmed the sentence of death.
He has now appealed to this Court and Shri Dholakia, learned counsel appearing in support of this appeal, has addressed lengthy arguments challenging both the conviction and the sentence.
This case is an off shoot of the unfortunate communal riots which occurred on May 7, 1970 in the town of Bhiwandi in Thana District in the State of Maharashtra.
Though the trouble originally started in the town of Bhiwandi it spread to the neighboring towns and villages.
In the Thakurpada of Tansa village there lived one Abdul Khalil aged about 55 years along with his family members.
This was the only Muslim family in Thakurpada.
He and his wife Sahebi had ten children.
Their names and ages in the order of seniority are : Shaukat (son) about '2 '3 years, Shamsuddin (son, who has appeared as P.W. 1) about 19 years, Kasam (son) about 17, Hanif (son) about 15, Jubeda (daughter) about 13, Nizam (son) about 11, Fatma (daughter) about 9, Hamshera (daughter) about 4, Salim (son) about 3 and Nazar (son about 4 or 5 months).
Abdul Khalil, Shaukat and Shamsuddin, all three used to work in Nevigation Company at Mohilla about 2 21 miles away from Tansa.
Abdul Khalil was a truck driver and Shaukat, a clearner.
As communal trouble spread to other places in the district, some danger to the Muslim families in Tans a 'village was also apprehended.
In that village there were perhaps about 5 or 6 Muslim families.
On the outskirts of this village there is the great Tansa lake which supplies water to Bombay city.
Mr. Khatkhate, a Hydraulic Engineer is in charge of that lake.
He has an office on the site with several employees of the Municipal Corporation of Bombay working under him living on the site.
Mr. Khatkhate met Abdul Khalil on May 12, 1970 and warned him that there was a likelihood that he and the members of his family might be attacked and that they should leave Tansa village and go to a safer place.
As 94 a result of this warning, Abdul Khalil and the members of his family abandoned their home and left Tansa village at about 6 p.m. on May 12, 1970.
They went into the forest area surrounding the great Tansa lake and encamped on a hilock known as Maholi hillock about 2 1/2 miles away from the village.
They spent the night at the hillock but having run short of water in the morning they shifted at about 10 a.m. on May 13, 1970 to the Nursery area of Tansa lake which is near the water 's edge.
This spot was about three or four furlongs away from Tansa village.
They spent most of the day there.
In the evening at .about 6 or 6.30 Shamsuddin, the.
second son, went a little distance away from the family members to ease himself when he saw a mob of about 30 or 35 persons armed with axes, spears and sticks coming from the side of the Tansa lake towards the place where Abdul Khalil and his family were staying.
Seeing the mob approaching them Shamsuddin ran back to his parents and informed them about what he had seen.
The mob was raising shouts.
The members of Abdul Khalil 's family feeling frieghtened started running in different directions.
They roughly formed themselves into three groups.
One group consisted of Kasam, Hanif, Nizam, Salim and Hashma, the other consisted of ' Jubeda, Fatma and their mother Sahebi who was also carrying in her arms the baby Nazir and the third group which was the last to leave the spot consisted of Khalil and Shaukat.
As these two persons were the last to leave the spot the mob had in the meantime come close to them.
They thus became the first target ,of the attack by the mob.
The appellant Dharina Rama Bhagare, who was armed with a bow and arrows shot an arrow at Khalil which pierced him in the back.
Khalil fell down and was surrounded by other assailants, who started belabouring him.
Abdul Khalil 's eldest son Shaukat seeing his father being attacked went to rescue him but he had hardly gone a few paces when another arrow discharged by the appellant struck him at his back near his right shoulder.
Shaukat also fell down as a result of the injury caused by the arrow about two or three paces away from his father.
He was also assaulted by some members of the mob.
, On seeing her husband and her eldest son being thus assaulted Sahebi raised alarm but she was also attacked by the appellant who shot the third arrow at her.
This struck her on the left side above the waist with the 'result that she also fell down with her infant child in her arms.
She died instantaneously.
Some of the other members of Khalil 's family hid themselves behind the trees or Karvandi bushes round about the spot whereas some of them were still running away to save themselves.
Jubeda, the young daughter on seeing her father, mother and brother being shot at with arrows, shouted.
This apparently annoyed the appellant who picked up a stone and flung it at her, thereby causing an injury on hear head.
Budhya, 95 one of the accused, also struck a blow at her with an iron bar thereby injuring her right hand.
Shamsuddin who was hiding himself behind a tree was noticed by some of the accused persons.
Budhya accused ran towards him and assaulted him with the butt end of an axe.
Some of the other accused persons also assaulted him with the result that Shamsuddin lost consciousness.
Thereafter the assailants left the scene, of occurrence and went away.
As a result of this occurrence three members of this family died on the spot whereas two members suffered injuries.
After regaining consciousness Shamsuddin and the surviving members of the family seeing their parents and eldest brother dead, were so terrified that they left the dead bodies at the scene of the occurrence and picking up their belongings proceeded on foot towards Shahpur town in the Taluk headquarters where one Gafoor, a brother in law of Shamsuddin lived.
Sending Kasam, Hanif and Nazir to the house of Gafoor, Shamsuddin himself along with others went to the police station.
At the police Station there was only a head constable by name Bendhari (P.W. 4) who found Shamsuddin not in a fit condition to make a statement.
Shamsuddin, who had sustained many injuries, was soaked in blood.
The headconstable, therefore, after making an entry to this effect in the Station Dairy, sent Shamsuddin and Jubeda to Shahpur dispensary for treatment.
At about 10 O 'clock in the morning of May 14, 1970 the police Sub Inspector in charge of the police station, Dattatreya Potdar (P. W. 13), came to the police station and on being apprised of Shamsuddin and Jubeda having gone to Shahpur for treatment he sent for Shamsuddin from the dispensary and recorded the first information report, exhibit 4.
After registering the offence he took up investigation.
He sent for Kasam from Gafoor 's house and proceeded with him to the scene of the occurrence, reaching there at about 2 p.m.
They remained there till about 5 p.m.
The Sub Inspector prepared panchanamas of the dead bodies and of the scene of the offence.
The scene of the offence was about 400 ft. away on the southern side of Tansa lake in the area known as Nursery.
Underneath the dead body of Abdul Khalil was found an arrow which had blood stains on it.
The exact words of the panchanama relating ,to the recovery of this arrow are : "There is seen an arrow and a bow pressed in the stomach between both the legs of the deceased.
