judgement:
: Criminal Appeal No. 21 of 1973.
Appeal by Special Leave from the Judgment and Order dated 3 5 1972 of the Delhi High Court in Criminal Revision No. 450/69.
D. Mukherjee, section K. Dholakia and R. C. Bhatia for the Appellants.
Respondent in person.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave directed against a judgment, dated May 3, 1962, of the Delhi High Court, arises out of these circumstances : M. section Kochar, the respondent herein, filed a complaint in the Court of the Sub Divisional Magistrate, Delhi, alleging that the appellants herein, who are officers of the Customs Department, had committed offences under Sections 120B/166/409, Indian Penal Code.
It was stated in the complaint as follows : The complainant was the sole representative in India of various manufacturing concerns in West Germany, and was carrying on business under the style of "House of German Machinery".
He imported certain items of machinery from the German firms for displaying them in the International Industries Fair held in New Delhi in November, 1961.
In spite of the fact that he had obtained a valid Customs Clearance Permit for the import of these items of machinery, the Customs Authorities prevented him from clearing the goods from the Railway Station.
Ultimately, the complainant was able to clear the goods by obtaining the necessary permission from the Government.
He was allowed to retain the imported goods with him till the first of June, 1962.
The goods were to be re exported from India, thereafter.
The respondent applied for extension of the period, but his request was declined.
On June 16, 1962, the accused (appellants) raided the premises of the complainant at 30, Pusa Road, New Delhi, and seized some of those imported goods which were meant for display in the International Industries Fair.
The appellants also seized certain other goods kept by 114 the complainant at the site of the Fair, itself.
Inventories of the goods were prepared by the appellants at the time of their seizure.
The goods were then packed in boxes and sealed by the appellants with their own seals which were signed by the complainant as well as the appellants.
One copy of the inventories, duly signed by the appellants and the complainant, also was handed over to him.
On November 20, 1963, the complainant made an application before the Sub Divisional Magistrate, praying that the goods seized by the appellants be handed over to him on Superdari as they were likely to deteriorate unless kept safely under proper conditions.
The Sub Divisional Magistrate, on January 22, 1964, made an order directing that all the goods seized by the appellants be handed over to the complainant on Superdari.
The Customs, however, felt aggrieved by this order of the Magistrate and went in revision against it before the Additional Sessions Judge, Delhi, who, on February 7, 1964, passed an order staying delivery of possession.
Subsequently, by order dated April 3, 1965, the Additional Sessions Judge dismissed the revision petition and vacated the stay order.
In spite of the order of the Magistrate, confirmed by the Additional Sessions Judge, the Customs handed over to the complainant on Superdari only a part of the goods seized, and in respect of the remaining goods, the Customs Authorities went in further revision to the High Court and obtained an interim stay of the order of the Additional Sessions Judge.
Subsequently, on August 22, 1966, the High Court made an order directing that all the goods which had been seized by the Customs Authorities from the complainant, including those which had been returned to him on Superdari, should be produced before the Sub Divisional Magistrate, who was seized of a case under Section 5 of the Import and Export (Control) Act and Section 166(81) of the Sea Customs Act, regarding the goods, pending against the complainant.
Accordingly, Shri H. L. Sikka, Sub Divisional Magistrate, prepared two inventories of these goods on November 16, 1966 and thereafter.
The boxes were opened before Shri Sikka, who got inventories of the goods found therein prepared, and after noting the condition of those goods, he got the same repacked and sealed in proper boxes in the presence of the parties with a seal of the Court.
Before resealing, the Magistrate noted down the condition of the four packages which were produced before him by the appellants and which remained in their possession since the seizure (16 6 1962).
"It was then found by the Magistrate that the seals of these boxes were tampered.
One 115 wooden box was broken and the seal on it was also broken; while the remaining three packages were completely empty but sealed".
The goods of Consignment No. 1 of M/s. Gebr.
Ruhstrat, concerning the complaint filed by the Assistant Collector of Customs under Section 5 of the Import & Export (Control) Act, and Section 117(81) of the Sea Customs Act, which were also seized by appellant No. 1, who had obtained their delivery from the Railway Station, were not produced before Shri H. L. Sikka, Magistrate, along with the other goods when the inventories were prepared.
This gives "a bona fide apprehension to the complainant that the said goods have been criminally misappropriated by the accused." "The accused by their act in illegally tampering and breaking the seals of the consignment seized by them and removing some of these goods and further abusing their positions and seizing some of the personal articles of the complainant under the colour of search warrant issued by the S.D.M. Karol Bagh and illegally holding those goods of the complainant uptil. have committed offences under Sections 120B/166/409 IPC." The Sub Divisional Magistrate before whom the complaint had been filed, examined the complainant under Section 200 and further held a preliminary enquiry under Section 202, Cr.
P.C., in the course of which, he examined Shri H. L. Sikka, Magistrate, also.
After considering the statements recorded in the preliminary enquiry, and the documents produced by the complainant, the Magistrate found a prima facie case under Sections 120B/409, I.P.C. against the three appellants.
He, therefore, directed that the accused (appellants herein) be summoned.
On receiving the summons, the appellants appeared before the Magistrate and made an application praying for their immediate discharge, inter alia, on the ground that the Magistrate had no jurisdiction to take cognizance of the complaint in the absence of sanction under Section 197 of the Code of Criminal Procedure, 1898, and under Section 155 of the , for prosecution of the appellants.
The Magistrate accepted this objection and held that in the absence of sanction for the prosecution of the present appellants, he had no jurisdiction to take cognizance of the complaint.
He purportedly relied on the decision of this Court in Shreekantiah Rammayya Munipalli & Anr.
vs State of Bombay(1).
In the result, he discharged the accused (appellants, herein).
116 Aggrieved, the complainant filed a revision petition which was dismissed by the Additional Sessions Judge, on December 6, 1968, on the ground that since the shortage of goods was discovered at the time when they were produced before the Customs House, and there was absolutely nothing to show that the goods in question remained in the personal custody of the appellants, "it was difficult to hold that the shortage, if any, was due to the act of the accused.
" The complainant went in further revision to the High Court, which was heard and allowed by a learned Judge by his judgment now under appeal before us.
After an elaborate discussion, the learned Judge has held that no sanction was required for the prosecution of the accused appellants for an offence under Sections 120B/409, Indian Penal Code, because "they were certainly not acting in the discharge of their official duties, when they misappropriated these goods".
The first contention of Mr. Mukerjee, learned Counsel for the appellants is that the complainant has falsely alleged in the complaint that when the Sub Divisional Magistrate, Shri Sikka, in compliance with the order of the High Court, inspected the goods and noted the condition thereof, "it was found that the seals of four boxes were broken, while the remaining three packages were completely empty but sealed".
It is maintained that the inventory itself, prepared by Shri Sikka, falsifies this allegation.
It is further pointed out that in the complaint it is not alleged with particularity as to what goods disappeared or were removed, nor that the disappearance of some of the goods, if any, occurred after their seizure and before their deposit in the Customs House by the appellants, and that the allegation made by the complainant during arguments before the High Court, to the effect, that the goods in question were misappropriated sometime after seizure and before their deposit in the Customs House, was not based on any facts or circumstances appearing in the statements of the complainant and Shri Sikka recorded during the preliminary enquiry.
Learned counsel also repeatedly urged that the allegations regarding the commission of the offence of criminal breach of trust by the appellants, were false and groundless.
For this purpose, it is stressed, the Court should not confine itself to the allegations in the complaint but also consider all the evidential material on the record including that brought on the record by the appellants.
In support of the contention that the question of sanction can be raised from stage to stage, Mr. Mukherjee relied on certain observations of this Court in Matajog Dobey vs H. C. Bari(1).
We have no quarrel with the proposition that the question of sanction under Section 197, Cr.
P.C. can be raised and considered at any 117 stage of the proceedings.
We will further concede that in considering the question whether or not sanction for prosecution was required, it is not necessary for the Court to confine itself to the allegations in the complaint, and it can take into account all the material on the record at the time when the question is raised and falls for consideration.
Now, in paragraph 20 of the complaint, it was clearly alleged that the Sub Divisional Magistrate, Shri H. L. Sikka found that the seals of four boxes had been tampered with and one of the boxes broken, while the remaining three packages "were completely empty but sealed".
Mr. Mukherjee has not read out or referred to any portion of the statement of Shri H. L. Sikka recorded under Section 202, Cr.P.C., to show that the same contradicts or falsifies the allegations in paragraphs 19, 20 and 21 of the complaint.
Indeed, no copy of the statements of the complainant and Shri Sikka recorded in proceedings preliminary to the issue of process, has been furnished for our perusal.
It is true that the precise time and manner or the misappropriation and the detailed particulars of the items of goods alleged to have been misappropriated, are not given in the complaint.
But it seems that some foundation for the allegation that the goods in question had been misappropriated by the appellants sometime after their seizure and before their deposit in the Customs House, had been laid during the preliminary enquiry made by the Magistrate.
This allegation was made not only before the High Court, but has been reiterated by the complainant in paragraph 12 of his counter affidavit that he had filed in this Court in opposition to the special leave petition of the appellants.
For this averment, he relied on a certain letter/notice dated January 30, 1963 addressed to him by the Customs Authority.
