judgement:
Criminal Appeal No. 48 of 1983.
From the Judgment and Order dated 14.5.1981 of the Orissa High Court in Crl.
R. No. 22 of 1981.
V.J. Francis for the Appellant.
F.S. Nariman, Anil B. Divan, L.R. Singh, R.K. Mehta, G.S. Chatterjee and Vinoo Bhagat for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
I agree that this appeal has to be dismissed.
I am of the view that the decision in The State of Bihar vs Ram Naresh Pandey, interpret ing section 494 of the Code of Criminal Procedure, 1898 and the decision in R.K. Jain etc.
vs State through Special Police Establishment and Others, interpret ing section 321 of the Code of Criminal Procedure, 1973 do not call for any reconsideration.
I am in full agreement with the views expressed in these decisions.
I am satisfied that the Public Prosecutor had applied his mind to the case before applying for withdrawal and the Chief Judicial Magis trate has not committed any error in giving his consent to such withdrawal.
The appeal is, therefore, dismissed.
KHALID, J. I have just received (at 7.40 p.m. on 19th December, 1986) a draft Judgment by Oza, J. in the above case.
I agree with the conclusion that the appeal has to be dismissed, but not, with respect, with the reasoning con tained in the Judgment.
Since the case is listed for Judg ment on 20th December, 1986, I do not have time to write a detailed Judgment.
The question to be decided in this appeal is the scope of Section 32 1 of Criminal Procedure Code, and I do not agree with the following observation of Oza, J. since there is no question of setting aside of the order passed by the learned Additional Special Judge, Bhubaneswar; " .
But in the present case, there is no point in setting aside the withdrawal and sending the case back to the learned Special Judge because after considering the entire material on record in detail we are of the view that there is 684 no material at all on the basis of which it could be said that there is a prima facie case against respondent No. 1 and the charges against respondent No. 1 appear to be ground less and respondent No. 1 would, therefore, in any event be entitled to be discharged under Section 239 . " A cursory glance at Section 32 1 will satisfy anyone that consent can given for withdrawal from the prosecution of a case, not only when the charge is not framed, but even after the charge is framed and at any time before the Judgment.
This appeal along with Criminal Appeal Nx.
49 of 1983 were directed to be posted before a Constitution Bench to consider the scope of Section 32 1, Criminal Procedure Code.
That being so, I do not think it proper to abandon that pursuit and take refuge under Section 239 of Criminal Proce dure Code.
In a separate Judgment to be pronounced by me in Crimi nal Appeal No.241 of 1983, I have outlined the scope of Section 321 of Criminal Procedure Code.
What is to be decid ed in this case is whether the order passed by the Magis trate under Section 321, Criminal Procedure Code, is proper or not.
We are not called upon to consider the propriety of the charge framed and then examine the evidence and see whether the accused should be discharged or the charge framed should be upheld.
I adopt the reasons given by me in Criminal Appeal No. 241 of 1983, relying upon the decisions reported in of Bihar vs Ram Naresh Pandey) and in ; Jain vs State) and uphold the order of withdrawal passed by the Additional Special Judge, Bhubanes war, and upheld by the High Court in revision, and dismiss the appeal.
OZA, J.
The present appeal by special leave is directed against the judgment and order of the High Court of Orissa dated 14th May 1981 in Criminal Revision No. 22 of 1981 arising out of an order dated 20th December, 1980 of the Additional Special Judge, Bhubaneswar allowing an applica tion filed by the Special Public Prosecutor praying for withdrawal from prosecution in Case No. 13 of 1979 against respondent No. 1.
By the impugned judgment the Hon 'ble High Court dismissed the revision petition filed by the appellant and confirmed the order passed by the learned Additional Special Judge permitting withdrawal of the case by the Special Public Prosecutor.
The Vigilance 685 Department of the State submitted a charge sheet against respondent No. 1 on the allegation that she had no assets prior to her election as a member of the Rajya Sabha in the year 1962.
Subsequently she was re elected and became a Union Deputy Minister from January 1966 to June 1970 and a Union State Minister from June 1970 to June 1972.
She became the Chief Minister of Orissa from 15.6.72 to 28.2.73 and again from 6.3.74 to 26.12.76.
Even before becoming the Chief Minister of Orissa she had no assets save and except a thatched roof house at Pithapur, Cuttack and a bank balance of Rs. 18,000.
It was alleged that during her incumbency as Chief Minister, the bank balance increased as well as her other assets swelled up and it was alleged that in 1977 her net assets were to the tune of Rs.7,54,735,85 p. which were disproportionate to her known sources of income.
In 1977 the respondent No. 1 left the Congress Party and joined the Congress for Democracy.
In the parliamentary elections in 1977, the Congress was defeated and Janata Party came to power and also in the Assembly elections which followed, the Congress lost and the Janata Party came to power in the State.
It appears that although the Congress for Democracy which respondent No. 1 had joined, merged with the Janata Party, still many leaders of the Janata Party had a grudge against her as during her regime as Chief Minister when emergency was clamped, a number of leaders who were prominent in the Janata Party were put behind bars and ultimately for having assets disproportionate to her known sources of income, a prosecution was launched against her under Section 5(1)(d) read with Sec.
5(2) of the Prevention of Corruption Act.
One of the allegations on the basis of which the charge sheet was filed was that on 15.7.74, respondent No. 1 passed an order in favour of M/s Ferro Alloys Corporation.
This order was, passed by her in her official capacity and it is alleged that because of this order M/s Ferro Alloys made a huge profit of about Rs.4 crores and on 3.10.75 and 7.10.75 cheques in the aggregate sum of Rs.48,000 were given by M/s Ferro Alloys Corporation to Dharitri a newspaper for an advertisement which was ' published in the 'newspaper.
It was therefore alleged that respondent No. 1 obtained Rs.48,000 from M/s Ferro Alloys Corporation.
The second allegation against respondent No. 1 was that on 14.6.76 the Prime Minister requested respondent No. 1 to indicate the approximate value of her recently completed house at Bhubaneswar and no reply to this query is found on the record of the Prime Minister.
686 The construction of the house started in September 1974 and ended on 29th February, 1976.
The investment in the con struction of the house is said to be Rs.3,32,000 and odd whereas according to respondent No. 1 she had spent an amount of Rs.2,68,000 and the difference of Rs.64,000 ac cording to the allegation of the prosecution was the amount acquired by respondent No. 1 by illegal and corrupt means as Chief Minister.
It was alleged that the whole sum of Rs.3,27,614 is surreptitious and not disclosed in income tax return for the financial years 1974 75 and 1975 76.
It is also alleged that Navjat Printers which is owned by Samajba di Society received a sum of Rs.3,94,540 between 6.3.74 and 29.2.76 in respect of orders placed by U.P.C.C.
The allega tion is that U.P.C.C. between 6.3.74 and 29.2.76, paid only Rs.60,964 and as regards the balance of Rs.3,33,576 it must have been acquired by respondent No. 1 herself and paid to Navjat Printers.
It was alleged that Shri Natchiketa Satpathy, son of respondent No. 1 purchased a flat at Kailash Apartments, New Delhi and for this purpose respondent No. 1 paid Rs.50,000 to her son in three instalments.
Similarly it was alleged that on 15.3.75 respondent No. 1 paid Rs. 15,000 to her other son Tathagat Satpahty and managed to get invested a sum of Rs.33,000 in different names fictitiously in M/s Rosambi Private Limited.
An amount of Rs. 15,000 is said to have been a payment by cheque.
It was alleged that in the house of her husband, cash was contained in two bags which was to the tune of Rs.5 1,766.
One of the bags there had a visiting card of the First Secretary of the USSR Embassy.
