judgement:
Civil Appeal No. 1652 of 1973.
Appeal by Special leave from the Judgment and Order dated the 25th June, 1973 of the Calcutta High Court in Appeal No. 233 of 1970.
WITH Civil Appeal Nos.
759 760 of 1973 From the Judgment and Order dated the 2nd June, 1972 of the Calcutta High Court in Appeal from Original Order Nos. 155 & 158 of 1970.
AND Civil Appeal No. 661 of 1975 From the Judgment and Order dated the 15th March, 1974 of the Calcutta High Court in Appeal No. 96 of 1972.
V.S. Desai, B.B. Ahuja and Miss A. Subhashini for the Appellant, in CA. 1652 of 1973.
819 S.T. Desai, Miss A. Subhashini for the Appellants in CA.
759 760 of 1973 & 661 of 1975.
Sanjay Bhattacharya, Rathindas and K. Kathazarika for the Respondent in CA.
No. 1652 of 1973.
V.B. Saharya for the Respondent in CA.
No. 759 of 1973.
N.S. Das Behl for the Respondent in CA.
No.760 of 1973.
D.N. Mukherjee for the Respondent in CA.
No.661 of 1975.
The Judgment of the Court was delivered by TULZAPURKAR, J.
All these appeals, at the instance of the Commissioner of Income tax, raise a common question whether the Revenue is under a statutory obligation to communicate to the person (from whose custody books of account and documents have been seized under section 132(1) of the Income tax Act, 1961) the approval obtained from the Commissioner of Income tax and the recorded reasons of the Authorised Officer/Income Tax Officer on which such approval is based for the retention of the seized books of account and documents by the Department for a period exceeding 180 days from the date of seizure under sec.
132 (8) of the Income tax Act, 1961 ? Since in all these appeals the facts giving rise to aforesaid question are almost similar, it will suffice to indicate briefly the facts obtaining in M/s. Oriental Rubber Work 's case (Civil Appeal No. 1652 of 1973).
Under a proper authorisation issued in that behalf under sec.
132(1) of the Act, on 17th February, 1965 a search was conducted by the Income tax Department in the factory premises at Kantalia as well as the offices and godown at Mahatma Gandhi Road Calcutta belonging to the respondent assessee and various books of account and documents were seized from the aforesaid premises.
After lawfully carrying out the aforesaid search and seizure, the respondent assessee was given opportunity to inspect the seized books and documents as also to make copies of the entries.
The concerned Income Tax Officer then issued a notice to the respondent assessee under Sec.
142(1) of the Act in connection with its assessment for the assessment year 1964 65 and after giving several hearings which were attended by the respondent assessee or its representative the assessment for the said year was completed under section 143(3) of 820 the Act on 5th February, 1969.
Notwithstanding the passing of such assessment order on 5th February, 1969, the respondent assessee on 27th February, 1969 moved the Calcutta High Court by way of a writ under article 226 of the Constitution inter alia praying (a) for a direction to the Commissioner of Income tax and the concerned Authorized Officer/Income Tax Officer to return forthwith the said books of account, documents and papers etc.
seized as aforesaid and to cancel or rescind the warrant of authorisation issued under sec.
132(1) of the Act and (b) for a mandamus commanding the concerned Income Tax Officer not to proceed with the assessment for the assessment year 1964 65 until the return of documents seized on 17th February, 1965.
The main submission of the respondent assessee was that the retention of the seized books of account and documents beyond the period of 180 days from the date of the seizure (17th February, 1965) was illegal and invalid inasmuch as neither the approval accorded by the Commissioner of Income tax for such extended retention nor the recorded reasons of the Authorized Officer/Income Tax Officer on which such approval was based had been communicated to the respondent/assessee and that without the return of the seized books of account and documents no assessment for the concerned assessment year 1964 65 could be proceeded with or made.
On behalf of the Revenue it was pointed out that the concerned Income Tax Officer had recorded his reasons seeking approval of the Commissioner of Income tax for extended retention of the seized books of account and documents and had obtained approval of the Commissioner of Income tax for such extended retention from time to time and therefore such retention of the seized books and documents beyond 180 days was perfectly legal and valid that there was no obligation under sec.
132(8) of the Act to communicate the Commissioner 's approval for such extended retention or the, recorded reasons of the Income Tax Officer therefor to the respondent assessee and that in any event due inspection of the seized books and documents was afforded to the respondent assessee who was also permitted to take copies of the entries in the books and after giving proper hearing to the respondent assessee the assessment for the year 1964 65 had been validly completed on 5th February, 1969 long before the respondent assessee approached the Court and obtained a Rule Nisi.
A learned Single Judge of the High Court held that the seized books of account and other documents could not be retained beyond the period of 180 days without a complete and effective order of approval for such extended retention of the said books and documents and that since the approval of 821 the Commissioner and the recorded reasons therefore had not been communicated to the respondent assessee, the retention of the books and documents beyond 180 days was unlawful.
The learned Judge, therefore, ordered the issuance of a mandamus directing the Commissioner and the concerned Income Tax Officer to return all the seized books and documents and he further ordered that the concerned Income Tax Officer shall be at liberty to complete the assessment for the year 1964 65 after the return of the said books and documents and after issuing afresh statutory notices under section 142(1)/143(2) of the Income tax Act to the respondent assessee.
In rendering the aforesaid decision, the learned Judge followed two earlier decisions of his own High Court in Mahabir Prasad Poddar 's case decided by T. K. Basu, J. and his own decision in C. K. Wadhwa 's case (which is the subject matter of the companion Civil Appeal No.760 of 1973 before us).
At the instance of the Commissioner of Income tax, an appeal was preferred to the Division Bench of the High Court being Appeal No. 233 of 1970.
The self same contentions were urged on behalf of the Revenue in the appeal and it was specifically submitted that the assessment for the assessment year 1964 65 having been completed on 5th February, 1969 long before the rule nisi had been issued, the direction given by the learned Single Judge with regard to the liberty to complete the assessment for the said assessment year had become infructuous.
The Division Bench, however, negatived all the contentions a dismissed the appeal affirming all the directions given by the learned trial Judge.
The Revenue has come up in appeal to this Court.
Counsel for the Revenue urged two points before us in support of this appeal.
In the first place, the counsel urged that section 132(8) of the Income tax Act, which deals with the extended retention of the seized books and documents in excess of the period of 180 days from the date of the seizure merely provides that for such extended retention the Authorised Officer/the concerned Income Tax Officer has to record his reasons in writing in that behalf and has to obtain the approval of the Commissioner of Income tax for such extended retention and there is no obligation imposed by the said sub section to communicate the approval of the Commissioner of the recorded reasons of the I.T.O. on which it is based to the person from whose custody the books and documents have been seized or to the person legally entitled to such books and documents and therefore the High Court erroneously held that such extended retention of the seized books and documents without communicating the 822 Commissioner 's approval and the reasons on which it is based was unlawful or illegal.
Secondly, the counsel contended that in any event since proper opportunity to inspect the seized books and documents and to make copies of the entries was given to the respondent/assessee and since after issuing proper notices and giving hearing to the respondent assessee, the assessment for the assessment year 1964 65 had been completed long before the issuance of the rule nisi, the same ought to have been upheld as binding on the respondent assessee.
In other words, according to the counsel for the Revenue, the unauthorised retention of the seized books and documents beyond 180 days, if any, could not render the assessment for the year 1964 65 properly made invalid.
Counsel further pointed out that the respondent assessee had even preferred appeals to higher authorities challenging the said assessment on merits.
It may be stated that Counsel for the respondent assessee in this appeal conceded that in all the circumstances of the case the assessment already made on 5th February, 1969 should be allowed to stand subject of course to the result of the appeals that have been preferred by the respondent assessee against it.
In this view of the matter, the second contention urged by Counsel for the Revenue in this appeal has to be accepted and the assessment for the assessment year 1964 65 made on 5th February, 1969 subject as aforesaid to be upheld.
That leaves for consideration the first contention, which as we have indicated earlier, is common to all the appeals.
In order to decide the aforesaid contention it will be desirable to set out the material provisions of sec.132 of the Act, namely, sub secs.(8), (10) and (12) thereof, which run as follows: "132 (8) The books of account or other documents seized under sub section (1) or sub section (1A) shall not be retained by the authorised officer for a period exceeding one hundred and eighty days from the date of the seizure unless the reasons for retaining the same are recorded by him in writing and the approval of the Commissioner for such retention is obtained: Provided that the Commissioner shall not authorise the retention of the books of account and other documents for a period exceeding thirty days after all the proceedings under the Indian Income tax Act, 1922 (XI of 1922), or this Act in respect of the years for 823 which the books of account or other documents are relevant are completed.
(10) If a person legally entitled to the books of account or other documents seized under sub section (1) or sub section (1A) objects for any reason to the approval given by the Commissioner under sub section (8), he may make an application to the Board stating therein the reasons for such objection and requesting for the return of the books of account or other documents.
(12) On receipt of the application under sub section (10) the Board may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fit.
" On a plain reading of the aforesaid provisions it will be clear that ordinarily the books of account or other documents that may be seized under an authorisation issued under sub sec.(1) of sec.132 can be retained by the authorised officer or the concerned Income tax officer for a period of one hundred and eighty days from the date of seizure, whereafter the person from whose custody such books or documents have been seized or the person to whom such books or documents belong becomes entitled to the return of the same unless the reasons for any extended retention are recorded in writing by the authorised officer/the concerned Income Tax Officer and approval of the Commissioner for such retention is obtained.
In other words two conditions must be fulfilled before such extended retention becomes permissible in law: (a) reasons in writing must be recorded by the authorised officer or the concerned Income tax Officer seeking the Commissioner 's approval and (b) obtaining of the Commissioner 's approval for such extended retention and if either of these conditions is not fulfiled such extended retention will become unlawful and the concerned person (i.e. the person from whose custody such books or documents have been seized or the person to whom these belong) acquires a right to the return of the same forthwith.
It is true that sub sec.(8) does not in terms provide that the Commissioner 's approval or the recorded reasons on which it might be based should be communicated to the concerned person but in our view since the person concerned is bound to be materially prejudiced in the enforcement of his right to have such books and documents returned to him by being kept ignorant about the factum of fulfilment of either of the 824 conditions it is obligatory upon the Revenue to communicate the Commissioner 's approval as also the recorded reasons to the person concerned.
In the absence of such communication the Commissioner 's decision according his approval will not become effective.
Moreover, sub sec.(10) confers upon the person legally entitled to the return of the seized books and documents a right to object to the approval given by the Commissioner under sub sec.(8) by making an application to the Central Board stating therein the reasons for such objection and under sub sec.(12) it is provided that the Central Board may, after giving the applicant an opportunity of being heard pass such orders as it thinks fit.
It is obvious that without the knowledge of the factum of the Commissioner 's approval as also of the recorded reasons on the basis of which such approval has been obtained it will not be possible for the person to whom the seized books or documents belong to make any effective objection to the approval before the Board and get back his books or documents.
In our view the scheme of sub secs.
(8), (10) and (12) of sec.132 makes it amply clear that there is a statutory obligation on the Revenue to communicate to the person concerned not merely the Commissioner 's approval but the recorded reasons on which the same has been obtained and that such communication must be made as expeditiously as possible after the passing of the order of approval by the Commissioner and in default of such expeditious communicating any further retention of the seized books or documents would become invalid and unlawful.
It is obvious that such obligation arises in regard to every approval of the Commissioner that might have been accorded from time to time.
In the result the orders passed by the High Court directing the return of the seized books of account and documents to the respondents in each of the appeals are confirmed and the appeals (subject to the directions given below in two of them) are dismissed with no order as to costs.
In Civil Appeal No.1652 of 1973 the assessment order passed on 5th February, 1969 is upheld subject to the result of the appeals that may have been preferred against it.
In Civil Appeal No.661 of 1975 it is directed that the assessment orders passed for the concerned assessment years would be subject to the appeals already preferred if any or such as might be preferred in accordance with law, against the same.
H.S.K. Appeals dismissed.

