judgement:
ivil Appeals Nos.
945 47 of 1991.
From the Judgment and Order dated 8.8.1990 of the Punjab & Haryana High Court in L.P.A. Nos.
266, 267 and 268 of 1986.
P.P. Rao, J. Lal, Ms. Yasmin Tarapore, S.K. Bagga and C.M. Nayar for the Appellants.
G.L. Singhi, J.K. Sibal and Ms. Kamini Jaiswal for the Respondents.
The Judgment of the Court was deliverd by FATHIMA BEEVI, J.
Special leave granted.
These Civil Appeals arise from the common judgment dated 8.8.1990 of the High Court of Punjab and Haryana dismissing Letters Patent Apeals against the judgment dated 12.2.1986 of the single Judge allowing writ petitions filed under Articles 226 and 227 of the Constitution of India.
Civil Appeals arising out of S.L.P. (C) Nos.
14471 73 of 1990 are filed by the State of Punjab and Civil Appeals arising out of S.L.P. (C) Nos.
14236 38 of 1990 are filed by Ram Saran and O.P. Singhla, the respondents in the writ petitions.
We shall hereinafter refer the contesting respondents Ram Saran and O.P. Singhla as 'the appellants ' and writ petitioners as 'the petitioners ' for the sake of convenience.
In the Punjab Excise & Taxation Department, there were two separate and distinct cadres known as Assistant Excise and Taxation 733 Officers governed under the Punjab Excise and Taxation Department (State Service Class III A) Rules, 1956 (hereinafter referred to as Class III/A Rules ') and the Excise and Taxation Officers governed by the Punjab Excise and Taxation Department (State Service Class II) Rules.
Under the Class II Rules, appointment to the cadre of Excise and Taxation Officers was made (a) by direct recruitment to the extent of 50% and (b) by promotion from amongst Assistant Excise and Taxation Officers to the extent of 50%.
Under Class III A Rules, subordinate staff was eligible for promotion to the extent of 50% of the vacancies of Assistant Excise and Taxation Officers and their shares were as under: (i) Taxation Inspector 25% (ii) Excise Inspector 12 1/2% (iii) Ministerial Staff Head Office 6 1/4% (iv) Ministerial Staff Sub Office 6 1/4% The appellants as well as the writ petitioners joined the ministerial cadre of the Excise and Taxation Department as Clerks and were confirmed as such.
The writ petitioners were promoted to the higher post and later appointed as Excise/Taxation Inspectors in 1971 72 by transfers under Rule 7(a)(ii) of the Punjab Excise Subordinate Service Rules, 1943.
On such transfer as Excise/Taxation Inspectors, the lien of the writ petitioners was suspended in accordance with the provisions of Rule 3.14(b) of the Punjab Civil Services Rules (Volume I Part I).
The appellants continued in the ministerial cadre, Ram Saran as Assistant and O.P. Singhla as Superintendent.
The Excise and Taxation Department was reorganised on 18th May, 1977.
The cadre of Assistant Excise and Taxation Officers was abolished on 18th May, 1977 and the Assistant Excise and Taxation Officers were redesignated as Excise and Taxation Officers.
Thereafter Class III A Rules became redundant and inoperative and under Class II Rules became redundant and inoperative and under Class II Rules, there was no provision for promotion from subordinate staff direct as Excise and Taxation Officers.
The Government in order to provide avenues of promotion to the subordinate staff decided to make suitable amendment to the Class II Rules on the following terms: "Rule 5.
The members of the service shall be recruited in 734 the following manner, namely: a. xxx xxx xxx b.
In the case of an Excise and Taxation Officer; (i) by promotion from amongst the Taxation Inspectors and Excise Inspectors who have an experience of working as such for a minimum period of five years; or (ii) by promotion from amongst the Superintendents, Assistant, Accountants and Senior Scale Stenographers working in the Excise and Taxation Commissioners Head Office and in the Divisional and District Offices of the Department of Excise and Taxation, Punjab," It was further provided that there will be certain quota for each of the above categories for promotion to the rank of Excise and Taxation Officers.
The State Government decided to adopt and apply the draft provision of Rule 5 in the matter of filling up of the vacancies in the carde of Excise/Taxation Officers before rules could be formally promulgated.
Thus on 22.8.1983, Ram Saran and O.P. Singhla were promoted as Excise/Taxation Officers.
The writ petitioners having been transferred to the other cadres of Excise/Taxation Inspectors have continued there for 14/15 years beyond and period of probation and also qualified the departmental test for Inspectors and they were not considered for the promotion as Excise and Taxtion Officers.
The writ petitions were, therefore, filed challenging the promotion of the appellant mainly on the ground that on the basis of their seniority and lien on the post in the ministerial cadre, the writ petitioners had a right to be considered for promotion to the post of Excise and Taxation Officers prior to the appellants.
The contention of the appellants as well as the State was that though the lien of the writ petitioners in the ministerial cadre was suspended in terms of Rule 3.14(b) of the Punjab Civil Service Rules, if the petitioners wanted that they should be considered for the post of Excise and Taxation Officers on the basis of their lien in the ministerial cadre, they may seek reversion and thereafter their case would be considered on merits and under rules.
It was clarified by the Financial Commissioner in the order dated 7.8.1985 that the case of the writ petitioners would be considered in the light of the eligibility under the 735 relevant rule, that is to say, the amended Rule 5.
The eligibility prescribed under the said rule for promotion from amongst Superintendents etc.
in the ministerial service includes experience of working as such for a period of five years.
The writ petitioners felt that if the service rendered by them as Excise and Taxation Inspectors was not being considered as service rendered in the ministerial cadre, they would be ineligible for consideration to the post of Excise and Taxation Officers.
The learned single Judge accepted the contention of the writ petitioners that there was no conscious decision to apply the draft rules and consequently for the post of Excise and Taxation Officer, the writ petitioners are entitled to be considered without any bar of eligibility as their juniors had already been considered for the post.
On appeal, the Division Bench proceeded on the assumption that the draft rules though not promulgated were rightly implemented.
The Division Bench dealt with the question whether the service rendered on transfer to the ex cadre would be available to the writ petitioners in the matter of their promotion to the higher posts thus: "In view of this, question that calls for determination is as to whether on the return of the writ petitioners from the post of Excise and Taxation Inspectors to the Ministerial cadre, the service rendered by them on the post of Excise and Taxation Inspector could by deeming fiction be considered as having been rendered in the Ministerial cadre? The answer to this question is that such a service is to be counted as if the petitioners were always in the Ministerial cadre.
Once it is held that the petitioner lien was only suspended under Rule 3.14(b) of the Punjab Civil Service Rules, the petitioners had a right to come back to their posts in the Ministerial cadre and once that is so, the rest would follow as if for all times deemingly they were in the Ministerial cadre.
" The Division Bench relied on the decision of this Court in State of Mysore & Anr.
vs P.N. Nanjundiah & Anr., , and opined that the entire service rendered by the petitioners as Excise and Taxation Inspectors will be considered in the Ministerial cadre and if that is counted the petitioners would be eligible for promotion under the relevant rules.
It rejected the contention that the petitioners could not be said to be retaining a lien in the Ministerial cadre as they had successfully completed the period of probation as Excise and Taxation 736 Inspectors and they will be deemed to be confirmed there.
The Division Bench endorsed the view that the revival of the lien essentially means that it stands revived with effect from the date it had been suspended, and dismissed the appeals observing: ". we may observe that the petitioners shall now be considered forthwith for the posts of ETOs from the date their juniors were promoted and if found suitable they will be promoted to that rank from the dates their juniors were promoted and they would be entitled to all the consequential benefits arising out of their promotion from the said date.