This cash was discov ered after respondent No. 1 ceased to be Chief Minister.
The search was made on 8th July 1977 when respondent No. 1 had already ceased to be Chief Minister nearly nine months before that date.
It was alleged that the cash must be deemed to have been of the ownership of respondent No. 1 and that it must have been acquired by her during the period when she was the Chief Minister.
It appears that when charge sheet was filed against respondent No. 1, the Income Tax Department also issued notice for re opening of her assessments and examined the whole matter afresh and during the period that this case has been pending here, final orders have been passed by the Income Tax Department which explain in detail all the items of assets which according to the prosecution were dispropor tionate to the legitimate means of respondent No. 1.
This matter came up before us along with another case from Bihar where we heard arguments at length on the question of with drawal from the prosecution 687 and its legal implications, but so far as the present case is concerned, in view of the facts as they emerge, we do not find it necessary to go into all these questions.
The alle gations can be broadly classified into three heads: The first head relates to payments made to Dharitri and Navjat Printers or Samajbadi Society.
These are clearly distinct institutions which could not be said to belong to respondent No. 1.
It is not disputed that Dharitri is a newspaper which receives advertisements and payment for advertisement made to Dharitri could not possibly be co related to respondent No. 1 or regarded as receipt of re spondent No.1.
There is nothing at all to show that the payment received by Dharitri for advertisement (which in fact was published in Dharitri) had anything to do with respondent No. 1.
The second head of allegations relates to valuation of assets and the construction of the house and the third category to the monies received by the U.P.C.C. which are alleged to have been paid by respondent No. 1.
Lastly there are similar items of monies paid to the sons and found in the possession of her husband.
So far as these allegations are concerned, it may be pointed out that it was on the basis of these allegations that the Income Tax Department re opened the assessments after giving notice and conducted detailed enquiries and ultimately passed a final order accepting her returns as correct and rejecting the allega tions that she had suppressed any income from undisclosed sources.
It is also significant that the application for with drawal was made by the Special Public Prosecutor in 1980 when respondent No. 1 had nothing to do with the party in power, as after the elections held in 1980, Congress I came back to power in Orissa and J.B. Patnaik became the Chief Minister.
Respondent No. 1 contested the Assembly election as a candidate of Congress (Urs) Party and was elected, defeating her Congress I opponent Shri Profulla Bhanja and she was a member of Congress (Urs) (Opposition) during that period.
This is to our mind a strong circumstance which indicates that the application for withdrawal was made in furtherance of public justice and distinguished the case of respondent No. 1 from that of Dr. Jagannath Misra in the Bihar case which is being disposed of by another judgment today.
The Income Tax Officer examined in detail each one of the items of assets said to have been unaccounted and sup pressed and the order passed by the Income Tax Officer which has been placed on record 688 clearly explains all the items as also entries pertaining to the house construction and other assets and shows that there is nothing to indicate the respondent No. 1 was possessed of assets disproportionate to his means.
The application moved by the Special Public Prosecutor for withdrawal from the prosecution was therefore clearly bonafide and in further ance of public justice and it was clearly a false and vexa tious criminal prosecution which had been launched against respondent No. 1 which was sought to be halted.
The learned Special Judge also on these facts took the view that no useful purpose would be served by continuance of the prose cution and he accordingly permitted the withdrawal.
The High Court too maintained the order of the learned Special Judge.
We agree that in the light of the facts on record and the order passed by the Income Tax Officer which explains all the items of assets alleged to be unaccounted and sup pressed, the charges against respondent No. 1 appear to be groundless.
It is true that ordinarily when the exercise of considering the material on record for the purpose of deter mining whether there is sufficient material to sustain the prosecution can be performed by the Court under Section 239 of the Code of Criminal Procedure 1973 the Court should not allow the prosecution to be withdrawn under Section 321 as held by us in the Judgment in Dr. Jagannath Misra 's case, which has been delivered today.
But in the present case there is no point in setting aside the withdrawal and send ing the case back to the learned Special Judge because after considering the entire material on record in detail we are of the view that there is no material at all on the basis of which it could be said that there is a prima facie case against respondent No. 1 and the charges against respondent No. 1 appear to be groundless and respondent No. 1 would therefore in any event be entitled to be discharged under Section 239.
We do not therefore think it necessary or expedient to interfere with the order made by the learned Special Judge and confirmed by the High Court.
The appeal will therefore stand dismissed.
NATARAJAN, J.
In the withdrawal petition filed on 15.11.80 and the supplementary withdrawal petition filed on 16.12.80 the Special Public Prosecutor (Vig.) C.D., Cuttack has set out the factors which have prevailed with him to seek the consent on the Court to withdraw the prosecution launched in V.C.R. Case No. 33 of 1977 against the accused therein, viz. Smt.
Nandini Satpathy & Anr.
The Additional Chief Judicial Magistrate has passed a detailed and considered order on 20.12.80 wherein he has fully discussed the 689 matter and thereafter given consent to the withdrawal of the prosecution.
The conclusion of the learned Magistrate is contained in para 12 which reads as follows: "Taking the facts and circumstances of the case into consideration.
I am of the view that the ends of public justice be met if the consent be given for withdrawal of the case.
" The order of the learned Magistrate has been critically assessed by a learned Judge of the Orissa High Court in Crl.
Rev. No. 21 and 22 of 1981 filed before the High Court.
The learned Judge upheld the order of the Magistrate 'and has summed up the High Court 's view as under: "The observations of the Supreme Court (in R.K. Jain vs State AIR 1980 Supreme Court 1510 1980 Volume 3 SCR 982) would not justify entertaining this application when a Public Prosecutor in his application had indicated that the evidence already collected did not support the prosecution there was no prospect of a conviction and the appropriate authority in the broad ends of justice need not contin ue.
" Section 321 makes it clear that an application for withdrawal of a case can be made by a Public Prosecutor or Assistant Public Prosecutor who is incharge of the case concerned, at any time before the judgment is pronounced.
In other words, it means that the application for withdrawal of prosecution may be made at any time ranging between the court taking congnizance of the case till such time the court actually pronounced judgment.
Consequently, it follows that even where reliable evidence has been adduced to prove the charges, the Public Prosecutor can seek the consent of the Court to withdraw the prosecution.
The Section does not, therefore, lay down that an application for withdrawal of the prosecution should necessarily be made at the earliest stages of the case or only if the evidence is of a weak and infirm nature.
In his application a Special Public Prosecutor had set out the reasons which justified his filing an application under Section 32 1 of the Code to seek the consent of the Court for the withdrawal of the prosecution.
The learned Magistrate has considered the matter judicially in the light of the decision of this Court in R.K. Jain vs State, ; which has followed the earlier decision in State of 690 Bihar vs Ram Naresh Pandey, The order of the learned Magistrate has been approved and affirmed by the High Court.
There are no materials in the appeal to persuade me to hold that the order passed by the Additional Chief Judicial Magistrate or the High Court suffers from any error of law, patent or latent.
In that view the appeal has to be dis missed.
A.P.J. Appeal dismissed.

summary:
Prosecution was launched against Respondent No. 1 under s.5(1)(d) read with s.5(2) of the Prevention of Corruption Act, 1947 for having assets disproportionate to her known sources of income.
The Special Public Prosecutor filed application for withdrawal of the prosecution against Respondent No. 1.
The Additional Special Judge allowed the application.
The High Court dismissed the revision petition and confirmed the order permitting withdrawal of the case.
Dismissing the Appeal to this Court, HELD: Per Venkataramiah, J. The Public Prosecutor had applied his mind to the case before applying for withdrawal and the Chief Judicial Magis trate has not committed any error in giving his consent to such withdrawal.