dataset_name: IN-Abs

summary:
The Revenue who had seized the books of account and documents of the assessee under sec.
132(1) of the Income Tax Act, 1961 did not return the same to the assessee after a period of 180 days of the seizure.
The assessee filed a writ petition in the High Court inter alia praying for a direction to the Revenue to return the said books of account.
The assessee submitted that the retention of the seized books of accounts and documents beyond the period of 180 days was illegal and invalid inasmuch as neither the approval accorded by the Commissioner of Income Tax for such extended retention nor the recorded reasons of the Income Tax Officer on which such approval was based had been communicated to him.
A single Judge of the High Court held that the retention of the books and documents beyond 180 days was unlawful.
A Division Bench dismissed the Revenue 's appeal.
In these appeals the Revenue submitted that sec.
132(8) of the Act did not impose any obligation on the Revenue to communicate the approval of the commissioner or the recorded reason of the Income Tax Officer on which it is based to the person from whose custody the books of accounts and documents had been seized.
Dismissing the appeals, ^ HELD: It is true that sub sec.(8) of sec.
132 of the Income Tax Act, 1961 does not in terms provide that the Commissioner 's approval of the recorded reasons on which it might be based should be communicated to the concerned person but since the person concerned is bound to be materially prejudiced in the enforcement of his right to have such books and documents returned to him by being kept ignorant about the factum of fulfilment of either of the two conditions laid down therein it is obligatory upon the Revenue to communicate the Commissioner 's approval as also the recorded reasons to the person concerned.
In the absence of such communication the Commissioner 's decision according his approval will not become effective.
[823 H; 824 A] Moreover, sub sec.(10) of sec.132 confers upon the person legally entitled to the return of the seized books and documents a right to object to the 818 approval given by the Commissioner under sub sec.(8) by making an application to the Central Board stating therein the reasons for such objection and under sub sec.(12) of sec.132 it is provided that the Central Board may, after giving the applicant an opportunity of being heard pass such orders as it thinks fit.
It is obvious that without the knowledge of the factum of the Commissioner 's approval as also of the recorded reasons on the basis of which such approval has been obtained it will not be possible for the person to whom the seized books or documents belong to make any effective objection to the approval before the Board and get back his books or documents.
[824 B C] The scheme of sub secs (8), (10) and (12) of sec.132 makes it amply clear that there is a statutory obligation on the Revenue to communicate to the person concerned not merely the Commissioner 's approval but the recorded reasons on which the same has been obtained and that such communication must be made as expeditiously as possible after the passing of the order of approval by the Commissioner and in default of such expeditious communication any further retention of the seized books or documents would become invalid and unlawful.
It is obvious that such obligation arises in regard to every approval of the Commissioner that might have been accorded from time to time.
[824 D F]


