judgement:
minal Appeal No. 170 of 1961.
Appeal by special leave from the judgment and order dated August 28, 1961, of the Allahabad High Court (Lucknow Bench) at Lucknow in Cr.
Case No. 125 of 1961.
A.S. R. Chari, B. Parthasarathy, R. K. Garg, section C.Aggarwal, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
G. C. Mathur and C. P. Lal, for respondent No. 2. 1962.
September 13.
The judgment of the Court was de livered by DAS GUPTA, J.
This appeal by special leave is against an order of the High Court at Allahabad rejecting on August 28, 1961 an application made by the present appellant.
For a proper appreciation of the contention raised in the appeal it is necessary to set out in some detail the complicated.
facts which gave rise to her application.
It appears that on January 23, 1938 the appellant 's mother Mrs. A. E. Forbes executed a will leaving all her property to her three children, viz., the appellant, Mrs. V. G. Paterson, Mrs. E. D. Earle and Mr. 0.
V. Forbes.
The testatrix died on June 6, 1939 and this appellant applied for a probate.
The probate was granted on November 30, 1939.
On May, 4, 1943 when Criminal Appeal No. 9 of 1943 was being argued before a, Single Judge of the Oudh Chief Court the Counsel for the State brought it to the notice of the judge that Mr. 0.
V. Forbes brother of the present appellant had made in his application before the Trial Court and in other ways certain aspersions against the conduct of the Trial Court which amounted to contempt of Court.
The 43 learned judge ordered the issue of notice against Mr. O. V. Forbes in this matter.
On May 6 1943 the present appellant also filed an application for similar action under the Contempt of Courts Act against her brother Mr. Forbes.
On this also notice was issued to Mr. Forbes.
As the notices are not on record we do not know the actual terms of the notice; but it does not appear to be disputed that by these notices Mr. Forbes was asked to appear be ore the Oudh Chief Court to show cause why he should not be proceeded against for contempt of court.
Mr. Forbes however did not appear.
Some time after this a bailable warrant appears to have been issued for the arrest of Mr. Forbes.
The warrant was returned unexecuted.
A registered notice was thereafter issued under the orders of the Court asking Mr. Forbes to attend the Oudh Chief Court on September 23, 1943.
On that date also he did not appear.
The learned judges of the Chief Court being of opinion that Mr. Forbes was concealing himself only to avoid the execution of the warrant, made the following order : "Accordingly we order that action be taken under section 87 of the Code of Criminal Procedure against Mr. Forbes and direct the issue of a written proclamation requiring him to appear in this Court on the 25th November, 1943 at 10 a.m.
This proclamation will be issued in strict accordance with the requirements of section 87 Cr.
P.C. The proclamation will also be published once in the Pioneer of Lucknow and the Daily Statesman of Calcutta.
Under section 88 of the Code of Criminal Procedure We further order attachment of the moveable and immoveable property belonging to Mr. Forbes within the jurisdiction of this Court including : 1.
G.P. Notes and bonds for Rs.1,070,000/ in the hands of the Registrar of this Court.
Rs. 12,250/ deposited in this Court in the Personal Ledger, Trustees and Stake Hol ders Fund; 3.
G.P. Notes belonging to Mr. Forbes of the face value of Rs. 55,000/ attached in Execution Case No. 16 of 1942 in the Court of the Civil judge, Lucknow : Dr. Hari Shanker Dube vs O. V. Forbes.
" The proclamation was duly published and certain property was attached on the basis that it was the property of Mr. 0.
V. Forbes.
On March 30, 1 '944, the Oudh Chief Court recorded an order stating that as Mr. Forbes did not appear within the time specified in the proclamation and under sub section (7) of section 88 of the Code of Criminal Procedure the property under attachment was at the disposal of the Provincial Government.
As regards the two applications for contempt the Court made the following order: ""These applications will therefore be adjourned sine ded until Mr. Forbes appears or is arrested.
" On September 21, 1944, the Court made an order withdrawing the prohibitory order it had earlier issued against the Registrar and the Civil judge, Lucknow.
It appears that after the Oudh Chief Court made the order on March 30, 1944 stating that the attached property was at the disposal of the Provincial Government under sub section 7 of section 88 of the Code of Criminal Procedure the Provincial Government directed the City Magistrate to take suitable action for the disposal of the attached property.
It was to facilitate such action by the City 'Magistrate that the prohibitory orders were withdrawn.
The Chief Court also made an order directing the Registrar and the Civil judge to send the attached property to the City Magistrate for disposal according to law.
On the same date Mrs. Paterson was also directed to hand over all the property in her possession which she may be 45 holding a custodian for 'Mr. O.V. Forbes to the City Magistrate.
It, appears that in August 1943 the City Magistrate forwarded to the U.P. Government at Lucknow promissory notes of the total value of Rs. 2,28,800/ said to be the attached property adding"these G. P. Notes to the total value of Rs. 2,28,800/ have been ordered to be forfeited to the U. P. Government by the Chief Court of Oudh under order dated 21st September 1944 in Criminal Miscellaneous Application No. 47 of 1943".
It was further stated that : "It is requested that necessary action may be taken ' by you to credit the sum under the head Fines and Forfeitures Apparently this has been done.
Mr. Forbes died in 1953.
On April 4.
1960 the present appellant made an application to the U.P. Government in which she stated that Mr. Forbes had died intestate and that his only heirs were his two sifters, the appellant herself and her sister Mrs. E. D. Earle for whom she was the trustee and prayed that as the Government was " 'only in the position of a receiver or a trustee of the property of Mr. Forbes this trusteeship having ceased with Mr. Forbes death .the government should return the property to the appellant and her sister".
On September 3, 1960 the Government rejected this prayer stating ""that this was a confiscated property of Mr. Forbes and that on legal grounds her claim was Wholey untenable" but added these, words : " 'If however she has any special reasons for invoking the compassion of Government `she may indicate the same to Government and also furnish convincing evidence that Mr. Forbes actually has died and that she is his sole heir or one of the heirs entitled to his assets.
" The appellant pointed out to the Government in her letter dated September 12, 1960 that the property of Mr. Forbes has not been confiscated bet merely attached and emphasised that the Government had no proprietary right to the attached property but 46 could retain it only as a custodian or trustee for the time being.
She asked the Government to re consider the whole situation.
The reply of Government, if any was apparently unsatisfactory and so on November 29, 1960 the appellant filed an application under article 226 of the Constitution in the High Court at Allahabad in which after stating the several facts as regards the attachment of the property and the action taken by the Government, she prayed for a writ of certiorari to quash the Government 's order of September 3,1960 and also for a writ of Mandamus ordering the Government to hand over the Government promissory notes and cash money which had been attached.
On March 29, 1961 the ' High Court rejected this application.
The High Court pointed out that the applicant had not shown that the State Government had failed to carry out any duty imposed by law and further that the order dated September 5, 1960 could not be said to be either judicial or a quasi judicial order or even an administrative order passed without jurisdiction.
It was then that ' on May 1, 1961 the appellant made to the High Court at Allahabad the application out of which the present appeal has arisen.
By this application the appellant asked for four relilfs : (a) for an order terminating the contempt of court proceedings; (b) for an order vacating the orders of attachment made by the Chief Court; (c) for a direction on the Finance Secretary, U. P. Government, to restore the attached property to the applicant as executrix of the estate of late Mrs. A. E. Forbes.
A copy of the writ petition dated the 29th November, 1960 in which it had been mentioned that the proceedings under section 87 and section 88 of the Code of Criminal Procedure were illegal because the code was applicable to proceedings for contempt, was attached to the application.
It was further stated in the present application that in any case the attachment was void inasmuch as the property that was attached 47 was at the time of attachment an undistributed part of the estate of late Mrs. A. E. Forbes and so vested in this appellant as executrix.
By separate but concuring judgments Mr. Justice Mulla and Mr. justice Nigam, who heard this application rejected the applicant 's prayer for vacating the order of attachment or for any direction to the Finance Secretary, U.P. Government for restoration of the attached property.
Mr. Justice Mulla based his decision mainly on the point that the appellant had herself acted in an unclean way, and she having been responsible for getting warrants under sections 87 and 88 of the Code of Criminal Procedure issued against Mr. Forbes it did not lie in her mouth to say now that the issue of these processes was without jurisdiction and held that as she was instrumental in getting the order now complained of passed, the discretionary powers of the Court should not be exercised in her favour, especially, as she had made the application after a long delay.
The learned judge also expressed the opinion that the judges of the Chief Court acted within their jurisdiction in issuing processes under sections 87 and 88 of the Code of Criminal Procedure that this order was just and legal and the State had come into the custody of the property under the due process of law.