Thus, the material brought on the record upto the stage when the question of want of sanction was raised by the appellants, contained a clear allegation against the appellants about the commission of an offence under Section 409, I.P.C. To elaborate, it was substantially alleged that the appellants had seized the goods and were holding them in trust in the discharge of their official duty, for being dealt with or disposed of in accordance with law, but in dishonest breach of that trust, they criminally misappropriated or converted those goods.
Whether this allegation or charge is true or false is not to be gone into at this stage.
In considering the question whether sanction for prosecution was or was not necessary, these criminal acts attributed to the accused are to be taken as alleged.
For these reasons, we overrule the first contention canvassed on behalf of the appellants.
118 The second contention advanced by Mr. Mukherjee is in the alternative.
It is submitted that even if for the sake of argument, it is assumed that some of the goods were removed and set apart by the appellants after seizure, then also, the seizure and the removal being integrally connected with each other the alleged act constituting the offence of criminal misappropriation/criminal breach of trust could but reasonably be viewed as an act which includes dereliction of duty done or purporting to be done in the discharge of their official duty by the appellants.
It is argued that section 197, Cr. P. C. cannot be construed too narrowly, in the sense that since the commission of offence is never a part of the official duty of a public servant, an act constituting an offence can never be said to have been done or purportedly done in the discharge of official duty.
Such a narrow construction, it is submitted, will render the Section entirely otiose.
For law on the point, the learned counsel referred to several decisions of this Court.
He took us through the relevant passages of the judgment in Matajog 's case (supra), and strongly relied on the ratio of Shree kantiah Rammayya 's case (ibid) and Amrik Singh vs The State of Pepsu (1) The words "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation.
If these words are construed too narrowly, the Section will be rendered altogether sterile, for, "it is no part of an official duty to commit an offence, and never can be".
In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed.
The right approach to the import of these words lies between these two extremes.
While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution under the said provision.
As pointed out by Ramaswami J. in Baijnath vs State of M.P.(2) "it is the quality of the act that is important, and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 of the Criminal Procedure Code will be attracted.
" In sum, the sine qua non for the applicability of this Section is that the offence charged, be it one of commission or omission, must 119 be one which has been committed by the public servant either in his official capacity or under colour of the office held by him.
While the question whether an offence was committed in the course of official duty or under colour of office, cannot be answered hypothetically, and depends on the facts of each case, one broad test for this purpose, first deduced by Varadachariar J. of the Federal Court in Hori Ram vs Emperor, (1) is generally applied with advantage.
After referring with approval to those observations of Varadachariar J., Lord Simonds in H.H.B. Gill vs The King.(2) tersely reiterated that the "test may well be whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office." Speaking for the Constitution Bench of this Court, Chandrasekhar.
Aiyer J., restated the same principle, thus: ". .in the matter of grant of sanction under Section 197, the offence alleged to have been committed by the accused must have something to do, or must be related in some manner, with the discharge of official duty. there must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable claim, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty".
(Emphasis supplied) Let us now apply this broad test to the facts of the case as alleged and sought to be proved by the complainant.
The allegation against the appellants is about the commission of offences under Sections 409/120B, Indian Penal Code.
To be more precise, the act complained of is dishonest misappropriation or conversion of the goods by the appellants, which they had seized and as such, were holding in trust to be dealt with in accordance with law.
There can be no dispute that the seizure of the goods by the appellants and their being thus entrusted with the goods or dominion over them, was an act committed by them while acting in the discharge of their official duty.
But the act complained of is subsequent dishonest misappropriation or conversion of those goods by the appellants, which is the second necessary element of the offence of criminal breach of trust under Section 409, Indian Penal Code.
Could it be said, that the act of dishonest misappropriation or conversion complained of bore such an integral relation to the duty of the appellants 120 that they could genuinely claim that they committed it in the course of the performance of their official duty ? In the facts of the instant case, the answer cannot but be in the negative.
There is nothing in the nature or quality of the act complained of which attaches to or partakes of the official character of the appellants who allegedly did it.
Nor could the alleged act of misappropriation or conversion, be reasonably said to be imbued with the colour of the office held by the appellants.
As pointed out by Varadachariar J. in Hori Ram (supra), generally, in a case under Section 409, Indian Penal Code, "the official capacity is material only in connection with the 'entrustment ' and does not necessarily enter into the later act of misappropriation or conversion, which is the act complained of.
" This, however, should not be understood as an invariable proposition of law.
The question, as already explained, depends on the facts of each case.
Cases are conceivable where on their special facts it can be said that the act of criminal misappropriation or conversion complained of is inseparably intertwined with the performance of the official duty of the accused and therefore, sanction under Section 197(1) of the Code of Criminal Procedure for prosecution of the accused for an offence under Section 409, Indian Penal Code was necessary.
Shreekantiah Rammayya (supra) was a case of that kind.
The act complained of against the second accused in that case was, dishonest disposal of the goods.
The peculiarity of the act was that from its very nature, in the circumstances of that case, it could not have been done lawfully or otherwise by the accused save by an act done or purporting to be done in an official capacity.
In other words, the very charge, was the dishonest doing of an official act by the accused.
Whether the act was dishonest or lawful, it remained an official act because the accused could not dispose of the goods save by the doing of an official act, namely, officially permitting their disposal; and that he did.
It was in view of these special facts of the case, it was held that the offence under Section 409, Indian Penal Code was committed or purported to be committed by the accused in the discharge of his official duty, and, as such, sanction under Section 197(1) Cr.
P.C. was a prerequisite for his prosecution.
The facts of the case before us are entirely different.
The ratio of Shreekantiah Rammayya has therefore, no application to the facts of the case before us.
In Amrik Singh vs The State of Pepsu,(1) it was laid down that whether sanction is necessary to prosecute a public servant on a charge 121 of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant.
If they do, then sanction is requisite.
But if they are unconnected with such duties, then no sanction is necessary.
Amrik Singh 's case also stands on its own facts, which were materially different from those of the present case.
The correctness of that decision was doubted in Baijnath vs State of Madhya Pradesh (supra), and its authority appears to have been badly shaken.
In any case, its ratio must be confined to its own peculiar facts.
There are several decisions of this Court, such as, Om Parkash Gupta vs State of Uttar Pradesh,(1) Baijnath vs State of Madhya Pradesh (supra), Marihar Prasad vs State of Bihar,(2) wherein it has been held that sanction under Section 197, Criminal Procedure Code for prosecution for an offence under Section 409, Indian Penal Code was not necessary.
In Om Parkash Gupta 's case (ibid) it was held that a public servant committing criminal breach of trust does not normally act in his capacity as a public servant.
Since this rule is not absolute, the question being dependent on the facts of each case, we do not think it necessary to burden this judgment with a survey of all those cases.
In the light of all that has been said above, we are of opinion that on the facts of the present case, sanction of the appropriate Government was not necessary for the prosecution of the appellants for an offence under Sections 409/120 B, Indian Penal Code, because the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servants.
At the most, the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act.
In the result, the appeal fails and is dismissed.
N.K.A. Appeal dismissed.

summary:
The act complained of is dishonest misappropriation or conversion of goods by the appellants which they had seized and as such were holding in trust to be dealt with in accordance with law.
This gave a bona fide apprehension to the respondent that the goods have been criminally mis appropriated by the appellants.
The S.D.M. conducted a preliminary enquiry and found a prima facie case under section 120B/409 IPC against the appellants.
The S.D.M. summoned the appellants who appeared before him and prayed for their immediate discharge, which was accepted on the ground that he had no jurisdiction and he discharged the appellants.
A revision petition before the Addl.
Sessions Judge was dismissed on the ground that since the shortage of the goods was discovered at the time when they were produced before the Customs House, there was absolutely nothing to show that the shortage, if any, was due to the act of the appellants.
The respondent went in further revision to the High Court which was allowed on the ground that no sanction was required for the prosecution of the accused appellants because they were certainly not acting in the discharge of their official duties, when they misappropriated these goods.
It was argued on behalf of the appellants that (i) It had been falsely alleged in the complaint that when the S.D.M. inspected the goods and noticed the condition thereof, it was found that the seals of the four boxes were broken while the remaining three packages were completely empty but sealed; that the inventory itself, prepared by the S.D.M. falsified the prosecution allegation; (ii) That it was not alleged in the complaint with particularly as to what goods had disappeared or were removed, nor that the disappearance of some of the goods, if any, occurred after their seizure and before their deposit in the Customs House by the appellant; (iii) That even if for the sake of argument it is assumed that some of the goods were removed and set apart by the appellants after seizure, then also sanction for prosecution u/s 197 Cr.
P.C. was absolutely necessary because, the seizure and removal being integrally connected with each other, the alleged act constituting the offence of criminal mis appropriation/criminal breach of trust could but reasonably be viewed as an act which includes dereliction of duty done or purporting to be done in the discharge of their official duty by the appellants; (iv) That section 197 Cr.
P.C. cannot be construed too narrowly, in the sense that since the commission of offence is never a part of the official duty of a public servant, an act constituting an offence can 112 never be said to have been done or purportedly done in the discharge of official duty, as such a narrow construction, will render the section entirely otiose.
Dismissing the appeal, ^ HELD: The question of sanction u/s 197 Criminal Procedure Code can be raised and considered at any stage of the proceedings.
[116H, 117A] The words "Any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty" in section 197(1) of the Code, are capable of a narrow as well as wide interpretation.
If these words are construed too narrowly, the section will be rendered altogether sterile, for it is no part of an official duty to commit an offence, and never can be.
In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed.