judgement:
N: Criminal Appeal No. 658 of 1983.
840 Appeal by Special leave from the Judgment and Order dated the 21st October, 1983 of the Gujarat High Court in Criminal Misc.
Application No. 1724 of 1983.
Vimal Dave for the Appellant.
M. N. Phadke, R. N. Poddar, Girish Chandra and C. V. Subba Rao for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
Special Leave granted.
Ordinarily this Court is not inclined to interfere with the orders either granting or refusing to grant bail to an accused person either facing a criminal trial or whose case after conviction is pending in appeal.
However, this is not a case where bail is granted or refused but the order granting the bail by the learned Sessions Judge was set aside by the High Court adopting an approach which does not commend to us.
It is alleged that the appellant gave blows with a knife to one Popatlal Sorathia, who had come to visit an indoor patient Navalsinh Bhatti on August 17, 1983 around 9.45 A.M. Appellant was accosted by the policemen on duty.
An offence under Sec.
307 I.P.C. was registered against him and the appellant was taken into custody and was subsequently remanded to judicial custody.
An application for releasing him on bail was made on August 22, 1983 to the Chief Judicial Magistrate, Rajkot.
The Chief Judicial Magistrate, Rajkot was pleased to dismiss the same by his order dated August 29, 1983.
On the same day, an application for releasing the appellant on bail was moved before the learned Sessions Judge.
A notice was issued to the learned Public Prosecutor.
After hearing both the sides, the learned Sessions Judge by a well reasoned order directed that the appellant be released on bail on his furnishing security in the amount of Rs. 5000 and personal bond of the like amount.
It appears that the State of Gujarat filed Miscellaneous Criminal Application No. 1724 of 1983 in the High Court of Gujarat seeking cancellation of the order granting bail to the appellant.
A learned Single Judge of the High Court held that once a prima facie case is 841 established, the learned Sessions Judge ought to have taken into consideration the nature and gravity of the circumstances in which the offence is committed.
The charge against the appellant is that he has committed an offence punishable under Sec.
307 I.P.C. and Sec.
135 of the Bombay Police Act and even on the date of hearing of this appeal before us on November 18, 1983, the Court was informed that the victim is alive and at present there is no danger to his life.
Nearly 3 months have rolled by from the date of the offence.
We fail to understand what the learned Judge of the High Court desires to convey when he says that once a prima facie case is established, it is necessary for the court to examine the nature and gravity of the circumstances in which the offence was committed.
If there is no prima facie case there is no question of considering other circumstances But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion grained in his favour by tampering with evidence.
We would have certainly overlooked this aspect of the matter if the approach of the learned judge was otherwise one which would commend to us.
It however appears that the learned judge was impressed by some of the most irrelevant considerations which prima facie emerge from the following observations of the learned judge which permits his whole order running into about 13 pages.
Says the learned judge: "The learned Judge ought to have seen the fact that the helpless victim had gone to the hospital for pre operation check up.
He was a leading social and political worker.
He was an active worker and Secretary of "Gundagiri Nivaran Samiti" which had raised a campaign against the atrocities allegedly having been committed by the Rajputs of Girasiya community.
Admittedly the respondent is Girasiya and the complainant who was an active worker and Secretary of Gundagiri Nivaran Samiti had become a victim at the hands of the respondent.
The learned Judge ought to have taken into consideration the material fact that the incident had taken place in the premises of the Hospital which may terrorize a number of sick persons who might be getting treatment in the hospital." 842 At another place, the learned Judge has observed that the learned Sessions Judge has ignored, the fact that a social and political worker was attacked in the hospital premises with a knife having 9" blade and as many as 1 l injuries were caused to a helpless victim.
In our opinion, the learned Judge appears to have misdirected himself while examining the question of directing cancellation of bail by interfering with a discretionary order made by the learned Sessions Judge.
One could have appreciated the anxiety of the learned Judge of the High Court that in the circumstances found by him that the victim attacked was a social and political worker and therefore the accused should not be, granted bail but we fail to appreciate how that circumstance should be considered so overriding as to permit interference with a discretionary order of the learned Sessions Judge granting bail.
The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail.
Very cogent and overwhelming circumstances all necessary for an order seeking cancellation of the bail.
And the trend today is towards granting bail because it is now well settled by a catena of decisions of this Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed.
The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted ill his favour by tampering with evidence.
The order made by the High Court is conspicuous by its silence on these two relevant considerations.
It is for these reasons that we consider in the interest of justice a compelling necessity to interfere with the order made by the High Court.
We accordingly allow this appeal and set aside the order made by the learned High Court Judge and restore the one made by the learned Sessions Judge with following modifications: (i) The appellant shall be released or if he is on bail continue 'to be on bail on his furnishing two fresh bail bonds each in the amount of Rs.5000 supported by a solvent security.
(ii) The 'appellant shall report on first Monday every month before the Chief Judicial Magistrate, Rajkot at 11.00 A.M. till his trial commences.
Thereafter 843 he would be subject to the further orders that may be made in this behalf by the court which would try him.
(iii) Other conditions imposed by the learned Sessions Judge remain unaltered.
Order accordingly.
H.S.K. Appeal allowed.

summary:
The appellant, against whom an offence under sec.
307 I.P.C. had been registered for giving knife blows to a person was granted bail by the Sessions Judge.
On application by the State, a Single Judge of the High Court cancelled the bail.
Hence this appeal by special leave.
Allowing the appeal, ^ HELD: Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail and the trend today is towards granting bail because it is now well settled that the power to grant bail is not to be exercised as if the punishment before trail is being imposed.
The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence.
[842 D E] In the instant case the order made by the High Court is conspicuous by its silence on these two relevant considerations.
The learned Judge was impressed by some of the most irrelevant considerations and misdirected himself.
The circumstances found by him that the victim attacked was a social and political worker could not be considered so overriding as to permit interference by the High Court with the discretionary order of the Sessions Judge granting bail.
The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation on the bail.
[842 B C]


judgement:
ivil Appeal No. 11 89 of 1982.
From the Judgment and order dated the 18th December, 1981 of the Gauhati High Court in Election Petition No. 1 of 1980.
S Rangarajan, S.K. Nandy and section Parikh for the Appellant.
A.K Nag for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
In this election appeal the only point for determination is whether at the time when respondent No. I filed his nomination paper he held a subsisting contract with the Government for widening the PLP road.
While it is true that there was such a contract in existence prior to 30:11.1979, respondent No. 1 wrote a 864 letter on 30.11.1979 to the concerned Executive Engineer stating that he was closing the said contract.
The last date for filing nomination was 10.12.1979.
It is argued that the contents of the said letter does not have the effect of putting an end to the contract.
After going through the contents of the letter it is absolutely clear that the contractor unilaterally put an end to the contract and informed the Department concerned accordingly and also he had resigned from the contractor 's list of PWD Manipur.
Thus after this letter the contract came to an end by breach and the contract was no longer subsisting.
Mr. Rangarajan has submitted some very nice and delicate questions for consideration.
One of them being that until and unless the letter is accepted by the Authority the contract would continue and thus the respondent would suffer from the disqualification.
In our opinion having regard to the contents of the letter it is not possible to accept the argument of Mr. Rangarajan that the contract was subsisting.
The acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to a cause on action for damages.
No other point is raised before us.
We do not find any merit in this appeal and it is dismissed without any order as to costs.
H.L. C. Appeal dismissed.

summary:
The respondent who was a party to a subsisting contract with the Government for widening or a road wrote a letter to the concerned Executive Engineer stating that he was closing the said contract.
1 he appellant contended that the contents of the letter did not have the effect of putting an end to the contract.
Dismissing the appeal, ^ HELD: After the letter, the contract came to an end by breach and was no longer subsisting.
Acceptance of the letter by the authorities was unnecessary for putting an end to the contract although the breach may give rise to an action for damages.
[864 B C]