In the opinion Of the learned judge "Mr. Forbes was willing to give away this property rather than, face a prosecution for contempt of Court" and added "if he took up that attitude it cannot be said by the heirs of Mr. Forbes that now the property should be released in their favour".
Mr. Justice Nigam stressed the point that the Court had attached the property belonging to ',Mr. Forbes and the present appellant had handed over the property " treating it to be the property of Mr. O.V. Forbes.
" According to this learned Judge if the property that was attached did not belong to Mr. 0.
V. Forbes this appellant should have " 'never handed over the property voluntarily".
He was further 48 of opinion that "the fact that she voluntarily handed a property over as belonging to Mr. Forbes and actually suggested that this particular property be attached clearly amounted to. . . an admission of 'the ownership of the property vesting in Mr. 0.
V. Forbes and the property not being part of the undistributed assets in the possession of '.
Mrs. Peterson as executrix to Mrs. A. E. Forbes.
" After holding that the Code of Criminal Procedure was not directly learned Judge expressed the opinion that "the Bench could adopt its own procedure for enforcing the attendance of the delinqent" and added 'if it adopted the procedure prescribed in the Code of Criminal Procedure, I can see no warrant for the contention that the procedure adopted was wrong, improper and beyond the jurisdiction of the Court.
" Finally, he held that it would be contrary to the interests of justice to review the order " 'after a lapse of about 18 years.
" The learned Judge also held that the Court was no longer in possession of the attached property, the same having been handed over to the City Magistrate for being passed on to the State Government and could not therefore pass any orders in respect of the property.
He also expressed the view that prima facie it appeared to him that the appellant 's remedy, if any, was by a civil suit.
The contempt proceedings were however directed to be consigned to the record as abated.
The present appeal is directed against the High Court 's decision refusing to give the plaintiff the substantial relief asked for in the application, viz., a direction on the Finance Secretary, U. P. Government to restore the attached property to her.
The first question for consideration is whether at the time of attachment the property formed .
part of the unadministered estate of Mrs. A. E. Forbes.
If that was the correct legal position there could not be in law attachment of that property as the property 49 of Mr. Forbes, even if section 87 and s.88 could be applied to secure the arrest of a person alleged to have committed contempt.
Mr. justice Mulla has not dealt with this question.
Justice Nigam has however formed the definite conclusion that the property had vested in Mr. O.V. Forbes on the date of attachment and was not part of the undistributed assets of Mrs. A. E. Forbes in the hand of the executrix.
In coming to this conclusion the learned Judge appears to have relied on what he described as " 'the fact that she (Mrs. Paterson) voluntarily handed the property over as belonging to Mr. Forbes and actually suggested that this particular property be attached".
It is not clear from the record of this case on what materials the learned judge thought that Mrs. Paterson actually suggested that this particular property be attached.
That she really handed the property over appears to be correct.
It appears reasonable to think that she did so in obedience to the order of the Court.
The matter was stated thus by her in Para.
8 of the Writ Petition: "8.
That under the orders of the Hon 'ble Chief Court of Avadh the petitioner deposited with the Registrar of that Court and finally with the City Magistrate, Lucknow, unadministered assets consisting of Government Promissory Notes and each totalling Rupees 2,41,300/ detailed in the list attached to this petition which the then City Magistrate, Sri section G. Bose Mullick was pleased to transfer the same to the Finance Secretary to the U. P. Government, Lucknow, in August, 1948.
" In the counter affidavit filed on behalf of the State of O. P. in the writ petition the statements made in this paragraph was admitted to be true.
It appears clear therefore that the petitioner made over the securities and cash the property which was attached tinder the orders of the Chief Court of Oudh.
It is further to be borne in mind that the petitioner made the 50 definite statement in this Para.
8 of the writ Petition that the property that was made over by her formed part of the unadministered assets in her hand and the truth of this statement was admitted by the State of U.P It is difficult to see how it can be reasonably here that merely because the executrix banded over certain assets in her hand to the Registrar and the City Magistrate in obedience to the orders of the Chief Court thereby become vested in Mr. 0.
V. Forbes.
The property in the hands of the executrix could become vested in Mr. O. V. Forbes only on her handing over the same to him or to somebody on his behalf.
Delivering the property to the Registrar of the Court or to the City Magistrate could not amount to handing over to the legatee.
For, obviously the Registrar of the Chief Court or the City Magistrate, Lucknow, were not acting on behalf of the legatee Mr. 0.
V. Forbes but indeed acting against his inte rests.
In our opinion, the property did not cease to be unadministered assets of the estates of Mrs. A. E. Forbes merely because under the orders of the Court this appellant, who was the executrix, had the assets in her hand deposited with the Registrar or the City Magistrate.
It must therefore be held that the property which was attached was at the time of attachment not the property of Mr. O. V. Forbes but formed part of the unadministered assets of Mrs. A. E. Forbes.
This property could not be legally attached in any proceedings for securing the arrest of Mr. O. V. Forbes.
If what was attached did not form part of the property of Mr. 0.
V. Forbes, the order of attachment was invalid; and there would be no scope for the operation of section 88 (7) of the Code of Criminal Procedure.
Assuming that the property was of Mr. 0.
V. Forbes, the question arises whether it would, as a result of the attachment, be at the disposal of 51 Government under s.88 (7) of the Code of Criminal Procedure.
In Sukhdev Singh Sodhi vs The Chief Justice and Judges of the Pepsu High Court(1) it was held that the Code of Criminal Procedure does not apply to proceedings for contempt.
On this authority it must be held that the provisions of sections 87 and 88 would also not be available to securing 'the presence of a person who is alleged to have committed contempt.
It may be mentioned that on behelf of the appellant, 'Mr. Chari had urged that even if the property was of Mr. 0.
V. Forbes, the a leged contemner, the Chief Court of Oudh had no power to attach it.
The High Court seems to think that the Chief Court could choose any procedure it liked in the matter of punishing people for contempt and so if it thought that it would not finally dispose of contempt proceedings without the alleged contemner being present before it, it had the inherent right of first issuing a warrant of arrest and next, if that was not successful, by proclamation for his appearance and also by attachment of his property.
It seems to us that the Chief Court as a Court of record had the right to punish persons for contempt and for the proper exercise of that power it will have all other powers necessary and incidental to it.
It is however unnecessary to decide whether such necessary and incidental powers include the power of arrest and of attaching the alleged contemner 's property in an attempt to secure his presence.
But assuming they do, we are of opinion that the Chief Court had still no right to make over the attached property to Government.
The right of the Government to have any control over the attached property flows from the provisions of section 88 of the Criminal Procedure Code ' As no attachment could legally be made under section 88, Criminal Procedure Code, in any proceeding for contempt, the provisions of section 88 (7) of the Code of Criminal Procedure, under which (1) ; 52 the property under attachment shall be at the disposal of the State Government, if the proclaimed person does not appear within the time prescribed in the proclamation cannot come into operation.
The position therefore is that Government is in possession of the property that was attached under the orders of the Chief Court; but the possession is, without any authority of law.
The question then arises : whether the Court can or should direct restoration of the property to the rightful owner.
On behalf of the State of V., P. it is argued that if the Government is in unlawful possession of the property the proper remedy for the rightful owner is to seek his remedy in a civil suit.
In such a suit he will have to pay the necessary court fee, and it will be open to Government to take the plea of limitation or such other defences as may be available to it.
This would ordinarily be a correct statement of the position in law.
In the present case, we have however the special circumstance that it is by reason of an error on the part of the Chief Court that the property has found its way to the State Government.
Proceedings taken by the Chief Court against Mr. 0.
V. Forbes for alleged contempt of the Court must be taken to be fully justified , as such action is necessary not only to uphold the dignity of the Court but also to keep the administration of justice free from calumny.
When however we find that Court acted without jurisdiction in attaching the property, and in any case, in ordering such property to be handed over to Government we have to remember the other great principle which was stated many years ago in these words by Cairns, L. C. in Rodger vs Comptoir D ' Escompte Da Paris(1): "One of the first and highest duties of all courts is to take care that the act of the Court does no injury to any of the suitors. . .
To say that we arc aware, is not to say that whenever a court after wrongly deciding a case between two parties discovers that the decision was wrong it has the (1) [1871] L. R. 3 P. C. 465,475.
53 inherent jurisdiction to re open the matter and to set matters right by altering the decision.
In many cases when the Court has made a mistake the party who has suffered for that mistake is without any remedy except what he can get in accordance with the provisions Of appeal, revision or review.
As the courts are careful to point out again and again, courts of law have the jurisdiction to decide wrongly as well as rightly and the mere fact that the decision is wrong does not give a party a remedy.