The right approach to the import of these words lies between these two extremes.
While it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of sec.
197(1), an act constituting an offence directly and reasonably connected with an official duty will require sanction for prosecution under the said provision.
The sine qua non for the applicability of this section is that the offence charged, be it one of commission or omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held my him.
[118D H, 119A] In the instant case, there was some foundation for the allegation that the goods in question had been misappropriated by the appellants sometime after their seizure and before their deposit in the Customs House.
There can be no dispute that the seizure of the goods by the appellants and their being thus entrusted with the goods or having dominion over them, was an committed by them while acting in the discharge of their official duty.
But the act complained of is subsequent dishonest, misappropriation or conversion of those goods by the appellants, which is the second necessary element of the offence of criminal breach of trust under section 409, Indian Penal Code.
It could not be said that the act of dishonest, misappropriation or conversion complained of bore such an integral relation to the duty of the appellants that they could genuinely claim that they committed it in the course of the performance of their official duty.[119E H 120A] There is nothing in the nature or quality of the act complained of which attaches to or partakes of the official character of the appellants who allegedly did it.
Nor could the alleged act of misappropriation or conversion be reasonably said to be imbued with the colour of the office held by the appellants.
Therefore, on the facts of the present case, the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servant.
At the most, the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act.
Sanction of the appropriate Government was therefore not necessary for the protection of the appellants for an offence under section 409/120B Indian Penal Code.
[120A B, 121D F] 113 Om Parkash vs State of Uttar Pradesh, ; , Amrik Singh vs The State of pepsu; , , Shreekantiah Rammayya Munipalli and Ors.
vs State of Bombay, A.I.R. ; distinguished.
Baijnath vs State of Madhya Pradesh, A.I.R. 1966, S.C. 220 at page 222 and Harihar vs State of Bihar, ; referred to.


judgement:
Special Leave Petition (Civil) No. 5863 of 1979.
139 From the Judgment and Order dated 15 12 1978 of the Kerala High Court in Original Petition No. 679/78 II.
N. Sudhakaran for the Petitioner.
A. section Nambiar for the Respondents.
The Order of the Court was delivered by KRISHNA IYER, J. All the parties are represented by counsel and we have heard them in extenso.
We therefore proceed to pass a speaking order.
The princely family of Cochin with a proletarian plurality of members has been the cynosure of special legislations, the last of which is Act 15 of 1978, the target of attack in this special leave petition.
Articles 14 and 19 of the Constitution have been the ammunation used by the petitioner in the High Court and here to shoot down the legislation as ultra vires.
A brief sketch of the family law of the Cochin royalty may serve to appreciate the scheme of the latest legislation under challenge.
The Maharaja of Cochin, reigned and ruled over a pretty princely State, Cochin, which is now an integral part of the Kerala State.
When the curtain of history rose to find India free, the constellation of princedoms fused into Independent India 's democratic geography.
Cochin and Travancore finally fell in with this trend.
As a first step they were integrated into the Travancore Cochin State which came into being on July 1, 1949.
Two days before this constitutional merger, the Maharaja of Cochin issued a Proclamation to provide for the impartibility, administration and preservation of the Royal Estate and the Palace Fund through a Board of Trustees.
A small process of family legislation on the Cochin Palace followed the political transformation of the State.
The Valiamma Thampuram Kovilakam Estate and the palace Fund (Partition) Act, 1961 (Actt 16 of 1961) was the first, the primary purpose of which was to undo the impartibility of the royal estate as declared by the Proclamation of 1949.
The shares of the members, the mode of division and the machinery for partition were statutorily prescribed by Sections 4 and 5 of the said Act.
The basics of those two sections were that on a majority of the major members of the royal family expressing their wish to be divided, the Maharaja would consider whether it was in the interest of the family to partition the estate among the members and, if he did, direct the Board of Trustees to proceed with the partition under his supervision and control.
Each member, including a child in the womb, was eligible for a single share on an equal basis.
The privi 140 leges of the Maharaja were preserved as his personal right but vis a vis family assets feudal 'Primogeniture ' fell to modern egalite, within limits.
The next epochal legislation was the 26th Constitution Amendment Act of December 1971 which extinguished all royal privileges, privy purses and cher dignities of the erstwhile rulers of the Indian States.
With the denudation of his royal privileges the Cochin Maharaja stepped down to the level of the karta of a joint Hindu family.
The royalty which was once a reality became a mere memory and with the statutory injection of democratic rights into this blue blooded family, plebeian claims for equal shares began to be voiced, especially because the multifid of little royalties of the Maharaja 's matriarchal family lived in lurid poverty, as counsel distressingly described.
Indeed, the marummakkattayam system which at one time ensured impartibility and management by the senior most member had lost its functional value and virtually vanished from the Kerala coast, thanks to the erosive process of legislative individualism.
The final blow to this system was delivered by the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976) which fully wiped out the matriarchal pattern of holding and the Hindu undivided family system in the State of Kerala.
Despite this revolutionary change, the Cochin royal family maintained its former status as a marummakkattayam undivided coparcenary since it was governed by special legislation which remained unrepealed.
This regal matriarchal survival levelled into the main stream of proprietary life with equal, partible shares for young and old, like the rest of the community when the Kerala legislature enacted the Valiamma Thampuram Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Act, 1978 (Act 15 of 1978) (preceded by Ordinance No. 1 of 1978).
A close up of this statutory scheme is necessary since it is this legislation which is furiously fusilladed as unconstitutional by counsel for the petitioner.
The legislative Proclamation of 1949, if we briefly recapitulate, commended the Constitution by His Highness the Maharaja of a five man Board of Trustees charged with the plenary task of 'administration, management and conservation ' of the 'Estate ' and 'Palace Fund '.
Act 16 of 1961 brought about a degree of economic democratisation while preserving some of the special legal habiliments of the royal estate.
The Board nominated under the earlier Proclamation was continued but its responsibilities were broadened to include partitioning of the Kovilakam assets if a majority of major members the voice of Palace democracy asked for divi 141 sion and the Maharaja deemed it desirable in the interests of the family.
This was a half way house between the impartible old and partible at will new.
A short provision of great relevance to the issue of constitutionality is to be found in Section 7.
The public policy behind this Section excluding civil court jurisdiction is not merely the special situation of the former royal family but the virtual impossibility within a life time of division by metes and bounds and allotment of shares to the 800 odd members, most of whom are little royalties in rags, homeless and hungry, seeking to survive by the small pieces from the large cake if ever it will be sliced and distributed.
The exasperating longevity of partition litigation, what with the present cantankerous orientation and procedural interminability, preliminary decree, appeals thereon, commissions, objections, revisions, final decrees, and a ruinous crown of other interlocutory proceedings punctuating the suit, followed by inevitable appeals and special leave petitions and the like, baffles the humble and baulks their hope of getting a morsel in their short life span.
When this phenomenon an Indo Anglican processual bequest is compounded by the calamitous fact that there are around 800 sharers and a variety of considerable assets to be divided, civil litigation for partition is the surest punishment to the tattered 'princelings ' by pauperising them through the justice process and giving them stones instead of bread in the end, if the end would arrive at all ! The compulsive pragmatics of distributive justice elicited legislative compassion for this uniquely numerous crowd of pauperised patricians by exclusion of civil court 's jurisdiction.
The pathology of protracted, exotic processual legalistics needs comprehensive renovation if the Justice System is to survive but the legislature salvaged the largest royal family with the littlest individual resources without waiting for the remote undertaking to overhaul Processual Justice to the People.
Sociology is the mother of law, lest law in the books should be bastardised by the law of life.
A radical measure which swept off the matriarchal system and the Joint family form of estate for Hindus is the next statutory even which needs mention.
Kerala Act 30 of 1976 (The Kerala Joint Hindu Family System (Abolition) Act, 1975), abolished at one stroke the Hindu undivided family and converted them into tenancies in common with the rule of one member one share.
The Cochin 'Kovilagam ' was not affected because neither Act 16 of 1961 nor the prior royal proclamation expressly repealed.
But the individualist spirit of Act 30 of 1976 invaded the royal family legislatively as there is no basis for proprietary privilege, even as vestiges of past glory, in a democracy charged with social justice.
So, Act 15 of 1978 (The Valiamma 142 Thampuram Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Act, 1978) came to be passed whereby division of the Kovilakam assets was freed from the Maharaja 's subjectivism and made a mandate of the statute, in tune with the common trend.
The modus operandi to work out partition was the Board and no specific prescription regarding the shares of members is given.
No appeal from the partition effected by the Board is specified and Sections 4 and 5 of Act 16 of 1961 are deleted retrospectively.
A quick glance at the provisions gives the impression that the legislature merely equated the right in partition of the junior members of the Kovilakam with that of the commonalty of marumakkattayam families save that instead of the Civil Court the division by metes and bounds was to be carried out by the Board which was already in management and was familiar with the features of the family and the assets.
A closer look, in the light of the constitutional challenge which was repelled by the High Court, leaves us cold, hot submissions to burn down the allegedly arbitrary and irresesonable legislation notwithstanding.
Let us dissect the anatomy of the Amending Act of 1978.
Be it remembered that Act 16 of 1961 (the principal Act) is not and has never been attacked as ultra vires.
If the principal Act was good the search for the invalidatory vice must be confined to the cluster of new clauses.