judgement:
minal Appeal No. 150 of 1956.
Appeal by special leave from the Judgment and order dated October 18, 1955, of the Allahabad High Court in Government Appeal No. 60 of 1953 arising out of the judgment and order dated July 8, 1952, of the Court of Sessions Judge at Bareilly in Criminal Sessions Trial No. 27 of 1952.
Daulat Ram Prem and P. C. Agarwala, for the appellant, 658 Gyan Chand Mathur and C. P. Lal, for the respondent.
February 14.
The Judgment of the Court was delivered by KAPUR J.
The appellant along with one Qudrat Ullah was tried for the murder of one Sabir.
The latter was tried under section 302 read with section 114 of the Indian Penal Code for abetment, and the former under section 302 I.P.C.
Both the accused were acquitted by the learned Sessions Judge of Bareilly.
But the State took an appeal to the Allahabad High Court against the appellant only and the judgment of acquittal in his case was reversed and he was convicted under section 302 I.P.C. and sentenced to 'transportation for life '.
Against the judgment of the High Court the appellant has brought this appeal by Special Leave.
The facts which have given rise to the appeal are that Sabir was murdered on the 11th May, 195 1, at about 6 30 p.m.
The First Information Report was made by Qudrat Ullah the other accused at 6 45 p.m. the same day, i.e., within about 15 minutes of the occurrence.
The prosecution case was that there was an exchange of abuses between the deceased and the appellant near the shop of the First Informant, Qudrat Ullah.
The cause of the quarrel was that on the evening of the occurrence while Qudrat Ullah was sitting in his shop and the deceased was sitting just below the shop, the appellant came out of his house and on seeing him, the deceased asked him as to why he was in such a " dishevelled condition ", which annoyed the appellant and gave rise to an exchange of abuses.
On hearing this noise, the prosecution witnesses arrived at the spot and saw the appellant and the deceased grappling with each other.
The appellant is stated to have asked Qudrat Ullah to hand over a knife to him which Qudrat Ullah did; this knife is exhibit I II ', with which the appellant stabbed the deceased and then fled away.
As a result of the injuries the deceased fell down infront of Qudrat Ullah 's shop; some witnesses have stated that he fell on the wooden plank in front of the shop.
Qudrat Ullah picked up the knife which had been 659 dropped by the appellant, put the deceased in a rickshaw and took him to the hospital from where he went to the Police Station and made the First Information Report.
An objection has been taken to the admissibility of this report as it was made by a person who was a co accused.
A First Information Report is not a substantivepiece of evidence and can only be used to corroborate the statement of the maker under section 157 of the Evidence Act or to contradict it under section 145 of that Act.
It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses.
In this case, therefore, it is not evidence.
The Sub Inspector went to the spot, started investigation and arrested the appellant the same evening at his house.
The postmortem examination of the deceased showed injuries on the person of the deceased and, according to the doctor.
, death was due to shock and haemorrhage on account of the punctured wound in the chest, causing injuries to the lungs and these injuries could be caused with a sharp edged weapon.
The appellant and the deceased both belong to a sect of Jogis.
Evidence discloses that the deceased and the appellant were quite friendly with each other, and so were the deceased and Qudrat Ullah, who is a butcher and had a shop which is a part of his house.
Adjacent to the shop is the house of the appellant.
Eye witnesses of the occurrence were Yad Ali, P.W. 1, Banne, P.W. 2 and Mohd. Ahmed, P.W. 3.
Having been told by the sister of the deceased as to the occurrence, Ashraft, P.W. 4 came to the spot later and found the deceased lying unconscious.
Shakir, P.W. 5, younger brother of the deceased, on arriving near the shop of Qudrat Ullah heard the appellant and the deceased exchanging abuses, but was not a witness of the assault ' as just at that time he had gone, at the request of Qudrat Ullah, to fill his Chillum for the hookka and when he came back he found the deceased lying unconscious and the appellant running away towards his house.
The evidence of Yad Ali P. W. 1, is that he heard an exchange of abuses between the deceased and the appellant and when he moved about 4 or 5 paces he 660 saw them grappling with each other.
The appellant had the deceased ,in his grip", he asked Qudrat Ullah to hand over a knife to him which the latter did and with it the appellant stabbed the deceased and then went away to his house.
The statement of Banne is similar and so is the statement of Mohd. Ahmed, P. W. 3.
This evidence was not accepted by the learned Sessions Judge and he acquitted both the accused.
The State took an appeal only against the appellant which was allowed by the High Court.
It held " We may concede that the eye witnesses have falsely implicated Qudrat Ullah by deposing that he handed over his knife to the respondent on his demand.
There was no enmity between him and Sabir and he bad no motive to get him killed by the respondent.
It does not at all appear probable that after abetting the murder of Sabir he at once took him on a rickshaw to the hospital and from there went at once to the police station and lodged a report against the respondent.
This conduct of Qudrat Ullah is so inconsistent with the part said to have been played by him in the occurrence that we have little hesitation in rejecting the evidence about the part played by him.
" The High Court, however, accepted the.
testimony of the eye witnesses as against the appellant 's guilt and observed: "We are satisfied that the prosecution has fully established the, case against the respondent.
There is not the slightest doubt about his guilt.
The presumption of innocence has been fully rebutted by the prosecution.
The case against him does not become doubtful merely because the learned Sessions Judge said that there was a doubt about his guilt." The learned Judges also came to the conclusion that the view taken by the learned trial Judge was ;one " which no reasonable person could have taken.
It was a wholly erroneous view of the evidence which has resulted in gross miscarriage of justice inasmuch as a murderer escapes punishment",.
In the circumstances of the case and considering that there was some provocation, the High Court sentenced the appellant to I transportation for life.
661 There is a passage in the Judgment of the High Court which appears to us to be disconsolate and indicative of a wrong approach in deciding the guilt of an accused person.
Although the learned Judges recognised the principle that the onus was not on the accused, yet one of the observations is such that it comes perilously near to putting the burden on the accused if it does not actually do so.
The High Court has said: The respondent himself did not have the courage to say that he did not find them at the spot.
If 'he were innocent, he must have come out of his house immediately on hearing the noise and must have known who was present there and; who was not" This passage is so destructive of the cardinal principle of criminal jurisprudence as to the presumed innocence of an accused person till otherwise proved that it has become necessary to reiterate the rule stated by eminent authorities ". that it is the duty of the prosecution to prove the prisoner 's guilt subject to any statutory exception.
" it was next contended that the witnesses had falsely implicated Qudrat Ullah and because of that the Court should have rejected the testimony of these witnesses as against the appellant also.
The well known maxim falsus in uno falsus in omnibus was relied upon by the appellant.
The argument raised was that because the witnesses who had also deposed against Qudrat Ullah by saying that he had handed over the knife to the appellant had not been believed by the Courts below as against him, the High Court should not have accepted the evidence of these witnesses to convict the appellant.
This maxim has not received general acceptance in different jurisdictions in India; nor has this maxim come to occupy the status of a rule of law.
It is merely a rule of caution.
All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded.
One American author has stated: (1) Woolmington vs The Director of Public Prosecutions, ; 662 SUPREME COURT REPORTS [1957] validity. . and secondly, in point of utility because it merely tells the jury what they may do in any, event, not what they must do or must not do, and therefore, it is a superfluous form of words.
It is also in practice pernicious. . " (1) The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not what may be called " a mandatory rule of evidence ".
Counsel for the appellant drew our attention to a passage from an unreported judgment of the Privy Council, I Chaubarja Singh vs Bhuneshwari Prasal Pal.
" The defendants own evidence and that of several of his witnesses is of no use to, him.
He cannot contend that any court of law can place reliance on the oath of people who have admittedly given false evidence upon the other branches of the case.
" This passage is a very slender foundation, if at all, for conferring on the doctrine the status of anything higher than a rule of caution and the Privy Council cannot be said to have given their weighty approval to any such controversial rule which has been termed as " worthless", "absolutely false as a maxim of life" and "in practice pernicious" in works of undoubted authority on the law of evidence (2).
The High Court was not unmindful of what the witnesses stated as to Qudrat Ullah 's part in the commission of the offence and having taken that into consideration, it said: " While the learned Sessions Judge was right in acquitting Qudrat Ullah, he was completely wrong in acquitting the respondent of whose guilt there was not the slightest doubt.
The direct evidence made out a clear case against him and there was no sound reason for disregarding it.
" After discussing the evidence of the witnesses and the discrepancies pointed out by the appellant the High Court held " there is not the slightest doubt about his guilt." (1) Wigmore on Evidence Vol.
III para 1009.
(2j Wigmere Vol.
III para 1009.
663 It was because of the above two contentions raised by counsel for the appellant and because it was a case of reversal of a judgment of acquittal that we allowed counsel to go into the evidence which he analysed and drew our attention to its salient features and to the discrepancies in the statements of witnesses and the improbabilities of the case; but we are satisfied that the learned Judges were justified in coming to the conclusion they did and the view of the trial judge was rightly displaced.
Upon a review of the evidence of the prosecution witnesses we have come ,to the conclusion that the appellant was rightly convicted.
The appeal is, therefore, dismissed and the judgment of the High Court is affirmed.
A appeal dismissed.