Those considerations against the use of inherent jurisdiction to: correct errors made by the courts in the exercise of its jurisdiction have, however, no application to cases like the present.
Here, the Court for the purpose of exercising its jurisdiction in a matter of contempt took steps to attach certain properties.
This is not a case where there are conflicting claims between two parties which have been decided by a judgment or order of the Court as between the parties.
The question really is whether the rightful owner of the property would have it or the Government which has come into possession of the property without being a claimant to it because of an erroneous order of the court should retain it, if it is found that the order was wrong.
In our opinion, this question must be answered in favour of the rightful owner of the property.
We have assumed that the Court had the power to attach the properties of the alleged contemner; but have held that it had no power in law to make these over to the Government.
The attachment however could only subsist so long as the contemner was alive.
On the contemner 's death the attachment could not in law or equity continue.
For, the purpose for which the attachment was made, viz., to secure the presence of the allegead contemner could no longer be achieved.
Obviously, in such a case, the rightful owner of the property would be entitled to restoration of the property on the contemner 's death.
It would not be proper for the Court to say then that it 54 cannot do anything in the matter because the property has passed into the hands of the Government by the Court 's own mistakes.
In our opinion, the court will be failing to perform its primary function of doing justice if in such circumstances the court, on discovering its mistake refuses to correct that mistake.
As it is plain here that it is the mistaken act of the Court which has put Government in possession of the property even though without being a claimant to it, it is only right and proper that the Court should correct that error and restore the property to the person from whom it was wrongly taken.
We cannot see what legitimate grievance the State of U. P. can have against this.
It had no title to the attached property and it would have had no control over it., except for the mistaken application of the provisions of section 88 (7) of the Code of Criminal Procedure.
If now it is found that the Court had made a mistake, first, in attaching the property in question, and secondly, even apart from that, in directing the property to be made over to Government, the Government cannot legitimately object to the Court correcting this mistake.
It would be deplorable if in circumstances like these the Court would find itself helpless to correct its mistake and to order restoration on an application being made to it in that behalf.
In our opinion, the applicant is entitled to an order for restoration of the attached property.
We accordingly allow the appeal, and order that tile Finance Secretary, U. P. Government be directed to restore to this appellant, the attached property which is in the possession of the Government.
In the peculiar circumstances of the case, we make no order as to costs.
Appeal allowed.

summary:
The appellant 's mother died leaving a will executed in favour of the appellant her sister and her brother.
The appellant applied for a probate and it was granted to her.
Subsequently in connection with a criminal appeal before the Oudh Chief Court applications were filed by the counsel for the State as well as the appellant for proceeding against her brother one Mr. Forbes under the Contempt of Courts Act.
On the failure of Mr. Forbes to appear in pursuance of notices issued by the Court, a proclamation under s.87 of Code of Criminal Procedure was published and certain properties were attached under s.88 of the Code of Criminal Procedure.
These properties were assumed to belong to Mr. Forbes and they were under the custody of the appellant.
Finding that Mr. Forbes did not even then appear the Court recorded an order that the attached properties were at the disposal of the Government and the contempt proceedings would be adjourned sine die until Mr. Forbes appears or is arrested.
On directions from the Court the appellant handed over the properties to the City Magistrate who in turn forwarded them to the Government.
Thereafter Mr. Forbes died.
After his death the appellant made an application to the 41 Government for the return of the properties.
The Government refused to comply with this request and following an abortive writ petition filed by the appellant before the High Court for the issue of a writ of Mandamus against the Government, she filed before the High Court an application for a direction on the Secretary to the U. P. Government to restore the attached property.
The High Court dismissed the application and the appellant appealed to the Supreme Court by way of special leave.
The main questions which were raised in the appeal were whether at the time of the attachment the properties formed part of the administered estate of the appellant 's mother, whether the properties could be legally attached for securing the arrest of Mr. Forbes and whether the provisions of the Code of Criminal Procedure applied to contempt proceedings.
A .further question raised was whether the property attached under section 88(7) of the Code of Criminal Procedure would be at the disposal of the Government.
Held, that the properties in the hands of the executrix could become vested in Mr. Forbes only on her handing over the same to him or to somebody on his behalf.
The properties did not cease to be unadministered assets of the estate of the appellant 's mother merely because under the orders of the Court the appellant who was the executrix handed over the properties to the Magistrate.
The properties therefore could not be legally attached in any proceeding for securing the arrest of Mr. Forbes.
The order of attachment being invalid there is no question of the application of section 88(7) of the Code of Criminal Procedure and the properties being at the disposal of the Government.
Even if the properties belonged to Mr. Forbes the provisions of sections 87 and 88 of the Criminal Procedure would not be available for securing the presence of a person who is alleged to have committed contempt.
Assuming that apart from the Criminal Procedure Code, the Court had the power to attach the contemner 's property it had no right to make over the attached property to the Government.
The possession of the properties by the Government is therefore without the authority of law.
It was further held that even if the attachment order was valid and the Government came into possession of the properties under the authority of law the courts attachment order can only subsist so long as the contemner was alive and the rightful owner of the property would be entitled to restoration of the property on the contemmner 's death.
The Court will be failing in its duty if on discovering its mistake of ordering an illegal attachment and wrongful delivery to the Government refused to correct the mistake.
Sukhdev Singh Sodhi vs The Chief Justice and Judges of the, Pepsu High Court; , , followed.
42 Bodgar vs Comptoir d ' Escomute di Paris, 3 P. C. 465, referred to.


judgement:
iminal Appeal No. 88 of 1962.
Appeal by special leave from the judgment and order dated November 30, 1961, of the Calcutta High Court in Cr. R. No. 1117 of 1961.
D. R. Prem, R. N. Sachthey and R. H. Dhebar, for the appellant.
A. section R. Chari, Ravinder Narain, J. B. Dadachanji and 0.
C. Mathur, for the respondent.
September 11.
The judgment of the Court was delivered by GAJENDRAGADKAR, J.
The principal point which the appellant, the State of West Bengal, has raised for our decision in the present appeal, is whether the provisions of section 540 of the Code of Criminal Procedure apply to a case tried by the Magistrate under section 207A of the Code.
That question arises in this way.
On the 7th July, 1960, a charge sheet was submitted under section 173 of the Code by Inspector Bhuromal of the Special Police Establishment, New Delhi, in the Court of the Chief Presidency 'Magistrate, Calcutta, against Hari Das Mundhra, accused No. 1, and the respondent Tulsidas Mundhra, accused No. 2, under section 12OB/409 and sections 409 and 477 A of the Indian Penal Code.
On the 5th August, 1960, both the accused persons appeared before the learned Chief Presidency Magistrate and furnished bail.
Thereafter, the case was transferred to M. Roy, the Presidency Magistrate 5th Court for further proceedings.
On the 10th October, 1960, copies of the documents were furnished to the accused persons, and since the record was voluminous, the hearing of the case was adjourned to the 7th December, 1960.
On the 1st March, 1961 parties were heard and in view of the nature of the offences and the amounts involved, 3 the Magistrate took the view that the proper course to follow would be to adopt the commitment proceedings as laid down in section 207A of the Code.
Subsequently, the procedure prescribed by the said section was followed.
It appears that accused No. 1 who had in the meanwhile been, convicted in another case was undergoing a sentence of imprisonment in the District jail at Kanpur and so, he could not be produced before the Magistrate until the 7th July, 1961.
That is why the case had to be adjourned on some occasions and effective hearings did not make a material progress until the 7th July.
On the 6th July, 1961, the respondent filed a petition before the Magistrate alleging that amongst the documentary evidence sought to be relied upon against him by the prosecution were included three cheques and the prosecution case was that the writing on the cheques was in the handwriting of the respondent.
The respondent disputed this allegation Pan prayed that he should be allowed an opportunity to examine defence witnesses to prove that the impugned handwriting was not his.
On the 7th July, 1961, when the case was taken up for hearing before the Magistrate, he first considered the application made by the respondent to call defence witnesses and on the merits, he rejected the said application.
Then he proceeded to make an order of commitment.
In rejecting the application of the respondent for examining defence witnesses, the Magistrate took into account the fact that the application had been deliberately made at a very late stage in order to prolong the proceedings in his Court and so, that was one reason why he thought that an unconsciousably delayed petition which had been made solely with the object of gaining time should not be granted.
He also held that the application was misconceived.
It was urged before the Magistrate that he could examine the said witnesses and in support of this argument, reliance was placed on a 4 decision of the Bombay High Court in the case of Arunachalam Swami vs State of Bombay (1).
The learned Magistrate took the view that the said decision was distinguishable on facts.