[683D E] The State of Bihar vs Ram Naresh Pandey, [1957] S.C.R. 279 and R.K. Jain etc.
vs State through Special Police Establishment and others; , , Relied upon.
Per Khalid, J. 1.
What is to be decided in this case is whether the order passed by the Magistrate under s.32I, Criminal Proce dure Code, is proper or not.
The Court is not called upon to consider the propriety of the charge framed and then examine the evidence and see whether the accused should be dis charged or the charge framed should be upheld.
[684D E] 2.
Consent can be given for withdrawal from the prosecution of a 681 case, not only when the charge is not framed, but even after the charge is framed and at any time before the judgment.
[684B C] The State of Bihar vs Ram Naresh Pandey, [3957] SCR 279 and R.K. Jain etc.
vs State through Special Police Establishment and others; , , Relied upon.
Per Oza, J. I. Ordinarily when the exercise of considering the material on record for the purpose of determining whether there is sufficient material to sustain the prosecution can be performed by the Court under s.239 of the Code of Crimi nal Procedure 1973, the Court should not allow the prosecu tion to be withdrawn under s.321.
[688C E] 2.
In the present case, there is no point in setting aside the withdrawal and sending the case hack to the Spe cial Judge because there is no material at all to show that there is a prima facie case and the charges appear to be groundless.
Respondent No. 1 would, therefore, be entitled to be discharged under s.239.
It is, therefore, not neces sary or expedient to interfere with the order made by the Special Judge and confirmed by the High Court.
[688E F] 3.
When the charge sheet was filed, the Income Tax Department re opened the assessment, examined the whole matter afresh and passed final orders during the pendency of the case in this Court explaining all the items of assets said to have been unaccounted and suppressed as also entries pertaining to the house construction and other assets, which show that there is nothing to indicate that Respondent No. 1 was possessed of assets disproportionate to her means.
[688A B] 4.
The application moved by the Special Public Prosecutor for withdrawal from the prosecution was, therefore, clearly bona fide and ' in furtherance of public justice and it was clearly a false and vexatious criminal prosecution launched against respondent No. 1.
The Special Judge also on these facts took the view that no useful purpose would be served by continuance of the prosecution and accordingly permitted the withdrawal which was upheld by the High Court in revi sion.
[688B] 5.
The first allegation relates to payments made to Dharitri and Navjat Printers.
Dharitri is a newspaper which receives advertisements.
There is nothing to show that the payment received by Dharitri for advertisement had anything to do with respondent No.1.
[687.B C] 682 6.
The second allegation relates to valuation of assets and the construction of the house and the third relates to the monies received by the U.P.C.C. which are alleged to have been paid by respondent No. 1.
Lastly there are similar items of monies paid to the sons and found in the possession of her husband.
It was on the basis of these allegations that the Income Tax Department re opened the assessments, conducted detailed enquiries and ultimately passed a final order accepting her returns as correct and rejecting the allegations that she had suppressed any income from undis closed sources.
[687C E] 7.
The application for withdrawal was made by the Spe cial Public Prosecutor in 1980 when respondent No.1 had nothing to do with the party in power as she was in opposi tion party after the elections held in 1980.
This is a strong circumstance which indicates that the application for withdrawal was made in furtherance of public justice.
[687E G] 8.
In the fight of the facts an record and the order passed by the Income Tax Officer explaining all the items of assets alleged to be unaccounted and suppressed, the charges against respondent No. 1 appear to he groundless.
[688C] Per Natarajan, J. 1.
Section 321 makes it clear that an application for withdrawal of a case can he made by a Public Prosecutor or Assistant Public Prosecutor who is incharge of the case concerned, at any time before the judgment is pronounced.
The application for withdrawal of prosecution may he made at any time ranging between the Court taking cognizance of the case till such time the Court actually pronounces judgment.
Even where reliable evidence has been adduced to prove the charges, the Public Prosecutor can seek the consent of the Court to withdraw the prosecution.
The section does not, therefore, lay down that an application for withdrawal of the prosecution should necessarily he made at the earliest stages of the case or only if the evidence is of a weak and infirm nature.
[689E G] 2.
The Special Public Prosecutor had set out the reasons which justified filing of an application under s.321 of the Code for the withdrawal of the prosecution, and the Magis trate has considered the matter judicially, before giving his consent.
[689G H] The State of Bihar vs Ram Naresh Pandey [1157] SCR 279 and R.K. Jain etc.
vs State through Special Police Estab lishment and others; , , relied upon.


judgement:
Criminal Appeal No. 653 of 1986 From the Judgment and Order dated 31.1.1983 of the Karnataka High Court in Crl.
A. No. 451 of 1981 D.N. Diwede, M. Veerappa and Ashok Kumar Sharma for the Appellant.
R. Satish for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
The light hearted and casual manner of disposal of the case against the respondent in C.C. No. 442 of 1980 (P.R. No. 198/80) on the file of his court by the Additional Munsif cum Additional Judicial Magistrate (First Class) Madhugiri and the refusal of the High Court of Karna taka to enhance the sentence of the respondent in exercise of its powers under Section 377 Criminal Procedure Code in Criminal Appeal No. 451/81 preferred by the State has com pelled the State of Karnataka to approach this Court under Article 136 1105 of the Constitution to file this Appeal by Special Leave.
The respondent has entered appearance but has not con tested the appeal.
The respondent was charged under Sections 279,337, and 304 A Indian Penal Code and Sections 89(a) and 89(b) of the Motor Vehicles Act for having driven an Express bus bearing Registration No. MYT 30(36 in a rash and negligent manner at about 8.30 P.M. on 30.4.80 on the Madhugiri Hosakere Road and hitting a bullock cart as a result of which one of the persons travelling in the cart Rangappa alias Veeramallapa sustained fatal injuries and another passenger sustained simple injuries.
After the accident the respondent failed to secure medical assistance to the injured persons and also failed to report the accident to the police authorities.
The respondent pleaded guilty to all the charges and was accordingly convicted.
However, in awarding sentences to the respondent for the several convictions, the Magistrate imposed trivial amounts of fines which had the effect of making the trial and the convictions a mere farce.
The sentences awarded are as follows: Offence Sentence provided under Sentence Awarded I.P.C./M.V. Act 1.
Sec.279 IPC (Punishable with imprisonment Fine of Rs.25/ of either description for a i/d to undergo term which may extend to six S.I. for one months or with fine which week.
may extend to one thousand rupees or with both) 2.
Sec.337 IPC (Punishable with imprison Fine of Rs.50/ ment of either description i/d to undergo for a term which may extend S.I. for twenty to six months or with fine five days.
which may extend to five hundred rupees or with both. ) 3.
Sec.304 A (Punishable with imprisonment Fine of Rs.250/ IPC of either description for a i/d to undergo term which may extend to two S.I. for one years or with fine or with month.
both. ) 1106 4.
Sec.89(a) r/w (Punishable with fine which Fine of Rs.10/ Sec.
112 Moto may extend to one hundred in default to Vehicles Act rupees) undergo S.I. for five days.
Sec.89(b) r/w (Same as for Section 89(a)) Same sentence Sec.
112 Motor as above.
Vehicles Act Perturbed and shocked by the callous manner in which the Magistrate had dealt with the case, the State preferred an appeal under Section 377 Cr.
P.C. to the High Court of Karna taka for enhancement of sentence.
The High Court, we regret to note has declined to interfere with the sentence on the grounds which have no basis or relevance.
The High Court was alive to the trivial nature of the sentences awarded by the Magistrate and has observed: "The sentence imposed appears to be a lenient one." Nevertheless, the High Court has declined to exercise its powers under Section 377 Cr.