summary:
A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under section I57 Of the Evidence Act or to contradict it under section 145 of that Act.
It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses, It is a cardinal principle of criminal jurisprudence that the innocence of an accused person is presumed till otherwise proved.
It is the duty of the prosecution to prove the guilt of the accused subject to any statutory exception.
The maxim falsus in uno, falsus in omnibus has not received general acceptance in different jurisdictions in India, nor has it come to occupy the status of a rule of law.
It is merely a rule of caution.
All that it amounts to is that in such cases the testimony may be disregarded and not that it must be disregarded.
The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances but it is not a mandatory rule of evidence,


judgement:
N: Criminal Appeal No. 623 of 1983.
805 Appeal by Special leave from the Judgment and order dated the 17th January, 1982 of the Calcutta High Court in Crl.
Appeal No. 160 of 1977.
P. K. Chakraborty for the appellant.
G. section Chatterjee for the respondent.
The Judgment of the Court was delivered by DESAI, J.
Special leave granted.
Appellant Gopinath Ghosh was convicted by the learned Additional Sessions Judge, Nadia along with Bharat Ghosh @ Sadhu and Jagannath Ghosh under Sec.
302 read with Sec.
34 of the Indian Penal Code for having committed murder of Rabi Ghosh, son of Kartick Ghosh on August 19, 1974, Appellant Gopinath Ghosh is alleged to have caused an injury with a fala which landed on the left side chest below the neck of deceased Rabi.
Information of the offence was lodged by Kartick Ghosh, father of deceased Rabi at Nakashipara Police Station at about 3.40 P.M.
On the date of the occurrence.
After completing the investigation, appellant and two others were charge sheeted for an offence under Sec.
302 read with Sec.
34 of the Indian Penal Code.
The learned Magistrate committed the case to the Court of Sessions.
The case came up for trial before the learned Additional Sessions Judge, Nadia who on appraisal of evidence held that appellant Gopinath Ghosh has caused the fatal injury in furtherance of the common intention of all the three accused and accordingly convicted them for an offence under Sec.302 read with Sec.
34 of the Indian Penal Code and sentence each of them to suffer imprisonment for life.
Appellant and the two co accused preferred Criminal Appeal No. 160 of 1977 in the Calcutta High Court.
A Division Bench of the High Court held that it is satisfactorily established that the present appellant caused the injury with a fala to deceased Rabi which proved fatal and therefore, the charge under Sec, 302 I.P.C. is brought home to him.
The High Court further held that it is not shown that the two co accused Bharat Ghosh @ Sadhu and Jagannath Ghosh shared the common intention with the present appellant and accordingly allowed their appeal and set aside their conviction and sentence and acquitted them of all the charges.
806 Appellant Gopinath Ghosh has filed this appeal by special leave.
Learned counsel who appeared for the appellant urged that on the date of the offence i.e. on August 19, 1974, appellant was aged below 18 years and was therefore a 'child ' within the meaning of the expression in the West Bengal Children Act, 1959 [ 'Act ' for short) and therefore, the Court had no jurisdiction to sentence him to suffer imprisonment after holding a trial, In view of this contention, the Court by its order dated March 11, 1983 framed the following issue for determination: "What was the age of the accused Gopinath Ghosh (appellant) on the date of the offence for which he was tried and convicted ?" and remitted the issue to learned Sessions Judge, Nadia to certify the finding after giving an opportunity to both sides to lead oral and documentary evidence.
Liberty was reserved with the learned Sessions Judge to send accused Gopinath Ghosh to Chief Medical officer, Nadia to ascertain his age.
on receipt of the order made by this Court, the learned Additional Sessions Judge, First Court, Nadia directed Superintendent of Krishnagar Jail to produce accused Gopinath Ghose in the office of the Chief Medical Officer, Nadia on June 4,1983 for medical examination with a view to ascertaining his age and submit the report to the court.
Thereafter, the prosecution examined P.W. 1 Dr. A. K. Basu, Chief Medical officer of Health, Nadia, P.W. 2 Dr. J. C. Debnath, Radiologist, P.W. 3 Dr. C. R. Bhattacharyya, orthopaedic Surgeon and P.W. 4 Dr. R. B. Roy.
Thereafter, Smt.
Bhaktabala Dasi, mother of the appellant was examined as a witness for the defence.
The case was adjourned as the appellant wanted to examine Mangalmoy Sarkar, Headmaster of Sudhakarpur High School to prove entries from the Admission Register.
That request was granted and the Headmaster was examined.
The learned Additional Sessions Judge after hearing both the sides certified his finding that appellant Gopinath Ghosh was aged between 16 and 17 years on the date of the offence i.e. On August 19,1974.
This finding is not questioned before us.
2(d) of the Act defines 'child ' to mean a person who has not attained the age of eighteen years.
2(h) defines 'Juvenile 807 delinquent ' to mean a child who has been found to have committed an offence.
Fasciculus of sections in Chapter III bears the heading 'Juvenile delinquents '.
22 provides for granting bail to a child pending inquiry.
23 casts an obligation on the officer in charge of the police station to which a child is brought after arrest to forth with inform the parent or guardian of the child, if he can be found, of such arrest and shall cause to be summoned to the Court before which the child will appear.
24 starts with a non obstante clause which takes away the jurisdiction of the Court to impose a sentence of death on a juvenile delinquent as well as the power to impose sentence of imprisonment or commitment to prison in default of payment of fine or in default of furnishing security on a juvenile delinquent.
There is a proviso to sub cl.(2) of Sec. 24 which would enable the Court to impose a sentence of imprisonment on a juvenile delinquent, if the conditions therein prescribed are satisfied with an obligation on the Court to report the case to the State Government and direct the juvenile delinquent to be detained in such custody as it may think fit.
25 provides for inquiry by Court regarding juvenile delinquents.
It reads as under: "Where a child having been charged with an offence appears or is produced before a Court, the Court shall hold the inquiry in accordance with the provisions in the Code of Criminal Procedure, 1898, for the trial of a summons case.
" Sec.
26 confers power on the Court enabling it to pass orders regarding juvenile delinquents as therein mentioned.
4 confers power on the State Government to establish Juvenile Courts by a notification to be issued in that behalf.
Sec, 5 provides that the powers conferred on Courts by the Act shall be exercised amongst others where a Juvenile Court is not established by a Court of Session.
It is not clear whether juvenile court has been established for the area comprised in District Nadia.
6 provides that when a child is brought before a Magistrate or Court not empowered to pass an order under the Act, such Magistrate or Court shall forward the child to the nearest juvenile court or other Court or Magistrate having jurisdiction.
808 It clearly transpires from a combined reading of the sections hereinbefore extracted that where a juvenile delinquent is arrested, he/she has to be produced before a juvenile court and if no juvenile court is established for the area amongst others, the Court of Session will have produces of a juvenile court.
Such a juvenile delinquent ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the release is likely to bring him under the influence of any criminal or expose him to moral danger or defeat the ends of justice.
25 forbids any trial of a juvenile delinquent and only an inquiry can be held in accordance with the provisions of the Code of Criminal Procedure for the trial of a summons case and the bar of Sec. 24 which has been given an overriding effect as it opens with the non obstante clause likes away the power of the Court to impose a sentence of imprisonment unless the case falls under the proviso.
Unfortunately, in this case, appellant Gopinath Ghosh never questioned the jurisdiction of the Sessions Court which tried him for the offence of murder.
Even the appellant had given his age as 20 years when questioned by the learned Additional Sessions Judge.
Neither the appellant nor his learned counsel appearing before the learned Additional Sessions Judge as well as at the hearing of his appeal in the High Court ever questioned the jurisdiction of the trial court to hold the trial of the appellant, nor was it ever contended that he was a juvenile delinquent within the meaning of the Act and therefore, the Court had no jurisdiction to try him, as well as the Court had no jurisdiction to sentence him to suffer imprisonment for life.
It was for the first time that this contention was raised before this Court.
However, in view of the underlying intendment and beneficial provisions of the Act read with cl.
(f) of article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment, we consider it proper not to allow a technical contention that this contention is being raised in this Court for the first time to thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it.
The report of the learned Additional Sessions Judge is self evident.
It is unquestionably established on unassailable evidence 809 that on August 19, 1974, the date of the offence, appellant was aged between 16 and 17 years.
He was therefore, a juvenile delinquent, Obviously, the learned Magistrate could not have committed his case to the Court of Session.
Only an inquiry could have been held against him as provided in Sec.
25 of the Act and unless the case of the appellant falls within the proviso to Sec.
24 (2), he could not be sentenced to suffer imprisonment.
Therefore, the entire trial of the appellant is without jurisdiction and is vitiated.
Therefore, the conviction of the appellant for having committed an offence under Sec.
302 IPC and sentence for imprisonment for life imposed by the learned Additional Sessions Judge and confirmed by the High Court are unsustainable and they must be set aside.
The next question is what should be the sequel to our decision ? The appellant has been in prison for some years.
But neither his antecedents nor the background of his family are before us.
It is difficult for us to gauge how the juvenile court would have dealt with him.
Therefore, we direct that the appellant be released on bail forthwith by the learned Additional Sessions Judge, Nadia.
The case is remitted to the learned Magistrate for proceeding further in accordance with law keeping in view the provisions of the Act.
Before we part with this judgment, we must take notice of a developing situation in recent months in this Court that the contention about age of a convict and claiming the benefit of the relevant provisions of the Act dealing with juvenile delinquents prevalent in various States is raised for the first time in this Court and this Court is required to start the inquiry afresh.
Ordinarily this Court would be reluctant to entertain a contention based on factual averments raised for the first time before it.
However, the Court is equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in this Court.
A way has therefore, to be found from this situation not conducive to speedy disposal of cases and yet giving effect to the letter and the spirit of such socially beneficial legislation.
We are of the opinion that whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or undertaking an inquiry, an inquiry must be made about the age of the accused on the date of the occurrence.
This ought to be more so where special acts dealing with juvenile delinquent are in force.
If necessary, the Magistrate may refer the 810 accused to the Medical Board or the Civil Surgeon, as the case may be, for obtaining credit worthy evidence about age.
The Magistrate may as well call upon accused also to lead evidence about his age.
Thereafter, the learned Magistrate may proceed in accordance with law.
This procedure, if properly followed, would avoid a journey upto the Apex Court and the return journey to the grass root court.
If necessary and found expedient, the High Court may on its administrative side issue necessary instructions to cope with the situation herein indicated.
The appeal for the reasons herein indicated is allowed and the conviction of the appellant for an offence under Sec.
302 IPC and sentence imprisonment for life imposed by the learned Additional Sessions Judge and confirmed by the High Court are set aside and the case is remitted to learned Magistrate for disposal according to law.
S.R. Appeal allowed.

