judgement:
minal Appeal No. 213 of 1967.
Appeal by special leave from the, judgment and order, dated May 19, 1967 of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Appeal No. 118 of 1967 and capital sen tence No. 11 of 1967.
R. K. Garg, section C. Agarwala, D. P. Singh and A. K. Gupta, for the appellants.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Shelat, J.
This appeal, by special leave is directed against the judgment of the High Court of Allahabad which confirmed the convictions and sentences passed by the Sessions Judge, Hardoi, in respect of the murders of Lal Singh and his father Harihar.
The ten appellants on being convicted under sections 302 and 201 read with section 149 of the Penal Code were awarded various sentences.
Four of them, namely, Karnesh Kumar, Krishna Kumar, Kaushal Kumar and Chhetrapal were awarded death sentence and the rest imprisonment for life.
At the material time, the two deceased, along with the mem bers of their family, and the appellants lived in village Nir in District Hardoi, and, except for appellants Jugal Kishore and his brother Kailash Narain, they are close relations, their common ancestor being one Jhabha Singh.
The evidence, however, shows a long standing enmity between the members of the branch of Sobaran Singh, one of the sons of Jhabha Singh, on the one hand and the rest of the descendants of Jhabha Singh on the other.
It also shows that since 1950, there has been intermittently civil and criminal litigation between the parties, the last of such litigation before the incident in question being in respect of an incident which took place on April 3, 1966 when appellant Ram Kumar charged the deceased Harihar and Lal Singh, and witnesses Jitendra and Virendra and two others with rioting and witness Virendra, in turn, filed a cross complaint against the appellants and some others.
According to the prosecution, at about 1 p.m. on June 5, 1966, Lal Singh was irrigating his field with canal water when appellants L8 Sup.
C.1.168 10 776 Karnesh and Avdesh diverted the water into their field.
There was an exchange of abuses between them in the course of which appellant Karnesh was said to have threatened that he would not rest until Lal Singh was done to death.
At about 5.30 that evening, Jitendra, Virendra and Girendra, P. Ws. 1, 6 and 8 were in the main room of the Chaupal where Lal Singh lived and Lal Singh was in a room nearby.
Fifty paces away from this house is the house where the deceased Harihar lived, Suddenly, a shout was heard to the effect that Lal Singh should be dragged out.
On hearing the shout, these witnesses and Lal Singh came out.
The witnesses saw appellants Krishna and Chhetrapal armed with guns, appellant Karnesh with a pistol, Rain Kumar and Jugal Kishore with spears, appellants Kaushal and Mahendra with banks and the rest with lathis.
As soon as Lal Singh came out, appellants Krishna, Chhetrapal and Karnesh simultaneously fired at him whereupon Lal Singh fell on the ground.
On being threatened that the witnesses would also be shot, they ran away and stood at some distance.
Five of these appellants, namely, Chhetrapal, Kaushal, Mahendra, Kailash and Jugal Kishore then ran to Harihar 's house where appellant Jugal Kishore struck Harihar with a spear in his face and then appellants Kaushal and Jugal Kishore dragged him to where Lal Singh had fallen.
Chhetrapal then fired at Harihar with his gun; Jugal Kishore gave another blow with his spear in the chest and the rest beat him with bankas and lathis.
Harihar also died on the spot.
Appellants Kailash, Jugal Kishore, Kaushal and Mahendra followed by Chhetrapal with his gun, lifted Harihar 's body to the field of one Sita Ram where they set fire to it.
The other five appellants took Lal Singh 's body to the Bathis of P.W. 4, Abdul Bari, and burnt it there on a heal) of cowdung cakes.
Having thus tried to do away with the dead bodies, appellants Kaushal and Mahendra scraped the blood.stained earth where Lal Singh had fallen as also the drops of blood which had fallen on the way.
P. W. 1, Jitendra, started on cycle to the Kotwali six miles away and lodged the F.I.R. at about 6 45 P.M. Inspector Jaswant Singh, P. W. 17, started for the scene of offence reaching there at about 7 45 P.M. The fires were put out but Lal Singh 's body had practically been burnt out with the result that the Inspector could collect only his bones and ashes.
But he was able to recover the half burnt body.
of Harihar.
That night he recorded the statements of P. Ws. 1, 6, 7, 8, 14 and of certain other persons.
On the 7th and 8th he recorded further statements.
On June 20, he recorded the statements of Raghubar, P. W. 9 and Gopali, P. W. 12.
It appears that statements of these witnesses were recorded late as these and other residents, presumably on account of fear of reprisals or to avoid having to figure as witnesses, had fled from the village.
777 The evidence on which the prosecution mainly relied was that of the four eye witnesses.
of these, Jitendra, P. W. 1, the son and brother of Harihar and Lal Singh respectively, Virendra, P. W. 6, his cousin, and Girendra, P. W. 8, a boy of 14 years of age and the younger brother of Lal Singh deposed to the assault by the appellants on both the deceased.
Santosh Kumari, P. W. 7, the daughter of Harihar, deposed only to the assault on Harihar in the house.