The principal violation pressed before us by Shri Govindan Nair for the petitioner, who is a senior member of the family, is of article 14 and the customary contention, more easily waged than established, is that arbitrary, unguided, naked and tyrannical power is conferred on the Board and therefore the whole Act is bad because the central piece of the statutory scheme is this machinery.
True, our constitutional order is sensibly and sensitively allergic to arbitrary power and we have no hesitation in striking down any provision which can be anathematised as creating uncanalised and Neronised Power.
The very creation of the Board was challenged as violative of article 14 since the jurisdiction of the Civil Court is the common forum with other judicial remedies, appellate and revisional, available for the aggrieved party.
While the Board is given plenary power to divide and distribute with validity being conferred on such partition the grievance is that there are no appeals and revisions and the arbitrament of the Board even if it is arbitrary becomes final.
This is castigated as a caprice of the legislature.
More than all, the very singling 143 out of the ruler 's family, populous though it be, is anathematised as discriminatory.
Incidentally, the powers of the Board are charged as unreasonable since there is no provision to give a hearing to the affected parties in the process of adjudication and the whole process may well be the deliberations of a secret campaign.
These violent vices imputed to the statute will certainly invalidate the Act 15 of 1978, if there were some substance therein.
Even an imaginative exercise, if informed by realism, discovers no such infirmity.
Let us clear the confusion caused by the omission of Sections 4 and 5 of the principal Act.
Shri Govindan Nair for the petitioners relied on this omission to contend that the wholesome provisions of sections 4 and 5 of the Principal Act of 1961 have been waywardly withdrawn leaving it to the Board to award such shares as they fancied to the various members.
This submission proceeds on a simple misconception.
Section 4 provides for an equal share for every member including a child in the womb and Section 5 arrogates to the Maharaja of Cochin the power to exclude any properties from the category of partible estate.
No democrat will shed a tear if Section 5 were deleted.
The members, as Shri Govindan Nair himself urged, were mostly indigent.
If that were so, the infliction upon such members by the Maharaja 's act of exclusion of as many properties as he thought should not be divided would be unjust.
Since every member was entitled to an equal share with the Maharaja himself all the properties should be available for partition and this result, which is eminently just, is achieved by the omission of Section 5 from Act 16 of 1961.
Therefore, the provision in Act 15 of 1978 omitting Section 5 from the principal Act is a virtue to be commended, not a vice to be condemned.
It is eminently reasonable and to contend against it is obviously unreasonable.
A different criticism has been made regarding the deletion of Section 4 by Shri Govindan Nair; but it is equally mis conceived, if we may say so.
Section 4 of Act 16 of 1961 provided for the share of members including those en ventre sa mere.
This provision was deleted because its purpose was otherwise served by the substituted Section 3 of Act 16 of 1961 by including a direction to the Board "to effect partition of the Estate and the Palace Fund among all the members entitled to a share.
under Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976).
" The effect of the importation of Section 4 of the Abolition Act is to ensure partition per capita among all the members as in the case of a Joint Hindu Family other than an undivided Mitakshara Hindu family.
144 What was otiose, namely, Section 4 of Act 16 of 1961, was cut out.
This was merely a drafting operation not making any change in the substantive law bearing upon the shares of the members.
The contention that by this deletion the members of the Kovilagam had been made over as hostages to the caprice of the Board of Trustees is a frightful error or disingenuous scare.
In the course of his submissions, counsel had a dig at the Board, which, according to him, was an imperium in imperio, a law unto itself and, therefore, arbitrary.
This again is an egregious error.
The Board was not a new creation but an old concoction.
Thirty years ago the Ruler brought it into being.
Since then, the Kerala legislature, in Act 16 of 1961, continued it and the latest legislation now denounced before us recognised this time honoured entity wherein the heads of the four branches were members and entrusted it with the work of division of assets.
The Board, being an old institution in plenary management since 1949 and wisely composed of the seniormost members of the four branches, is sentimentally and functionally the best instrument to divide and distribute.
Indeed Act 16 of 1961 had also entrusted the task of partition to the same Board and no member had during nearly two decades challenged the wisdom of the provision.
We see no legal ground to blaspheme this Board.
The greater grievance of counsel about the Board was something else.
He contended that the Board under Section 3 (2) was empowered to effect the partition of the Estate and the Palace Fund "and the partition so effected shall be valid. " From this the criticism was spun out that the Board was likely to act in any manner it pleased, sell the properties at any price, distribute the assets at its sweet will or whim and thus reduce the partition of Kovilagam properties to a mock exercise by an unchallengable Board.
He contrasted this grim picture with the advantageous alternative of a civil suit where the shares were fixed according to law, the properties were valued by a Commissioner, objections to the report of the Commissioner were considered by the Court and a decree, preliminary or final, was subject to appeal and further appeal.
The judicial process was a great guarantee of the rights of parties which was unavailable before the statutorily immunised and potentially eccentric Board of Trustees.
We remained unmoved by this sombre picturisation made up of illusory apprehensions.
We have earlier pointed out that the strength of the Cochin Royal family is around 800.
The properties consist of urban lands, rural lands, buildings and other assets considerable in volume and value.
A litigative resolution of the conflicts among members with the plethora of interlocutory proceedings plus revisions 145 and appeals may be an endless adventure which would surely bankrupt the poorer members and deny to everyone a share in the properties by metes and bounds for a generation to come.
Of course, those who are already in possession of properties and counsel for the respondent hinted that the petitioners belong to this category would benefit by striking down this legislation and delay in legislative rectification of the situation and the further litigation that might be launched and so on.
Those who have, have a vested interest in procratination; those who have not, have an urgent interest in instant justice.
In this view, a non curial instrumentality and procedure for partitioning the properties cannot be condemned as discriminatory.
The alternative created by the statute is quite a reasonable and in our view a better instrument having regard to the totality of factors.
Law is not a cocoon and keeps its eyes wide awake to the realities of life.
The legislation in question has taken note of the fact that the Board has been for decades entrusted by the Maharaja by his Proclamation with the administration of the family estate and no complaints have ever been voiced against their management.
The latter legislation of 1961 has sanctified this Board.
That legislation has gone to the extent of conferring powers of partitioning the Kovilagam properties on this Board and the present Act of 1978 does nothing more.
We are unable to understand how what was good and valid in 1961 Act could become vicious and invalid in 1978.
The composition of the Board and its history and experience convince us that it was a fit instrument for the task entrusted.
The fear expressed before us that the Board may ignore the norms of judicial procedure while settling the rights of parties is misplaced.
We do not regard Section 3 of Act 15 of 1978 as dispensing with canons of fairplay of natural justice and of quasi judicial values.
We realise that the enormous work of dividing the properties has to be carefully carried out.
Quasi judicial responsibilities are implied by the statute in the Board 's functions and if the Board breaches these norms and canons the constitutional remedy under Article 226 comes into play.
After all, the Board is a statutory body and not an executive creature.
It has been saddled with effecting the rights of parties and is bound to act quasi judicially.
Its deviances are not unreviewable in writ jurisdiction.
Therefore, we direct the Board to comply with the requirements prescribed in several decisions of this Court in quasi judicial jurisdictions.
Natural justice is obviously the first as this Court has ruled in a shower of cases especially highlighting in Maneka Gandhi 's case(1) and M. section Gill 's case(2).
This Court has 146 gone to the extent of holding that natural justice require reasons to be written for conclusions made.
The Organo Chemical Industries & Anr.
vs Union of India & Anr.(1) this Court has held that the absence of a right of appeal does not spell arbitrariness.
It is further held in the same ruling that giving of reasons for conclusions is ordinarily an important component of natural justice in quasi judicial tribunals.
In short, every facility that a party will reasonably receive before a quasi judicial body when rights are adjudicated upon, will be available before this Board and we mandate it to extend such facilities and opportunities.
We need hardly mention that when properties are sold parties must be intimated and the principles embedded in the Partition Act must be taken note of when properties are valued and allotted.
The services of valuers of properties or of Commissioners must also be used.
Moreover, parties must be given opportunity to object to reports of Commissioners, if any, appointed.
In short, the general law, processual and substantive, bearing on allotment of properties cannot be thrown to the winds by the Board merely because Section 3 does not write these details into it.
We must hasten to caution that no party can hold the Board in ransom by raising vexatious and frivolous objections and putting in proceeding after proceeding merely to delay or defeat.
The Board is geared to completion of the partition with a reasonable speed and that purpose must inform its activities.
While every party is entitled to a reasonable voice in the proceedings no party can enjoy the privilege of thwarting the processes of justice.
These observations and directions which are built in in Section 3, in our view, are sufficient guidelines to repel the submission that the power under Section 3(2) is unbridled and unconstitutional.
Partitions are best done by a broad consensus and the Board will remember that constant consultation with the members may facilitate its work and reduce tension and friction.
Nor are we impressed with the argument that because appeals are absent justice is jettisoned.
Oftentimes, appeals are the bane of the justice system, especially because the rich can defeat the poor and the weak can be baulked of their rights indefinitely that way.
We do not mean to decry the right of appeal, but may not go with the petitioner in glorifying it in all situations.
We have emphasised that the Board is a statutory body and when it violates the prescriptions of the law or otherwise acts arbitrarily or mala fide, article 226 of the Constitution is a corrective.
Nothing more is needed because everything needed is implied in that power.
147 The last and perhaps the least valid submission, with meretricious attraction, is the challenge based on unequal legislation picking out one from among equals for hostile treatment.