Whilst the learned Magistrate was delivering this order, an application was made before him that the respondent wanted to move the higher Court for a transfer of the case, and though the learned Magistrate felt that this application also was intended merely to prolong the proceedings in his Court, he adjourned the case because under section 526(8) it was obligatory on him to do so.
That is why he adjourned the hearing of the case to the 20th July, 1961, for passing the remaining portion of the final order in case the respondent failed to obtain from the higher Court ' the necessary order of transfer.
This order was challenged by the respondent by moving the Calcutta High Court in its criminal revisional jurisdiction.
The High Court took the view that section 540 applied to cases tried under section 207A and it directed the Magistrate to consider afresh whether he should summon and examine the defence witnesses mentioned by the respondent in his application of the 6th July, '61 under the provisions of the said section.
Incidentally, the High Court also observed that the accused persons had not been examined under s.362 and so, it thought that an opportunity should be given to them to explain the circumstances appearing against them by asking them questions under section 342, This observation was made even though the High Court did not think it necessary to decide the general question whether in a commitment enquiry, examination of the accused under s.342 is compulsory or not.
In the result, the order passed by the '.Magistrate on the 7th July, 1961, was set aside and the matter was sent back to his Court for disposal in accordance with law.
It is against this order that the appellant has come to this Court by special leave and on its behalf (1) A. 1.
R. 5 Mr. Prem has contended that the High Court was in ' error in holding that section 540 of the Code applied to proceedings under section 207A.
In the alternative, he has argued that the Magistrate had himself considered the question as to whether the witnesses should be examined in the light of his powers under section 540 and so, even if his first point failed, he was entitled to contend that the High Court was not justified in sending the case back to the Magistrate.
There is no point, he argues, in asking the Magistrate to consider the question once again.
There is no doubt that the new provisions under s.207A have been introduced for the purpose of expediting the commitment proceedings so as to shorten the duration of criminal cases which are exclusively triable by the Court of Session or High Court.
Section 206, inter alia, confers powers on the Magistrates specified in the section to commit any person for trial to the Court of Session or High Court for any offence triable by such Court.
Under s.207, it is provided that in regard to a case which is triable exclusively by a Court of Session or High Court, or which, in the opinion of the Magistrate, ought to be tried by such Court, the Magistrate shall : (a) in any proceeding instituted on a Police report follow the procedure specified in s.207A; and (b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter.
Thus, section 207A is applicable to proceedings in respect of offences which are exclusively triable by the Court of Session or High Court, or which, in the opinion of the Magistrate, ought to be tried by such Court.
This section consists of 16 subsections which, in a sense, constitute a self contained Code which has to be followed in dealing with cases under the said section.
Sub section (2) authorises the Magistrate to issue a process to compel the attendance of any witness or the production of any document or thing.
Under sub section (3), the Magistrate has to satisfy himself that 6 the documents referred to in section 173 have been furnished to the accused and if they are not so furnished, he has to cause the same to be so furnished.
Sub section (4) then deals with the stage where the Magistrate proceeds to take evidence of such persons, if any, as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and it adds that if the Magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.
By sub section (5), the accused is given liberty to cross examine the witnesses examined under sub section (4).
Sub section (6) then lays down that if evidence is recorded under sub section (4) and the Magistrate has considered all the documents referred to in s.173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, he shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him, unless he thinks that such person should be tried before himself or some other Magistrate, in which case he shall proceed accordingly.
Sub section (7) deals with a case where on considering the evidence and the documents produced and after giving opportunity to the prosecution and the accused to be heard, the Magistrate is of opinion that the accused should be committed for trial, "he shall frame a charge under his hand, declaring with what offence the accused is charged".
Sub section (8) then lays down that as soon as the charge has been framed, it shall be read and explained to the accused and a copy thereof given to him free of cost.
Under sub section (9), the accused shall be required at once to give in, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence on 7 his trial.
There is, a proviso to this sub section which entitles the Magistrate in his discretion to allow such list to be given later, but we are not concerned with that proviso in the present appeal.
The rest of the clauses are not relevant for our purpose.
It will thus be seen that before the Magistrate decides either to discharge the accused person, or to direct that he should he tried by himself or by any other Magistrate, or to commit him to the Court of Session or High Court, he has to consider the evidence recorded before him under sub section (4) and the documents referred to in section 173.
It is open to him to examine the accused person also if he thinks it necessary to do so for the purpose of enabling him to explain circumstances appearing against him in the evidence.
He has, of course, to hear the prosecution and the accused person before making the order.
The scheme of section 207A thus does not appear to provide for a defence witness to be examined before an order is passed either under sub section (6) or sub section(7), and that may be because it was thought by the Legislature that in dealing with criminal cases instituted on a police report, it may ordinarily not be necessary to prolong the enquiry by allowing the accused person to lead evidence in defence and so, no provision in that behalf has been made.
Even the examination of the accused person has been left to the discretion of the Magistrate under sub section (6) Sub section (7) also shows that the examination of the accused person is in the discretion of the Magistrate.
As we have already seen, it is after the charge is framed and read and explained to the accused person under sections (8) that the stage is reached for him to give in a list of person,, whom he wants to examine under ss.(9).
This position shows a striking contrast to the relevant provisions of section 208.
Section 208 deals with cases where proceedings are instituted otherwise than on a police report, and it provides that when the accused 8 person is brought before .
the Magistrate, he shall proceed to hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution or on behalf of the accused, or as may be called for by the Magistrate.
Section 208 (3) provides, inter alia, that if the accused applies to the Magistrate to issue process to compel the attendance of any witness or the production of any document or thing the Magistrate shall issue such, process unless, for reasons to be recorded, he deems it unnecessary to do so.
In other words, in regard to the proceedings tried under section 208, an accused person is entitled to lead evidence in defence and the 'Magistrate is bound to allow such evidence to be led, except, of course, where he comes to the conclusion that such evidence need not be led in which case he has to record his reasons for.
coming to that conclusion.
When we consider the relevant provisions of section 207A and contrast them with the corresponding provisions of section 208, it becomes clear that an accused person has no right to lead evidence in defence in proceedings governed by section 207A, whereas he has a right to call for such evidence in proceedings governed by section 208.
This position, however, does not affect the question as to whether section 540 applies even to the proceedings governed by section 207A. Section 540 gives power to the Court to summon material witness or examine a per son in attendance, though not summoned as a witness, or recall and re examine any person already examined, and the section specifically provides that the Court shall summon and examine or recall and re examine any such person if his evidence appears to it essential to the just decision of the case.
It would be noticed that this section confers on criminal courts very wide powers.
It is no doubt for the court to consider whether its power under this section should be exercised or not.
But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to 9 the just decision of the case, it is its duty to take such evidence.
The exercise of the power conferred by section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case.
That being so, it is difficult to appreciate the argument that the scheme of section 207A excludes the application of section 540 to the proceedings governed by the former section.
It is true that s.207A does not give an accused person a right to lead evidence in defence, and so, he would not be entitled to make an application in that behalf; but that is very different from saying that in proceedings under section 207A the Magistrate has no jurisdiction to examine a witness by exercising his powers under section 540.
The denial to the accused person of the right to lead evidence in defence has no material bearing on the question as to whether the Magistrate can exercise his powers under section 540.
We do not think that the scheme of the special provisions contained in section 207A legitimately leads to the inference that the applicability of section 540 is thereby excluded.
Sometimes, if a statute contains a special or particular provision dealing with a special or particular case or topic and also includes a general provision dealing with the said special or particular topic or case as well as others, the particular or the special provision excludes the application of the general provision in respect of the topic or case covered by the former.
That, however, is not the position in the present case, because section 207A suggests, by necessary implication, for the.
exclusion of the accused person 's right to lead evidence, whereas section 540 does not refer to the right of the accused person or the prosecution to lead any evidence, but deals with the court 's power to examine witnesses as court witnesses in the interest of justice.
Section 540 in terms applies at any stage of any enquiry, trial or other proceeding under this Code.
This section is wide enough to include a proceeding under section 207A and so, it would be unreasonable to contend that the scheme of s.207A makes section 540 inapplicable to the proceedings 10 governed by section 207A.
The power of the court under section 540 can be exercised as much in regard to cases governed by section 207A as in regard to other proceedings governed by the other relevant provisions of the Code.
Therefore, we are satisfied that Mr. Prem is not justified in arguing that the Magistrate had no jurisdiction to examine witnesses as court witnesses even if he had held that the examination of such witnesses would be essential to the just decision of the case.
The alternative argument urged by Mr. Prem still remains to be considered.
The High Court seems to have thought that in rejecting the application of the respondent for examining defence witnesses, the Magistrate took the view that he had no power to do so in the present proceedings because his jurisdiction was circumscribed by the provisions of section 207 A.