Besides this evidence, the prosecution examined Raghubar, Jeet, Gopali and Surat Singh, P. Ws. 9, 11, 12 and 14, the neighbours of the deceased, who in one part or the other corroborated the eye witnesses.
Gopali 's evidence was, however, the only direct evidence as to the scrapping of the blood stained earth by two of the appellants but that evidence was not relied upon by the High Court on the ground that his name was not mentioned in the F.I.R. and his statement was recorded late.
There was, however, the evidence of the eye witnesses that blood had dropped where Lal Singh had fallen and of the Investigating Officer that when he inspected the site that night, though he found no blood marks, he noticed that the earth at that place had been scrapped.
It is clear that, no one except the assailants, who had burnt of the dead bodies of Harihar and Lal Singh to do, away with evidence as to the two murders, would be interested also in doing away with an equally important evidence as to the place where Lal Singh had been killed by scrapping off the blood where he had fallen.
Scrapping of blood from that place was thus in line with and part of the stratagem of burning the bodies of the victims so as not to leave any evidence of the killing of the two men.
This part of the evidence lends support to Jitendra 's case that Lal Singh was fired at and fell at or near the intersection of the roads just outside his house.
It is true that only these four members of the family figured as eye witnesses.
But that fact alone cannot mean that P. W. 1 or the investigating agency excluded other available independent witnesses.
This is clear from the fact that the F.I.R. mentions a number of persons whom P. W. 1. thought to be eye witnesses.
There is evidence that the incident had created panic in the village and a number of residents had fled and had stayed away possibly with a view to avoid having to figure as witnesses.
It is, therefore hardly surprising that only the members of the family came forward as eye witnesses.
But as they were interested witnesses both by reason of their being members of the family and their sharing the hostility of the two victims towards the appellants, their evidence had to be examined with care and caution.
But there was circumstantial evidence to lend support to their account of the incident.
That evidence established the following facts (1) the Ion standing enmity between the parties, (2) the incident having taken place at about 5 30 P.m., (3) the burning of the two bodies by the appel 778 lants, (4) the scrapping of the earth to wipe out the blood stains (5) P. Ws. 6 and 8 having run to the house of Surat Singh, P. W. 14, the village Pradhan and having informed him of the incident, (6) P.W. 1 lodging the F.I.R. without any delay and giving therein the details of the incident, the names of the appellants and of witnesses whom he thought to be eye witnesses and (7) the injuries on Harihar 's body which could still be seen by Dr. Srivastava though it had been burnt, indicating three types of weapons having been deployed against him, namely, a fire arm, a spear and a sharp cutting instrument.
The trial court and the High Court found from this evidence that the account of the incident given by the witnesses was acceptable despite certain discrepancies therein, that it occurred at about 5 30 P.m., that Lal Singh was shot at and killed just outside his house, that Harihar was first attacked inside his house and then dragged to where Lal Singhs body lay and was there killed, that the appellants were responsible for the assault and the consequent deaths of the two victims, that in order to leave no trace of the, two assaults they burnt the bodies of the victims and scrapped the earth where blood had fallen, that they formed an unlawful assembly of which the common object was to murder the father and the, son and that they attacked and killed both in furtherance of that common object and then tried to do away with the evidence of their acts and burnt the two bodies.
These being concurrent findings ,of fact, we would not normally proceed to review the evidence unless it is shown that the trial is vitiated by some illegality or irregularity of procedure or that it was held in a manner contrary to rules of natural justice or the judgment under appeal has resulted in gross miscarriage of justice : (cf.
Kirpal Singh vs State of U.P.) Counsel for the appellants, however, contended that such a miscarriage, of justice has resulted in the present case.
He argued that the trial court and the High Court failed to appreciate from the evidence on record that the prosecution had deliberately tried to shift the time of the incident at 5 30 that evening though the incident must have taken place subsequently, in order to enable the four witnesses to pose as eye witnesses.
The evidence of Jitendra and the Investigating Officer was that the F.I.R. was lodged at 6 45 P.m. and that Jitendra had started from the village at 6 P.m. on cycle for the police station.
The evidence of the Investigating.
Officer also is that he reached the spot soon thereafter, that the body of Harihar was not fully burnt out, and that he could manage to extract the half burnt body from the fire.
The evidence of Dr. Srivastava supports this evidence in a large measure.
It is manifest that if the incident took place at night and P. W. 1 bad (1) ; , 996.
779 not seen it, he could not have reported it to the police officer in time to enable the police officer to arrive at the scene and extract the half burnt body of Harihar from the fire.
This fact clearly supports the prosecution that the incident took place that evening and not at night.
But reliance was placed on the fact that postmortem examination on Harihar 's body was made by Dr. Srivastava at 5 P.m. on June 6, 1966.
The argument was that if the body had been dispatched to the mortuary soon after it was recovered by the police officer, it would have reached the mortuary earlier and the postmortem examination would have been carried out earlier.