We have held that the royal family estate is being partitioned on principles similar to those applicable to all other Kerala Hindu families and the only difference is a Board instead of a court to allot shares by metes and bounds.
This, we have shown, is fully justified by the special circumstances.
The Cochin Kovilakam vis a vis the Kerala State is sui generis.
It has been legislatively dealt with as a special class throughout the history of Kerala and before.
The Act impugned has none of the characteristics of class legislation and, is on the other hand, an equalising measure with a pragmatic touch.
We negative the specious submission.
We find no merit in this Special Leave Petition and dismiss it without costs.
V.D.K. Petition dismissed.

dataset_name: IN-Abs

summary:
The Maharaja of Cochin, reigned and ruled over a pretty State, Cochin, which is now an integral part of the Kerala State.
The Travancore Cochin State came into being on July 1, 1949.
Two days before this constitutional merger, the Maharaja of Cochin issued a Proclamation to provide for the impartibility, administration and preservation of the Royal Estate and the Palace Fund through a Five man Board of Trustees.
A small Process of family legislation on the Cochin Palace followed the political transformation of the State.
The first was the Valiamma Thampuram Kovilakam Estate and the Palace Fund (Partition) Act, 1961 (Act 16 of 1961), the primary purpose of which was to undo the impartibility of the Royal Estate, as declared by the Proclamation of 1949.
Sections 4 and 5 of the Act prescribed the shares of the members, the mode of division and the machinery for partition under these provisions, on a majority of the major members of the royal family expressing their wish to be divided, the Maharaja would consider whether it was in the interest of the family to partition the estate among the members and, if he did, direct the Board of Trustees to proceed with the partition under his supervision and control.
Each member including en ventra sa mere, was eligible for a single share on an equal basis.
The Board nominated under the earlier Proclamation was continued but its responsibilities were broadened.
The privileges of the Maharaja were preserved as his personal rights but vis a vis family assets feudal "primogeniture" fell to modern egalite, within limits.
As a result of the 26th Constitution Amendment Act of 1971 which extinguished all royal privileges, privy purses and other dignities of the erstwhile rulers of the Indian States, the Cochin Maharaja stepped down to the level of the Karta of a Joint Hindu Family.
The Marummakkattayam system which ensured impartibility and management by the senior most member had lost its functional value and virtually vanished from the Kerala coast with the passing of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976).
Despite this revolutionary change, the Cochin royal family maintained its former status as Marummakkattayam undivided coparcenary since it was governed by special legislation which remained unrepealed.
Therefore, the Kerala Legislation enacted the Valiamma Thampuram Kovilakam Estate and the Palace Fund (Partition) and the Kerala Joint Hindu Family System (Abolition) Amendment Act, 1978 (Act 15 of 1978).
Before the High Court and in the special leave petition, the vires of the Amending Act omitting sections 4 and 5 from the Principal Act 16/1961 was challenged as offending Articles 14 and 19 of the Constitution.
Dismissing the special leave petition, the Court, 137 ^ HELD: The public policy behind Section 7 of the Valiamma Thampuram Kovilakam Estate and the Palace Fund (Partition) Act, 1961, excluding civil court jurisdiction is not merely the special situation of the former royal family but the virtual impossibility within a life time of division by metes and bounds and allotment of shares to the 800 odd members, most of whom are real royalties in rags, homeless and hungry, seeking to survive by the small pieces from the large cake if ever it will be sliced and distributed.
[141A B] Civil litigation for partition is the surest punishment to the tattered 'princelings ' by pauperizing them through the justice process and giving them stones instead of bread in the end, if the end would arrive at all.
The compulsive pragmatics of distributive justice elicited legislative compassion for this uniquely numerous crowd of pauperised patricians by exclusion of civil courts jurisdiction.
The pathology of protracted, exotic processual legalistic needs comprehensive renovation if the Justice System is to survive but the legislature salvaged the largest royal family with the littlest individual resources without waiting for the remote undertaking to overhaul Processual Justice to the People.
Sociology is the mother of law, lest law in the books should be bastardized by the law of life.
[141D F] 2.
Our constitutional order is sensibly and sensitively allergic to arbitrary power and the Supreme Court will unhesitatingly strike down any provision which can be anathematised as creating uncanalised and Neronised power.
Section 4 of the Principal Act of 1961 provided for an equal opportunity for every member including those en ventre sa mere.
This provision was deleted because its purpose was otherwise served by the substituted Section 3 of Act 16 of 1961 by including a direction to the Board "to effect partition of the Estate and the Palace Fund among all the members entitled to a share". . . under Section 4 of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (Act 30 of 1976).
" The effect of the importation of Section 4 of the Abolition Act is to ensure partition per capita among all the members as in the case of a Joint Hindu Family other than an undivided mitakshara Hindu family.
What was otiose, namely, Section 4 of Act 16 of 1961, was cut out.
This was merely a drafting operation not making any change in the substantive law bearing upon the shares of the members.
The contention that by this deletion the members of the Kovilagam had been made over as hostages to the caprice of the Board of Trustees is a frightful error or disingenuous scare.
[142 F G, 143H, 144A B] 3.
Section 5 of the 1961 Act arrogated to the Maharaja of Cochin the power to exclude any properties from the category of partible estate.
If most members were to be indigent, the infliction upon such members by the Maharaja 's act of exclusion of as many properties as he thought should not be divided would be unjust.
Since every member was entitled to an equal share with the Maharaja himself all the properties should be available for partition and this result, which is eminently just, is achieved by the omission of Section 5 from Act 16 of 1961.
Therefore, the provision in Act 15 of 1978 omitting Section 5 from the principal Act is a virtue to be commended, not a vice to be condemned.
It is eminently reasonable and to contend against it is obviously unreasonable.
[143D F] 4.
To blaspheme the Board as an imperium in imperio, a law unto itself and therefore, arbitrary is an egregious error.
The Board was not a new creation 138 but an old concoction brought into being by the Ruler thirty years ago, continued by the Kerala Legislature in Act 16 of 1961 and recognised by the latest amendment Act.
The Board is a time honoured entity wherein the heads of the four branches are members and is entrusted with the work of division of assets.
The Board, being an old institution in plenary management since 1949 and wisely composed of senior most members of the four branches, is sentimentally and functionally the best instrument to divide and distribute.
Indeed Act 16 of 1961 had also entrusted the task of partition to the same Board and no member had during nearly two decades challenged the wisdom of the provision.
[144B D] Section 3 of the Act 15 of 1978 does not dispense with canons of fair play of natural justice and of quasi judicial values.
A non curial instrumentality and procedure for partitioning cannot be condemned as discriminatory.
The alternative created by the statute is quite reasonable and is a better instrument having regard to the totality of factors.
Law is not a cocoon and keeps its eyes wide awake to the realities of life.
The legislation in question has taken note of all facts namely; (a) absence of any complaint against their management ever since the Board 's creation; (b) sanctification of the Board by the principal Act 16 of 1961 by conferring powers of partitioning the "Kovilagam" properties on this very Board; and does nothing more What was good and valid in 1961 could not become vicious and invalid in 1978.
[145 B D, E] Quasi judicial responsibilities are implied by the statute in the Board 's function and if the Board breaches these norms and canons, the constitutional remedy under Article 226 comes into play.
After all, the Board is a statutory body and not an executive creature.
It has been saddled with effecting the rights of parties and is bound to act quasi judicially.
Its deviances are not unreviewable in writ jurisdiction.
Sufficient guidelines are built in Section 3 and therefore Section 3 (2) is not unbridled and unconstitutional.
[145F G. 146E] Maneka Gandhi vs Union of India, [1976] Suppl.
S.C.R. 489; M. section Gill and Anr.
vs Union of India, [1978] 2 S.C.R. 621, Organo Chemical Industries and Anr.
vs Union of India & Anr., [1980] 1 S.C.R. p. 61 referred to.
Absence of appeals does not jettison justice, though often times, appeals are the bane of the justice system, especially because the rich can defeat the poor and the weak can be baulked of their rights indefinitely that way.
The Board is a statutory body and when it violates the prescriptions of the law or otherwise acts arbitrarily or malafide, article 226 of the Constitution is a corrective.
[146 F G] of 1978 has none of the characteristics of class legislation and is on the other hand, an equalising measure with a pragmatic touch.
The Cochin Kovilagam vis a vis the Kerala State is sui generis.
It has been legislatively dealt with as a special class throughout the history of Kerala and before.
Partitioning of the royal family estates on principles similar those applicable to all other Kerala Hindu Families with the only difference that a Board instead of a Civil Court allots shares by metes and bounds, is fully justifiable by the special circumstances.
[147 A B]


judgement:
Civil Appeal No. 2494 of 1969.
From the Judgment and Decree dated 24 1 1969 of the Calcutta High Court in Appeal from Original Order No. 111/66.
D. N. Mukherjee and N. R. Chaudhary for the Appellants.
P. K. Chatterjee and Sukumar Ghosh for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
This is an appeal by certificate filed by the judgment debtors from the decision of the Calcutta High Court given in appeal from that of a learned single Judge of that Court.
The facts of the case clearly demonstrate the fighting attitude of the judgment debtors to gain time for the satisfaction of the decree.
On August 15, 1925 one Indera Chand Kejriwal instituted on the original side of the Calcutta High Court a suit on the basis of a mortgage against Ram Chander Saragogi, Sewbux Saraogi and Tejpal Saraogi for recovery of Rs. 38,000/ as principal and Rs. 6,082.8 annas as interest.