On taking the arrow out it is found that its length is 5" and is of iron".
On examination by the Chemical Analyser the stains on this arrow were found to be of human blood.
Thereafter the three dead bodies were sent through constable Mahadik to the Medical Officer at Shahpur for postmortem examination.
After proceeding to Tansa village the Sub Inspector arrested the appellant along with eight other persons at about 8 p.m.
They were accused nos.
1 to 9 in the trail court.
The following morning, that is, May 15, 1970 96 the P.S.I. recorded the statements of Kassam and Jubeda.
Hanif was also called but as he was crying all the time he was not able to make any statement.
On May 16, 1970 the appellant made a statement leading to the recovery of a bow and four arrows from a spot in Karvandi shrubs about 85 paces away from his house.
The recovered bow and four arrows were exhibited as 11, 11a, 12a, 12c and 12d.
These articles were hidden under dry leaves.
One of the arrows had, blood gains on it but on examination the stains being disintegrated it could not be said if they were of human blood.
The statement of Hanif was recorded by Vishwanath, Police Inspector in July, 1970 after he had taken over the investigation.
The Additional Sessions Judge, Thana, who tried the case relied on the evidence of Kasam (P.W. 2), Jubeda (P.W. 3) and Hanif (P.W. 5).
These witnesses, according to the trail court, had not displayed any tendency to introduce falsehood in their statement though it felt that the evidence of Hanif (P.W. 5) should be read with a certain degree of care and caution because of his statement having been.
recorded by the investigating authorities more than two months after the occurrence.
For accepting Hanif 's evidence, therefore, the trail court required corroboration.
With respect to the evidence of Shamsuddin (P.W. 1), however, the trail court felt that it was not safe to rely on his testimony because his statement in court was at variance with the statement in the information lodged by him with the police.
On the basis of the testimony of P.Ws. 2, 3 and 5 the trail court came to the conclusion that the appellant was definitely present at the scene of occurrence with bow and arrows and was a member of the unlawful assembly and further that he had shot the arrows at Abdul Khalil, his eldest son Shaukat and his wife Sahebi, the three deceased victims of the unfortunate occurrence.
In that court 's opinion the three witnesses had no reason to screen the real offenders and to falsely implicate the appellant.
The appellant (Dharma Rama Bhagare, accused No. 1 in the trial court) and Budhya Dhaklya Valvi (accused no 7 in the trial court) appealed to the High Court.
It may be recalled that during the investigation one arrow had been found underneath the dead body of Khalil and four arrows were recovered at the instance of appellant.
As already observed, the arrow recovered at the scene of occurrence had blood stains on it which were on examination found to be of human origin whereas one of the four arrows recovered at the instance of the appellant was found on examination to have on it blood stains but being disintegrated it could not be said if they were of human origin.
It appears that there was some confusion in putting the exhibit 97 marks on the arrows and the bow produced in evidence.
The High Court, in the circumstances, considered it necessary to have the matter clarified by taking additional evidence.
By means of an order dated April 27, 1971 the High Court required the trial court to recall the investigating officer (P.W. 13) and the two witnesses P.Ws 6 and 10 and have the matter clarified.
The counsel for the accused appearing in the High Court also expressed a desire to ask some more questions from Dr. Deshpande (P.W. 12).
This request was granted.
The High Court thus disposed of the appeal and the murder reference after taking into consideration the additional evidence received under section 428, Cr.
The High Court, after appraising the evidence on the record did not see any cogent reason for not accepting the evidence of the three eye witnesses believed by the trial court.
That court was also unable to find any reason why these witnesses should falsely implicate the accused persons.
From the nature of the occurrence and its surrounding circumstances, in its opinion, there could not be any independent eye witnesses present and in a position to depose about the complicity of the accused persons.
The locality where the occurrence had taken place being uninhabited and the only persons present being the assailants and their victims it was not possible normally to expect any independent eye witness.
The recovery of a bow and four arrows received at the instance of the appellant were also held to support the prosecution version as these arrows were similar to the one recovered from the scene of the occurrence.
The High Court further took into consideration the circumstance that the bow and four arrows were found concealed in a place where they are normally not kept.
The appeal was accordingly dismissed.
In this Court Shri Dholakia the learned counsel appearing in support of the appeal has very strongly challenged the conclusions of the two courts below.
He has advanced two principal contentions.
According to him the prosecution case that three deaths were caused by arrows like the one found at the scene of occurrence conflicts with the medical testimony because the medical evidence shows that it was not possible to cause by such an arrow the injuries found on the dead persons.
The learned counsel complains that neither the trail court nor the High Court examined the medical evidence from this point of view.
In the second place, according to learned counsel, the conclusions of the two courts below are irrational and both the courts have not cared to attach proper importance to the first information report which was lodged by Shamsuddin who had also himself appeared as an eye witness in the case.
According to learned counsel, Shamsuddin had all along been with the other members of the family with the result that the initial version given by him to 8 L63ISupCII73 98 the police which constituted the first information report must be considered to have been given by him after knowing all the facts from the other members of the family who claimed to have witnessed the occurrence and appeared as witnesses in court.
This version as contained in the first information report must, according to the submission, be held to contradict the evidence given in court by the other eye witnesses as well.
On this premise, according to Shri Dholakia, the prosecution evidence must be considered to be unacceptable and it cannot form safe basis for holding the appellant guilty of the offence charged.
Indeed, the learned counsel went to the length of submitting that the appellant has been involved not as a result of the observation by the prosecution witnesses of what actually happened at the time of the unfortunate assault on the victims but as a result of calculated deliberation to falsely implicate him.
So far as the first point is concerned main reliance has been placed on the examination of Dr. Vinayak Deshpande (P.W. 12) when he was recalled pursuant to the order of the High Court dated April 27, 1971 under section 428, Cr.
P.C. We have been taken through that evidence which was recorded on May 4 and 5, 1971 along with the evidence originally recorded but we am unable to find anything in the doctor 's testimony which would show that the injuries sustained by the three dead persons could not be caused by the kind of arrows recovered from the scene of occurrence and from near the appellant 's house at his instance.
The real argument is founded on the opinion of P.W. 12 where he states that the Injuries sustained by Abdul Khalil and injuries sustained by Sahebi could be caused by an arrow with or without a hook and that the removal of arrow with the hook from the injury would be likely to cause more damage to the abdominal wall and also to the internal organs.
Both in the case of Sahebi and Abdul Khalil the doctor did not notice any injury to the abdominal wall which could have been caused while pulling out the arrow.