" Shri P.P. Rao, the Senior Counsel for the appellants, and Shri G.L. Sanghi, the Senior Counsel for the respondents (writ petitioners), conceded that both parties claim promotion to the post of Excise and Taxation Officers only by virtue of the provision in the amended Rule 5 of Class II Rules and, therefore, the question whether there had been conscious application of the said rule before promulgation is only academic.
We agree with the view of the High Court that for the purpose of present controversy we have to assume that the amended Rules were rightly implemented before they were formally promulgated in effecting the promotions now challenged.
The appellants maintain that the Division Bench as clearly wrong, and that the petitioners in order to claim the benefit of promotion from the ministerial cadre under the amended Rules have necessarily to satisfy the eligibility test.
To be more specific, they should have actual experience of five years in the ministerial cadre even when they are reverted back to that cadre.
We have said that the petitioners were appointed as Inspectors by transfer under Rule 7 of the Punjab Excise Subordinate Service Rules, 1943 and thereafter they belonged to a different cadre.
Their lien had also been suspended after three years.
The Punjab Civil Services Rules, Volume, I, Part I, Rule 3.14 reads: "3.14.
(a) A competent authority shall suspend the lien of a Government employee on a permanent post which he holds substantively; if he is appointed in a substantive capacity 737 (1) to a tenure post, or (2) to a permanent post outside the cadre on which he is borne, or (3) provisionally, to a post on which another Government employee would hold a lien, had his lien not been suspended under this rule.
(b) A competent authority may, at its option, suspend the lien of a Government employee on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this rule, is transferred, whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien, for a period of not less that three years.
(c) xxx xxx xxx (d) If a Government employee 's lien on a post is suspended under clause (a) or (b) of this rule, the post may be filled substantively, and the Government employees appointed to hold it substantively shall acquire a lien on it: Provided that the arrangements shall be reversed as soon as the suspended lien revives.
Note 1.
xxx xxx xxx Note.
When a post is filled substantively under this clause, the appointment will be termed "a provisional appointment"; the Government employee appointed will hold a provisional lien on the post; and that lien will be liable to suspension under clause (a) but not under clause (b) of this rule.
(e) xxx xxx xxx (f) A Government employee 's lien which has been suspended under clause (b) of this rule shall revive as soon as he ceased to be on deputation out of India or on foreign service or to hold a post in another cadre . " 738 According to the appellants, the respondents having been transferred to the cadre of Excise and Taxation Inspectors and having continued there for 14/15 years beyond the period of probation, their lien over ministerial post was suspended.
The consideration of their names for the purpose of promotion as Excise and Taxation Officers from the ministerial post did not arise.
The amended Rule introduced eligibility that would exclude the service rendered by the petitioners in other posts and if such service is excluded, the petitioners would be ineligible.
The lien of the petitioners had been suspended by the competent authority under the mandatory provisions of Rule 3.14(b) referred to.
They could seek reversion to their parent ministerial cadre and claim consideration for promotion to the post of Excise and Taxation Officers according to their eligibility and suitability.
The next below rule does not apply to the case of promotion to the higher posts in other cadres under specific rules governing promotions to those cadres.
The recruitment to the post of Excise and Taxation Officer is governed by Punjab Excise and Taxation Department (State Service Class II) Rules, 1956.
The eligibility of Taxation Inspectors and Excise Inspectors and members of ministerial establishment for the post is governed by the amended Rule 5.
According to the proposed Rule 5(b)(ii), promotion to the post of Excise and Taxation Officer is to be made from amongst the Superintendents, Assistants, Accountants and Senior Scale Stenographers working in the Excise and Taxation Commissioners Head Office and in the District and Divisional Offices.
In view of this provision, the Taxation Inspectors and Excise Inspectors whose lien against their posts in the ministerial cadres has been suspended and who are not working on the eligible ministerial establishment posts and who have been working as Taxation Inspectors and Excise Inspectors for a long number of year cannot claim that they are to be considered automatically for recruitment to the post of Excise and Taxation Officer.
The normal line of promotion within the cadre for the members of the ministerial establishment was from the lowest post of a Clerk to the highest post of a Superintendent.
So also the further channel of promotion was open to the Inspectors to the post of Excise and Taxation Officer.
If the Inspectors are to be considered for the post of Excise and Taxation Officer from the quota of the ministerial establishment, that will result in the Inspectors getting two avenues for promotion while the ministerial staff losing even the one which had been provided.
The appointment to the ex cadre posts of Excise and Taxation Inspector is made by transfer in accordance with the provisions of Rule 739 7 of Subordinate Service Rules, 1943 which provide that appointment to the cadre post shall be made by transfer or deputation of an official already in Government service.
It implies that any Government employee irrespective of his office can be appointed as Excise or Taxation Inspector.
The Excise and Taxation Inspectors ' cadre is distinctly different from the ministerial cadre having duties or functions altogether different in nature and content.
Instead of waiting for their turn to be promoted from the Inspectors quota, the petitioners have laid the claim to the quota in the ministerial service.
The appellants are also persons who have been confirmed in the ministerial cadre and have worked for more than 20 years as such.
The result would be that there would be no promotions to the post of Excise and Taxation Officer from the ministerial staff as such, and those who got transferred as Inspectors would be getting double benefit by claiming promotion to the post of Excise and Taxation Officer as members of the ministerial staff while retaining their right to claim promotion from within the quota specifically provided for the Inspectors.
The petitioners with suspended lien on the post of Clerk and continuously holding the Inspector 's post for over 13 years cannot be considered to be at par with officials continuously working on the ministerial post for over 21 year.
From the scheme of the Rules and the method of recruitment, it is clear that the petitioners while working as Inspectors on appointment by transfer to that cadre had the advantage of being considered for promotion as Officers under the amended Rule 5 out of the quota for Inspectors, while the ministerial staff to the exclusion of the Inspectors were entitled to certain percentage.
The petitioners without being on the ministerial cadre even by reversion could not claim promotion as a member of the ministerial cadre without revival of the lien.
Such revival could be effected only on reversion and not while the lien remained suspended.
When the rule requires members of the ministerial staff to have experience as such for five years to satisfy the elibility requirement, the Inspectors cannot claim that service in the different cadre with their lien suspended be equated to service in the ministerial cadre and treated as experience in the ministerial cadre even if the functions and duties of the Inspectors may be of identical nature.
The purpose of the rule is to provide promotional avenues to different categories within specified limits.
The benefit intended for one category cannot be extended to another category by stretching the rules, particularly when no injustice would result.
The argument that the petitioners if found ineligible would remain in the lower cadre while their juniors are being promoted to the higher cadre 740 cannot be coutenanced.
Even when the juniors continued in the lower ministerial cadre for long years, the petitioners were in a different cadre which had a larger promotional avenue and they are satisfied in that post.
If the petitioners did not exercise their option to revert back to the ministerial cadre at the right time to qualify themselves for further promotion, the appellants cannot be deprived of the benefit they derived by continuing in the lower cadre on account of that situation.
The High Court was clearly wrong in holding that the petitioners have acquired eligibility by rendering service in the cadre of Inspectors since their lien had been suspended.
The decision in State of Mysore 's case (supra) is distinguishable on facts.
Rule 53(b)(i) of the Mysore Service Rules considered in that case provided that service in another post whether in a substantive or officiating capacity shall count for increments in the time scale applicable to the post on which the Government servant holds a lien or as well as in the time scale applicable to the post, if any, on which he would hold a lien had his lien not been suspended.
The Court noticed that the service of an officer on deputation to another department is treated as equivalent to the service in the parent department under the rule.