By an equitable mortgage the property mortgaged consisted of two houses (1) No. 126, Harrison Road and (2) No. 13/2, Syed Salley Lane in the town of Calcutta.
On November 26, 1926 a consent decree was passed for a sum of Rs. 41,000/ together with interest thereon @ 6.3/4% per annum.
On failure of the judgment debtors to pay the amount the mortgaged properties were to be sold.
On 3rd of January, 1929 it was ordered and 158 decreed that the mortgaged property be sold.
On 16th April, 1934 Indera Chand Kejriwal by a deed of assignment assigned his interest in the decree to Mahadeo Prasad Tibrewalla, the respondent in this appeal.
On the application of the assignee decree holder an order was made on the 8th May, 1934 substituting his name in place of the original decree holder and recording some terms of settlement between him and the judgment debtors.
The amount with interest quantified on that date was Rs. 60,023.12 annas which was to carry an interest of 6.3/4% per annum.
Subsequently on an application of the decree holder one Anandilal Poddar was appointed on the 14th June, 1938 a receiver of rents and profits of the mortgaged properties.
A sum of Rs. 10,000/ was paid to the decree holder on the 7th September, 1939 towards part satisfaction of the decree.
On the death of Ram Chander Saraogi, one of the judgment debtors, by order dated the 7th August, 1945 Smt.Parbati Devi, Ananta Kumar Saraogi and Suraj Kumar Saraogi, his heirs and legal representatives, were substituted.
They are appellant Nos. 1 to 3 in this appeal.
No further payment was made to the decree holder and eventually a consent order was passed by the Court on the 17th June, 1953 on the basis of the terms of settlement arrived at between the parties which were incorporated in the letter written by the Solicitor of the judgment debtors to the Solicitor of the decree holder.
The terms of settlement are quoted in full in the appellate judgment of the High Court.
The salient terms of the settlement may be stated as follows: (1) That the total dues on the date came to Rs. 1,10,000/ .
(2) That Shri Anandilal Poddar, the receiver was to pay Rs. 35,000/ .
(3) That a sum of Rs. 40,000/ was to be paid by conveying premises No. 13/2 Syed Salley Lane to the decree holder, and, (4) That a sum of Rs. 35,000/ was to be paid in cash by raising money by execution of an another mortgage of premises No. 126, Harrison Road.
Anandilal Poddar paid the sum of Rs. 35,000/ .
But nothing further was done by the judgment debtors pursuant to the settlement arrived at on the 17th June, 1953.
Sewbux Saraogi, one of the judgment debtors, died leaving a Will in which the universal legatee was his daughter Smt.Kapurbai and the sole executor appointed therein was Motilal Jhunjhunwalla, husband of Kapurbai.
On the 7th 159 June, 1965 the respondent affirmed a tabular statement for execution of the decree.
A learned single judge of the Calcutta High Court dismissed that application mainly on the grounds (1) that the terms of bargain between the parties recorded on the 17th June, 1953 were entirely different from the original decree and had the effect of superseding it; the former decree, therefore, was not executable; (2) that the factum of the death of Sewbux Saraogi was not recorded and his heirs were not substituted in the tabular statement.
In passing, the learned single Judge also expressed the view that the execution was barred under section 48 of the Code of Civil Procedure.
On appeal by the decree holder the Appellate Bench has reversed the decision of the learned single Judge on all the points.
Hence this appeal by the judgment debtors.
We shall first dispose of the point of limitation.
From the facts stated above it is abundantly clear that there was no bar of limitation in the present execution instituted in the year 1965.
At no point of time the mortgage decree had been fully satisfied.
All through steps were being taken and it was not a case where the execution was barred either under section 48 of the Code of Civil Procedure or Article 183 of the Limitation Act 1908.
It was conceded and rightly so by learned counsel for the appellants that the execution was not barred under Article 136 of the .
But the submission was that it was already barred when that Act came into force on the 1st of January, 1964 under Article 183 of the old Act.
We have no difficulty in rejecting the argument of limitation.
All through steps had been taken by the decree holder.
The case was not lying dormant at any point of time for a period of more than 12 years.
When in the year 1929 there was an order for sale of the mortgaged properties it appears some payments were made and finally accounts were settled in the year 1934.
Thereafter the mode of execution proceeded by appointment of a receiver.
A sum of Rs. 10,000/ was paid in the year 1939.
In the year 1945 steps were taken for substitution of the heirs and legal representatives of Ram Chander Saraogi, one of the deceased judgment debtors.
Parbati Devi, appellant No. 1, was allowed to take some steps for the satisfaction of the decree.
But nothing was done.
Eventually a settlement was again arrived at on the 17th June, 1953 for satisfaction of the decree but on the judgment debtors ' failure to fulfil the settlement the present proceedings were started by filing the tabular statement on the 7th of June, 1965 well within 12 years of the 17th June, 1953.
The point of limitation raised on behalf of the appellants, therefore, must be rejected.
160 A statement had been made in the tabular statement that Sewbux Saraogi, one of the judgment debtors, was dead.
Kapurbai, his daughter along with others were sought to be substituted in his place.
Later on it transpired that she was a universal legatee under a will executed by Sewbux Saraogi.
She was, therefore, undoubtedly a legal representative competent to represent the estate of Sewbux Saraogi.
Even in absence of the substitution of Motilal Jhunjhunwalla, the sole executor of the will, the execution was not defective.
Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd. vs R. Srinivasan and Others, (1) decision relied upon by the Appellate Bench.
Coming to the third and the last point it may be mentioned that the settlement arrived at on the 17th June, 1953 was not an altogether renovation of the old decree.
The amount due was quantified and the mode of satisfaction was prescribed giving liberty to the judgment debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs. 35,000/ in cash by raising the money by mortgage of the other house.
The judgment debtors did neither.
The terms of settlement were silent as to what was to happen on the failure of the judgment debtors to satisfy the decree in the manner agreed upon.
In such a situation it was quite legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree.
Reading the terms of settlement in the context of the letter of the Solicitor of the Judgment debtors it is plain to us that the order dated 17th June, 1953 had not the effect of passing a new decree in substitution of the old one.
It had merely the effect of giving facility to the judgment debtors for the satisfaction of the decretal dues.
On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree.
For the reasons stated above, we hold that there is no substance in any of the points arising in this appeal.
We accordingly dismiss this appeal with costs.
N.V.K. Appeal dismissed.

summary:
In a suit for recovery of money on the basis of a mortgage, a consent decree was passed.
When the judgment debtors failed to pay the amount the mortgaged properties were ordered to be sold.
The decree holder assigned his interest under the decree in favour of the respondent and this was approved by the Court.
A part payment was made to the decree holder.
On the death of one of the judgment debtors, his heirs and legal representatives (appellants in this appeal) were substituted.
On June 17, 1953 a consent order was passed by the Court on the basis of the terms of settlement arrived at between the parties.
According to the will left by one of the judgment debtors his daughter was the universal legatee and his son in law was the sole executor.
When the decree holder sought execution of the decree a Single Judge of the High Court dismissed the application on the grounds (1) that the terms of settlement between the parties recorded on 17th June, 1953 were entirely different from the original decree and had the effect of superseding it; (2) that the fact of the death of one of the judgment debtors was not recorded and his heirs were not substituted and (3) execution was barred under section 48 of the Code of Civil Procedure.
On appal, a Division Bench of the High Court reversed the order of the Single Judge.
Dismissing the appeal, ^ HELD: 1.
There was no bar of limitation in the execution instituted in 1965.
At no point of time the mortgage decree had been fully satisfied.
It is not a case in which the execution was barred either under section 48 CPC or article 183 of the Limitation Act, 1908.
Execution was not barred under article 136 of the .
[159D] 2.
There is no force in the contention that it was already barred when the 1963 Act came into force.
All through steps had been taken by the decree holder to enforce the decree.
When the order of sale of the mortgaged properties was passed in 1929 some payments were made and finally accounts were settled in 1934.
Thereafter the mode of execution proceeded by appointment of a receiver.
Some money was paid in 1939.
In 1945 the heirs and legal representatives of one of the deceased judgment debtors were substituted.
Appellant no 1 was allowed to take steps for the satisfaction of the decree; but nothing was done.
A settlement was again arrived at in 1953 for satisfaction of the decree but on the judgment debtor 's failure to comply with the terms of the settlement the present proceedings were started well within 12 years.
[159E H] 157 3.
The daughter of the second judgment debtor was competent to represent the estate of her father.
Even if her husband who was the sole executor of the will was not substituted, execution was not defective.
[160B] The Andhra Bank Ltd. vs R. Srinivasan and Others [1962] 3 S.C.R. referred to. 4.
The settlement of 17th June, 1953 was not an altogether renovation of the old decree.
All that was done was that the amount due was quantified and the mode of satisfaction was prescribed giving opportunity to the judgement debtors to satisfy the decree by conveying one of the two mortgaged houses.
The judgment debtors did nothing.
Though the terms of settlement were silent with regard to what was to happen on failure to satisfy the decree, it is legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree.
The order of 17th June, 1953 passed by the Court had not the effect of passing a new decree in substitution of the old one.
It had merely the effect of giving facility to the judgment debtors for the satisfaction of the decretal dues.
On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree.
[160C F]


judgement:
N: Criminal Appeal No. 170 of 1979.