Relying on this part of the evidence, according to Shri Dholakia, all the recovered arrows which are alleged to have caused the injuries to the deceased persons having been found out of the dead bodies should have, caused severe internal ' damage expected by the doctor and since no such damage was discovered by him the injuries, as a result of which the deceased persons died, must have been caused by some weapon other than the arrows with hooks.
It has been suggested that the injuries might well have been caused by someone with a spear.
The appellant, it has been emphasised, is not stated to have used a spear.
We are wholly unable to sustain this sub.
mission on the existing record.
The doctor also explained in his evidence on which reliance is placed that if the arrow with a hook is removed skilfully out of the injury then it may not 99 cause more damage to the abdominal wall when removed out of the injury though if it is removed forcibly it may do so.
It is also noteworthy that all the arrows recovered did not have hooks on them.
The circumstances in which and the person by whom the arrow was removed from the body of Abdul Khalil is not known.
When the investigating officer went there it had already come out of the wound and was lying underneath the dead body pressed near the stomach between both the legs of the deceased.
Any attempt by this Court to determine whether the arrow had come out IV itself as a result of some movement of the injured body after receiving the arrow injury whether before or during Abdul Khalil 's last moments of life or whether someone from amongst the party of the accused had attempted to remove it but was for some reason unable to, do so or whether the arrow had come out of the body in some other way, would be mere speculation and it would be unfruitful to hazard a guess.
We are not unmindful of the fact that the doctor has stated in his additional evidence that if the arrow with the hook is shot at from a distance with force it would not come out from the injury without being pulled out by someone and also that looking at the injuries of Abdul Khalil and Sahebi the arrows must have been shot at with force.
But the fact remains that an arrow was actually found underneath Abdul Khalil 's dead body and according to the doctor the injury on the deceased could be caused by that arrow.
The mere fact, therefore, that in the opinion of the doctor the arrow with the hook, unless skilfully pulled out of the wound was likely to cause more damage is, in our opinion, not a sufficiently strong factor which should persuade us on the existing record to reject the testimony of the three eye witnesses believed by the courts below and about whose trust worthiness we do not entertain any reasonable doubt.
It is noteworthy that this contention was not raised either in the trail court or in the High Court.
Indeed, during the cross examination of Dr. Deshpande (P.W. 12) even when he was recalled no straight and direct question was put to him, if keeping in view the nature of the injuries on Abdul Khalil and Sahebi and the recovered arrows and assuming that the arrows causing the injury had not been taken out skilfully, he could confidently depose that the injuries in question were not possible to be caused by these arrows.
It is also pertinent to point out that from the order dated April 27, 1971, it does not appear that the counsel for the appellant specifically desired to clarify this point from the doctor.
The submission now forcefully advanced by Shri Dholakia appears to us to be an afterthought and in any event is clearly not supportable on the medical evidence.
We are, therefore, unable to reject the testimony of the eye witnesses merely on the medical evidence to which our attention has been drawn.
100 In so far as the information lodged with the police by Shamsuddin is concerned both the courts below have not considered it proper to reject the testimony of the other three eyewitnesses on the ground of variance between their statements in court and the contents of the said information.
The first information report, it may be pointed out, is never treated as a substantive piece of evidence.
It can only be used for "corroborating or contradicting its maker when he appears in court as a witness.
Its value must always depend on the facts and circumstances of a given case.
In the present case its value has not been considered to be of much significant because of the nature and circumstances of the occurrence and the extent and nature of the injuries suffered by Shamsuddin who quite naturally must have been subjected to a very severe shock.
The surviving members of the family could not go back to their home even after the occurrence and felt compelled to trek the whole night on foot to find shelter in the house of Gafoor at Shahpur where they reached the following morning.
In these circumstances the contents of the F.I.R. made by Shamsuddin have rightly not been given any importance by the trail court and by the High Court.
The F.I.R. can only discredit the testimony of Shanisuddin whose evidence has not been relied upon for supporting_ the appellant 's conviction.
The F.I.R. can by no means be utilised for contradicting, or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant.
The evidence of the eye witnesses believed by the two courts appears to us to be free from any serious infirmity justifying its rejection.
The case is obviously not one in which any reasonable doubt can be cast on the testimony of the eye witnesses on the mere ground that Shamsuddin who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and by what weapon his parents and eldest brother had been killed.
That they were actually killed during the occurrence in question is undisputed.
, Equally undisputed is the nature of injuries found on their bodies.
We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given by Shamsuddin.
The evidence of Shamsuddin as given in court, it may be recalled, has not been relied upon for sustaining the appellant 's conviction.
We accordingly feel little hesitation in agreeing with the concurrent conclusion of the trial court and the High Court that the appellant was responsible for killing the three deceased persons.
101 The last contention by Shri Dholakia relates to the question of sentence.
According to him the present is not a case for extreme penalty.
We are unable to agree.
The question of sentence is a matter of judicial discretion.
The relevant considerations in determining the sentence broadly stated, include the motive for, and the magnitude of, the offence and the manner of its commission.
In this case the victims of the assault had given no offence to the appellant or his associates.
Indeed the unarmed innocent members of this family had to leave their heath and home and were actually at the moment of the offence running in panic, on seeing the mob, to save themselves, when the three senior most members were shot with arrows from behind and killed.
One of the victims was a woman with a baby in her arms.
The only reason for these murders is the profession of different religious faith by the victims.
According to the investigating officer, P.W. 13, Abdul Khalils residential house had also been set on fire on May 12 at 8.30 p.m.
In our country where the Constitution guarantees to all individuals freedom of religious faith, though, belief and expression and where no particular religion is accorded a superior status and non subjected to hostile discrimination the commission of offences motivated only by the fact that the victim professes a different religious faith cannot be treated with leniency.
They are no only destructive of our basic traditional social order founded on toleration in recognition of the dignity of the individual and of other cherished human values, but have also a tendency to mar our national solidarity.
We are, therefore, wholly unable to find any cogent reason for reducing the sentences imposed by the trial court and confirmed by the High Court.
The appeal accordingly fails and is dismissed.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant vs as convicted by the Sessions Judge of offences under sections 148,323 and 302 I.P.C.
The High Court maintained his conviction and confirmed the sentence to death.
in appeal by special leave to this Court it was contended that (i) the evidence of the eye witnesses went against the medical evidence and thereof the former was wrongly relied on by the courts below; (ii) the evidence of the three eye witnesses on which the conviction of the appellant was based was contradicted by the F.I.R. lodged by S, one of the victims of the incident and therefore should not have been relied on; and (iii) the sentence of death passed against the appellant was excessive.