summary:
The appellant, Gopinath Ghosh along with Bharat Ghosh @ Sadhu, and Jagannath Ghosh, was convicted and sentenced to life imprisonment under Section 302 read with Section 34 I.P.C. for having committed the murder of Rabi Ghosh, son of Kartik Ghosh on August 19, 1974.
The High Court in appeal, accepted the plea of the two other accused only and acquitted them, while confirming the conviction and sentence of the appellant.
The appellant for the first time in the Supreme Court raised the New Plea that as he was a "child" within the meaning of the expression in West Bengal Children Act, 1959, the entire trial was vitiated.
The court, by its order dated March 11,1983 directed the Session Judge Nadiar to give a finding on the age of the appellant on the date of the occurrence.
The Sessions Judge, in his report, after detailed examination of the evidence of Chief Medical officer of Health, Nadia, (PWI), Radiologist (PW2) orthopaedic Surgeon (PW3), another doctor Mr. R.B. ROY (PW4), the mother of the appellant (PW5) and the Headmaster of the School who brought records of the School, gave a finding that the appellant was aged between 16 and 17 years on the date of occurrence i.e. on August 19, 1974, which finding is not challenged by the State.
Allowing the appeal by Special leave, the Court, ^ HELD: 1.1 A combined reading of Sections 2(d), 2(h), 4 to 6, 22, 23, 24 (2) and 26 of the West Bengal Children Act, 1959 makes it clear that where a juvenile delinquent is arrested, he/she has to be produced before a juvenile court, and if no juvenile court is established for the area amongst others, the court of Session will have powers of a juvenile court; (b) such a juvenile delinquent ordinarily has to be released on bail irrespective of the nature of the offence alleged to have been committed unless it is shown that there appears reasonable grounds for believing that the release is likely to bring him under the influence of any criminal or expose him to moral danger or defeat the ends of justice; (c) Section 25 forbids any criminal or a juvenile delinquent and only an inquiry can be held in accordance with the provisions of the code of Criminal 804 Procedure for the trial of a summons case; and (d) the bar of Section 24 which had been given an over riding effect as it opens with the non obstante clause takes away the power of the court to impose a sentence of imprisonment unless the case falls under the proviso.
[808 A C 1.2 In the instant case, the entire trial of the appellant is without jurisdiction and is vitiated.
The report of the Sessions Judge unquestionably established by unassailable evidence that the appellant having been 16 to 17 years of age on the date of occurrence was a juvenile delinquent and therefore the Magistrate could not have committed his case to the court of Session.
Only an inquiry could have been held against him as provided in Section 25 of the Act unless the case of the appellant falls within the proviso to Section 24 (2).
[808 H, 809 A B] 1.3 ordinarily, the Supreme Court would be reluctant to entertain a based on factual averments for the first time before it.
However, the court is equally reluctant to ignore, overlook or nullify the beneficial provisions of a very socially progressive statute by taking shield behind the technicality of the contention being raised for the first time in court.
In view of the underlying intendment and beneficial provisions of the Act read with clause (f) of Article 39 of the Constitution which provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that child hood and youth are protected against exploitation and against moral and material abandonment, it would not be proper to allow a technical contention that the plea is being raised for the first time in the court and thereby thwart the benefit of the provisions being extended to the appellant, if he was otherwise entitled to it.
F H] Practice Directions: Whenever a case is brought before the Magistrate and the accused appears to be aged 21 years or below, before proceeding with the trial or under taking an inquiry, an inquiry must be made about the age of the accused on the date of occurrence.
This sought to be made so where special Acts dealing with juvenile delinquents are in force.
If necessary, the Magistrate may refer the accused to the medical Board or the Civil Surgeon, as the case may be, for obtaining credit worthy evidence about age.
The magistrate may as well call upon accused also to lead evidence about his age.
Thereafter, the learned Magistrate may proceed in accordance with law.
This procedure, if properly followed, would avoid, a journey upto the apex court, and the return journey to the gross root court.
[809 H; 810 A B] (The court suggested, that if necessary an found expedient, the High Court, on the administrative side may issue necessary instructions to cope with such situation).
[810 B]