Appeal by Special Leave from the Judgment and order dated 10 11 1978 of the Punjab and Haryana High Court in Criminal Misc.
No.4352 M of 1970.
H. D. Hardy, D. D. Sharma, Vasu Deo Sharma and Subhash C. Mittal, for the Appellant.
H. section Marwah and M. N. Shroff for Respondent No. 1.
A. N. Mulla and section K. Gambhir for Respondent No. 2.
152 The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by Special Leave is directed against a judgment of the Punjab and Haryana High Court dated 10th November, 1978 by which the High Court accepted the revision filed before it and set aside the order of the Sessions Judge and directed him to conclude the trial according to law.
The points in controversy arise in the following circumstances: The appellant Rohtas was being prosecuted under Section 302 of the Indian Penal Code for having caused the death of one Subhash on 23rd December, 1974.
The trial proceeded before the Sessions Judge and after the evidence was concluded the case was adjourned to the 5th May, 1978 for recording the statement of the appellant.
At this stage it appears to have been pointed out to the Sessions Judge that he had no jurisdiction to try the appellant as the appellant happened to fall within the provisions of the Haryana Children Act, 1974, for short, to be referred to as the Haryana Act.
Thereafter the Sessions Judge remitted the matter to the Committing Magistrate directing him to hold an enquiry as to whether or not the appellant Rohtas was a child within the meaning of the provisions of the Haryana Act and after arriving at a finding that the appellant was a child, the Magistrate proceeded to try the case in accordance with the provisions of the Haryana Act.
The brother of the deceased filed a revision before the High Court for quashing the proceedings against the appellant on the ground that the Sessions Judge and the Committing Magistrate were wrong in holding that the case of the appellant fell within the purview of Section 4 of the Haryana Act.
The contention raised by the Revision Petitioner was based on the fact that although the Criminal Procedure Code of 1973, hereinafter to be referred to as the Code of 1973, contained provisions some of which were directly in conflict with the Haryana Act and other Central Acts, therefore, the Code of 1973 would prevail and the State Acts would stand over ruled by virtue of the provisions of Article 254 of the Constitution of India.
This argument appears to have been accepted by the High Court on the ground that as the Haryana Act though passed with the previous consent of the President of India, so far as the State of Haryana is concerned, the Act was superseded by the Code of 1973 which was an Act passed by Parliament subsequent to the Haryana Act.
Before scrutinising the contentions of the parties it may be necessary to examine and analyse some of the important and relevant provisions of the statute concerned.
To begin with, even the previous Criminal Procedure Code of 1898 contained a special procedure for 153 the trial of persons who had committed offences and who were below the age of 15.
Such accused could be tried by a Magistrate on whom powers are conferred by Section 8 Sub section 1 of the Reformatory Schools Act of 1897 which also provided for the custody trial or punishment of such youthful offenders.
This Section was expressly repealed by Section 65 of the Haryana Act which reads as below: "Certain Central Acts not to apply: (1) The (Central Act 8 of 1897), and Sections 29 B and 399 of the Code of Criminal Procedure, 1898 (Central Act 5 of 1898), shall cease to apply to any area in which this Act has been brought into force.
(2) The (Central Act 105 of 1956), shall not apply to any Children 's home, special School or observation home established and maintained under this Act.
" This being the position, so long as the Haryana Act was to be in force in the State of Haryana, it is manifest that Section 29 B was put completely out of action and any trial of an accused who was a child within the meaning of the Haryana Act had to be conducted in the manner prescribed by the Haryana Act.
For the purposes of this case it is not necessary for us to detail the procedure which was to be adopted by the Court under the Haryana Act.
The fact remains, therefore, that until the passing of the Code of 1973 the Haryana Act held the field.
The Haryana Act came into force on 1 3 1974.
In fact the said Act received the assent of the President as far back as on 6th of February, 1974 and was published in the Haryana Gazette on the 12th of February, 1974 but under the provisions of Section 1 Sub section 3 of the Act it was to come into force on a date to be notified by the State Government and this was done on 1 3 1974.
Thus the Haryana Act started operating w.e.f. 1 3 1974 and any offences committed thereafter by a child, as defined in the Act, were to be tried according to the Procedure laid down by the Haryana Act.
so far as there is no dispute between the parties.
The only difficulty that arises is that just about the time that the Haryana Act was passed the Code of 1973 was also passed by Parliament which completely revolutionised the entire Criminal Procedure Code of 1898.
It is not disputed in the present case that the occurrence in the present case took place after coming into force of the Code of 1973 and if, therefore, the Code of 1973 applies to the present trial then it is obvious 154 that the trial has to be held not in accordance with the provisions of the Haryana Act but according to the provisions of the Code of 1973.
So far as the Code of 1973 is concerned, it was amended by Act II of 1974 and came into force w.e.f.
April 1, 1974.
Section 4 of the Code of 1973 clearly lays down that all offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions of the said Code.
Thus at the first sight the contention of the respondent that the accused was rightly ordered to be tried under the Code of 1973 appears to be sound.
In the view that we have taken in this case and on a close and careful interpretation of Section 5 of the Code of 1973, we do not find it necessary to go into this point at all.
In our opinion the provisions of Section 5 of the Code in the present case completely clinch the entire issue.
Far from over ruling or colliding with the provisions of the Haryana Act, the Code of 1973 appears to have kept alive and fully endorsed the application of the Haryana Act or for that matter the provisions of any other Act passed by the State Legislature and which falls within the ambit of Section 5 of the Code of 1973 which may be extracted thus: "Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
" It will thus be seen that Section 5 carves out a clear exception to the provisions of the trial of an offence under any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force.
It is not disputed that the Haryana Act was in force when the Code of 1973 was passed and, therefore, the Haryana Act far from being inconsistent with Section 5 of the Code of 1973 appears to be fully protected by the provisions of Section 5 of the Code of 1973 as indicated above.
In these circumstances, we are clearly of the opinion that the High Court was in error in holding that the Code of 1973 over ruled the Haryana Act and that the appellant should have been tried under the Code of 1973.
We are satisfied that the view taken by the Sessions Judge on this point was correct and the case of the appellant should have been referred to the Magistrate concerned for trial in accordance with the provisions of the Haryana Act.
155 we, therefore, allow this appeal, set aside the judgment of the High Court and restore that of the Sessions Judge as a result of which the appellant will now be tried by the Magistrate empowered under the Haryana Act and in accordance with the provisions of that Act.
The case is an old one.
The Magistrate concerned should try to dispose of the same as expeditiously as possible.
N.K.A. Appeal allowed.

summary:
The appellant was charged with an offence under Section 302 I.P.C. After the recording of evidence was concluded, it was pointed out that the Sessions Judge had no jurisdiction to try the appellant as the appellant happened to fall under the provisions of the Haryana Children Act, 1974.
On remand, the Magistrate found the appellant was a child and proceeded to try him under the Haryana Act.
In a revision petition filed by the brother of the deceased, the High Court held that the provisions of the Criminal Procedure Code 1973 prevailed over the provisions of the Haryana Act.
Allowing the appeal, ^ HELD: The High Court was in error in holding that the Code of 1973 over ruled the Haryana Act and that the appellant should have been tried under the Code 1973.
The view taken by the Sessions Judge on this point was correct and the case of the appellant should have been referred to the Magistrate concerned for trial in accordance with the provisions of the Haryana Act.
[154G H] Section 5 carves out a clear exception to the provisions of the trial of an offence under any special or local law for the time being in force or any special jurisdiction or power conferred or any special form of procedure prescribed by any other law for the time being in force.
The Haryana Act was in force when the Code of 1973 was passed and therefore the Haryana Act far from being inconsistent with section 5 of the Code of 1973 appears to be fully protected by the provisions of section 5 of the Code of 1973.
[154E G]


judgement:
Civil Appeal No. 467 of 1970.
From the Judgment and order dated 25 4 1969 of the Madhya Pradesh High Court in Misc.
Petition No. 4/67.
D. N. Mukherjee and G. section Chatterjee for the Appellant.
section K. Gambhir, R. Nath and Miss Ram Rakhiani for the Respondent.
197 The order of the Court was delivered by UNTWALIA, J.
The appellant was an office Superintendent in the office of Agriculture Department.
Certain charges were levelled against him.
An enquiry was purported to be held.
After finding him guilty of some charges, he was reverted to a lower rank.
He challenged that order by filing a Writ Petition in the Madhya Pradesh High Court .
That Writ Petition was allowed and the order of reversion was quashed on the ground that the enquiry held was not proper and legal.
In view of the order of the High Court, the appellant was reinstated in his original post of office Superintendent.
But shortly after, he was put under suspension and fresh proceedings were started on the basis of the same old charges.
In the second proceedings, he has been found guilty of certain charges, the details of which are not necessary to be mentioned in our judgment.
He was again reverted and it was also directed in the order that the allowance paid to him during the period of suspension could remain intact.
The appellant filed a second Writ Petition in the High Court to challenge the fresh order of reversion.
The High Court has dismissed his Writ Petition.
Hence this appeal in this Court on grant of a certificate by the High Court.
Mr. D. N. Mukherjee, learned counsel for the appellant urged only two points before us; (1) that after the earlier order of reversion was quashed by the High Court and after the appellant was reinstated, no second enquiry on the very same charges could be held and no second order of reversion could be legally and validly ', made; and (2) that appellant was entitled to the full salary for the period of suspension.
We find no substance in either of the points urged on behalf of the appellant.