Dismissing the appeal, HELD:(i) The fact remained that an arrow was actually found ,underneath A 's dead body and according to the doctor the injury on the ,deceased could be caused by that arrow.
The mere fact, therefore that in the opinion of the doctor the arrow with the hook, unless skillfully pulled out of the wound was likely to cause more damage was not a sufficiently strong factor to reject the testimony of the three eye witnesses believed by the courts below and about whose trustworthiness there could 'be no reasonable doubt.
(ii)The F.I.R. could only discredit the testimony of S whose evidence had not been relied upon to support the appellant 's conviction.
The F.I.R. could by no means be utilised for contradicting or discrediting the other witnesses who obviously could not have any desire to spare the real culprit and to falsely implicate the appellant.
The evidence of the eye witnewes believed by the two courts appeared to be free from any serious infirmity justifying its rejection.
The case was obviously not one in which any reasonable doubt could be cast on the testimony of the eye witnesses on the mere ground that S who apparently in his attempt to save himself from the fierce indiscriminate assault by the assailants was not able carefully to see and remember as to in what manner and 'by what weapon his parents and eldest brother had been killed.
(iii)The relevant considerations in determining the sentence, broadly stated, include the Motive for, and the magnitude of, the offence and the manner of its commission.
In this case the victims of the assault had given no offence to the appellant or his associates.
They were actually runni ng in panic on seeing the mob, to save themselves.
The commission of offences motivated only by the fact that the victim professes a different religious faith could not be treated with leniency.


judgement:
Appeals Nos.
23 92 to 2403 of 1969.
Appeals by certificate from the judgment and order dated September 9, 1968 of the Delhi High Court at New Delhi in Civil Writs Nos. 67 to 78 of 1968.
section C. Manchanda, B. B. Ahuja, section P. Nayar and R. N. Sachthey for the appellants.
N. D. Karkhanis, Rameshwar Nath and Seita Vaidialingam for the respondents.
The Judgment of the Court was delivered by HEGDE, J.
These appeals by certificate arise from several writ petitions filed by the H.U.F. M/s. Rai Singh Deb Singh Bist and its Karta Thakur Mohan Singh Bist, challenging the validity of certain notices issued under section 34(1) (a) of the Indian Income tax Act, 1922 (in short the Act) by the Income tax Officer, Central Circle 1, Delhi.
The High Court of Delhi allowed those writ petitions and quashed the impugned notices.
Hence these appeals.
The assessee in these cases is an H.U.F. The assessment years with which we are concerned in these appeals range from 1942 43 to 1953 54.
The assessee filed its returns for these years in due time.
The assessee 's account books showed considerable cash credits in the name of the brothers in law of the 2nd respondent, the Karta of the H.U.F. Those alleged creditors were living in Nepal.
The account books also showed certain credit entries in the name of Rana Anand Nar Singh, alleged to be in connection ' with expenses incurred by him for getting trees cut on behalf of the assessee.
The assessee was a forest contractor.
He had taken large tracts of forests for felling trees in Nepal.
The Income tax 104 Officer went into the genuineness of the cash credit entries standing in the name of the alleged creditors of the assessee as well as to the alleged amount due to one of them.
The contention of the assessee was substantially accepted either by the Appellate Assistant Commissioner or by the Revenue Appellate Tribunal.
With regard to the assessment for the assessment years 1943 44 to 1949 50, the final assessments were made in pursuance of an agreement or settlement arrived at between the assessee and the Deputy Director of Inspection (Investigation) New Delhi on October 18, 1954: Long after the assessments in question were final ised, the Income tax Officer.
issued notices to the appellants under section 34(1) (a) of the Act seeking to reopen the assessments already finalised.
The validity of those notices is in issue.
Before an Income tax Officer can issue a statutory notice under section 34 (1 ) (a), he must have reason to believe that by reason of omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for the years in question, income, profits or gains chargeable to income tax have escaped assessment during those years.
Further, before doing so, he must have recorded his reasons for acting under section 34(1) (a) and the Central Board of Revenue must have been satisfied on those reasons that it is a fit case for the issue of the notice.
The recording of the reasons in support of the belief formed by the Income tax Officer and the satisfaction of the Central Board of Revenue on the basis of the reasons recorded by the Income tax Officer that it is a fit case for issue of notice under section 34 (1 )(a) are extremely important circumstances to find out whether the Income tax Officer had jurisdiction to proceed under section 34(1) (a).
In Calcutta Discount Co. Ltd. vs Income tax Officer, Com panies District 1.
Calcutta and anr.(1) this Court laid down (1) that to confer jurisdiction under section 34 to issue notice in respect of assessments beyond the period of four years, but within a period of eight years, from the end of the relevant year, two conditions had to be satisfied.
The first was that the Income tax Officer must have reason to believe that income, profits or gains chargeable to income tax had been under assessed.
The second was that he must also have reason to believe that such "under assessment" had occurred by reason of either (1) omission or failure on the part of an assessee to make a return of his income under section 22, or (2) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year.
Both these conditions are conditions precedent to be satisfied before the ' Income tax Officer could have jurisdiction to issue a notice for the assessment or re assessment beyond the period (1)41 I.T.R. 191.
105 of four years but within the period of eight years from the end of the year in question.
In Chhugamal Rajpal vs section P. Chaliha and ors.(1) this Court ruled that before an Income tax Officer can be said to have had reason to believe that some income had escaped assessment, he should have some relevant material before him from which he could have drawn the inference that income has escaped assessment.
His vague feeling that there might have been some escape of income from assessment is not sufficient.
This Court also took the view that the Central Board of Revenue before reaching its satisfaction that the case was a fit one to be proceeded under section 3 4 (1 ) (a) must have examined the reasons given by the Income tax Officer and arrived at its own conclusion and that it is not permissible for it to act mechanically.
The same view was again taken by this Court in Sheo Nath Singh vs Appellate Assistant Commissioner of Income tax (Central) Calcutta and ors.
(2) In the instant case, the assessee alleged in his writ petitions that there was no relevant material before the Income tax Officer before he issued notices under section 34 (1) (a) on the basis of which he could have had reason to believe that any income had escaped assessment.
In the writ petitions the assessee called upon the Income tax Officer to produce the report made by him to the Central Board of Revenue as well as the order of the Central Board of Revenue thereon.