P.C. and the strange reasons given by it are as follows: "The judgment of conviction and sentence has been delivered on January 30, 1981.
We are today at the fag end of January, 1983.
The award has been hanging over the head of the accused for a very long time.
Which should have made him undergo a lot of mental agony and torture.
It is no doubt true that one death has taken place and injuries have been caused to one person.
The sentence imposed appears to be a lenient one.
Therefore, con sidering the fact the appeal is pending for a long time and it must have caused the accused a lot of mental anxiety, we think that the appeal should be dismissed with an observation that in such serious cases the court is expected to take a serious view of the matter and not to be lenient in such matters.
With this observation the appeal is dismissed.
" The utter disregard shown by the Magistrate to the nature of the offences, particularly the one under Section 304 A I.P.C., and the sentences provided for them under the Indian Penal Code and Motor Vehicles Act, by imposing what may be termed as 'flea bite ' sentences on the respondent, should have spurred the High Court to not only pass appro priate strictures against the Magistrate but also to set right matters by enhancing the sentence at least for the conviction under Section 304 A I.P.C. to a conscionable level in exercise of its powers under Section 377 I.P.C. 1107 The High Court has failed to comprehend that the re spondent has been let off with a total fine of Rs.345 for his convictions under all the five charges relating to the death of one person and the sustainment of injuries by another due to his rash and negligent driving besides his failure to secure medical assistance to the victims as well as his failure to make a report to the authorities about the accident.
The reasons given by the High Court are really non existent as well as irrelevant ones.
It is not as if the respondent had been charged or convicted for a grave offence punishable with death or imprisonment for life and his fate had remained in suspense for a long time and as a conse quence thereof, he had undergone mental agony and torment for a long period of time.
Here was a case where the re spondent had not only driven his bus in a reckless manner and caused the death of one person and injuries to another but he had also attempted to escape prosecution by failing to report the accident to the police authorities.
Considera tions of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confi dence of the public in the efficacy of the criminal judicial system.
It need be hardly pointed out that the imposition of a sentence of fine of Rs.250 on the driver of a Motor Vehi cle for an offence under Section 304 A I.P.C. and that too without any extenuating or mitigating circumstance is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of jus tice.
We are, therefore, constrained to do what the High Court should have done but failed to do viz. enhance the sentence in the interests of justice.
We, however, feel that the ends of justice would be met by enhancing the sentence for the most serious of the charges for which the respondent has been convicted viz. the charge under Section 304 A I.P.C.
Accordingly we enhance the sentence for the conviction under Section 304 A I.P.C. to six months R.I. and fine of Rs. 1,000 in default to undergo R.I. for two months.
We leave undisturbed the other convictions and sentences.
To the extent indicated above the appeal will stand allowed.
The respondent shall forthwith be taken into custo dy to serve out the sentence.
A.P.J. Appeal allowed.

dataset_name: IN-Abs

summary:
The respondent was charged under sections 279, 337, 304 A IPC and Sections 89(a) and 89(b) of the Motor Vehicles Act for having driven an Express Bus in a rash and negligent manner hitting a bullock cart as a result of which one of the persons traveling in the cart sustained fatal injuries and the other person sustained simple injuries.
After the accident the respondent failed to secure medical assistance to the injured person and also failed to report the accident to the police authorities.
The respondent pleaded guilty to all the charges and was convicted and sentenced to pay a total fine of Rs. 345 under all the five charges.
In the appeal preferred by the State for enhancement of sentence, the High Court declined to interfere with the sentence.
Allowing the appeal of the State, HELD: (1) The Magistrate in utter disregard to the nature of offences, particularly the one under Section 304 A IPC and the sentences provided for them under the ' IPC and the Motor Vehicles Act, imposed 'flea bite ' sentences on the respondent.
This should have spurred the High Court to not only pass appropriate strictures against the Magistrate but also to set right the matter by enhancing the sentence at least for the conviction under Section 304 A IPC in exercise of its powers under Section 377 Cr.
P.C. [1106G H] 1104 (2) The High Court has failed to comprehend that the respondent has been let off with a total fine of Rs. 345 for his convictions under all the five charges.
The reasons given by the High Court are really nonexistent as well as irrelevant ones.
Here was a case where the respondent had not only driven his bus in a reckless manner and caused the death of one person and injuries to another but he had also attempted to escape prosecution by failing to report the accident to the police authorities.
[1107A B] (3) Consideration of undue sympathy will not only lead to miscarriage of justice but will also undermine the effi cacy of the criminal judicial system.
The imposition of a sentence of fine of Rs. 250 on the driver in such a case and that too without any extenuating or mitigating circumstances is bound to shock the conscience of any one and will unmis takably leave the impression that the trial was a mockery of justice.
[1107C E] (4) The ends of justice would be met by enhancing the sentence for the most serious of the charges namely under Section 304 A IPC to six months R.I. and fine of Rs.1000 in default to undergo R.I. for two months.
[1107.E F]


judgement:
ivil Appeal No. 1295 of 1973 From the Judgment and Order dated 14.12.
1972 of the Allahabad High Court in Civil Revn.
Petition No. 1572 of 1969.
P.H. Parekh and Suhail Dutt for the Appellant.
Prithvi Raj, Mrs. Shobha Dikshit and Sudhir Kulshreshta for the Respondent.
The Judgment of the Court was delivered by THAKKAR, J.
The proposition canvassed by the appellant, namely, that from the point of time that an order for rate able distribution is passed by the executing court the monies in question cease to be 928 the property of the judgment debtor and 'become the property of the decree holder, regardless of whether or not actual payment pursuant to the said order is made, is supported by the decisions of three High Courts namely, Madras, Calcutta and Bombay.
As early as in 1922 the Madras High Court in Official Receiver of Tanjore vs M.R. Venkatararna lyer, AIR 1922 Madras p. 31 has taken the view canvassed by the appel lant as is evident from the passage quoted hereunder: "It seems to me that from the time of the order of rateable distribution the money must be treated as belong ing, not to the judgment debtor, Nataraja lyer, but to the decreeholder in whose favour the order was passed.
Mr. Devadoss for appellant contended that the effect of a rate able distribution order is merely to allocate the money to the different suits without affecting its ownership.
The latter, he says, still rests in the judgment debtor by the sate of whose property it was allocated.
I do not think this is so.
The section does not speak of distribution among the decree holders.
The latter are entitled to draw it out at will; and the judgment debtor most certainly is not.
I think the money in this case must be treated as the property of the decree holder, the present respondent and that the Official Receiver could no more recover it from the respond ent if it had actually been paid out to him by court.
Mr. Devadoss eventually admitted that he could not recover the money in the circumstances of the present case if it had passed into respondent 's possession.
I would dismiss the appeal with costs.
" A learned Single Judge of the Calcutta High Court has expressed the same view in Murli Tahilram vs T. Asoornal & Co., AIR 1955 Calcutta p. 423, wherein it is observed: "But where a private citizen has sued another to judgment and has in fact got by an order of Court a Receiver appoint ed of his goods and such goods have been sold by the Receiv er under orders of the Court and where there has been a prior direction in the Court 's order to pay the sale pro ceeds to the private judgment creditor, a subsequent claim by the State for arrears of sales tax cannot defeat the judgment creditor or deprive him of the fruits of his decree which is regarded as property.
" 929 And the same view has been reiterated by a Division Bench of the Calcutta High Court in Basanta Kumar Bhattacharjee vs Panchu Gopal Dutta & Ors., AIR 1956 Calcutta p. 23 where in the Court has made recourse to the following reasoning to support the proposition: "This contention, we think, should prevail.