On account of that equation between the service in the two departments, it was held that the service on deputation should be deemed to be rendered in the parent department.
The ratio of the decision is, therefore, not applicable in the present case.
In C. Narasinga Rao & Ors.
vs State of Andhra Pradesh by its Secretary, Vol.
2 1968 S.L.R.644, Rule 9 of the Andhra Pradesh State and Subordinate Service Rules provided that service rendered in the transferred department should be deemed to have been rendered in the parent department for promotion and seniority.
And when the rule is thus specific, it was held that the petitioners ' service in the police department should be deemed to have been rendered in the parent department entitling them to promotion.
If the Government employee was on deputation or holding a post in another cadre, the lien shall revive as soon as he ceased to hold the post in another cadre.
There is no revival of the lien during the period the employee continues to hold a post in another cadre.
Therefore, during the period the suspension is operative, the employee cannot claim that he had been continuing in the post in the parent cadre and gaining experience.
When the rule is clear and specific that for the purpose of promotion from the cadre of Superintendents, Assistants, Accountants, Senior Scale Stenographers to the post of Excise and 741 Taxation Officers, the eligibility qualification is 'experience of working 'as such ' for five years ' the employee is not entitled to claim the experience in the ex cadre as experience of working in the ministerial cadre.
In the light of what has been stated above, we are unable to uphold the decision of the High Court.
The writ petitions are liable to be dismissed.
Accordingly, we allow the appeals.
R.N.J. Appeals allowed.

dataset_name: IN-Abs

summary:
In the Punjab Excise and Taxation Department there were two separate cadres known as "Assistant Excise & Taxation Officers" governed under the State Service Class III A Rules, 1956 and "Excise & Taxation Officers" governed by the State Service Class II Rules.
Under the class II Rules, appointments were made in the ratio of(a) 50% by direct recruitment and (b) 50% by promotion from amongst Assistant Excise and Taxation Officers.
Likewise under the Class III A Rules 50% of the vacancies were filled by direct recruitment and 50% by promotion from the subordinate staff comprising the Taxation Inspectors, Excise Inspectors, Ministerial Staff Head Office and Ministerial Staff Sub office who within themselves had shares as laid down.
The Writ Petitioners and the contesting respondents Ram Saran and O.P. Singhla had initially joined the Punjab Excise and Taxation Department as clerks and were confirmed as such.
The Petitioners were promoted and appointed as Excise/Taxation Inspectors by transfer under Rule 7(a)(ii) of the Punjab Excise Subordinate Service Rules, 1943 and their lien in the taxation department suspended under Rule 3.14(b) of the Punjab Civil Service Rules.
Whereas Ram Saran and O.P. Singhla continued in the ministerial cadre and were Assistant and Superintendent respectively at the relevant time.
730 Following reorganisation of the department, the carde of Assistant Excise & Taxation Officers was abolished and all the Assistant Excise & Taxation Officers were redesignated as Excise and Taxation Officers.
Consequently Class III A Rules became redundant.
As under Class II Rules there was no provision for promotion of subordinate staff direct as Excise & Taxation Officers the Government in order to provide avenues of promotion to the ministerial carde including Taxation Inspectors and Excise Inspectors brought in suitable amendments to these Rules on the following terms. "Rule 5.
The members of the service shall be recruited in the following manner namely: (a) xxx xxx xxx (b).
In the case of an Excise and Taxation Officer; (i) by promotion from amongst the Taxation Inspectors and Excise Inspectors who have an experience of working as such for a minimum period of five years; or (ii) by promotion from amongst the Superintendents, Assistant, Accountants and Senior Scale Stenographers working in the Excise and Taxation Commissioners Head Office and in the Divisional and District Offices of the Department of Excise and Taxation, Punjab." Applying the draft amended Rules before they were formally promulgated the contesting respondents Ram Saran and O.P. Singhla were promoted as Excise & Taxation Officers on 22.8.1983.
The Writ Petitioners who had been transferred earlier to other cardes of Excise/Taxation Inspectors and worked there for 14/15 years beyond the probation period were not considered.
They therefore, filed writ petitions in the High Court challenging the promotion of the appellants mainly on the ground that on the basis of their seniority and lien in the ministerial cadre, they had a right to be considered for promotion prior to the appellants.
The appellants and the State contended that if the Petitioners wanted to be considered for this post on the basis of their lien in the ministerial carde, they may seek reversion to this cadre and thereafter their case would be considered on merits in accordance with the eligilbility as prescribed under the amended Rule 5 which includes experience of working as such for a period of five years in the ministerial 731 cadre.
To this reply of the Writ Petitioners was that if the service rendered by them in the other cadre as Excise and Taxation Inspectors was not considered as service rendered in the ministerial cadre, they would be ineligible for consideration to this post.
The learned single judge accepted the petitioners ' contention and in allowing the Writ Petitions held that there was no conscious decision to apply the draft rules and consequently the Petitioners were entitled to be considered for the post of Excise & Taxation Officers without any bar of eligibility as their juniors had already been considered.
On appeal, the Division Bench took the view that the draft rules, though not promulgated were rightly implemented.
However on the question whether service rendered by the Petitioners on transfer to the other cadres could be considered as having been rendered in the Ministerial cadre, the Division Bench relying on the decision of this court in State of Mysore & Anr.
vs P.N. Nanjundiah & Anr., , held that it did and that if that is counted the petitioners would be eligible for promotion under the relevant rules with their suspended lien reviving with effect from the date it had suspended and they shall be considered forthwith.
Against this order Ram Saran and O.P. Singhla have preferred appeals by special leave and so has the State separately.
Reversing the decision of the High Court and allowing the appeals dismissing the writ petitions, this Court, HELD: From the scheme of the Rules and the method of recruitment it is clear that the petitioners while working as Inspectors on appointment by transfer to that cadre had the advantage of being considered for promotion as Officers under the amended Rule 5 out of the quota for Inspectors, while the ministerial staff to the exclusion of the Inspectors were entitled to certain percentage.
[739E] The petitioners without being on the ministerial cadre even by reversion could not claim promotion as a member of the ministerial cadre without revival of the lien.
Such revival could be effected only on reversion and not while the lien remained suspended.
[739F] If the Government employee was on deputation or holding a post in another cadre, the lien shall revive as soon as he ceased to hold the post in another cadre.
There is no revival of the lien during the period the employee continues to hold a post in another cadre.
Therefore, during the period the suspension is operative, the employee cannot claim that he had been continuing in the post in the parent cadre and gaining experience.
[740G] 732 When the rule is clear and specific that for the purpose of promotion from the cadre of Superintendents, Assistants, Accountants, Senior Scale Stenographers to the post of Excise and Taxation Officers, the eligibility qualification is 'experience of working ' as such ' for five years, the employee is not entitled to claim the experience in the ex cadre as experience of working in the ministerial cadre.
[740H 741A] State of Mysore & Anr.
vs P.N. Nanjundian & Anr., , distinguished.
C. Narasinga Rao & Ors.
vs State of Andhra Pradesh by its Secretary, Vol. 2 relied upon.


judgement:
Civil Appeal Nos.
(NCE) 1044 & 1045 of 1991.
From the Judgement and Order dated 29.10.1990 of the Bombay High Court in Election Petition No.5 of 1990.
K.K. Venugopal, Harish Salve, P.H. Parekh, Sunil Dogra, V.D. Joshi and A.M. Khanwilkar for the Appellants.
A.S. Bobde, V.A. Bobde, S.D. Mudliar, C.K. Ratnaparkhi, B.P. Pandye, and Mrs. Nirmal Chhagan for the Respondent.