Despite this prayer, neither the Union of India nor the Income tax Officer cared to produce the report made by the Income tax Officer to the Central Board of Revenue under section 34(1) (a) or the order of the Central Board of Revenue.
Before the hearing of the writ petitions commenced, the assessee again applied to the Court to call upon the Union of India and the Income tax Officer to produce those documents.
In response to that application, an affidavit was filed before the Court stating that the relevant records could not be traced from the file of the Central Board of Revenue.
Assuming that the concerned records were missing from the file of the Central Board of Revenue, the copy of the report made by the Income tax Officer and the order received by him must have been in the file of the Income tax Officer.
No reason was given for not producing those records.
These circumstances give rise to an adverse inference against the department.
We are constrained to come to the conclusion that the records in question were not produced because they did not assist the department 's case.
Under these circumstances, it is not possible.
to come to the conclusion that the facts necessary to confer jurisdiction on the Income tax Officer to proceed under section 3 4 1 ) (a) had been established.
(1) (2) 8 7. 106 All that was said on behalf of the department was that some time in the year 1955, the assessee sold large tracts of land to two of his brothers in law for a sum of Rs. 47 lakhs but in reality that property was not worth that amount.
We do not know whether there was any basis for this conclusion.
As seen earlier the cash credit entries were brought to the notice of the Income tax Officer before the relevant assessment orders were passed.
He had an occasion to investigate into them.
It is not necessary to go into this question more deeply in view of the fact that there is nothing to show that there was any relevant material before the Incometax Officer before he issued the notices under section 34 (1) (a) to have reason to believe that as a result of the assessee 's failure to state in its return truly and fully any fact, any income had escaped assessment.
In the result these appeals fail and they are dismissed with costs one hearing fee.
S.C. Appeals dismissed.

summary:
The assessee in these appeals is an Hindu Undivided Family The assessment years in question are ranged from 1942 43 to 1953 54.
The assessee filed its returns for these years in time.
The assessee 's account books showed considerable cash credits in the name of some relations of the second respondent, the Karta of the H.U.F.
The I.T.O. went into the genuineness of these cash credit entries.
The contention of the assessee was substantially accepted either by the Appellate Assistant Commissioner or by the Revenue Appellate Tribunal.
With regard to the, assessment for the assessment years 1943 44 to 1949 50, the final assessment was made in pursuance of an agreement or settlement arrived between the assessee and the Deputy Director of Inspection (Investiga tion).
Long after the assessments in question were finalised, the I.T.O. issued notices to the appellants under section 34(1) (a) of the Indian Income Tax Act 1922, seeking to reopen the assessments already finalised.
The assessee challenged the validity of these notices of the I.T.O.
The High Court allowed the writ petitions and quashed the impugned notices.
The assessee alleged that there was no relevant material before the I.T.O. before he issued the notices under s 31(a) on the basis of which he could have reason to believe that any income had escaped assessment.
In the writ petitions, the assessee called upon the I.T.O. to produce the report made by him to the Central Board of Revenue, as well as the order of the Central Board of Revenue thereon.
Despite this prayer, neither the Union of India, nor the I.T.O produced the report made by the I.T.O. to the Central Board of Revenue under s.34(1)(a) nor the order of the Central Board of Revenue.
Dismissing the appeal, HELD : (i) Before an I.T.O. can issue a statutory notice under s.34(1)(a), he must have reason to believe that by reason of omission ,or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for the years in question, income, profits or gains chargeable to Income Tax have escaped assessment during those years.
Further, before doing so, he must have recorded his reasons for acting under section 34(1) (a) and the Central Board of Revenue must have been satisfied on those reasons that it is a fit case for the issue of the notice.
The recording of the reasons in support of the belief formed by the I.T.O. and the satisfaction of the Central Board of Revenue on the basis of the reasons recorded by the I.T.O. that it is a fit case for issue of notice under section 34(1) (a) are extremely important circumstances to find out whether the I.T.O. has jurisdiction to proceed under s.34(1)(a).
[104D] 103 Calcutta Discount Co. Ltd. vs I.T.O. Company District 1 Calcutta and Others, ; Chhugamal Rajpat vs section P. Chalia & Ors.
79 I.T.P 603; Sheonath Singh vs Appellate Assistant Commissioner of Income Tax, Central, Calcutta & Ors., referred to.
(ii)In the present case, an affidavit was filed before the Court stating that the relevant records could not be traced from the file of the Central Board of Revenue.
Assuming that the concerned records were missing from the file of the Central Board of Revenue, the copy of the report made by the I.T.O. and the Order received by him, must have been in the file of the I.T.O. and reason was given for not producing those records.
These circumstances give rise to an adverse inference that the records in question were not produced because they did not assist the department 's case.
Under the circumstances, it is not possible to come to the conclusion that the facts necessary to confer jurisdiction on the I.T.O. to proceed under s.34(1)(a) had been established.
There is nothing to show on record that there was any relevant material before the I.T.O. before he issued the notices under s.34(1) (a).
[105F]


judgement:
minal Appeal Nos. 101 to 103 of 1970.
Appeals by special leave from the judgment and order dated October 10, 1969 of the Calcutta High Court in Criminal Revision Nos. 238, 289 and 290 of 1969.
D. Mukherjee and section Ghosh for the appellants (in all the appeals).
A. N. Mulla, J. M. Khanna, Vishnu Bahadur Saharaya and Yogindra Khushalani for the respondents, (in Cr. A. Nos. 101 & 103/70).
R. A. Gupta for respondent (in Cr. A. No. 102/70).
section C. Mazumdar for the State (in all the appeals).
The Judgment of the Court was delivered by VAIDIYALIGAM, J.
These three appeals by the complaint, by special leave, are against the common judgment and order dated August 10, 1969, of the Calcutta High Court in Criminal Revisions Nos. 238, 289 and 290 of 1969, setting aside the charge under section 120B read with section 409 I.P.C. framed against all the four accused and the charge under section 409 IPC framed against accused Nos 1 to 3.
The High Court by the same judgment, quashed the proceedings based upon the said charges, which were pending before the Presidency Magistrate, 7th Court, Calcutta in case No. C/3443 of 1967.
The appellant in all these three appeals, Amar Chand Agar walla, filed a complaint before the Chief Presidency Magistrate, Calcutta, on November 21, 1967, on the basis of which the four 181 accused persons, namely, Paramanada Agarwalla, Madan Mohan Gour, Jhumermal Agarwala and Shanti Bose, were required to answer charges under section 120B/409 and 409 IPC.