The order allowing the application for rateable distribution that was passed on 2 12 1953 should, we think, be reasonably read as deciding that the decree holders had title to the money.
What remained to be done was the ascertainment of the exact amount which each decree holder was entitled to and payment of the same.
The decision as regards title had already been made and with the decision that 'the money was the decree holder 's money, the position, in our opinion, was that it could no longer be considered in law to be the judgment debtor 's money.
The question of priority of the State 's claim does not, therefore, fail to be decided.
On the date the letter of attachment of the Certificate Officer was received, there was no money belonging to the judgment debtors in the hands of the Court.
" The High Court of Allahabad which has differed from the aforesaid High Courts by the judgment under appeal has proceeded on the assumption that the High Court of Bombay has taken a contrary view in Income tax Officer, Ward C, Sangli & Ant.
vs Chandanbai Balaram Doshi & Ors., AIR 1957 Bombay p. 91.
We are afraid, by the High Court of Bombay in the said case the principle enunciated has been misunder stood.
No order for rateable distribution had been passed by the executing court in the said case.
Even, so, while dis cussing the law on the subject in the context of the scheme of the C.P.C., the High Court of Bombay has articulated the principle thus: "The scheme clearly indicates that, until the Court has directed appropriation of the amount to the claim made by the decree holder or of creditors entitled to rateable distribution, the amount received in Court continues to remain as of the judgment debtor.
" (Emphasis added) By necessary implication it means that as soon as an order for rateable distribution is made, the amount ordered to be distributed will cease to 930 be the property of the judgment debtor.
We are of the same opinion as that of the High Courts of Madras, Calcutta and Bombay.
As soon as the question of rateable distribution between the decree holders and the State having statutory priority is determined, and the Court passes an order as to how to appropriate the assets of the judgment debtor, the rights of the parties become crystalized.
What then remains is to give effect to the determination made by the court by officials in charge of concerned departments dealing with Accounts and Cash which is a ministerial act.
The rights of the respective decree holders or claimants are governed by the order for rateable distribution passed by the Court as a result of the adjudication and determination made by the Court.
Nothing further remains to be done by the Court in the judicial sphere thereafter.
The order partakes of the character of a judgment and decree passed by the Court.
What the officials of the Accounts and Cash department are re quired to do thereafter is to carry out the command of the Court by implementing or giving effect to the order.
The test which can be usefully applied is to pose the question whether the said officials can refuse to implement the order by refusing to make payment once the Court has passed the order.
Obviously and undoubtedly they cannot.
Therefore it is evident that nothing turns on whether or not actual payment pursuant to the order of the Court is made.
And when the Court officials make payment to 'the decree holder, they make payment because the property in the said monies has vested unto them by virtue of the order of distribution passed by the Court.
What is being paid by the officials of Accounts and Cash Sections will be the decree holder 's money, it having ceased to belong to the judgment debtor the moment the order for distribution was made, eventhough actual disbursement was made later.
If the State lays its claim after the order for distribution is made by the Court, it will be of no avail as the property Would have gone beyond the reach of the State, it having ceased to be the property of the debtor against whom the State had a claim.
No question of priority can arise in that situation the State having missed the bus.
In the present case, the amount had ceased to be the property of the judgment debtor from the point of time that the order forateable distribution was passed by the executing court.
There was no question there fore of the State being entitled to claim priority in re spect of the claims lodged by it subsequent to the order for rateable distribution.
The High Court was thus in error in reversing the order passed by the executing court.
We, therefore, allow the appeal, set aside the order of the High Court in so far as the appellant is concerned, and restore the order of 931 the executing court in so far as the appellant is concerned.
The appeal is disposed of accordingly.
There will be no order as to costs.
A.P.J. Appeal dis posed of.

summary:
On the question whether from the point of time an order for rateable distribution is passed by the executing Court the monies in question cease to be the property of the judgment debtor and become the property of the decree hold er, regardless of whether or not actual payment pursuant to the said order is made: Allowing the Appeal, HELD: 1. As soon as the question of rateable distribu tion between the decree holders and the State having statu tory priority is determined, and the Court passes an order as to how to appropriate the assets of the judgment debtor, the rights of the parties become crystalized and the monies in question cease to be the property of the judgment debtor and becomes the property of the decree holder, regardless of whether or not actual payment pursuant to the said order is made.
[930A B] Official Receiver of Tanjore vs M.R. Venkatarama lyer, AIR 1922 Madras p. 31, Murli Tahilram vs T. Asoomal & Co., AIR 1955 Calcutta p. 423, Basanta Kumar Bhattacharjee vs Panchu Gopal Dutta & Ors., AIR 1956 Calcutta p. 23 and Income tax Officer, Ward C. SangIi & Anr.
vs Chandanbai Balaram Doshi & Ors., AIR 1957 Bombay p. 91, approved.
2.1 The rights of the respective decree holders or claimants are governed by the order for rateable distribu tion passed by the Court as a result of the adjudication and determination made by the Court.
Nothing further remains to be done by the Court, in the judicial sphere thereafter.
The order partakes of the character of a judgment and decree passed by the Court.
[930B C] 927 2.2 Thereafter the officials of the Accounts and Cash department are only required to carry out the command of the Court by implementing or giving effect to the order.
[930C D] 2.3 The test which is to be applied is whether the said officials can refuse to implement the order by refusing to make payment once the Court has passed the order.
Obviously and undoubtedly they cannot.
Therefore, nothing turns on whether or not actual payment pursuant to the order of the Court is made.
The Court officials make payment to the decree holder because the property in the said monies has vested unto them by virtue of the order of distribution passed by the Court.
What is being paid by the officials of Accounts and Cash Sections will be the decree holder 's money, it having ceased to belong to the judgmentdebtor the moment the order for distribution was made, even though actual disbursement was made later.
[930D F] 3.
If the State lays its claim after the order for distribution is made by the Court, it will be of no avail, as the property would have gone beyond the reach of the State, it having ceased to be the property of the debtor against whom the State had a claim.
No question of priority can arise in that situation the state having missed the bus.
[930F G] 4.
In the present case, the High Court was in error in reversing the order passed by the executing Court.
The order of the High Court is set aside and that of the executing Court restored in so far as the appellant is concerned.
[930H]


judgement:
Appeal No. 20 of 1987 From the Judgment and Order dated 9.11.1983 of the Bombay High Court in w.
P. No. 271 of 1979.
S.S. JavaIi and P.R. Ramashesh for the Appellants.
A.M. Khanwilkar and Mrs. V.D. Khanna for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
Heard counsel for the parties on the appeal.
This appeal by special leave arises out of the judgment of the High Court of Bombay dated 9th November, 1983.
It raises a short and an interesting point.
Shripati Balla Jadhav, father of the appellants had executed a lease deed with regard to the suit land in favour of the landlord and taken the said land on lease.
The said lease was for the purpose of cultivation of chillies, tobacco, sugarcane, groundnuts etc.
916 That is the version of the petitioners/appellants, The question is, whether the lease was taken for the aforesaid purposes or was only for the cultivation of sugar cane alone.
In deciding that question the terms of the lease will have to be borne in mind.
Suo moto proceedings for fixing the price under section 32(G) of the Bombay Tenancy Agricultural Lands Act, 1948 being Act No. LXVII of 1948 (hereinafter called the 'Act ') was taken on the assumption that the tenant had become statutory purchaser by virtue of section 32 of the said Act.
The proceedings were dropped as some of the respondents were then minors.
An order as made by Deputy Collector in appeal from the order of the trial court in proceedings under section 3"(G) of the said Act remanding the case to the trial Court on 31st March.