judgement:
Civil Appeal No. 7494 of 1983 Appeal by Special leave from the Judgment and order dated the 6th May, 1981 of the Punjab & Haryana High Court in R S A. No. 2944 of 1980.
S.K. Bagga for the Appellants.
The Judgment of the Court was delivered by MADON, J.
This appeal by special leave from the Judgment and ' and decree in Second Appeal of the Punjab and Haryana High Court involves the determination of the question whether section 60 of the Code of Civil Procedure, 1908, applies to an attachments and sale in revenue recovery proceedings adopted under the Punjab Land Revenue Act, 1887 (hereinafter referred to as "the said Act").
The facts which have given rise to this question are that Dina Nath the Respondent along with one Gora Lal and Sat Pal, had been granted a liquor vending licence for the year 1968 69 ' by the Excise and Taxation Department of the State of Punjab, Patiala Division, in respect of which they had to pay a sum of Rs. 1,38,000 as licence fee.
The licences paid a sum of Rs. 86,450, leaving the balance unpaid in spite of repeated reminders.
Ultimately, recovery proceedings under the said Act were started by the department and the Collector.
Excise and Taxation Department, Patiala, by his order 846 dated January 16, 1976, issued a proclamation prohibiting the transfer or creation of a charge by the Respondent of his half share in an immovable property consisting of a plot of land bearing Khewat No. 374, Khatuni NO. 511.
Khasra No. 39710 19, situate in village Ghagga, with a building constructed thereon.
The auction in respect of the said share of the Respondent in the said property was notified for June 14,1977.
Just a day prior to the holding of the said auction sale the Respondent filed a suit in the Court of Sub Judge, 1st Class, Patiala C, being Suit No. 472/13 6 77, against the State of Punjab and the Collector cum Deputy Excise and Taxation Commissioner, Patiala Division, for a permanent injunction restraining the State and the Collector cum Deputy Excise and Taxation Commissioner from auctioning his said half share.
The contention of the Respondent was that a part of the building standing on the said plot of land was being used by him for his residence and he had no other residential house and, therefore, his said half share was exempt from attachment under clause (ccc) of the proviso to sub section (l) of section 60 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code '), inserted in the said section 60 by a State amendment.
The proviso to sub section (I) of the said section 60 sets out the properties which are not liable to attachment or sale, and the said clause (ccc) provides as follows: "(ccc) one main residential house and other buildings attached to it (with the material and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to a judgment debtor other than an agriculturist and occupied by him; Provided that the protection afforded by this clause shall not extend to any property specifically charged with the debt sought to be recovered.
" It is pertinent to note that in the said suit the Respondent did not challenge his liability to pay the amount claimed from him.
Several contentions were raised in the written statement filed by the Appellants, who were the defendants to the said suit, including the contention that the property attached and notified for sale was not exempt from attachment and sale.
The Appellants also contested the jurisdiction of the court.
The Trial Court upheld both these contentions and dismissed the suit with costs.
The Respondent then filed 847 an appeal to the District Judge, Patiala, being Civil Appeal No. 554 of 5.9.79.
The Additional District Judge, Patiala, who heard the said appeal, dismissed it with costs.
The Respondent thereupon approached the Punjab and Haryana High Court in second appeal, being Regular Second Appeal No. 294 1 of 1980.
The learned, Single t Judge of the High Court, who heard the said appeal, after observing that "the conclusion arrived at by the trial court on facts was per verse whereas the appellate court applied totally a wrong law in deciding the appeal", allowed the said second appeal, holding 'that the portion of the said building used for residence was exempt from attachment and sale under clause (ccc) of the proviso to the said section 60, while that portion in which the liquor shop was situated was liable to be attached, and accordingly issued a permanent injunction with regard to the portion in which the Respondent was residing and dismissed the suit so far 'as it related to the portion of the building in which the liquor shop was situated.
The parties were further directed tn bear their own costs.
The question of jurisdiction of the civil court to entertain and try the suit filed by the Respondent does not appear to have been raised before the High Court.
It is against this judgment and decree of the High Court that this appeal is directed.
In our opinion, the learned Single Judge of the High Court was wrong both in his criticism of the subordinate courts and in allowing the Respondent 's said Second Appeal.
Section 60 of the Code specifies the properties which are liable to attachment and sale in execution of a decree.
The opening words of sub section (I) of section 60 are "The following property is liable to attachment and sale in execution of a decree".
Clause (2) of section 2 of the Code ' defines the term "decree".
The relevant provisions of the said definition are as follows: "(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with ' regard to all or any of the matters in controversy in the ' suit and may be either preliminary of final. " Section 60 of the Code thus applies only to execution of the decrees of civil courts and declares what properties are liable to be attached and sold in execution of such a decree and the proviso to sub section (1) of section 60 sets out the properties which are not liable to such attachment or sale, The opening words of the said 848 proviso are "Provided that the following particulars shall not be liable to such attachment or, sale, namely".: The expression "such attachment or sale" in the said proviso refers to the attachment and sale mentioned in sub section (1) of section 60, that is, to attachment and sale in execution of a a decree.
On a plain reading of the said section 60, it is clear that section has no application to attachment and sale in any proceedings other than in execution of a decree of a civil court.
, The provisions of section 60 of the Code do not apply to an attachment and sale under any of her statute made expressly applicable thereto.
So far as the said Act is concerned, it contains a complete code providing for the modes and machinery for recovery of arrears of revenue.
The attachment in a question was levied under the provisions of the said Act and the sale which was notified was also under the provisions of the said Act.
The attachment levied on, and the auction sale notified in respect of, the Respondent 's half share in the said property were not in execution of any decree of a civil court but were in pursuance of the order made by an officer authorized to adopt proceedings under the said Act for recovery of revenue due to the State.
There is no provision in the said Act which makes the provisions of section 60 of the Code applicable to attachment and sale for recovery of revenue under the said Act.
The properties, if my, which are exempt from attachment and sale in revenue recovery proceedings under the said Act would be only such properties as are so exempted by the said Act.
There is no provision in the said Act corresponding to cl.
(ccc) of the proviso to sub section (1) of section 60 of, the Code, and the half share of the Respondent in the said property was, therefore, not exempt from attachment and sale in revenue recovery proceedings adopted under the said Act.
Consequently, the Respondents suit was liable to be y dismissed on this ground alone.
For the reasons set out above, we allow this appeal and set aside the Judgment and Decree of the Punjab and Haryana High Court and dismiss with costs the said Regular Second Appeal No. 2944 of 1980 filed by the Respondent 2nd restore the decree passed by the Addition District Judge, Patiala C. in Civil Appeal No. 554 of 5.9.79 and the decree passed by the Sub Judge, 1st Class, Patiala C, in Suit No. 472/13.6.7?.
The Respondent will pay to the Appellants the costs of this appeal.

summary:
The respondent a liquor vending licensee defaulted to pay license fee inspite of repeated reminders.
Recovery proceedings under the Punjab Land Revenue Act, 1857 were initiated against him.
The Collector issued a proclamation prohibiting the transfer or creation of a charge by the respondent on his half share in an immovable property, consisting of a plot of land and a building thereon, and notified the property for auction.
The respondent, filed a suit for permanent injuction restraining the appellant State and the collector from auctioning his half share, on the ground that the building was being used by him tor his residence, and he had no other residential house, and that therefore the half share of the residential house was exempt from attachment under clause (ccc) of the proviso to sub section (1) of section 60 of the Code of Civil Procedure, 1908.
The trial court dismissed the suit and this order was confirmed in appeal by the District judge.
Allowing the respondent 's second appeal, the High Court upheld his contention.
and issued a permanent injunction only with regard to that portion of the building in which he was residing; Allowing, the appeal to this Court, ^ HELD: (1) The High Court was wrong both in its criticism of the subordinate courts and in allowing the respondent 's second appeal.
[847 E] 845 2.
Section 60 of the Code has no application to attachment and sale in any proceedings other than in execution of a decree of a civil court.
It applies only to execution of a decree of civil court.
It declares what properties are liable to be attached and sold in execution of such a decree and the proviso to sub section (1) of section 60 sets out the properties which are not ' liable to such ' attachment or sale.
The expression such attachment or sale" in the proviso refers to the attachment and sale mentioned in sub section (I) of section 60, that is to attachment and sale in execution of a decree of a civil court.
The section does not apply to an attachment and sale under any other statute unless made expressly applicable thereto.
[847 H; 848 A B] In the instant case the attachment and the auction sale were not in execution of any decree of a civil court but were in pursuance of an order made by an officer authorised adopt proceedings under the Punjab.
Land Revenue Act, 1887 for recovery of revenue due to the state.
There is no provision in this Act which makes the provisions of section 60 of the Code applicable to attachment and sale for recovery of revenue under the said Act.
[848 D E]