That appears to be the sole basis of the decision of the High Court in reversing the order of the Magistrate and sending the proceedings back to his court.
In our opinion, the High Court was in error in assuming that the Magistrate had not considered the question on the basis of the applicability of section 540.
In fact, as we have already pointed out, when the Magistrate 's attention was drawn to the decision of the Bombay High Court in the case of Arunachalam Swami(1) he observed that the case was distin guishable on facts; he did not say that the case was irrelevant because s.540 was inapplicable to the proceedings before him.
If he had taken the view that s.540 did not apply at all, the Magistrate would obviously have said that the Bombay decision had no relevance.
The reason given by the Magistrate that the case was distinguishable on facts postulates that s.540 was applicable, but in his opinion, the particular decision was of no assistance to the respon dent, having regard to the difference of facts between the case before the Magistrate and the Bombay case.
Therefore, the order passed by the Magistrate cannot be successfully challenged on the ground that the (1) A. I. R. 11 Magistrate did not consider the question under section 540 of the Code.
It appears from the order passed by the learned Magistrate that he took the view that having regard to the voluminous evidence adduced by the prosecution, there was no substance in the allegation of the respondent that the evidence of the witnesses whom he proposed to examine was material or would be decisive.
He has observed that the documentary evidence adduced by the prosecution was voluminous and it clearly showed a prima facie case against both the accused persons.
In that connection, he has also commented on the conduct of the respondent.
The photostat copies of the disputed cheques had been given to both the accused persons nearly nine months before the 6th July, 1961.
Arguments in respect of these documents were urged before the Magistrate nearly two months before the said date.
At no stage was it ever suggested to the Magistrate that the respondent wanted to lead evidence to show that the writings on the cheques were not in his handwriting and that the said fact, if proved would materially affect the prosecution case.
The conclusion of the Magistrate was that the application made by the respondent was vexatious and so, was intended merely to delay the proceedings in his court.
In view of the reasons given by the learned Magistrate in rejecting the application of the respondent, it is very difficult to sustain the view taken by the High Court that the Magistrate was inclined to hold that s.540 did not apply to the proceedings in the present case.
The High Court has also referred to the fact that the accused persons have not been examined under s.342 of the Code, and it has apparently asked the Magistrate to examine the accused persons under that section, without considering the question as to whether it was necessary that the Magistrate should 12 examine them at this stage.
We have already referred to the relevant provisions of s.207 A (6).
Sub section (6) provides that the Magistrate can examine the accused if he thinks it necessary to do SO.
Besides, even according to the judgment of the High Court, the failure to examine the accused persons under s.342 did not amount to a material irregularity and could not by itself, therefore, justify the reversal of the order passed by the learned Magistrate.
The result is, the appeal is allowed, the order passed by the High Court is set aside and that passed by the learned Magistrate on the 7th July, 1961, is restored.
It is to be regretted that the proceedings taken by the respondent in the High Court and those taken by the appellant after the decision of the High Court have added to the length of the life of this criminal case; and so, it is desirable that the Magistrate should proceed to pronounce his final orders as expeditiously as possible and the case should thereafter be tried by the Court of Session without unnecessary delay.
Appeal allowed.

dataset_name: IN-Abs

summary:
Although an accused person is not entitled to lead evidence in his defence in a proceeding under section 207A of the Code of criminal Procedure, that does not affect the wide powers a Criminal Court has under section 540 of the Code to summon and examine persons as court witnesses where it considers such examination essential for a just decision of the case.
Section 540 of the Code is wide enough to include a proceeding under section 207A of the Code and its operation is not excluded by the scheme of section 207A of the Code.
Arunachalam Swami vs State, of Bombay, A.I.R. 1956 Bom.
695 referred to.
Sub section (6) of section 207A of, the Code does not make it incumbent on the Magistrate to examine an accused person unless he thinks it necessary to do so.
Consequently, in the present case, where the Magistrate in a proceeding under section 207A of the Code rejected the applica tion of the accused persons for examination of witnesses in defence not because he had no power under section 540 of the Code to do so but on the ground that the application was vexatious and was intended to delay the proceeding and the High Court in revision on an erroneous view of the Magistrate 's order set it aside and directed examination of the accused person under s.342 of the Code.
Held, that the order of the High Court must be set aside.


judgement:
Appeal No. 67 of 1956.
Appeal from the judgment and decree dated March 20, 1950, of the Bombay High Court in first Appeals Nos. 142 and 211 of 1947.
S.P. Varma, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant.
324 H.R. Khanna, R. H. Dhebar and T. M. Sen, for the respondent No. 1.
C.B. Agarwala and Naunit Lal, for the respondents Nos. 2 and 5. 1962.
September 26.
The judgment of the Court was delivered by AYYANGAR, J.
This appeal comes before us on a certificate of fitness granted by the High Court of Bombay under article 133 (1) (a) of the Constitution.
The appeal was heard by us in November last and judgment was reserved on 9/11/1961.
Within a short time thereafter, learned Counsel for the Appellant intimated the Registry that the 2nd respondent had died on November 5, 1961, and that steps were being taken to have the legal representative brought on record.
The certificate under O. XVI r.13 was received by this Court and on its basis substitution was ordered at the end of August 1962.
The appeal was subse quently reported for hearing and we have now heard the learned Counsel for the parties.
The facts giving rise to the appeal are briefly as follows: The plaintiff who is the appellant brought a suit in the Court of the Civil judge at Jalgaon for a declaration that the sale of certain of his lands which were held by the Revenue Authorities in circumstances which we shall detail later was void, and to recover possession of the lands from the defendants who had purchased these lands in revenue auction.
In view of the prayer for the declaration regarding the invalidity of the sale, the Province of Bombay was impleaded as a defendant to the suit.
The plaintiff 's father was an excise contractor and he and the plaintiff were licensees of certain opium shops in 1931 32.
By the end of March 1934 a sum of about Rs. 8,500/ were due to the Government in respect of the excise dues from these opium shops.
For the realisation of these dues the lands 325 belonging to the plaintiff were brought to sale and among others Survey Field No. 35, 40 and 80 in Mauje Therole, Peta Edalabad and a house bearing Survey No, 23A in the village of Kurhe was brought to sale and sold.
The three items of lands were purchased by government at the sale for a nominal bid of Re. 1/ for each item for realisation of these dues.
The sale was confirmed and possession taken by government of these lands.
Later the government sold the land bearing Survey No. 80 to the second defendant for Rs. 2,000/ and Survey Nos. 35 and 40 to the fifth defendant for Rs. 1,750/ .
Possession of these properties was delivered to the respective defendants in 1939.
As substantially the arrears due to government still remained undischarged, because the sales were for nominal amounts, the house property at Kurhe was attached and brought to sale and was sold on November 6, 1940, but the purchase in the case of the house was not by the government but the property was bid for and purchased by the second defendant for Rs. 76/ .
A certificate of sale was issued to him on February 13, 1941.
It was the validity of these sales that was challenged in the suit which has given rise to this appeal.
The suit was substantially decreed in favour of the plaintiff by the trial judge but on appeal the plaintiff 's suit was dismissed in respect of the relief in regard to the three plots above named which were the subject of sale on September 21, 1938, and of the house which was sold on November 6, 1940.
The learned trial judge had held that these sales were not in accordance with the provisions of the Bombay Land Revenue Code and were consequently void.
The learned judges of the High Court, on the other hand, were of the opinion that the sales and the purchase by government for a nominal sum of Re. 1/ for each of the plots were authorized by the Code and were therefore valid and binding on the plaintiff.
It is the correctness of this view of the High Court that is raised for consideration in the appeal.
326 Before dealing with the arguments addressed to us regarding the validity of the sales it is necessary to set out the statutory provisions which bear upon the power of government to effect sales for the realisation of arrears due to them.
Section 34 of the Bombay Abkari Act enables arrears of excise revenue to be recovered as an " arrear of land revenue".
Chapter XI of the Bombay Land Revenue Code lays down the procedure for the realisation of land revenue and other revenue demands.
Among the provisions of this Chapter it is necessary to refer to s.155 reading : "155.
The Collector may also cause the right, title and interest of the defaulter in any immovable property other than the land on which the arrear is due to be sold.
" Section 165 directs the Collector to issue a proclamation, in the vernacular language of the district of the intended sale, specifying the time and place of sale, while the section following requires that a written notice of the intended sale should be affixed in the public offices named therein.
Section 167 enacts that sales shall be made by auction by such persons as the Collector may direct.
Section 171 is the next relevant section and this reads: "When the sale is finally concluded by the officer conducting the same, the price of every lot shall be paid for at the time of sale, or as soon after as the said officer shall direct, and in default of such payment the property shall forthwith be again put up and sold.