The Judgement of the Court was delivered by SAWANT, J. These two petitions arise out of a common order dated 29th October, 1990 passed by the Bombay High Court in Election Petition No. 5 of 1990 and raise a common question of law.
Hence they are disposed of by this judgement.
Leave is granted in both the petitions.
The election petition in which the impugned order is passed was filed by a defeated candidate (Respondent No.1) against the elected candidate (Respondent No.2) and other contesting candidates challenging the validity of the election of respondent No.2 to the Lok Sabha from the Bombay South Central Constituency in the election held on November 24, 1989.
The election of respondent No.2 is challenged in the petition, among other things, on the ground of corrupt practices under sub sections (2), (3) and (3A) of Section 123 of the Representation of the People Act, 1951 (hereinafter referred to as the "Act").
It appears from the impugned order that the High Court has reached a stage in the trial of the election petition where examination in chief and cross examination of about 14 witnesses has been completed and various documents have been brought on record.
It is at this stage that the impugned order has been made, the operative part of which reads as follows: 762 "In this Election Petition, the Petitioner seeks to set aside the election of Respondent No.1 on the ground of corrupt practice under Sections 123(3) and 123(3A) of the said Act.
The Petitioner has led documentary and oral evidence.
Respondent No.1 has tendered documents but has led no oral evidence.
The other Respondents have remained absent even though served.
Petitioner and Respondent No.1 have argued their respective cases.
The learned Advocate General has also drawn my attention to Section 99 of the said Act which requires this Court, whilst giving a finding that corrupt practice has been proved, to name all persons who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice.
This however must be after having given to such persons notice to appear and show cause why he/they should not be so named.
At this stage, I am of the prima facie opinion that the charges alleged in the Petition of corrupt practice under Section 123(3) and 123(3A) of the said Act have been proved to have been committed and that Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr. Manohar Joshi Are (to use the words of Supreme Court) collaborators in such corrupt practice.
Accordingly, I direct that notices under Section 99 of the Representation of the People Act, 1951, shall be given to Mr. Bal Thackeray, Mr. Chhagan Bhujbal and Mr. Manohar Joshi to appear before me on 3rd December, 1990, to show cause why they should be not be so named in the order on the Election Petition.
Each notice shall state that the person named in the notice shall have an opportunity of cross examining all witnesses who have given evidence against him and that he shall have a right of calling evidence and of being heard.
I direct that to all the notices shall be annexed photo copies of: (a) the Petition, the written statement of Respondent No.1 and the Issues.
763 (b) the oral depositions of the petitioners witnesses.
(c) all exhibits, except Exhibits RR, SS to YY, AAA, AAA1, AAAA, BBBB, BBBB1 and Exhibits 1 to 8.
(d) this order.
I also direct that along with all the notices shall be sent audio cassettes containing copies of Exhibits SS to YY.
" Aggrieved by this order, two of the persons named therein, viz., Manohar Joshi and Chhagan Bhujbal have approached his Court by way of these two separate appeals by special leave.
The order is assailed on the ground that although it directs the issuance of notice to the appellants to answer allegations of corrupt practices allegedly committed by them, it is vague and does not indicate which of the corrupt practices they are alleged to have committed and which evidence on record supports them.
In the absence of the specific charge/s and the evidence in support of it/them indicated in the order and the notices issued pursuant to it, the appellants are at a loss to comprehend the case that they are called upon to meet.
They are thus put to a disadvantage and are gravely prejudiced.
It is pointed out that the consequences of naming a person on his being found guilty pursuant to such notice are grave inasmuch as, among other things, he incurs a disqualification for contesting election under Article 103 of the Constitution read with Section 8A of the Act.
It is also urged that even otherwise the notice to appear and the opportunity to show cause contemplated under the proviso to sub section (1) of Section 99 of the Act enjoins upon the Court to state precisely the charge and the evidence which the person summoned is called upon to meet.
It does not contemplate a vague notice such as the one which is issued and is directed to be issued by the impugned order.
For reasons more than one, we find great force in these submissions.
Shri Bobde, the learned Advocate General of Maharashtra who appeared for respondent No.1 could not seriously dispute these contentions.
However, he pointed out to us an earlier order dated December 1, 1988 of this Court passed in Special Leave Petition No. 13163 of 1988 which was filed against a similar order passed by the Bombay High Court in Election Petition No.1 of 1988.
This Court by its said order had held as follows: 764 "We do not think that in a notice under Section 99 of the Representation of the People Act, 1951 the portions of the speeches of the petitioner are required to be specific for the purpose of sub sections (3) and (3A) of Section 123 of the said act.
The petitioner, however, will be at liberty to make an application before the Court for specifying those portions which, Prima facie, according to the Court, come within the purview of sub sections (3) or (3A) of Section 123 of the said Act.
If any such application is made, the Court will dispose of it in accordance with law.
The special leave petition is disposed of accordingly.
" The provisions of the Act which have a cumulative bearing on the present question are contained in sections 82, 83, 97, 98, 99, 107, 123(3) and 123(3A) of the Act.
Section 82 enjoins upon the election petitioner to join as respondent to the petition, in addition to other necessary parties, any candidate against whom allegations of any corrupt practice are made in the petition.
Section 83 which deals with the contents of the election petition states, among other things, as follows: "83.
Contents of petition. (1) An election petition (a) . . . . . . . . (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c). . . . . . . .
Provided that where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof.
(2) Any schedule or annexure to the petition shall also be signed by the petitioner and verified in the same manner as the petition.
" 765 It is clear from the reading of these two sections that even in the election petition where allegations of corrupt practices are made, full particulars of the alleged corrupt practice including as fuller a statement as possible and the names of the parties who are alleged to have committed such practice and the date and place of the commission of each such practice have to be furnished.
What is further, the allegations of the corrupt practice have to be accompanied by an affidavit in support both of the allegations as well as the particulars thereof, and if there are any schedules or annexure to the petition in support of the corrupt practice, they have also to be signed by the petitioner and verified by him in the same manner as the petition.
This is a mandatory requirement.
The object of the said provisions is obvious.
The party and it includes not only the returned candidate but all other candidates against whom the corrupt practice is alleged, must have an adequate notice of the precise allegations made against him so that he has a proper opportunity to meet them.
Section 97 states that when in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and the petition had been presented calling in question his election.
The section requires that before the returned candidate or such other party, as aforesaid, gives such evidence, he should have, within 14 days from the date of the commencement of the trial, given notice to the High Court of his intention to do so and that notice has to be accompanied by the statement and particulars required by Section 83 in the case of an election petition and has to be signed and verified in the like manner.
We have already referred to the relevant requirements of Section 83 with regard to the furnishing of the particulars of the corrupt practice.
Section 98 states that on the conclusion of the trial of an election petition, the High Court shall make an order (a) dismissing the election petition; or (b) declaring the election of all or any of the returned candidates to be void; or (c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected.
Then follows Section 99 of which what is relevant for our purpose in sub section (1) which reads as follows: "99.
Other orders to be made by the High Court. (1) At 766 the time to making an order under section 98 the High Court shall also make an order (a) where any charge is made in the petition of any corrupt practice having been committed at the election, recording (i) a finding whether any corrupt practice has or has not been proved to have been committed at the election, and the nature of that corrupt practice; and (ii) the names of the persons, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and (b) fixing the total amount of costs payable and specifying the persons by and to whom costs shall be paid.
Provided that a person who is not a party to the petition shall not be named in the order under sub clause (ii) of clause (a) unless (a) he has been given notice to appear before the high Court and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross examining any witness who has already been examined by the High Court and has given evidence against him, of calling evidence in his defence and of being heard.