Thereafter on 17th July, 1975, the Maharashtra Revenue Tribunal confirmed the order of remand made by Dy.
Collec tor, in revision filed by the respondents herein.
The High Court thereafter rejected the writ petition of the landlord against the order of the Tribunal.
and as such the proceed ings under section 32(G), according to the appellants here in, are still pending.
On 15th June, 1974, the respondents made an application under the Act for determination of reasonable rent on the basis that the lands were leased for growing sugarcane.
The trial court on 11th February, 1975 rejected the application in respect of the tenancy of Aval Kankoon on the ground that the lands had been leased not for growing sugarcane alone.
but for different types of crops.
On or about 31st May. 1977.
the Spedal Land Acquisition Officer.
Kolahpur in Tenancy Appeal No. 302 of 1975 allowed the tenancy of Aval Kankoon and directed the determination of the rent on the basis that the lands were leased for growing sugarcane.
The said order was confirmed on 30th November, 1978 by the Maharashtra Revenue Tribunal, Kolahpur, in appeal filed by the appellants.
There was a writ petition thereafter on 9th November, 1983 by the appellants under article 227 of the Constitution and the High Court of Bombay rejected the said writ application.
The petitioners have come up in special leave to this Court.
It may be mentioned before we deal with the judgment under appeal that the said Act was an Act to amend the law relating to tenancy of the agricultural land and to make certain other provisions with regard to those lands.
It may be mentioned that the purpose was to make the tillers owners of the land and in respect of mortgages of certain lands giving the tenant the right of re purchase of the land.
It is 917 a social agrarian reform measure to ameliorate the condi tions of the tenants.
See in this connection the statement of Objects and Reasons of the said Act.
In the Preamble it is stated that it was necessary to amend the law which governed the relations of landlords and tenants of agricultural lands; and further whereas on ac count of the neglect of a landholder or disputes between landlord and tenants, the cultivation of an estate has seriously suffered, or for the purpose of improving the economic and social conditions of peasants or ensuring the full and efficient use of land for agriculture, it was expedient to assume management of estates held by landhold ers and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto or occupied by agriculturists, agricul tural labourers and artisans in the Province of Bombay, and to make provisions for certain other purposes therein the said Act was being passed.
The Act was intended to benefit tenants in respect of the said evils.
But Chapter IlIA which was inserted by Bombay Act 13 of 1956 provided special provisions for land held on lease by industrial or commer cial undertakings and by certain persons for the cultivation of sugarcane and other notified agricultural produce.
Under the scheme of the Act under sections 4B, 8, 9, 9A, 9B, 9C, 10, 10A, 14, 16, 17A, 17B, 18, 27, 31 to 31D (both inclu sive), 32 to 32R (both inclusive), 33A, 33B, 33C, 43, 63, 63A, 64 and 65 dealt with the various kinds of rights of the tenants in land, including the right of repurchase as con templated in sections 32 to 32R. Section 32(1) provided that on first day of April, 1957 which was called "the tillers ' day '7 in the Act every tenant should subject to the other provisions of the Act and the succeeding sections be deemed to have purchased from the landlord, free of all encum brances subsisting thereon on the said day, the land held by him as tenant, if such tenant was a permanent tenant thereof and cultivated land personally; or such tenant was not a permanent tenant but cultivated the land leased personally; and the landlord had not given notice of termination of his tenancy under section 31; or notice had been given under section 31, but the landlord had not applied to the Mamlat dar on or before 31st day of March, 1957 under section 29 for obtaining possession of the land; or for certain other contingencies mentioned in clause (ii) and other clauses of section 32 of the Act.
Section 43A which is in Chapter III A, provides, inter alia, by clause (b) of Section 43A(1) that leases of land granted to any bodies or persons other than those mentioned in clause (a) for the cultivation of sugarcane or the grow ing of fruits or flowers or for the breeding of 918 livestock, that the aforesaid provisions for the benefit of tillers or tenants would not apply to those.
In this appeal we are concerned with a very short ques tion namely, whether the lease of land granted in this case is covered by clause (b) for the lease for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of livestock.
Clause (a) of sub section (1) of section 43A deals with land leased to or held by any indus trial or commercial undertaking which in the opinion of the State Government bona fide carries on by any industrial or commercial operations and which is approved by the State Government.
By the order of the Maharashtra Revenue Tribunal, the tenant had been denied that right as against the landlord.
The Revision Petition was filed by the respondents tenants in proceedings under section 43B of the said Act to question the order made by the Member, Maharashtra Revenue Tribunal, Kolahpur, refusing to interfere with the order made by the Special Land Acquisition Officer (II) Tulsi Project, Kolha pur, holding that the purpose of the lease as far as suit lands were concerned was one for cultivating sugarcane and as such the lands were governed by the provisions of section 43A of the Act.
The question is, is that finding correct? Both the courts had interpreted the original Kabulayat, herein dated 24th February, 1947 to come to the conclusion that this land was leased for raising sugarcane.
Our atten tion was also drawn to the official translation of the said documents which will be presently noted.
It may be mentioned that initially proceedings under section 88C of the Act were filed on the basis that the lands were Jiravat lands but the said proceedings were 'withdrawn, and further that proceed ings under section 32(G) of the Act were also initiated in 1972, which were still pending.
In those proceedings too, the character of the lands was stated to be Jiravat lands.
According to the learned ' counsel, this characterisation of the lands as Jiravat lands was contrary to the findings recorded by the revenue authorities and there was an error apparent on the face of the record, and so was contended before the High Court.
Secondly, the learned counsel had submitted before the ' High Court that on correct reading of the Kabulayat there was an express mention that apart from sugarcane no other crops could be cultivated and if that was so, the revenue Courts were in error in holding otherwise.
The High Court noted that the proceedings before it were not proceedings in appeal.
The High Court rightly rejected the application under article 227 of the Constitution on the view that if a 919 reasonable view of the evidence was taken by the authorities competent to decide the controversy, no interference was called for.
Furthermore that was a fact which had to be determined on the basis of the evidence.
However, it was contended before the High Court with reference to the Kabu layat that it could be seen that this Kabulayat of 1947 conferred a right of cultivation for five years.
The Kabu layat specifically mentioned that possession of the lands as well as the well was given under the document.
It provided that the executant could take the crop in due consultation with the landholders and there the mention or the crops indicated all sorts of crops, like Jawar, Tur, Bhuimug, Mirchi, Kapus, Oos, Tambakhoo etc.
It further recited that 1/2 of the crop would be retained by he owners and the other 1/2 would be retained by the tillers.
After these primary recitals, reference was made primarily to the sugarcane crop.
With regard to that aspect, it was undertaken by the executant that everyday till jaggery was prepared, 20 sugar canes and one pot of sugarcane juice would have to be reached to the owners.
Similarly, it was provided how the fruits of the mango trees would be shared.
It was further provided with regard to the manure as well as the seeds for raising sugarcane the parties were to share 1/2 and 1/2 expenditure.
Similarly with regard to the maintenance of the irrigational facilities and also the expenditure for the preparation of jaggery the parties were to share 1/2 and 1/2.
It was further provided that the land which Was not available for sugarcane could be subjected to cultivation of jute or chilli and no other till the land was available for sugarcane cultivation.
It may be instructive to refer to the material portion of the deed which states as follows: "These two lands I have taken from you agreeing to pay.
half crop share for a period of five years from shake 1869 to 1874 and have taken possession today alongwith well and trees.
I will raise crops therein in consultation with you.
In these lands, I will raise chillies, Cotton, Sugarcane, Tobacco, etc.
but I will cut and harvest them with your approval.
I will give you a half share in all the crops raised as also in the fodder.