These persons will be referred to as accused Nos. 1, 2, 3 and 4 respectively.
The case was later on transferred to the Presidency Magistrate, 7th Court, Calcuttta, for disposal.
The 7th Presidency Magistrate, after recording the evidence of ten prosecution witnesses, framed a charge on September 7, 1968, under section 120B/409 against all the four accused and a charge under section 409 IPC against accused Nos.
1 to 3.
The allegations in the complaint were briefly as follows The complainant was a partner of M/s. Kalinga Bakery Bis cuit Confectionery and Mineral Water Company of Rourkela in Orissa and was granted actual users ' import licence on November 18, 1966, by the Joint 'Chief Controller of imports and Exports, Calcutta, for import of skimmed milk powder and other commodities upto the value of Rs. 60,000/ .
This commodity was for the purpose of being used in the licensee 's factory.
The complainant appointed M/s. Arun Importer (P) Ltd., owned, managed and controlled by accused Nos. 1 to 3, as his agents to import 52.5 bags of milk powder from New Zealand.
The first accused wrote a letter dated July 25, 1967, informing the complainant that the goods had already been shipped and that they would be arriving very shortly.
Accused Nos.
1 to 3 also offered to assist the complainant with a loan of Rs. 25,000/ to enable him to clear the shipping documents from the Bank.
The 4th accused was introduced by the other accused as a Customs Clearing Agent and on their suggestion, the, complainant appointed him as his clearing agent.
After clearing the shipping documents with the assistance of the loan provided by the accused, the complainant, however, was not informed about the actual arrival of the ship.
The complainant addressed a letter dated August 19, 1967, to accused No. 4 asking for information about the arrival of the goods.
None of the accused gave any intimation about the arrival of the goods.
However, to his surprise, the complainant read in the newspaper a report on August 22, 1967, about the police having recovered from the various parts of Calcutta several bags of milk powder stated to have been imported on his account.
The complainant rushed to Calcutta and contacted the accused but was not able to get any information.
Accused No. 4 flatly declined to even recognise the complainant or talk to him; accused Nos. 1 to 3, however, professed ignorance about the whole thing and hinted that accused No. 4 might have diverted the goods to other persons.
On August 26, 1967, an application was filed before the Chief Presidency Magistrate to direct the police to make an investigation under section 156(3) of the Criminal Procedure Code re 182 garding the missing quantity of milk powder.
In the said application, however, only Shanti Bose (the present accused No. 4) was cited as an accused, as the complainant did not have any reason to suspect the other accused.
The milk powder seized by the police was later on directed to be returned to the complainant by the High Court on his furnishing security.
Accused Nos. 1 to 3, coming to know about this proceeding, instituted on September 25, 1967, a suit against the complainant in the High Court (Suit No. 2283 of 1967) praying for a declaration that the plaintiff was the pledge of 316 bags of milk powder of the defendant and prayed for a decree in the sum of Rs. 26,744.87.
They also asked for various interim reliefs.
The complainant, during the pendency of the proceedings before the Chief Presidency Magistrate, came to know that all the accused persons had taken away on August 19, 1967, the entire quantity of 525 bags of milk powder, which had been imported on his account without his knowledge, consent or instructions and that they had also mis appropriated about 200 bags before the police could raid their premises.
On an ascertainment of these facts, the complainant withdrew his original complaint with the permission of the court and instituted the present complaint against all the accused.
On receipt of the complaints the Chief Presidency Magistrate ordered a judicial enquiry to be held by the 9th Presidency Magistrate.
In the judicial enquiry held by the latter, the complainant had brought on record various documents to substantiate his allegations.
As a result of the enquiry, the Chief Presidency Magistrate on December 26, 1967, summoned all the four accused persons under sections 120B/409 and 409 an transferred the case for disposal to the 7th Presidency Magistrate, The learned Magistrate, after a consideration of the materials placed before him by the complainant, framed on September 7, 1968 charges against all the accused under sections 120B/409 IPC and a charge under section 409 IPC against accused Nos. 1 to 3.
None of the accused persons moved the High Court against the order of the Magistrate issuing process or against the order dated 7 9 1968 framing charges against them.
It is seen from the records that a large volume of oral and documentary evidence had already been lot in and the trial itself had almost come to the closing stage.
What remained was only to examine two more witnesses on the side of the prosecution, as per order dated 24 21969, and also to examine one Durga Dutt Chowdhury as a court witness under section 540, Criminal Procedure Code, as per order dated 7 3 1969.
The witnesses examined so far by the prosecution had also been cross examined, by the defence.
183 While matters stood thus, the 4th accused moved the High Court in Criminal Revision No. 238 of 1969 for quashing the charges and the entire proceedings that had taken place before the Magistrate.
There was also a prayer in the alternative for stay of the criminal proceedings till the disposal of Civil Suit No. 2283 of 1967 Accused No. 2 filed a similar Revision No. 289 of 1969, followed by accused Nos. 1 and 3, who were the, petitioners in Criminal Revision No. 290 of 1969.
All the three Criminal Revisions were, heard together by the High Court and have been dealt with in its common judgment.
On behalf of the accused, five contentions were urged before the High Court for quashing the charges as well as the entire proceedings pending before the Presidency Magistrate.
The first contention related to the maintainability of the present proceedings by the complainant, when he himself was an accused in a case under section 5 of the Imports and Exports (Control) Act 1947, stated by the Central Bureau of Investigation, Economic Offences wing, Calcutta, in B. C. case No. 23/W/67.
it was urged before the High Court that though he had been discharged, he is, nevertheless, an interested complainant.
The High Court rejected this contention and held that, on that account, the present proceedings cannot be quashed.
The second contention of the accused related to the effect of ,the order of withdrawal of the earlier complaint on the present proceedings.
It was pleaded that the dismissal of the, first complaint operates as a bar to these proceedings.
However, this contention also was rejected by the High Court on the ground that an order of dismissal under section 203, Criminal Procedure Code, is no bar to the entertainment of a second complainant on the similar facts, though such a complaint can be entertained, only under exceptional circumstances.
The High Court ultimately held that the present proceedings are not unwarranted of unable in view of the first order of discharge in the circumstances of the present case.
The third contention that was taken before the High Court by the accused was that the factum of entrustment has not been established by clear and cogent evidence and as such, there cannot be any breach of trust, for less any dishonest conversion leading to a conspiracy.
The learned Judge held that it is difficult, at that stage, on the evidence adduced, to hold that there has not been any entrustment, especially as the whole case depends upon on appreciation of the entire evidence for coming to a conclusion one way or the other.