judgement:
N: Criminal Appeal No. 562 of 1983.
812 From the Judgment and Order dated the 29th July, 1982 of the Punjab and Haryana High Court at Chandigarh in Criminal Appeal No. 78 DB/80.
Prem Malhotra for the Appellant.
R.K. Garg and D.K.Garg for the respondents.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
Thirteen persons were sentenced to life imprisonment by the learned Additional Sessions Judge, Ambala, under section 302 read with section 149 of the Penal Code.
For other offences connected with the main offence of murder, they were sentenced to lesser concurrent terms of imprisonment.
The charge against the accused is that they committed the murder of one Dhian Singh and caused injuries to six others on June 6, 1980.
The accused are Harijans while the deceased Dhian Singh belonged to the Rajput faction of the village of Sultanpur.
There were disputes between the two groups over a piece of land.
The Harijans filed a suit to establish their title to that land but they lost that suit, having taken it upto the High Court in Second Appeal Proceedings under section 145 of the Code of Criminal Procedure were instituted against the two factions, which also the Rajputs won.
The judgment which the High Court of Punjab and Haryana declared in this case shows how important it is for Judges to observe the norms laid down by law for dispensing justice. 'Justice under the tree ' or the 'Panchayat justice ' have advantages of their own, but they cannot be confused with justice according to the Chancellor 's foot.
If anything, the strange procedure adopted by the High Court in this case has only succeeded in giving a bad name to a useful innovation which, if tried cautiously and with circumspection, will take away at least a frivolous chunk of litigation which clogs the wheels of justice in Courts of law.
When the appeal filed by the accused came up for hearing before the High Court, it took the view that "the matter could be settled by a compromise".
It invited the Harijan Panchayat and the Rajput Panchayat of the village of Sultanpur to appear before it.
On May 28, 1982 the two Panchayats 813 agreed that the Harijans should be allotted four kanals out of the disputed land.
The High Court accordingly directed that the Revenue authorities should go to the spot, demarcate that land and report back to it along with the plans.
The report submitted by the Revenue authorities showed, according to the High Court, that its order was not understood correctly.
The High Court then entered into a dialogue with Shri Bhasin, District Attorney, Haryana, who informed it that he had discussed the matter with the S.D.O. (Civil), Kalka, and that the said Officer was of the view that the land could be demarcated so that four kanals could be allotted therefrom to the Harijans.
While hearing the criminal appeal against the order of conviction for murder and the other offences, the High Court called for the papers of Second Appeal No. 742 of 1978, which was disposed of in 1980 by a final order in favour of the Rajputs.
All the effected parties were not before the High Court as they possibly could not be, since what was before the High Court was the criminal appeal and not the Second Appeal.
The High Court, finding that some of the affected parties were not served, directed that if any unserved party had a grievance, it could approach it for review of its judgment.
The High Court thereafter recorded the statements of the two learned counsel, Shri F.C. Aggarwal and Shri C.D. Dewan who appeared for the parties.
Shri Aggarwal stated that he agreed that four kanals from the land should be allotted to the Harijans.
Shri Dewan made a statement that he agreed with what Shri Aggarwal had stated.
The High Court then had Second Appeal No. 742 of 1978 called out and passed an order to the effect that as agreed between the parties, the claim of the Harijans for four kanals of the land was allowed.
Having thus re disposed of the Second Appeal, the High Court took up the criminal appeal for hearing.
The entire judgment of the High Court runs thus: "We do not wish to give a detailed judgment in this case.
It suffices to mention that there is abundant evidence on record to indicate that actual possession of the land falling under the Asthan of Sidh Baba, the well and the adjoining houses was of the accused.
It looks 814 more probable that when some force being used to dispossess them, they protested and when their protests were unavailing violence was used resulting in the death of Dhian Singh, deceased.
In the circumstances, we give the benefit of doubt to the accused persons, and acquit them of all the charges.
We do hope that in future the parties will live together amicably.
With these observations, the appeal is allowed.
" With respect, it is impossible to appreciate how the High Court could dispose of the criminal appeal in this extraordinary fashion.
It is obvious that the High Court had made up its mind to acquit the accused without considering the evidence before it.
Finding that the offence of murder cannot be compounded, the High Court took the facile course of acquitting the accused who, by a considered judgment, were convicted by the learned Additional Sessions Judge.
It is less than just to allow the judgment of the High Court to stand.
Shri R.K. Garg, who appeared on behalf of the accused, found it impossible to support the judgment of the High Court.
Accordingly, we set aside the judgment of the High Court dated July 29, 1982 and remand the appeal to it for disposal in accordance with law.
We also set aside the order passed on that date by the High Court in Second Appeal No. 742 of 1978.
The earlier judgment of the High Court in that appeal will be restored.
We hope that the High Court will be able to take up the criminal appeal for hearing at an early date.
If the evidence warrants the acquittal of the accused, they will be entitled to be acquitted.
We express no opinion on the merits of that matter.
H.L.C. Appeal Remanded.

summary:
The respondents were convicted and sentenced for committing murder and other offences.
The deceased and the respondents, who respectively belonged to the Rajput and the Harijan factions of the village, had a dispute over a piece of land which had been decided in favour of the Rajputs by a final order of the High Court in second appeal.
When the respondents ' appeal against conviction in the criminal case came up for hearing, the High Court took the view that 'the matter could be settled by a compromise ' and invited the Harijans and Rajput panchayats of the village to appear before it and, ultimately, called for the papers of the second appeal decided earlier and passed an order to the effect that, as agreed between the parties, the claim of the Harijans for four kanals of land was allowed.
Finding that some of the affected parties were not served, the High Court directed that if any unserved party had a grievance, it could apply for review of the judgment.
After re disposing of the second appeal relating to the dispute over land in the manner stated above, the High Court took up the criminal appeal for hearing and, without considering the evidence before it, delivered a short judgment acquitting the respondents.
Remanding the appeal, ^ HELD: It is impossible to appreciate how the High Court could dispose of the criminal appeal in this extraordinary fashion.
It is obvious that the High Court had made up its mind to acquit the accused without considering the evidence before it.
Finding that the offence of murder cannot be compounded, the High Court took the facile course of acquitting the accused who, by a considered judgment, were convicted by the trial Court.
[814 C D] The judgment of the High Court shows how important it is for the judges to observe the norms laid down by law for dispensing justice. 'Justice under the tree ' or 'panchayat justice ' have advantages of their own, but they cannot be confused with justice according to the Chancellor 's foot.
[812 F]


judgement:
ition (Crl.) No. 2989 of 1983.
(Under article 32 of the Constitution) R.L. Panjwani, Manoj Saxena and R.D. Upadhaya for the petitioners.
The Order of the Court was delivered by CHANDRACHUD, C.J, The question raised in this petition is whether the Government can ask the police not to enter a place of worship, even if criminals are reported to be hiding or harboured therein.
It is impossible and undesirable for any Court to issue a general writ of Mandamus to the effect that whenever a criminal is suspected to have taken shelter in a place of worship, the police must enter that place, regardless of the overall situation of law and order.
Speaking generally, Courts cannot enforce law and order by issuing general directions without reference to specific instances.
The Government has to assess, in the context of the prevailing conditions, the impact of the steps taken to enforce law and order.
And, it is the executive which has to take a policy decision as regards the steps to be taken in a given situation, after 903 taking into account the demands of the prevailing situation.
We do not commend or suggest that the police should be silent spectators to wanton destruction of life but we cannot, as men of some little experience of law and life, commend that the police must enter places of worship forcibly.
While enforcing law and order, the executive cannot be oblivious of the possibility that while solving one problem of law and order, others more acute than the one sought to be solved may arise.
That is always a valid and relevant consideration.
With these observations, we dismiss this petition filed by two public spirited organisations through their courageous convenor and secretary respectively.
M.L.C. Petition dismissed.

summary:
HELD: It is the executive which has to take a policy decision as regards the steps to be taken in a given situation, after taking into account the demands of the prevailing situation.
It is not that the police should be silent spectators to wanton destruction of life; but the Court cannot commend that the police must enter places of worship forcibly.
[902 H; 903 A]