" It is clear from the provisions of sub clause (i) and (ii) of clause (a) of sub section (1), that at the time of deciding the petition, the Court has to record a finding that a corrupt practice is proved to have been committed and that it is committed by a particular person.
The Court has not only to name the person but also the nature of the corrupt practice committed by him.
If the person is a party to the petition, it is not necessary to hear him separately before recording such finding.
However, when he is not a party to the petition, before such serious finding is recorded against him, he must have the same opportunity as the party to the petition, to meet the allegations against him.
In that respect, he stands on the same footing as the party to the petition against whom such a finding is to be recorded.
He cannot be 767 discriminated against and made to suffer any disadvantage because he is not a party to the petition.
This is the precise object which is sought to be secured by the proviso to the Section.
Section 107 of the Act states that the order of the High Court under Section 98 or Section 99 shall take effect as soon as it is pronounced by the High Court subject, of course, to the stay, if any, granted by the High Court itself or in appeal by the Supreme Court.
Section 123 enumerates and defines the corrupt practices for the purposes of the Act.
We are concerned in the present case with the corrupt practices mentioned in sub sections (3) and (3A) of the said section.
Those sub sections read as follows: "(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate: Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate or his election agent for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate.
" It is clear from the aforesaid sub sections that each of them enumerates not a single corrupt practice but various distinct corrupt practices.
They are as follows.
Sub section (3) speaks of the corrupt practices of (A) the appeal (i) to vote, or (ii) to refrain from voting for any 768 person on the ground of (a) his religion.
(b) his race, (c) his caste, (d) his community, or (e) his language; (B)(i) of the use of, or (ii) of appeal to (a) religious symbols (b) national symbols such as the national flag or (bb) the national emblem either for the furtherance of the prospects of the election of that candidate, or for prejudicially affecting the election of any candidate.
Likewise Sub section(3A) consists of different corrupt practices as follows: (i) the promotion of, or (ii) attempt to promote feeling of enmity or hatred between different classes of the citizens of India on ground of (a)religion, (b) race, (c) caste, (d) community, or (e) language either for the furtherence of the prospects of the election of that candidate or for prejudically affecting the election of any candidate.
Hence merely by enumerating in the notice the numbers of sections, viz., 122(3) and 122(3A) as is directed to be done by the impugned order, the person summoned does not understand which of the various corrupt practices mentioned in the sections is alleged against him and what precise charge he has to meet.
Section 8A of the Act states that the case of every person who is found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period.
The period of disqualification is not to exceed 6 years from the date on which the order made in relation to him under Section 99 takes effect.
Subsection (3) thereof requires the President to obtain the opinion of the Election Commission on such question and to act according to such opinion.
The President exercises this power under Article 103 of the Constitution and the powers of Election Commission when such a reference is made by the President are governed by Section 146 of the act.
769 12.
A reading of all the aforesaid provisions together would show that the proceedings pursuant to the notice issued by the High Court under Section 99 of the Act are of a quasi criminal nature.
It has also been held so by this Court in so many words, in some of the decisions: See D.P.Mishra vs Kamal Narain Sharma & Ors . , and Rashim Khan vs Khurshid Ahmed & Ors. ,[1975] 1 SCR 643.
Where, therefore, a corrupt practice is alleged, the trail of an election petition on such charge is of a quasi criminal nature, and a heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge.
This is as it should be since the naming of a person as having committed a corrupt practice has a serious consequence of disqualifying him from being chosen as or from being member of any House of the Parliament or of the Legislative Assembly or Council of a State for a period upto 6 years.
What is further, as pointed out above, when the legislature requires that the election petition shall contain full particulars of each and every alleged corrupt practice including as fuller a statement as possible of the names of the parties and the date and place of the commission of such practice, it would be contrary to the object of the said provisions to hold that when a notice is issued under Section 99 against a person who is not a party to the election petition for holding him guilty of any corrupt practice, the notice should not apprise him of the precise charge against him and give him the full particulars thereof.
Judged in the light of these requirements of law there is no doubt that the impugned order directing the issuance of notice as stated theren, is extremely vague and defective to the point of being contrary to the provision of law.
We have reproduced above the relevant portion of the order.
The order (i) directs issuance of an omnibus notice against the appellants and one other person;(ii) states again in an omnibus manner that the Court is satisfied that the charges alleged in the petition of corrupt practices under Section 123(3) and 123(3A) of the Act have been proved to have been committed by all of them (iii) further directs that each notice shall state that the person named in the notice shall have an opportunity of cross examining all witness who have given evidence against him and that he shall have a right calling evidence and of being heard.
It then directs that to all the notices to be issued, copies of (a) the petition and the written statement, (b) oral deposition, (c) all exhibits (d) the impugned order itself and (e) audio cassettes containing copies of Exhibits SS to YY should be annexed 770 15.
The notices directed to be issued and which have accordingly been issued are defective in many respects.
In the first instance, they do not spell out the precise corrupt practice which each of the appellants is called upon to meet.
As has been pointed out above, Section 123(3) does not refer to one corrupt practice but a variety of them.
Yet the notice does not specify which particulars corrupt practice is sought to be brought home to each of the appellants.
Secondly, although the copies of the petition, written statement etc. are directed to be sent along with the notices, the order does not direct the notices to state and therefore, they do not state which of the portions of the petition, written statement, oral evidence, documentary evidence and audio cassettes is being relied upon to sustain which of the charges and against which of the appellants.
As pointed out earlier, it is a pre condition for the trial of the charges of the corrupt practices that the person called upon to face the charge should be apprised, in advance, of the precise charge or charges against him and also the precise evidence oral or documentary, which is sought to be relied upon in support of the said charge or each of the said charges.
It is obvious that the kind of notice which is directed to be issued by the impugned order is defective in all these respects and conveys nothing to the appellants.
The impugned order and the notices issued pursuant to it falling short of the requirement of law are, therefore, liable to be struck down.
It is true that this Court in its order dated December 1, 1988 had refused to interfere with a similar order and had held that such a notice is not against the provisions of the law.
It has, however, to be remembered in this connection that even while doing so, the Court had given an opportunity to the petitioner therein to make an application before the High Court for specifying those portions of the speeches of the petitioner which prima facie according to the High Court came within the purview of sub sections (3) or (3A) of Section 123.
The Court had further directed that if any such application is made, the High Court should dispose it of in accordance with law.
It appears that consequent upon the direction, an application was made by the petitioner for specifying the portions of the speeches which were sought to be relied upon to sustain the charges under sub sections (3) and (3A).
The High Court held that the provisions of Section 99 did not require it to analyse the evidence and specify either in the notice under the said section or at any time prior to hearing the person to whom it is issued, what portion or portions thereof seemed in its view prima facie to make out the case which he was called upon to answer.
771 This the High Court did in spite of the fact that it recorded correctly that the person to whom a notice under Section 99 is issued is entitled to be put in the same position as the elected candidate and that his position can be no better.
We have pointed out earlier that in fact the vague notice which is directed to be issued by the impugned order does in fact place the person against whom the notice is issued in a worse position than not only the elected candidate but other persons who are parties to the election petition.
It is with a view to see that he is not placed in a disadvantaged position as against the parties to the petition that it is necessary to apprise him also of the details of the specific charges against him in advance.
We have also pointed out that the trial being of a quasi criminal nature and the consequence of the named person being serious, he is entitled to this minimum safeguard.
The view taken by the High Court was, therefore, obviously wrong.
Unfortunately, the special leave petition filed even against that order of the High Court came to be dismissed in limine and without a speaking order.
We are of the view that for the reasons which we have stated above, neither the order of December, 1 1988 nor the later non speaking order of January 23, 1989 lays down the correct position of law and should be deemed to have been overruled by this decision.