On this reasoning, this contention also was rejected.
184 It must be noted that the third contention was an invitation to the High Court to consider the evidence already adduced before the Magistrate and to come to a conclusion that no entrustment had been established.
The High Court, in our opinion, ,quite rightly, declined at that stage, to go into that question of tact and left it to the Magistrate to assess and appreciate the evidence and come to a conclusion one way or the other.
We are particularly referring to this aspect because, as will be seen later, ,the High Court adopted a different criteria when it dealt with the fifth contention of the accused.
The fourth contention of the accused was that both the first and the second complaints suppressed material facts, vitiating the present proceedings.
The fifth contention, as the High Court itself observes, related to the merits, namely, that the evidence on record does not establish the offences with which the accused are charged.
These two contentions have found favour with the High Court.
It is on the basis of the acceptance of these contentions that the entire proceedings have been quashed.
The fourth contention of the accused was that the complainant had suppressed material facts, which were within his knowledge, in the first complaint filed on August 26, 1967.
Particularly, it was stressed that the complainant had not even referred to the Civil Suit No. 2283 of 1967 instituted against him.
The said complaint also does not refer to the complainant having taken a loan of Rs. 25,000/ from the accused.
The learned Judge has accepted this criticism as justified.
It is not necessary for us to refer to, what according to the learned Judge were, certain omis sions made by the complainant in his original complaint filed on August 26, 1967.
But it is enough to state that the view of the learned Judge that even the suit instituted against the complainant had not been referred to, is not justified.
The complaint was filed on August 26, 1967, whereas the suit against the complainant was filed on September 26, 1967.
It is also the view of the learned Judge that the present complaint also.
does not refer to certain matters, which were within the knowledge of the com plainant.
We do not propose even to advert to these matters.
According to the High Court, there has been a suppression of some material facts in the two petitions of complaint and, therefore, the present proceedings must be held to be bad and repugnant effecting their maintainability.
The High Court has referred in this case to a decision of the Calcutta High Court which, in our opinion, has no bearing.
The decision is in Sunder Das Loghani vs Farun Rustom Iran(1).
That was a case of (1) A.I.R. 1939 Calcutta 320.
185 discharge of the accused under section 253 (2) of the Criminal Procedure Code, as the Magistrate was of the opinion that the complainant had deliberately suppressed several facts and that the complaint was a thoroughly dishonest one.
in the end the High Court has held that the Present Proceedings are bad and improper and, therefore, they have to be quashed.
The fifth and the last contention taken on behalf of the accused relates, as the High Court itself states, to the merits of the case and is based Upon the evidence on record, both oral and documentary.
After a consideration of certain items of evidence, the learned Judge has held that the evidence on record rules out any offence of breach of trust.
or a conspiracy to commit the same, by the accused persons and, therefore, the present croceedings are not maintainable and have to be quashed.
A representation appears to have been made on behalf of the complainant that a large volume of evidence, oral and documentary, has already been adduced and the trial has gone on for a long time and that only two more prosecution witnesses and a court witness remain to be examined.
On this basis it was pressed before the High Court by the complainant that the High Court should allow the proceedings to go on and to come to its logical conclusion and that the.
High Court should not interfere at that stage.
The learned Judge, however, considered this representation and held that the two remaining prosecution witnesses should not be allowed to be examined 'in the facts and circumstances of the case, as they cannot possibly have any material effect on the merits of the case.
The High Court further held that even the proposed examination of the court witness is not necessary, as it will only prejudice the accused and undo the effect of their cross examination.
On this basis, the representation made on behalf of the complainant was rejected.
On behalf of the appellant, Mr. D. Mookerjee very strenuously attacked the reasoning of the High Court for quashing the charges framed against the accused and the entire proceedings that head taken place before the Presidency Magistrate.
On the other hand, Mr. A. N. Mulla, learned counsel on behalf of the accused, urged that the High Court was justified, in the circumstances, in quashing the charges well as the entire proceedings so far taken place before the Presidency Magistrate.
The learned counsel appearing for the State supported the appellant and urged that the High Court was not justified in interfering with the proceedings when the trial had gone on for a considerably long time and was due to close, We have already referred to the 4th and the 5th contentions urged on behalf of the accused which have found favour with 186 the High Court.
We have already pointed out that the learned Judge quite rightly declined, when dealing with the third contention, to consider, on an appreciation of evidence, whether an entrustment has been proved.
This, the High Court has properly left to be decided by the Magistrate after the entire evidence is closed.
But when dealing with the fifth contention, which the High Court itself says, relative to the merits of the case, and has to be decided on the basis of the evidence on record, both oral and documentary, the High Court instead of adopting the same test, as it did when dealing with the third contention, embarked upon a fairly elaborate appreciation of the evidence on record and ultimately came to the conclusion that the evidence on record does not establish any breach of trust, or a conspiracy to commit the same, by the accused persons.
Regarding the fourth contention, which also has found acceptance at the hands of the High Court, it relates to what according to the accused was, suppression of certain material facts by the complainant in his two complaints.
In our opinion, the High Court was not justified, in the particular circumstances of this case, in quashing the charge, as well as the entire proceedings that had taken place before the Magistrate.
it is not as if the accused had moved the High Court at the earliest stage when the Presidency Magistrate issued sommons to them.
Nor had they approached the High Court when charges were framed against them.
The accused had 'been summoned, after a judicial enquiry by the Chief Presidency Magistrate on December 26, 1967, under sections 120B/409 and 409 IPC.
Before the Magistrate, the evidence.
oral and documentary, was adduced by the complainant in the presence of the accused.
On a consideration of such materials, the Presidency Magistrate framed charges against all the four accused as early as September 7, 1968.
If the case of the accused was that the allegations in the complaint do not constitute the offence complained of or that the complaint has to be quashed for any ground available in law.
they should have approached the High Court, at any rate.
immediately after the charges were framed.
The records disclose that it was the fourth accused, who moved the High Court to quash the proceeding on March 17, 1969, earlier than the other accused.
Even by that date, several prosecution witnesses, had been examined and they had also been cross examined by the accused.
Several items of documentary evidence had already been let in during the trial.
Only two prosecution witnesses and a court witness remained to be examined.
The proper course at that stage to be adopted by the High Court was to allow the proceedings to go on and to come to its logical conclusion, one way or the other,.
and decline to interfere with those proceedings.
The fourth contention related to the suppressions of certain 187 material in the complaint.