I will take the remaining share as a tenant.
You are to take the green grass growing on the western hedge in R.S. No. 493.
I am to take the green grass from other hedges.
In the dry fodder you are to get half the number of shieves.
" The next clause dealt with the price and it has also an important beating and stated as follows: 920 "The price of your share of crops and fodder is fixed at Rs. 1400.
However I will give you the grain & fodder and will not ask you to take its price.
Similarly I will pay you half the assessment and local fund in the month of January every year.
Every year as long as sugar cane crushing goes on I will give you every day 20 good sugar canes, and a pitcher of sugar cane juice.
The price of the sugarcane and juice is fixed at Rs. 15.
These are mango trees in the lands.
if they bear fruits I will protect the same and will not pluck any nor will allow anyone also to do so.
For protecting the fruits I will take 1/4th and will give you 3/4th.
The price of your share in the mangoes is fixed at Rs.50.
" Then in the second clause the executant states as follows: "In the land where sugar cane is grown I will raise either chillies or jute as an alternate crop.
I will not grow any other crop in that plot.
" Thereafter the Kabulayat dealt with the obligation of the executant to supply half the manure of the land and half the cost of fertilizer and asserted that he would supply.
half the seed for sugarcane and carry the fertilizer and seed of sugarcane of his share at his cost.
Free service as per usual practice was also ensured.
The last clause on which reliance was placed provides as follows: "I will cultivate the lands on these terms for five years.
I will hand back the land in which sugarcane is raised in the month of Magarshirsha of shake 1873.
The remaining land I will deliver to you between Margarshirsha and Falgun of shake 1876 as and when the standing crops are removed.
Thus the lands are to remain with me till the amount of Rs.3000 deposited by me is paid off.
" According to the High Court, though initially there was sortie mention of other crops, the Kabulayat in terms in tended that the land would be used for cultivation of sugar cane, and when the sugarcane was not being cultivated, the other crops could be cultivated in those pieces of lands till the land was again available for sugarcane cultiva 921 tion.
If that be not the intention, according to the High Court, the entire document could not be correctly and rea sonably reconciled.
It could not be forgotten that this was a document reserving right of the amount of Rs.3000 and Rs.600 to be adjusted every year by giving the cultivated return and taking a receipt therefor.
The receipt so intend ed to be taken only concerns itself with the sugarcane, sugarcanejuice and sugarcane waste.
Thus, the document taken as a whole could reasonably be read as providing for the purpose as it was found by the revenue authorities.
Further more, the oral evidence, according to the High Court, of the parties clearly went on to show that the initial purpose must have been the lease for growing sugarcane.
The High Court referred to the evidence of P.W. 1 who attested the document.
As against this evidence, there was evidence of D.W. 1 which was an evidence only of denial and even he was unable to say whether in the document sugarcane, cotton and tobacco as crops were mentioned or not.
He was unable to say in how many years actually the sugarcane had been cultivated and he submitted that by rotation the land could be used for cultivating sugarcane.
It was further admitted, the High Court noted, that in cross examination that jaggerywise taken to shops for sale.
The High Court was of the view that.
once the Kabulayat was read in this manner, it did not appear even from the 7/12 extract that in some portion.
sugarcane crop was culti vated.
The High Court found that being the position of the record it was difficult to interfere with the finding of the lower court.
In other words the High Court was of the view that the predominate purpose being sugarcane cultivation, the tenant was riot entitled to the right asserted by him.
The High Court also noted that the fact that the lands to be characterised as Jiravat lands would not be decisive for determining the purpose of the lease when that could be found from a document like the Kabulayat.
In the premises the High Court refused to interfere.
It is the correctness or otherwise of that decision which is under challenge before us.
It was submitted before us that the whole of the land is not for the cultivation of sugarcane.
It was urged that in an area of 11 acres, only 1 acre was subjected to the culti vation of sugarcane.
The Kabulayat or the lease clearly indicated that there were other purposes.
The question in this case is whether the lease was for sugarcane or also for other purposes? Was it composite purpose lease or single purpose lease? The object of the legislation has to be borne in mind.
922 The entirety of the lease has to be kept in view.
Then and then only can the question be viewed properly.
Our attention was drawn to a bench decision of the Bombay High Court in Shri Usaf Usman Majawar vs Shrimant Yeshwantrao Appasaheb Ghatage, [1963] Bombay Law Reporter Vol.
LXV 831.
There the Division Bench observed that indi vidual leases were not excluded from the operation of sec tion 43A(1)(b) of the Act.
According to the bench decision of the Bombay High Court, the determining factor in consid ering whether clause (b) of section 43A(1) of the Act was applicable or not, was the purpose of the lease.
If the purpose of the lease was for cultivation of sugarcane or growing of fruits or flowers or for the breeding of live stock, then it was excluded from the operation of sections 32 to 32R of the Act whether the lessee is a body of person or persons.
The High Court further reiterated that what was required to be established on material evidence under sec tion 43A(1)(b) of the Act was whether there was a lease; and whether the lease was for cultivation of sugarcane or grow ing of fruits or flowers.
It is not necessary that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that lease must be for cultivation of sugarcane etc.
in the entire field.
It would be for the courts to reach a conclusion on the evidence available to it whether the lease was for cultivation of any particular crop or not.
Nothing would, turn on whether the agreement was to grow that crop in the entire field or not.
Our attention was drawn to the observations of the Court at page 835 of the report.
It was contended before the Bombay High Court that for attracting the provisions of section 43A of the Act, it must be proved by the landlord that the agreement specifically provided that the lease was for cultivation of the sugarcane or for the growing of fruits or flowers or for breeding of livestock, and further it must also be established that the agreement was to grow sugarcane in the entire land leased out 'and not in any part thereof.
The High Court was of the view that it was true in the language of clause (b) that it had to be established that the lease was granted for the cultivation of sugarcane or for growing.
fruits and flowers etc., but it nowhere specifically mentioned that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that the/ease must be for cultivation of sugarcane etc, in the entire field.
(Emphasis supplied).
On the other hand, according to the view of the Bombay High Court, what was required was to be established on material evidence whether there was a lease and whether the lease was for cultivation of 923 sugarcane or for growing of fruits or flowers.
In each case it would depend on the evidence whether the lease had been for cultivation of sugarcane or growing of fruits or flowers and that would depend on the nature of the cultivation.
The Bombay High Court noted that they were informed that the cultivation of sugarcane could never be on the entire field but the cultivation of sugarcane was always carried on by rotation in parts of the field.
It would, therefore, depend on the facts of each case and if that be so, it is for the courts of fact to reach a conclusion on the evidence avail able to it whether the lease had been for cultivation of a particular crop or not.
On behalf of the petitionersappel lants, learned counsel, Shri Javali contended that the lease contained in the Kabulayat had to be examined because it was not for cultivation of sugarcane only.
Shri JavaIi for the appellants contended that the land could not be exempted because the lease was not for the cultivation of the sugar cane alone.
He drew our attention to the findings at page 13 of the Paper Book of the appellate court where apart from the record it appeared that the crop of sugarcane actually raised in the suit lands was to the extent of 1 acre or more.
This was continued since 1947 till 1972 and it was clearly stated by the tenants that they had stopped raising sugarcane after 1972 because of scarcity of water.
The entries in the record of Rights also substantiated the position that sugarcane was actually raised in the suit lands.
The appellate court noted that there was a well in one of the suit lands having sufficient water to raise sugarcane.
The statement of the tenants corroborated this fact when they stated that on the day of deposition there was 5 to 6 cubic feet water in the said well.
That the court below had actually gone for site inspection and found that Baggayat crops like wheat was cultivated by the tenants on the water course available from the well in the suit land.