However, we make it clear that these observations will not in any way affect the validity of the decision rendered by the High Court in that election petition being Election Petition No. 1 of 1988.
We further make it clear that the law laid down here will operate only prospectively, i.e., to final orders of indictment passed under Section 99 of the Act, hereafter.
In the view we have taken above, we should set aside the impugned order and the notices issued in each case in pursuance of the said order.
However, we are of the view that it is not necessary to do so.
Instead, we direct that the appellants will appear before the High Court on 25th March, 1991 and the High Court will on that day or on such other day as it may deem convenient, issue proper notices to the appellants in the light of the law laid down and then proceed to hear and dispose of the notices in accordance with law.
The appeals are allowed accordingly.
In the circumstances of the case, there will be no order as to costs.
R.S.S. Appeals allowed.

summary:
In the 1989 elections to the Lok Sabha, respondent No. 2 was declared elected from the Bombay South Central Constituency.
One of the defeated candidates (respondent No. 1) filed an election petition challenging the validity of the election of respondent No. 2 inter alia on the ground of corrupt practices under sub section (2),(3) and (3A) of section 123 of the Representation of the People Act, 1951.
The High Court having reached the stage in the trial when it was prima facie of the opinion that the charges alleged in the petition, of corrupt practices falling under sections 123(3) and 123(A) had been proved to have been committed, it proceeded under section 99 to name the collaborators in such corrupt practices.
The High Court accordingly directed issuance of notices to three persons.
Aggrieved by this order, two of the person named therein approached his Court by way of two separate appeals.
Before this Court, it was contended on behalf of the appellants that (i) the consequences of naming a person on his being found guilty pursuant to such notices were grave; (ii) the proviso to sub section(1) of section 99 of the Act enjoined upon the Court to state precisely the charges and the evidence which the person summoned was called upon to meet; and (iii) the notices to the appellants to answer allegations of corrupt practices allegedly committed by them were vague.
Allowing the appeals and directing the High Court to issue proper notices to the appellants in the light of law, this Court, HELD: (1) It is clear from the provisions of sub clauses (i) and (ii) of clause (a) of sub section (1) of section 99, that at the time of deciding 760 the election petition the Court has to record a finding that a corrup practices is proved to have been committed and that it has been committed by a particular person.
The Court has not only to name the person but also the nature of the corrupt practice committed by him.[766F G)] (2) If the person is a party to the petition, it is not necessary to hear him separately before recording such finding.
However, when he is not a party to the petition, before such serious finding is recorded against him, he must have the same opportunity as the party to the petition, to meet the allegations against him.
In that respect, he stands on the same footing as the party to the petition against whom such a finding is to be recorded.
He cannot be discriminated against and made to suffer any disadvantage because he is not a party to the petition.
[766H 767] (3) Where a corrupt practice is alleged, the trial of an election petition on such charges is of a quasi criminal nature, and a heavy burden rests on the person alleging the corrupt practice to prove strictly all the ingredients of the charge.
This is as it should be since the naming of a person as having committed a corrupt practice has a serious consequence of disqualifying him from being chosen as or from being member of any House of Parliament or of the Legislative Assembly or Council of a State for a period upto 6 years.
[769B C) D.P. Mishra vs Kamal Narain Sharma & Ors., [1971] 3 S.C.R. 257 and Rashim Khan vs Khurshid Ahmed & Ors., [1975] I.S.C.R. 643, referred to.
(4) When the legislature requires that the election petition shall contain full particulars of each and every alleged corrupt practice including as fuller a statement as possible of the names of the parties and the date and place of commission of such practice, it would be contrary to the object of the said provisions to hold that when a notice is issued under Section 99 against a person who is not a party to the election petition for holding him guilty of any corrupt practice, the notice should not appraise him of the precise charge against him and give him the full particulars thereof.[769D E] (5) The impugned order directing the issuance of notice is extremely vague and defective to the point of being contrary to the provisions of law.
The notice is of an omnibus character.
Section 123(3) does not refer to one corrupt practice but a variety of them.
Yet the notice does not specify which particular corrupt practice is sought to be 761 brought home to each of the appellants, and does not state which of the portions of the petition, etc.
is being relied upon to sustain which of the charges and against which of the appellants.
[769F G, 770B] [Order dated December 1, 1988 in Special Leave petition No. 13163 of 1988 and the later non speaking order of January 23, 1989 in the matter overruled.] [771D]


judgement:
N: Criminal appeal No. 512 of 1979.
From the Judgement and Order Dated 18.7.1979 of the Allahabad High Court Crl.
A No. 564 of 1974.
U.R. Lalit, Sobhag Mal Jain, Sudhanshu Atreya, Ms. P. Jain and S.K. Jain for the Appellants.
Vijay Bahuguna, Prashant Chaudhary and D. Bhandari (NP) for the Respondent.
The Judgement of the Court was delivered by V.RAMASWAMI, J.
The four appellants along with 15 others were charged for offences punishable under Section 302 read with section 149 and also section 201 read with section 149 and section 147 and 148 of the Indian Penal Code.
The charges were that they were members of an unlawful assembly, in prosecution of the common object of namely to deter Ram Sewak (PW2), from filing the nomination paper for the post of Pradhan Gaon Sabha Tikhra and to commit the murder of his associates including one Gajendra Singh Yadav (deceased), a resident of village Bibiapur and in furtherance of that common object did commit the murder of the said Gajendra Singh Yadav and live cartrides belonging to the deceased.
They were also charged that in furtherance of the said common objects and knowing that the murder of the said Gajendra Singh was punishable with death or imprisonment for life and caused the evidence of the said offence to disappear by scraping the blood stained earth at the scene of occurrence and burning it and taking away the dead body of Gajendra Singh and thereafter burning it with the intention of screening of evidence.
The first Additional District and Sessions Judge, Kheri in Sessions Trial No. 264 of 1973 acquitted all the accused persons of all the charges on the ground that there are many infirmities rendering the prosecution evidence unworthy of belief.
The State of Uttar Pradesh preferred Criminal Appeal No. 654 of 1974 before the Lucknow 859 Bench of the Allahabad High Court.
The High Court set aside the acquittal of the first appellant Bhupendra Singh (1) and convicted him for offence under section 302 of the Indian Penal Code and sentenced him to a term of life imprisonment.
The High Court also set aside the acquittal of the second, third and fourth appellants (A4, 7 and 8) in part, convicted them under section 201, IPC and sentenced them to a term of seven years rigorous imprisonment under that section.
The acquittal of the appellants under the remaining charges were confirmed.
The High court also acquitted the other 15 appellants of all the charges.
The prosecution case was that the deceased and Ram Sewak (PW2) who are residents of village Bibiapur alongwith Tarun Kumar (PW1) son of the deceased, Ram Avtar Yadav (PW3) and their party people came to the village Padarial Tula in a bullock cart on 25.4.1972 for the purpose of filing the nomination papers of Ram Sewak (PW2) for the election of Pradhan of Gaon Sabha.
they reached around 10.30 A.M. the Mela Maidan near the compound of school cum temple in village Padaria Tula.
They left the bullock cart and the bullocks in a nearby place to the west of the eastern pathway about 50 paces away from the school where the nomination papers had to be filed.
Bhupendra Singh, the first accused was also a candidate for the office of Pradhan of Gaon Sabha.
He had also come for filing the nomination along with the other accused who were his supporters.
On seeing the party of the deceased arrive Bhupendra Singh enquired Ram Sewak (PW2), whether he had come to file nomination paper against him.
At that time Gajenddra Singh, deceased intervened and challengingly told the first accused that he should ask him.