On payment of the purchase money the officer holding the sale shall grant a receipt for the same, and the sale shall become absolute as against all per sons whomsoever.
" As some point was made before us of a violation in the instant case of the provisions of sections 172 and 173, we shall read these also 327 "172.
When the sale is.
subject to confirma tion, the party who is declared to be the pur chaser shall be required to deposit imme diately twenty five per centum on the amount of his bid, and in default of such deposit the property shall forthwith be again put up and sold.
The full amount ' of purchase money shall be paid by the purchaser before sunset of the day after he is informed of the sale having been confirmed, or, if the said day be a Sunday or other authorized holiday, then be fore sunset of the first office day after such day.
On payment of such full amount of the purchase money, the purchaser shall be granted.
, a receipt for the same, and the sale shall become absolute as against all persons whomsoever." "173.
In all cases of sale of immovable pro perty, the party who is declared to be the purchaser shall be required to deposit imme diately twenty five per centum on the amount of his bid, and in default of such deposit the property shall forthwith be again put up and sold.
" Section 175 sets out the effect of a default in payment of purchase money and this runs: "175.
In default of payment within the prescribed period of the full amount of pur chase money, whether of movable or immovable property, the deposit, after defraying therefore the expenses of the sale, shall be forfeited to the Provincial Government, and the property shall be resold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold.
" Section 178 enables sales to be set aside for irregularity and this section runs 328 "178.
At any time within thirty days from the date of the sale of immovable property application may be made to the Collector to set aside the sale on the ground of some material irregularity, or mistake, or fraud, in publishing or conducting it; but, except as is otherwise provided in the next following section, no sale shall be set aside on the ground of any such irregularity or mistake, unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof.
If the application be allowed, the Collector shall set aside the same and direct a fresh one.
" The consequential provision is in section 179 which reads: "179.
On the expiration of thirty days from the date of the sale, if no such application as is mentioned in the last preceding section has been made, or if such application has been made and rejected, the Collector shall make an order confirming the sale; provided that, if he shall have reason to think that the sale ought to be set aside notwithstanding that no such application has been made, or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale." and section 182 enacts : "182.
The certificate shall state the name of the person declared at the time of sale to be the actual purchaser; and any suit brought in a Civil Court against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement the name of the certified purchaser was used, shall be dismissed.
" 329 Section 214 of the Code empowers a State Government by a notification published in the official gazette to make rules not inconsistent with the provisions of the Act to carry out the purposes and objects of the Act and for the guidance of all persons in matters connected with the enforcement of the Act or in cases not expressly provided for therein.
In the Rules framed under the Code Ch.
XVIII is concerned with making provision for sales.
Rule 128 which is the second of the Rules in this Chapter.
prescribes "Where any land or other property is sold by public auction, an upset price shall, if the Collector thinks fit, be placed thereon; Provided that where in the opinion of the Collector difficulty is likely to be experienced in effecting speedy recovery of the arrears or bidders are likely to be deterred from offering bids, no such upset price shall be placed.
" Rule 129 has a new sub r.
(4) added after the sales which are now in controversy were effected reading : "Where in the opinion of the Collector difficulty is likely to be experienced in effecting speedy recovery of the arrears or bidders are likely to be deterred from offering bids, it shall be lawful for the Collector or his nominee to bid at the auctio n and purchase the land or other property for a bid of rupee one.
" We shall now proceed to narrate the proceedings that preceded the impugned sales where are stated to be in contravention of statutory provisions.
Before doing so, however, we might point out that in regard to the sale of the house in the village of Kurhe no irregularity which would vitiate the sale as pointed out, and the only complaint was that the house which was estimated to the worth about Rs. 200/ was sold for an inadequate sum of Rs. 76/ .
Obviously standing alone this could not be a ground for holding 330 the sale void.
In the rest of this judgment, therefore, we shall confine our attention to the sale of the three plots bearing Survey Nos. 35, 40 and 80 which were purchased by the Government for a nominal bid of Re. 1/ .
The relevant facts in relation to the sale of these three plots were these: In January 1934 the Mahalkari of Edalabad brought to the notice of the Collector of East Khandesh that an amount of over Rs. 9,000/ was due in respect of excise transactions from the plaintiff and his father and he pointed out that the amount remained unrecovered notwithstanding that the defaulter 's movable property was put up for sale eighteen times and his immovable property eight times.
He suggested to the Collector that " 'in order to bring home a sense of responsibility to the defaulters and to make them realise the need for quickly paying up the arrears", the procedure laid down in a Government order dated August 30, 1933, might be applied to them.
The procedure indicated was that contained in a Government resolution in the Revenue department bearing No. 474 of 1933 that "if defaulters were contumacious the Collector would have authority to purchase on behalf of Government the defaulter 's property on a nominal bid.
" By this letter the Mahalkari desired to have the permission of the Collector to make a nominal bid of Re. 1/ at the next auction of ' the defaulter 's property.
The principal question raised in this appeal is whether or not the procedure indicated in this resolution is in accordance with the provisions of the Land Revenue Code.
Before continuing the narrative it is necessary to refer to a further resolution No. 4135 of April 16, 1936, which ran "The procedure of purchasing on behalf of Government a defaulter 's property nominal bid should be adopted in order a speedy recovery of Government by offering a order to effect dues in cases where a real difficulty is experienced in making 331 such recoveries and no purchaser is forthcoming to buy the land. .
It should not be adopted except as a last resort when various remedies for the recovery of dues have failed or unless it is clear that bidders are deterred from offering bids by other reasons than purely economic considerations.
" The reason for the adoption of this procedure was stated to be that it would produce a good deterrent effect and would put a stop to any obstructive tactics on behalf of defaulting licensees.
The permission sought was granted by the Collector enabling the Mahalkari to bid at the auction.
Thereafter the Mahalkari intimated the defaulters the plaintiff and his father that if no bidder came forward at the time of the public auction sale and nobody bid, the lands mentioned in the proclamation would be sold at a nominal price of Re. 1/ and it was after this notice that the purchase by Government on the above terms was effected.
The sales were held, no stranger bid at the sale and thereupon the Mahalkari acting under the resolution of Government and the terms of the permission granted by the Collector, made a nominal bid of Re. 1/ for each lot on behalf of the Government and the bids were accepted and thereafter the sales were confirmed.
The validity of the sale was attacked before us on several grounds : (1) that under r. 128 the Collector was bound to have fixed an upset price and that his failure to do so rendered the sale void.
, (2) Rather inconsistently with this that the Collector had actually fixed an upset price and that in the face of this fixation the purchase by the Mahalkari on behalf of the Government for a nominal sum of Re. 1/ was illegal and rendered the sale void.
, (3) that on the terms of section 171, the sale price had to be paid for at the time of the sale and that as this was not done, the sale officer was statutorily bound to have put up 332 the property for sale again, (4) that sections 172 and 173 laid an obligation on the purchaser to deposit 25 per cent of the sale price immediately the bid was knocked down and further required him to pay the balance within 15 days thereafter and also prescribed the consequences of default, viz., the sale shall be avoided and that a resale shall take place and that in the present case the Mahalkari who bid on behalf of the Government, or the Government itself had not made either the deposit or the final payment with the result that the purchase stood automatically cancelled by reason of that default and (5) that the purchase by the Government on a nominal bid of Re.1/ was not a sale by public auction as was contemplated by section 167 of the Code and in consequence the sale was void and that no title passed by reason of that sale.
As regards the first four of the objections set out above, they have, in our opinion, no substance on the facts of the present case.
We do not however consider it necessary to deal with them because they were raised for the first time in this Court and they involve questions of fact which were not the subject of pleading or investigation in the Courts below.
We intimated to the learned Counsel that we would not permit him to urge those grounds before us.
It is only the last of these grounds that therefore requires to be considered.
This raises a question of some importance in the law relating to revenue sales.
The question of the validity of such sales was raised before the High Court of Bombay on an earlier occasion and the judgment of the Court is reported in Pumdu Dhansing vs Government for the Province of Bombay (1).
The Court was then concerned with an auction sale conducted by the Mamlatdar a revenue officer of the Government by which a property of a substantial value belonging to a surety for a toll contractor was sold to the Revenue Patel acting for and on behalf of the government for a nominal sum of Re. 1/ .
The (1) I. L. R. 333 contractor was in default and for the recovery of the amount due from him the provisions of Ch.
XI of the Bombay Land Revenue Code became applicable.
Several attempts were made to sell the property of the defaulter and the reserve prices which were fixed for the lots were never reached.