But it is clear that the entire land was not used for culti vation of sugarcane.
The question is if lease for multiple cultivation is permissible in the scheme of section 43A then only leases of the areas for cultivation of sugarcane or growing of fruits or flowers or for breeding of livestock could claim the benefit of protection from the tenants ' claim.
This has to be borne in mind.
With respect, we cannot accept the ratio of the decision of the Bombay High Court in its entirety.
We are aware that 'sugarcane could not be cultivated in the entire field for the whole year.
It has to be kept follow and crops had to be grown in the meantime to increase the fertility.
But what was primary and what was secondary and what was to be done in such a case as we found it as a fact, has to be considered.
924 As mentioned hereinbefore, this petition is concerned with the proceeding under section 43B of the said Act which questioned before the High Court the order made by the Member, Maharashtra Revenue Tribunal, refusing to interfere with the order made by the Special Land Acquisition Officer (II) Tulsi Project, Kolhapur holding that the purpose of the lease so far as the suit land was concerned was one for cultivating sugarcane and as such the lands were governed by the provisions of section 43A of the Act.
Having regard to the facts and circumstances enumerated before, we are of the opinion that the area which is in dispute in this case comprised of areas leased for raising sugarcane crop as also for other crops.
In view of the provisions of law discussed above, in so far as the High Court upheld the finding that the entirety of the area in question was covered by lease for sugarcane, it is difficult to sustain the same.
The area was covered by lease for multiple purposes.
Some areas were leased out for sugarcane where along with sugarcane other flops were grown.
These, however, should be included as areas leased for sugarcane as ancillary flops or for better utilisation of the land in question.
But here the leases covered areas other than the areas contemplated by sugarcane which could be demarcated in terms of the Kabulayat which we have discussed before.
In our opinion, having regard to the preamble to the Act and the primary purpose of the Act, it would be necessary to remand the matter back to the High Court for remanding it back to the appropriate officer to determine whether there was any area which was leased exclu sively for sugarcane crop.
If it is held on such enquiry that the entirety of the area was for sugarcane crop, then the order of the Tribunal made in this case cannot be inter fered with.
If, on the other hand, there are areas which were leased out separately and independently of the leasing out for sugarcane and demarcated separately, then in respect of the same, no exemption can be given in derogation of the rights of the agricultural tenants in those leased areas and the appellant would be entitled to succeed.
In a lease for composite purposes, if there was any area where sugarcane was only cultivated, that area would be exempt from the ambit of the provisions of the Act and would be exempted.
If, however, along with cultivation of sugarcane, other crops were cultivated in the area, such an area would not be entitled to exemption.
We therefore remand the case with directions that the authorities below should find the posi tion in light of the aforesaid.
It may be observed that the Bombay Tenancy Agricultural Lands Act, 1948 was enacted with a high purpose of transferring the land tilled to the till ers of the soil with the exception of the lands which were leased out for growing sugarcane because of the need for protection of the industry of sugarcane and development of the economy.
925 This appeal is disposed of with the aforesaid direc tions.
In that view of the matter, parties will pay and bear their own costs.
M.L.A Appeal disposed of.

summary:
The Bombay Tenancy Agricultural Lands Act, 1948, by s.32(1) provides that every tenant should, subject to the other provisions contained in the Act, be deemed to have purchased from the landlord, free of all encumbrances the land held by him as tenant, if such tenant was a permanent tenant and cultivated the land personally; or such tenant was not a permanent tenant but cultivated the land leased personally; and the landlord has not given notice of termi nation of his tenancy under section 31; or notice had been given under section 31, but the landlord had not applied to the Mamlatdar on or before 31st day of March, 1956 under section 29 for obtaining possession of the land; or for certain other contingencies mentioned in section 32 of the Act.
Section 43A provides that the aforesaid provisions for the benefit of tillers or tenants would not apply to land granted to any bodies or persons for the cultivation of sugarcane or the growing of fruits or flowers or for the breeding of livestock.
The appellant tenant had taken the suit land on lease from the respondent.
The lease deed was alleged to have been executed for the purpose of cultivation of chillies, tobac co, sugarcane and groundnuts etc.
Suo moto proceedings for fixing the price under s.32(g) were taken on the assumption that the appellant tenant had become statutory purchaser by virtue of s.32 of the Act.
While the proceedings were pend ing, the respondents made an application under the Act for determination of reasonable rent on the basis that the lands were leased for growing sugarcane.
The trial court rejected the application holding that the lands had 914 been leased not for growing sugarcane alone, but for differ ent types of crops.
However, the Special Land Acquisition Officer held that the purpose of the lease was one for cultivating sugarcane and, as such, the lands were governed by the provisions of s.43A of the Act and directed the determination of the rent accordingly.
The Maharashtra Revenue Tribunal as well as the High Court confirmed the aforesaid order.
The High Court held that though initially there was some mention of other crops, the Kabulayat (Lease Deed) in terms intended that the land would be used for cultivation of sugarcane, and when sugarcane was not being cultivated, the other crops could be cultivated till the land was again available for sugarcane cultivation, and if that be not the intention, the entire document could not be correctly and reasonably reconciled and that the predominate purpose being sugarcane cultivation, the tenant was not entitled to the right asserted by him.
In appeal to the Supreme Court, it was contended on behalf of the appellant tenant: (i) that the whole of the land is not for the cultivation of sugarcane; (ii) that in an area of 11 acres, only 1 acre was subjected to the culti vation of sugarcane, and that the Kabulayat or the lease clearly indicated that there were other purposes; and (iii) that the land could not be exempted because the lease was not for the cultivation of the sugarcane alone.
Disposing of the appeal, this Court, HELD: 1.1 The Bombay Tenancy Agricultural Lands Act, 1948 was enacted with a high purpose of transferring the land tilled to the tillers of the soil with the exception of the lands which were leased out for growing sugarcane be cause of the need for protection of the industry of sugar cane and development of the economy.
[924G H] 1.2 Having regard to the preamble to the Act and the primary purpose of the Act, it would be necessary to remand the matter back to the High Court for further remand to the appropriate officer to determine whether there was any area which was leased exclusively for sugarcane crop.
If it is held on such enquiry that the entire area was for sugarcane crop, then the order of the Tribunal cannot be interfered with.
If, on the other hand, there are areas which were leased out separately and independently of the leasing out for sugarcane and demarcated separately, then in respect of the same no exemption can be given in derogation of the ' rights of the Agricultural tenants in those leased areas and the appellant would be entitled to succeed.
[924D F] 915 2.1 In a lease for composite purposes, if there was any area where sugarcane was only cultivated, that area would be exempt from the ambit of the provisions of the Act and would be exempted.
If, however, along with cultivation of sugar cane, other crops were cultivated in the area, such an area would not be entitled to exemption.
[924F G] 2.2 It is not necessary that the purpose of the lease must be specifically mentioned either in the instrument of the lease or that the lease must be for cultivation of sugarcane etc.
in the entire field.
It would be for the courts to reach a conclusion on the evidence whether the lease was for cultivation of any particular crop or not.
Nothing would turn on whether the agreement was to grow that crop in the entire field or not.
[922G H; 923A B] In the instant case, the area which is in dispute com prised of areas leased for raising sugarcane crop as also for other crops.
The area was covered by lease for multiple purposes.
Some areas were leased out for sugarcane where along with sugarcane other crops were grown.
These however, should be included as areas leased for sugarcane as ancil lary crops or for better utilisation of the land in ques tion.
The leases covered areas other than the areas contem plated by sugarcane which could be demarcated in terms of the Kabulayat.
[924B D]