The earlier order was quashed on the technical ground.
On merits, a second enquiry could be held.
It was rightly held.
The order of reinstatement does not bring about any distinction in that regard.
The Government had to pass that order because the earlier order of reversion had been quashed by the High Court.
Without reinstating the appellant, it would have been difficult perhaps unlawful, to start a fresh enquiry against the appellant.
The observations of this Court in the last paragraph of the judgment in State of Assam & Anr.
vs J. N. Roy Biswas are not applicable to the facts of the present case and do not help the appellant at all.
The reduced amount paid to the appellant for the period of suspension was affirmed by making it a part of the order of reversion 198 itself.
That being so, the second point urged by the counsel is also, of no substance.
For the reasons, stated above, we dismiss this appeal but since the, appellant has already retired from service, we make no order as to costs.
V.D.K. Appeal dismissed.

summary:
The appellant, an office Superintendent was reverted to a lower rank after finding him guilty of some charges held in a departmental enquiry.
The said orders were quashed by the High Court on the ground that the enquiry held was not proper and legal.
The appellant was reinstated as office superintendent.
Later, fresh enquiry was started after placing him under suspension on the basis of the same old charges.
He was found guilty and again reverted to lower rank with a direction in the order of reversion that the allowance paid to him during the period of suspension could remain intact.
The writ petition filed by the appellant against the said orders was dismissed.
Dismissing the appeal by certificate, the Court ^ HELD: 1.
The observations of this Court in State of Assam & Anr.
vs J. N. Ray Biswas [1976] 2 SCR p. 128 @ 130 to the effect that "once a disciplinary case has closed and the official reinstated, presumably on full exoneration, a chagrinned Government cannot restart the exercise in the absence of a specific power to review or revise, vested by rules in some authority" are not applicable to the fact of the Present case.
[197 G H] The earlier order was quashed on a technical ground.
The order of reinstatement does not bring about any distinction in that regard.
The Government had to pass that order because the earlier order of reversion had been quashed by the High Court.
Without reinstating the appellant it would have been difficult, perhaps unlawful, to start a fresh enquiry against the appellant.
[197F G] (b) The reduced amount paid to the appellant for the period of suspension was affirmed by making in a part of the order of reversion itself, and is in order.
[197H, 198H]


judgement:
Civil Appeal No. 1922 of 1979.
From the Judgment and order dated 7 5 1979 of the Disciplinary Committee of the Bar Council of India in D.C. Appeal No. 19/78.
Appellant ill Person and section section Khanduja for the Appellant.
The order of the Court was delivered by KRISHNA IYER, J.
The Appellant, a fledging in the legal profession, has been punished by the Tribunal of the Bar Council for eating the forbidden fruit of dubious professional conduct by improperly certifying the solvency of a surety for an accused person, his client.
suspension from practice for one month is the punishment awarded by the trial tribunal and in appeal.
Counsel for the appellant Shri Khanduja, has pleaded for an admonitory sentence by the Court ex misericordium.
Of course, the punitive pharmacopoeia of the Advocates Act, in Section 35, does permit reprimand provided the ends of public justice are met by this leniency.
After all, public professions which enjoy a monopoly of public audience have a statutorily enforced social accountability for purity, probity and people conscious service.
In our Republic, Article 19(1) (g) vests a fundamental right to practise any profession only subject to reasonable restrictions in the interests of the general public (vide article 19(6).
The law forbids the members of the legal or other like professions from converting themselves into a conspiracy against the laity and all regulations necessary for ensuring a people oriented bar without exploitation potential are permissible, nay necessary.
Rule 10, chapter 2 part six of the Rules of Bar Council of India for Professional Misconduct framed for disciplinary purposes is stated to have been violated by the appellant for which dispensatory punishment has been meted out.
The factual setting gives an insight into the degree of deviance of the delinquent appellant.
Punishment must be geared to a social goal, at once deterrent and reformatory.
In the present case, the appellant is charged with certifying the solvency of a surety in a bailable offence.
Obviously, the accused, who was the client of the appellant, was entitled to be enlarged on bail because the offence for Which he was in custody was admittedly bailable.
Even so, it is a common phenomenon in our country that bail has too, often become a bogey and an instrument of unjust incarceration.
There are 207 some magistrates who are never satisfied about the solvency of sureties except when the property of the surety is within their jurisdiction and Revenue officers have attested their worth.
This harasses the poor and leads to corruption as pointed out by this Court in Moti Ram 's case.
It may, therefore, be quite on the cards that some sympathetic lawyer who appears for an indigent accused may commiserate and enquire whether the surety is solvent.
If he is satisfied, on sure basis, that the surety is sufficiently solvent, then he may salvage the freedom of the accused by certifying the solvency of which he has satisfied himself.
It is also possible that the detainee is a close relation or close friend or a poor servant of his.
In that capacity, not as a lawyer, he may know the surety and his solvency or may offer himself as a surety.
If a lawyer 's father or mother is arrested and the Court orders release on bail, it is quite conceivable and perhaps legitimate, if the son appears for his parent and also stands surety.
He violates the rule all the same.
The degree of culpability in a lawyer violating Rule 10, chapter 2, part six depends on the total circumstances and the social milieu.
This Court has held, taking cognizance of the harassment flowing from sureties being insisted upon before a person is enlarged or bailed out, that the Court has the jurisdiction to release on his own bond without the necessity of a surety.
The question, therefore, is whether the circumstances of the offence and offender are venal or venial.
The Rule with which we are concerned is a wholesome one in the sense that lawyers should not misuse their role for making extra perquisites by standing surety for their clients or certifying the solvency of such sureties.
That is a bolt on the bar, an exploitative stain on the profession.
At the same time, the punishment is flexible in the sense that where the situation cries for the help of the lawyer in favour of a client who is languishing in jail because his surety is being unreasonably rejected, we may not frown upon a lawyer who helps out the person, not by false pretences, but on the strength of factual certitude and proven inability to substantiate solvency.
In the present case, the circumstances are amelioratary and hardly warrant condign Punishment.
The lawyer is young, the offence is not tainted with turpitude and the surety whose solvency be certified was found to be good.
The most that may be justified is perhaps a public reprimand since censure has a better deterrent value on the errant brethren in the 208 profession in some situations than a suspension for a month from professional practice which may pass unnoticed in the crowd of lawyers and the delinquent himself may be plying his business except for appearance in Court.
In suitable cases, of course, even severity of suspension or disbarment may be justified.
This Court should not interfere ordinarily with a punishment imposed by the Disciplinary Tribunal except where strong circumstances involving principle are present.
In our vast country of illiterate litigants and sophisticated litigation, the legal position must be so explained as to harmonise the interests of the indigents who are marched into Court and the professional probity of the Bar which is an extended instrument of justice.
We hold that public admonition is an appropriate sentence in the present case and proceed to administer it in open court to the appellant ! We hereby reprimand him and direct that he shall not violate the norms of professional conduct and shall uphold the purity and probity of the profession generally, and, in particular, as spelt out in the rules framed by the Bar Council of India.
We condone his deviance this time and warn him that he shall not violate again.
The appeal is, to this extent, allowed and the sentence of reprimand substituted for the sentence of suspension.
P.B.R. Appeal allowed in part.

summary:
Rule 10, Chapter II, Part 6 of the Rules framed by the Bar Council of India for professional mis conduct provides that an advocate shall not stand a surety, or certify the soundness of a surety, for his client required for the purposes of any legal proceedings.
The appellant, a practising advocate, was suspended for one month by the Disciplinary Tribunal of the Bar Council of India on the ground that in violation of the rules, he had certified the solvency of a surety in a bailable offence in which the accused was his client.
The appellate body dismissed his appeal.
On the question whether a reprimand would meet the ends of justice, Allowing the appeal in part, ^ HELD: (1) Section 35 of the Advocates Act permits reprimand provided the ends of public justice are met by this leniency.
Ordinarily this Court does not interfere with a punishment imposed by the Disciplinary Tribunal except where strong circumstances involving principle are present.
Censure has a better deterrent value on the errant brethren in the profession in some situations than suspension for a month from professional practice.
In the present case the lawyer was young, the offence was not tainted with turpitude and the surety whose solvency he certified was found to be good.
These circumstances are amelioratory and hardly warrant codign punishment.
Public admonition is an appropriate sentence in the present case.
p, Public professions which enjoy a monopoly of public audience have statutorily enforced social accountability for purity, probity and people conscious service.
In our country bail has become a logy and an instrument of unjust incarceration.
This harasses the poor and leads to corruption.
A smart lawyer who appears for an indigent accused may commiserate and enquire whether the surety is solvent.
If he is satisfied that the surety is sufficiently solvent, he may certify the solvency of the surety.
In some cases the detainee may be a close relation or close friend or a poor servant of his.
In that capacity, not as a lawyer, he may know the surety and his solvency or may offer himself as a surety.
In such cases he violates the rule all the same.
The degree of culpability in such cases depends on the total circumstances and the social milieu.
The rule under consideration is a wholesome one in the sense that lawyers should not misuse their role for making extra perquisites by standing surety for their clients or certifying the solvency of such sureties.
The Court may not 206 frown upon a lawyer who helps out the person, not by false pretences, but on the strength of factual certitude and proven inability to substantiate solvency.
The Court reprimanded the appellant and directed that he shall not violate the norm of professional conduct and shall uphold the purity and probity of the profession generally.