Subsequently at 'the next auction when no bids were forthcoming, the Patel acting under the orders of the Collector made a bid on behalf of Government, of Re. 1/ for each lot and this was accepted by the Mamlatdar who was conducting the auction, and this sale was confirmed later by the Collector and possession was thereafter taken of the property thus purchased.
It was the validity of this sale that was challenged in a suit filed by the defaulter.
Support for the validity of the sale was sought in the resolutions of the Government of 1933 and 1936 which we have extracted earlier.
On the facts of the case before the Court there were certain special features to which attention was drawn by the learned judges : (1) The first was that the proclamation of sale set out that a reserve price had been fixed and where a sale was subject to such a condition, "the conditions of sale" which are prescribed by the rules made a special provision invalidating the acceptance of bids below the reserve price, (2) there was no evidence that the defaulter had been served with any special notice that the different procedure of the purchase for a nominal price by government would be resorted to.
Though the learned judges pointed out these two features, the reasoning by which they held the sale void rested on wider grounds.
Stone C.J. speaking for the Court said: "The production of the nominal one rupee for all the property, cannot be regarded as bid at an auction sale for property lotted into five lots with a separate reserve price on each.
The word "nominal ' shows that there was nothing of substance about the offer and the endorsements 334 and formalities by which an attempt was made to give some semblance regularity to what was done cannot in my opinion cloak in legal guise that which was nothing better than a device to vest the appellant 's property in a Revenue Officer holding on behalf of Government.
The Bombay Land Revenue Code contains no power either to forfeit or to foreclose a defaulter 's property.
Yet the scheme formulated by the Resolutions referred to at the commencement of this judgment aims in effect at bringing about such a result, for, if effective it would achieve the extinguishment in favour of Government of all the appellant 's rights and ownership in his land.
In my judgment what took place at the alleged auction sale was of no effect and did not give to the Revenue Pail or to Government any right, estate or interest in the appellant 's property.
" When the present appeal was before the learned judges of the Bombay High Court it was pressed before the Division Bench which heard the appeal in the first instance that the reasoning of the decision in Tumdu Dhansing vs Government for the Province of Bombay (1) governed the present case also and entitled the plaintiff to succeed and that the appeal should be dismissed.
The learned judges observed: "It must be conceded that if the decision in Tumdu Dhansing vs Government for the Province of Bombay represents good law, the decision of the trial Court is correct".
They however, went on to say : "With respect however, to the learned judges who decided that case (Tumdu Dhansing vs Government for the Province of Bombay) we find great difficulty in understanding the reason ing and doubt whether the conclusion is correct".
(1) I. L. R. 335 They therefore suggested a reference to a Full Bench for an answer to the question : "Whether when at a sale held under section 153 of the Bombay Land Revenue Code the land is pur chased by the Government under a nominal bid the sale is either void or voidable": The learned Judges of the Full Bench however without deciding whether the decision in Tumdu Dhansing vs Government for the Province of Bombay was right or wrong, upheld the sale in the present case on certain distinguishing features : (1) the sale proclamation in the present case did not fix a reserveprice and therefore there was no purchase for a nominal sum in disregard of the price so fixed, (2) Before the bid for a nominal sum and a sale by the acceptance of such a bid notice had been given to the defaulter stating that the Government intended to pursue that course.
Though on these grounds they held the sale not to be void, the learned judges proceeded to point out that this practice of purchasing property for nominal bids was neither fair nor equitable.
With this answer the case came back to the Division Bench where the appeal by the defendant was allowed.
The question now for our consideration is whether a sale for a "nominal" bid of Re. 1/ is "a sale by auction" within the provisions of the Bombay Land Revenue Code.
Before entering on a discussion of the relevant provisions it is necessary to state that the Government Resolutions of 1933 and 1936 do not purport to have and have no statutory force at all.
They cannot authorise or render valid the transaction if otherwise it lacked a legal basis.
A further matter which requires to be pointed out is that para.
(4) of r. 129, already set out, which authorises the purchase by Government for a nominal price was added only in 1946 long after the sales in the present case and cannot serve as any basis for sustaining the validity (1) I. L. R. 336 of the sale.
In the circumstances it is not necessary to consider the scope or validity of this rule or its legal efficacy for authorising such a sale or purchase.
It is common ground that the power of Government to effect a sale by summary process for the recovery of amounts due to them has to be gathered from the four comers of Ch.
XI of the Code read in conjunction with the relevant rules in Ch.
XVIII.
Section 155 of the Code enables the Collector to cause the right, title and interest of the defaulter in the immovable property to be sold.
The manner in which those sales might take place is provided for by section 167 which enacts that "sales shall be by public auction by such person as the Collector may direct.
" Leaving aside for the moment the provisions which detail the procedure to be followed in the conduct of these sales, the point to be observed is that the realisation of the dues has to be by "sates" by public auction to be held in the manner prescribed.
This therefore does not and cannot authorise a forfeiture of the immovable property of a defaulter because of his contumacious conduct in not paying up his dues when demanded.
Nor does the Land Revenue Code contemplate or provide for any punishment of defaulters because of their conduct in either not paying up their dues or in not facilitating the realisation of the dues payable by them by co operating with the Government and securing a proper price for their property such as would be sufficient for the discharge of their dues.
While on this point it might be interesting to point out that section 58 of the Revenue Sale Law (Bengal Revenue Sale Law) Act 11.
of 1 859 enacts: " 'When an estate is put up for sale under this Act for the recovery of arrears of revenue due thereon, if there be no bid the Collector or other officer as aforesaid may purchase the estate on account of the Government for one rupee . . . . " 337 There is no provision corresponding to this in the Bombay Code.
The question then arises whether a purchase for a predetermined nominal price of rupee one for property, whatever its actual market value, is a sale by public auction within section 167 of the Code.
An auction has been described as " 'the proceeding at which people are invited to compete for the purchase of property by successive offers of advancing sums" and a sale by auction is a means of ascertaining what the thing is worth, viz., its fair market price.
If at the sale there are no bids there cannot be a sale.
A sale for a predetermined nominal sum cannot, in our opinion, be held to be a "sale by public auction" in the absence of any provision for such sales in the statute.
Such a sale appears to us to be somewhat analogous to what Sir Richard Couch described, though in a slightly different context. " 'The offer and acceptance of a rupee was a colorable attempt to obtain a title without paying for the land.
Virtually it was a present which it was not open to the authorities to make".
(vide Luchmeswar Singh vs the Chairman, of the Darbhanga Municipality(1).
It may not also be out of place to point out that it is the Collector who on behalf of Government sets in motion the machinery for the realisation of the arrears by bringing the defaulter 's property to sale and it is he who is by the Land Revenue Code invested with the power to make arrangements for the sale and section 178 constitutes him the authority to determine judicially any allegation about the irregularity in the conduct of the sale.
In these circumstances it looks to us somewhat anomalous that the Collector should of his own motion and without the authority of any statutory power claim the right to bid at the auction which his deputy is conducting on his behalf for the realisation of the dues which he as the executive authority is to recover and particularly when he is constituted the authority to consider the validity or irregularity in the auction conducted at his instance and the purchase made at his instance.
(1) (1890) 1.
R. , 106.
338 The next question for consideration is whether the fact that the defaulter was appraised that Government would bid for a nominal sum of one rupee for the property at the auction renders the sale valid.
We do not find it easy to discover the precise legal basis upon which prior notice to the defaulter would have the effect of validating the sale.
If a sale for a nominal bid of one rupee were "a sale by public auction" within section 167 of the Code, notice to the defaulter that such a procedure would be followed would be legally unnecessary and would not add to the legal efficacy of the sale.
If, on the other hand, such a sale or a sale in such circumstances was not a sale by public auction then notice to the defaulter could be of value only if (a) it operated as a waiver of the requirement of section 167, or (b) created an estoppel which precluded him from questioning the legality of the proceeding.
First as to waiver, the power of Government to effect the sale by summary process is a special provision resting on public grounds and being so very special it is clear that the limitations on the power thus conferred should be strictly construed.
In our opinion, it is an essential condition of the passing of property from the defaulter in invitem that there should be a sale by public auction and if a sale in the manner in which it has been conducted in the present case does not amount to a sale by public auction there is no question of the title to property passing by virtue of such a sale.
The plea of waiver cannot therefore be of any avail.
Nor is there any basis for any argument that by reason of the notice the defaulter is estopped from questioning the legality of the sale.
If waiver cannot cure the defect there is still less scope for invoking the rule as to estoppel, for the essential condition of estoppel, viz., representation by the person sought to be estopped and prejudice to the person seeking the benefit of the rule, would both be absent.
We therefore 339 come to the conclusion that the fact that the defaulter was informed that the Government would make a nominal bid of rupee one and purchase the property is really irrelevant for considering the validity of the sale.