This resulted in verbal altercation between the first accused and the deceased.
The first accused then fired a shot with his rifle at the deceased and on receiving the bullet injury the deceased fell on the ground.
The prosecution case further was the six other accused had also guns and they also fired at the deceased.
The other accused who were armed with lathis and ballams, physically assaulted the deceased.
Thereafter the accused dragged the deceased to a small mound on the west of the scene of occurence and then loaded the dead body on the trolley of a tractor belonging to the first accused, which had been used by the accused to reach at the scene and which driven by the first accused and the deceased was taken away.
All the accused got into the trolley and shouting loudly that they are going to burn the body and throw its remains in the water drove the tractor towards the north.
PWs 1 to 6 are stated to be eye witnesses to this part of the occurrence.
PWs 7,8,9 and 10 are stated to have seen the first accused driving the tractor to 860 which the trolley was attached and the three other appellants and 15 or 16 more people sitting on the tractor and going towards a revolt shouting that they are taking the body of Gajendra Singh and that the will be burnt and thrown into the river.
PW 10 Lalji also claimed that he saw the burning of the dead body near the river and the ashes thrown in river suita.
Tarun Kumar PW1 son of the deceased went to his village Bibiapur, wrote the report exhibit Ka. 1 and gave the first information report before the Station House Officer Thana Mira which is about 12 miles from the scene of occurrence at 3.30 PM on that day.
Rama Nand Tewari (PW17) took up the investigation reached the scene of occurrence at 5.30 P.M. and seized some blood stained earth at a point market `A ' in the plan and also some ashes, besides 55 pellets wads, teeth and some buttons on the spot under Mahazars which were attested by Rajendra Prasad (PW4) and Durga Prasad (PW5) and another.
On the 27th of the April, 1972 he interrogated Asharfi (PW7), Chhotanney (PW8), Reoti Prasad (PW9) and Lalji (PW10) and accompanied by them he reached the jungle at the outskirts of village Daulatpur where he found burnt leaves near a Shisham tree.
He seized burnt earth, ashes and burnt pieces of bones under recovery memo in the presence of Rajendra Prasad (PW4) and Durga Prasad (PW5).
On the 14th of May, 1972 in Village Mudia he interrogated Ram Autar (PW3), Ram Sewak (PW2), Gaua Din (PW6) and others submitted the charge sheet on 4th December, 1972.
As already stated the charge against the first appellant was one under section 302 read with section 149, IPC and the Trial Court had acquitted him of that offence.
The High Court on appeal by the State while setting aside the acquittal of the first appellant convicted him for the substantive offence under section 302, IPC on the ground that the he was the principal offender; that his shot resulted in death of Gajendra Singh and the other accused persons to whom no specific part has been brought home were entitled to benefit of doubt.
The High Court also believed the prosecution case relating to the disposal of body by taking it away from the scene of occurrence and burning it and throwing the ashes in the river but held that PWs 7,8,9 and 10 speak of the appellants alone by name as among the persons in the tractor and trolley and the names of others were not mentioned by them and therefore set aside the acquittal in respect of the offence under section 201 of IPC in so far as the appellants are concerned and convicted them and sentenced them a term of seven years of rigorous imprisonment.
The four appellants have filed the above criminal appeal against this conviction and sentence of the High Court.
861 There could be no doubt that an occurrence of type spoken to by the prosecution witnesses had taken place at the Mela Maidan, Padaria Tula, 25.4.1972 was the date fixed for filing nomination papers for the election of Pradhan of the Gaon Sabha comprising Padaria Tula.
The place where the nomination papers had to be filed is the school premises at the place.
Ramesh Chander Mishra (PW15) the Sub Deputy Inspector of Schools had been authorised to receive the nomination papers.
He was assisted by the Gram Sewak Verma (CW1) and Rajendra Prakash (PW14) among others.
They had stated in their evidence that they were inside the school premises and that around 10.30 A. M. they heard gun shots near the school.
PW2 Ram Sewak as also the first appellant Bhupendra Singh had come there to file their nomination papers along with other party people.
The investigating officer had made certain recoveries from the scene of occurrence along with bullock cart and the two bullocks in which the deceased and his party had come to the sense.
The evidence of PWs 1 to 6 are also uniform that the occurrence had taken place at that place.
We can therefore, safely assume that the incident took place at the Mela Maidan near the compound of School cum temple in Village Padaria Tula as stated by the prosecution.
It is true that the pieces of burnt bones recovered from the place where the body was stated to have been burnt were set to the Serologist but he was unable to tender any opinion regarding origin, sex and age.
Though, it was contended by the learned counsel for the appellants that the prosecution had not established that any such occurrence had taken place that morning and that Gajendra Singh had fallen the victim in such occurence we are unable to agree with the learned counsel that the occurrence had not taken place at all that Gajendra Singh had not been proved to have been killed.
There could be no doubt that corpus delieti could be established by the prosecution through direct evidence and that is what the prosecution had done in this case in the circumstances we are of the view that the prosecution had established that there was an occurence at 10.30 A.M. on 25.4.1972 at the place mentioned by the prosecution in which Gajendra Singh had fallen a victim and died.
Mr. Lalit, learned counsel for the appellants took us through the entire evidence and contended that the prosecution had not established the complicity of the first appellant for murder and the appellants for the offence of screening the evidence punishable under section 201, IPC.
In the FIR, Tarun Kumar (PW1) had mentioned the names of the four appellants and the presence of PWs 2 to 6 at the scene of 862 occurence.
All these eye witnesses had uniformly stated that they saw only Bhupendra Singh firing at the deceased which brought him down to the ground and stated further that immediately on hearing the first shot they ran and hid themselves behind the dilapidated wall of the temple and they had heard only 6 and 7 shots thereafter.
They have not attributed over acts to any of the accused other than Bhupendra Singh, the first appellant.
It is in those circumstances, the High Court confirmed the acquittal of all the accused other then Bhupendra Singh of the offence under section 302 read with section 149, IPC.
PWs 3 to 6 have stated in their evidence that during the course of verbal altercation between the first accused and the deceased, the first accused shot Gajendra Singh with rifle on the fore head.
On the basis of that shooting with the rifle on the fore head the first appellant was convicted for the substantial offence of murder under section 392 IPC and sentenced to life imprisonment.
In the FIR though Tarun Kumar, PW1 has stated that the first appellant fired at his father first, he had not stated that the bullet hit fore head bringing down its father to the ground.
It is stated in the FIR: "Bhupender then, first of all, fired on my father; along with, all other started firing.
My father then fell down as a result of attack by fire arms; then others with lathis and ballams started assaulting.
From there, I noticed that Bhupender Singh and his companions carried the dead body of my father, along with his gun, in his tractor trolley towards Karmapura." Thus though an overt act had been assigned to the first appellant in the FIR it had not been stated where the bullet shot hit the deceased.
It is true that in their oral evidence PWs 3 to 6 have assigned the first shooting to the first appellant but their evidence relating to the shot hitting at the fore head could not be accepted for more than one reason.
As already stated, PW1, first went to his village Bibiapur from the scene of occurrence at Padaria Tula, prepared the FIR in his house and then delivered the same at 3.30 P.M. at the Police Station.
In spite of time gap and his being with deceased at the time of the occurrence he had not specifically stated that the first aim of the first appellant hit the fore head of the deceased.
the names of PWs 2 to 6 are given in the FIR itself.
However, PWs 3 and 6 were examined by the Investigating Officer only on 14th of May and no explanation was forthcoming 863 as to why they were not examined earlier.
PWs1 and 2 did not say in their oral evidence that the shot aimed by the first appellant hit the fore head of the deceased.