We do not propose to express any opinion on that aspect because, even assuming that there has been suppression, that is a matter to be considered by the Trial Magistrate.
Similarly, as to whether the evidence on record establishes that an offence of breach of trust has been committed, or not, is again a matter for the Trial Court to come to a conclusion, one way or the other, after an appraisal of the entire evidence that is let in by the prosecution and by the defence, if any.
The High Court was not justified at that stage to have embarked upon an appreciation of the evidence.
Here again, we do not express any opinion, on merits, as the matter is to be, considered by the Trial Magistrate.
The High Court was also equally not justified in holding that the two prosecution witnesses should, not be examined on the ground that their evidence will not have any material effect on the merits.
The further view of the High Court that the examination of the court witness will prejudice the accused, is also without any basis.
In fact, the High Courts decision on.
the question of these witnesses is really on a representation made on behalf of the complainant that the trial is almost coming to a close and that only two more prosecution witnesses and one court witness remain to be examined.
So far as we could see, the ' accused have not challenged the order of the Magistrate dated February 24, 1969, allowing the prosecution to examine Satanarayan Agarwalla and an officer of the Directorate of Industries, Government of Orissa; nor have they challenged the order dated March 7, 1969, of the Magistrate allowing the prayer of the prosecution for examining Durga Dutt Chowdhury as a court witness under section 540.
In holding that the proposed examination of Durga Dutt Chowdhury, as a court witness, will pre judice the accused, the High Court has not given due consideration to the decision of ;this Court in Jamatraj Kewalji Govani vs
The State of Maharastra(1).
It is not clear whether the High Court passed the order, in question, under section 561A or under section 439 of the Code.
of Criminal Procedure.
This Court has laid down the principles in R.,P. Kapur vs The State of Punjab(2), which have to beborne in mind by the High Court when its inherent jurisdiction under section 561A is invoked for quashing the proce edings pending before a subordinate court.
It has been 'emphasised that the inherent jurisdiction could be exercised to quash proceedings in a proper case, either to prevent the abuse of the.process of any court or otherwise to secure the ends of justice.
This Court has also indicated some of the categories of case where (1) ; (2) 188 the inherent jurisdiction could and should be exercised to quash proceedings.
However, the exercise of the power by the High Court, in the case before us, does not come within the ambit of the principles laid down by this Court in the above decision.
For instance, the second contention taken before the High Court by the accused related to the maintainability of the second complaint, when the first complaint had been withdrawn and the accused had been discharged.
If the High Court had accepted the contention of the accused in that regard, it may be that the High Court was justified in quashing ;the proceedings, though at a very late stage.
But on that point, the High Court 's decision is in favour of the complainant.
The other points taken into account by the High Court do not justify the exercise of its power under section 561A and that too at a very late stage of the proceedings.
Even assuming that the High Court was exercising jurisdiction under section 439, in our opinion, the present was not a case for interference by the High Court.
The jurisdiction of the High Court is to be exercised normally under section 439, Criminal Procedure Code, only in exceptional cases, when there is a glaring defect in the procedure or there is a manifest error of point of law and consequently there has been a flagrant miscarriage of justice.
The High Court has not found any of these circums tances to exist in the case before us for quashing the charge and the further proceedings.
The judgment and order of the High Court quashing the ,charges framed against the accused as well as the other proceedings based thereon, pending in case No. C/344 3 of 1967, are set aside.
The learned Presidency Magistrate will proceed with the further trial and give it a very expeditious disposal.
We make it clear that the directions given by the Chief Presidency Magistrate regarding the examination of two more prosecution witnesses and the court witness will stand, subject to any modifications that may be made by that Court in regard to the directions I already given by it.
In the result, the appeals are allowed.
V.P.S. Appeals allowed.

summary:
As a result of a judicial enquiry in relation to a complaint by the appellant against the four respondents, summons were issued to the respondents, and before the Magistrate, evidence, oral and documentary, was adduced by the complainant (appellant) in the presence of the accused (respondents).
On a consideration of those materials, the Magistrate framed charges against I all the four accused under sections 120 B/409 1.
P.C. and under section 409, against accused 1 to 3, in September 1968.
Thereafter, the trial proceeded, a large volume of oral and documentary evidence was let in, and all that remained was the examination of two prosecution witnesses and a court witness before closing the trial.
All the prosecution witnesses, examined till then were also cross examined by the respondents.
At that stage, in March 1969, the 4th accused moved the High Court for quashing the proceedings and the other accused followed with similar petitions.
The High Court, in spite of the complainant representing that the trial had almost come to a close quashed the charges and proceedings on the grounds that, the complainant had suppressed material facts, that the two prosecution witnesses should not be allowed to be examined 'in the circumstances of the case ', that the ' examination of the court witness was not necessary as it would only prejudice the accused and under the effect of cross examination, and that the evidence on record ruled out any offence of breach of trust or a conspiracy to commit it.
Allowing the appeal to this Court, HELD : The High Court was in error (a) It is not as if the accused had moved the High Court at the earliest stage when summons was issued to them.
Nor had they ,approached the High Court when charges were framed against them.
If the case of the accused was that the allegations try the complaint did not constitute the offences complained of or that the complainant was to be quashed on any other ground available in law, the accused should have approached the High Court at least when the charges were framed.
[186DE] (b) Assuming there was a suppression of material facts by the complainant that was a matter to be considered by the trial Court.
Similarly, whether the evidence on record established that an offence of breach of trust or a conspiracy to commit it, had been committed, Is again a matter for the trial court to come to a conclusion after, an appraisal of the entire evidence let in by the prosecution and the defence.
The High Court was not justified, at that stage, to have embarked upon an appreciation of the evidence.
[187AC] (c) The accused never challenged the order of the trial court regarding the examination of prosecution witnesses or the court witness, and 180 the High Court was not justified in holding that they should not be examined, and hence, the order regarding their examination should stand.
Jamatraj Kewalji Govani vs The State of Maharashtra, , referred to.
(d) If the High Court had passed the order quashing the charges and proceedings in exercise of its inherent jurisdiction under s.561A, Cr.
P.C. then the exercise of the power by the High Court was not justified, because, the present case does not come within the ambit of the principles laid down by this Court, in R. K. Kapur vs The State of Punjab, [188 A C] (e) Even assuming that the High Court was exercising jurisdiction under section 439, Cr.
P.C., the present was not a. case for interference by the High Court.
The jurisdiction of the High Court is to be exercised nearly, under the section, only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law and consequently a flagrant miscarriage of justice.
[188D]