The conclusion we have indicated earlier is in accord with the decision of the Bombay High Court in Tumdu Dhansing vs Government for the Province of Bombay(1) and we consider that that case is correctly decided.
We are further of opinion that the ratio of that decision would also cover the case where notice was served on the defaulter of the Govern ment 's intention to purchase the property for a nominal price.
Learned Counsel for the respondent raised several defenses besides seeking to support the judgment of the High Court on the reasoning of the learned judges and sought to sustain the impugned sale on various grounds.
His first submission was that the sale was at the worst irregular which rendered it voidable and that no suit having been brought within one year of the sale, the suit was barred by article 11 of the Indian Limitation Act.
We consider however that there is no substance in this contention because if, as we hold, a sale of the type now impugned was not authorised by the statutory provision in that regard then it was not a question of any mere irregularity in the conduct of a sale but a case where there was no sale at all with the consequence that no pro perty passed from the defaulter.
It was not disputed that article II of the Indian Limitation Act would only apply to a case where there is need for the setting aside of a sale and that it has no application to cases where no sale as contemplated by law has taken place.
It was next submitted that the appellants ' suit was barred by sections 4 (c) and II of the Bombay Revenue (1) 1.
L. R. 340 jurisdiction Act, 1876.
Section 4(c) runs: "4.
Subject to the exceptions hereinafter ' appearing, no Civil Court shall exercise jurisdiction as to any of the following matters: (a). . . . . . . (b). . . . . . . . (c). . . . . . . . claims to set aside, on account of irregularity, mistake or any other ground except fraud, sales for arrears of land revenue; and section 11 enacts: "11.
No Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present." As to the applicability of section 4 (c), it would be noticed that resort to the Civil Courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears Land Revenue are impugned.
The classes so specified are those in which the plaintiff seeks to set aside a sale on account of irregularities etc.
, other than fraud.
The provision obviously assumes that there is in existence a sale though irregular under which title has passed to the purchaser and that sale has to be set side, on grounds other than fraud, before the plaintiff can obtain relief.
Where however there is only a purported sale which does not pass title and the suit is for recovery of possession of property ignoring 341 such a sale, the provision and the bar that it creates have no application.
Nor is there any scope on the facts of the present case to attract the application of section 11.
The section is based on the principle that a party must exhaust the remedies provided by the Act before he can seek the assistance of the Civil Court in respect of a claim against the Government.
It therefore posits three matters before its protection could be invoked.
(1) There must be an act or omission of a revenue officer which gives rise to a claim against the Government; (2) the Act must provide for appeals against the said act or omission; and (3) lastly the party should have failed to avail himself of the remedy by way of appeal to obtain redress for his grievance.
The only "act" of which, on the facts, the appellant could be said to complain would be the direction by the Collector anthorising the Mahalkari to offer the nominal bid of Re. 1/ and purchase the property.
The question that next arises is whether the Statute had provided an appeal against this "act" It was admitted that there was no such specific provision.
Learned Counsel for the respondent however drew our attention to section 203 of the Bombay Land Revenue Code.
In the absence of any express provision of this Act or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer 's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer 's decision or order or not." In the present case however, there was no order by any authority which could be the subject of any appeal under section 203.
The Collector authorised administratively the Mahalkari to offer the bid and that is certainly not " 'a decision" which is capable of 342 appeal within section 203.
No other order which could by any stretch of language be construed to be a decision was pointed out in respect of which an appeal could have been filed.
In fact, there was no decision and except the sale which is complained of as void and of no effect nothing took place.
If section 203 is not attracted it was not suggested that section 1 1 of the Revenue jurisdiction Act created any bar to the entertainment of the present suit.
It was then suggested that the plaintiff was disentitled to any relief by reason of an estoppel raised by section 41 of the Transfer of Property Act.
The basis for this argument was that some time after the sale the second defendant had purchased the plot bearing Survey No. 80 for Rs. 2,600/ from the Government while the fifth defendant similarly purchased plots bearing Survey Nos. 35 and 40 for Rs. 1,750/ and that the inaction of the plaintiff without taking proceedings to set aside the sale constituted a representation to the world that the Government were properly the owners of the property which they had purchased for nominal bids and this was the reasoning by which section 41 of the Transfer of Property Act was sought to be invoked.
The argument has only to be stated to be rejected.
The respondent did not rely on any representation or any act or conduct on the part of the appellant but their belief that Government had acquired title by reason of their purchase at the revenue sale.
If the Government had no title to convey, it is manifest the respondents cannot acquire any.
They would clearly be trespassers.
In the circumstances we consider there is no scope for invoking the rule as to estoppel contained in section 41 of the Transfer of Property Act.
Lastly, it was submitted that the respondents had made improvements to the property since they had purchased them for which they were entitled to compensation under section 51 of the Transfer of Property Act.
But no basis was laid for this plea which is 343 one of pure fact.
No evidence was led and no issues struck before the trial judge and we do not therefore think it proper to entertain this point at this stage.
The Government of Bombay did not file any Written Statement before the trial judge, nor did they seek to support the sale before the High Court.
As we have stated, they were impleaded as the first respondent in the appeal before this Court.
In their statement of the case which they filed they did not oppose the appeal but left it to the Court to decide the matter and they took no part in the hearing except that learned Counsel appearing on their behalf made a statement that no order as to costs might be passed against them.
In the result the appeal is allowed and the suit decreed as regards the three items of land bearing Survey Nos. 35, 40 and 80.
The appeal will however stand dismissed as regards the,house in village Kurhe.
In view of the partial success of the appellant the appellant will be entitled to half of the costs of the appeal here to be paid by the respondents other than the State of Bombay (now Maharashtra).
Appeal partly allowed.

summary:
A sum of about Rs. 9,000 was due from the appellant to the Government on account of excise dues.
The movable and immovable property of the appellant was several times put for sale by auction under Ch.
XI Bombay Land Revenue Code but the amount remained unrecovered and three items of lands remained unsold.
In view of a Government Order dated August, 30, 1933, which prescribed such a course, the Mahalkari sought permission of the Collector to make a nominal bid of Re. 1/for each item of land in the next auction.
The permission was granted and the Mahalkari informed the appellant that if no bidders came forward at the next auction the lands would be sold at the nominal price of Re. 1.
The auction was held and as no stranger came to bid the Mahalkari made the nominal bid of Re. 1 for each item of land.
The bid was accepted and the sales were later confirmed.
Subsequently, the Collector sold these lands for adequate consideration and the purchasers were put in possession.
The appellant filed a suit challenging the validity of these sales.
The purchasers contended that the suit not having been brought within one year of the sales was time barred, that the suit was barred by sections 4(c) and 1 1 of the Bombay Revenue jurisdiction Act and, that the appellant was disentitled to relief on the ground of acquiescence and estoppel.
Held, that the Sales were invalid and the suit was liable to be decreed.
The purchase for a predetermined nominal price of Re 1, irrespective of the actual market value was not a sale by public auction as contemplated by section 167 of the Bombay Land Revenue Code.
An auction is.
a proceeding at which people are invited to compete for purchase of property by successive offers of advancing sums and a sale by auction is a means of ascertaining what the property is worth i.e. its fair 323 market price If at the sale there are no bids there cannot be a sale.
The Government Order had no statutory force at all, and could not authorise or render valid the transaction if otherwise it lacked a legal basis.
There was no provision in the Code which authorised such a course which amounted to forfeiture of the property of a defaulter.
It was anomalous that the Collector who moved the machinery for realisation of arrears by sale and who was constituted the authority to determine judicially allegation of irregularity in the conduct of the sale should, without authority of any statutory power, bid at the auction conducted by his deputy.
The mere fact that the appellant had been informed before hand of the nominal bid did not render the sales valid.
Nor was the appellant estopped from questioning the legality of the sales.
Tumdu Dhansing vs Government for the Province of Bombay, I.L.R. , approved.
The suit was not barred by article 11 of the Limitation Act.
The article was applicable only to cases where there was need for setting aside a sale and not to cases where no sale as contemplated by law had taken place.
The provisions section 4(c) Bombay Revenue jurisdiction Act, 1876 applied to cases where there was a sale and it was sought to be set aside on the ground of irregularities other than fraud.
They did not apply where there was only a purported sale which did not pass title, Section 1 1 barred a suit when there was an appeal provided against the act or omission of a revenue officer and the party failed to avail of the remedy.
in the present case there was no order which was appealable under section 203 and section 1 I could not be applied.
There was no scope for invoking the aid of section 41 Transfer of Property Act.
The purchasers had not relied upon any representation, act or conduct of the appellants but on the belief that Government had acquired a good title to the lands.
If the Government had no title the purchasers could not acquire any.