PWs 3,4,5 and 6 gave the evidence to the effect that the first rifle shot of the appellant hit the deceased on his fore head.
But this part of the statement we are unable to believe because PW1, Tarun Kumar had not confirmed this either in the FIR or in his evidence as PW1.
This was also not stated by PW2 in his evidence or during investigation as seen from the evidence of PW17 the investigation officer.
PWs 3 and 6 were examined by PW17 only after 20 days i.e. on the 14th of May, 1972 though their names were mentioned in the FIR.
In the circumstances the contention of the learned counsel for the appellants that the possibility of an improvement in the case to implicate A 1 for a substantive offence cannot be ruled out.
While we could accept the case of the prosecution trying to establish corpus delicti through the evidence of PWs 1 to 6 we could not accept the evidence in so far as it not known where the bullet hit and whether that injury caused by the same and that injury is sufficient to cause death, the offence under section 302 IPC could not be said to have been made out.
In the circumstances, therefore, we are unable to agree with the High Court that the first appellant is guilty of offence under section 302 IPC of causing the death of Gajendra Singh.
However, we are of the view that while the first appellant shot at the deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death.
All the witnesses also say that the shot by A 1 brought down the deceased to the ground.
There could, therefore, be no doubt that the shot had caused some hurt or injury could have caused the death.
In the circumstances we consider that the offence would come under the second limb or second part of section 307, IPC.
Though imprisonment for life also could be awarded as sentence for such an offence on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment.
Accordingly we alter the conviction under section 302, IPC as one under section 307 IPC and sentence him to term of 10 years rigorous imprisonment.
So far as the offence under section 201 IPC is concerned the 864 prosecution relied upon the evidence of PWs 7,8,9 and 10.
The evidence of PWs 7,8 and 9 only go to show that they had seen 15 to 20 people sitting in the trolley of the tractor driven by the first accused.
They have referred to the names of the appellants among the 20 people who were in the trolley.
However, none of them had stated that they had seen the body of Gajendra Singh alive or dead in the trolley.
The prosecution tried to establish that the accused were carrying body of Gajendra Singh in the trolley from the statement of PW7 who said the Chet Ram one of the persons who was travelling in the trolley along with other and who is now dead was saying or shouting that: "Gajender Singh had been killed and he would roasted and eaten and thrown in the river." And the statement of PW3 that: "The people sitting the trolley were talking amongst themselves and uttering the words `today we have killed and brought a lion '" But PWs 7 and 8 had not given any such version to PW17 in their statements during investigation.
PW 9 turned hostile and his evidence is also worth nothing.
PW 10 had stated that Chet Ram said: "We have killed Gajendra Singh and brought him on his tractor why you have come here".
and then he ran about 250 steps towards the east and stood there but the version given in the statement before PW 17 was different.
This evidence can be relied on only for the purpose of showing that about 15 or 20 people were travelling in the trolley of a tractor driven by the first accursed which was going towards the river.
This evidence does not bring home the offence of screening the evidence.
Of course PW 10 said that the body was burnt with wooden pieces and grass after it was all burnt Chet Ram, who is now dead, collected the whole residual ashes and threw them in the Sutia rivulet.
he mentioned the name of Chet Ram and no other name.
Further though he sated to be neighbour of Ram Sewak PW 2 and Ram Sewak and himself used to meet everyday he did not tell PW 2 about the burning of the body of the appellants.
This witness also belongs to the Ahir community which is the community of the deceased Gajendra Singh also.
It appears that only the bones stated to have been recovered were sent for chemical analysis and the report of the serologist was that it was not possible to 865 give any opinion regarding the origin, sex and age.
The report had not even stated that they were human bones.
Though PW 10 had stated that there were with him two others at the time and PW 17 had taken PW 10 and the said two others also to the place where the body was stated to have been burnt, they had not been examined.
We have read the evidence carefully and the evidence also does not impress us that he is telling the truth.
In the result we set aside the conviction of the appellants under section 201, IPC.
The conviction of the first appellant is modified into one under section 307, IPC and we sentence him to 10 years rigorous imprisonment.
The bail bonds of appellants 2,3 and 4 are cancelled.
The first appellant is directed to surrender.
R.N.J. Appeal partly allowed.

summary:
Nineteen persons were tried by the Additional District and Session Judge, Khetri in S.T. No. 264 of 1973 for offences under section 302/149, 201/149, 379/149, 147 and 148 for the incident that took place on 25.4.1972 in village Padaria Tula (UP) on the day of filing of the nomination papers for election for the post of Pradhan Gaon Sabha, Tikhra in which fire arms were used by the party led by Bhupendra Singh accused no.l, who was also a candidate for the office of Pradhan of Gaon Sabha resulting in the death on the spot of Gajendra Singh, one of the supporters of the rival candidate Ram Sewak, P.W. 2.
The prosecution case is that both the rival candidates with their supporters had come to village Padaria Tula on the morning of 25.4.1972 where nomination papers had to be filed.
On seeing the party of the deceased arriving, Bhupendra Singh enquired from Ram Sewak (P.W.2) if he had come to file his nomination papers against him.
Gajendra Singh (deceased) intervened and challengingly told the accused No. 1 that he should ask him.
Following the altercation that ensued, it is alleged that Bhupendra Singh fired the first shot on the deceased followed by shooting by his other associates and the deceased fell dead.
The party of Ram Sewak fled from the scene to escape the 857 attack.
It is further alleged that the body of the deceased was dragged by Gajendra Singh and his companions and carried by them on a tractor trolly belonging to A1 on which they had come, burnt it and ashes thrown in the river causing disappearance of the entire evidence.
The first Additional Judge acquitted all the charges on the ground that there are many infirmities in the prosecution case rendering its evidence unworthy of belief.
The state of Uttar Pradesh preferred appeal before the Lucknow Bench of the Allahabad High Court.
The High Court set aside the acquittal of Bhupendra Singh (A1) and convicted him for offence under section 302 I.P.C and awarded sentence of Rigorous Imprisonment for life , set aside the acquittal of A 4, 7, 8 in part, convicted them under section 201 of I.P.C. and sentenced each of them to seven years Rigorous Imprisonment thereunder.
Their acquittal under other charges was confirmed.
Appeal as against rest of the accused was dismissed altogether.
A1, 4, 7 and 8 have thus come in appeal against the judgement of the High Court.
In party allowing the appeal setting aside the conviction of appellants 2 to 4 (A1, 7, 8) under section 201 I.P. C. , and altering the conviction of appellant No. 1 (A1) from one under section 302 I.P. C. to one under section 307 I.P.C. and sentencing him to a term of 10 years rigorous imprisonment thereunder, this Court.
HELD: The evidence only established that the first appellant shot at the deceased but it is not known where the bullet hit and whether that injury caused by the said bullet shot caused the death.
Even in the case of shooting by a rifle unless the evidence shows the particular injury caused by the same and that injury is sufficient to cause death, the offence under section 302 I.P.C. could not be said to have been made out.
In the circumstances, therefore, we are unable to agree with the High Court that the first appellant is guilty of offence under section 302 IPC of causing the death of Gajendra Singh.
However we are of the view that while the first appellant shot at the deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death.
[863D E] We consider that the offence would come under the second limb or second part of section 307, IPC.
Though imprisonment for life also could be awarded as sentence for such an offence, on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment.
We alter the conviction under section 302, IPC to one under section 307 IPC and sentence him to a term of 10 years rigorous imprisonment.
[863G].
858 So far as the offence under section 201 IPC is concerned we have read the entire evidence carefully and the same does not impress as to bring home the offence of screening the evidence.
[863H,865H]