But the evidence of Maqbool Khan, P. W. 15, shows that the body was given to him, at 10 that night, that, he carried it in a bullock cart, that he started at about 1 A.m.
but on the way he feared that the body might be taken away from him and, therefore, he stopped at an intervening village till sunrise and reached the mortuaryat 6 30A.M.
It is true that the doctor said that he performed the post mortem examination at 5 P.m. and not at 1 p.m. as the constable deposed.
Obviously, the constable appears to have delayed in his mission and there was a gap of time between the body reaching the mortuary and the time when the postmortem examination was performed.
But the delay in the postmortem examination does not mean that the Investigating Officer had not handed over the body to the constable that night or that the incident did not take place in the evening of the 5th of June or that the F.I.R. was not lodged at 6 45 P.m. as testified by P. W. 1.
Reliance was next placed on the evidence of the Magistrate at Hardoi that he received the special report about the incident on June 6, 1966.
The contention was that if the Investigating Officer had sent the special report before he started for the scene of the offence, as stated by him, the Magistrate was bound to receive it on the night of the 5th and not on the 6th of June.
But the Magistrate admitted that he had not noted the time when he received it on the 6th.
He also admitted that he could not say whether he was in Hardoi on the 5th of June, it being a, Sunday, and that it was possible that his peon might have received it in the evening of the 5th and placed it before him on the 6th of June when he noted the date of its receipt.
There is also evidence of the Reader to the Superintendent of Police, Hardoi that his office had received the General Diary of the 5th on the 6th and of the 6th on the 7th June.
This controversy is set at rest by the evidence of the Head Constable, P.W. 13, that he had sent constable Abdul Hafir at 7 30 P.m. on the 5th June to the Magistrate with the special report and that Abdul Hafiz had returned to the police station at 9 3O that night after delivering it and that this fact was noted by him in Ext.
This evidence establishes that the Investigating Officer had sent the special report on the 5th of June and that report was carried to Hardoi that very night.
Consequently, it must be held that the incident took 780 place in the evening of the 5th of June, and that P. W. 1. was right when he claimed that he had given the F.I.R. at 6 45 P.M.
The next contention was that the place of attack on Lal Singh was not on the road but in Harihar 's house.
We find no basis for this contention.
The evidence of witnesses on the other hand, is clear and there is no reason to disbelieve it.
That evidence is supported by the evidence of the Police Officer that he found signs of scrapping of the earth at the place where, according to the prosecution, Lal Singh had fallen.
The next contention was that witnesses Jitendra and Santosh Kumari had tried to make improvements in their evidence, the former by stating that the three accused who were armed with firearms had shot simultaneously at Lal Singh though in the F.I.R. he had only said that three shots were fired without stating who had fired them, and the latter by stating that Jugal Kishore had struck his spew in the eye of Harihar, which allegation was not borne out by the medical testimony.
These infirmities, no doubt, are in their evidence.
But they were considered by the High Court and yet on an examination of the entire evidence, it accepted their evidence as reliable.
That three shots were fired was stated by witness Jitendra both in the F.I.R. and in evidence.
It may be that from that fact coupled with the fact that the three appellants were armed with fire arms, he might have inferred that all the three had fired.
For a witness like him, it was possible not to be able to distinguish between a fact seen by him and an inference drawn by him.
Failure to appreciate such a distinction cannot mean that he was deliberately improving upon his original version.
As regards Santosh Kumari, a spear injury was inflicted on Harihar 's face and that injury must have covered his face with blood.
It is possible that she mistook that injury to be one in the eye, especially as it in her evidence that appellant Jugal Kishore had at that time said that Harihar should be struck in his eyes.
These infirmities, even if they can rightly be so termed, cannot discredit their testimony so as to render it unacceptable.
Counsel then argued that though P. Ws. 9 and 11 were referred to in the F.I.R. as eye witnesses, they did not come out in their evidence as eye witnesses and that fact showed that P. W. 1 had tried to introduce them falsely as eye witnesses.
He forgets, however, that there are two distinct alternatives, (1) that he saw them at the scene of the offence after the incident and believed they had seen it and (2) that though the witnesses had seen it, like the other neighbours, they preferred not to figure as eye witnesses and circumscribed the scope of their evidence to what they had seen after the assault.
In either event, P. W. 1 cannot be said to have falsely tried to usher them in the F.I.R. as eyewitnesses.
781 The argument which counsel strenuously urged was that though independent eye witnesses were available, they were pur posely excluded and only the family members were examined as eye witnesses.
In this connection he relied on the F.I.R. where P. Ws. 9 and 11, one Chhuta Bhurji, Alha Singh, Lakhan Singh, Paragu, Parsadi, Sishupal, Girdhari Kachhi and "some other men" were said to be witnesses.
In his evidence also P. W. 1 has mentioned that these persons and a few others were present at the time of the incident.
And yet these persons were not examined.
The prosecution, however, did explain that these persons were not examined either because they had been won over by the opposite side or because some of them had failed to identify the appellants from the identification parades held for them, which, according to the prosecution, indicated that they had been won over.
The explanation, however, does not apply to two persons, viz., Parsadi and Paragu, for whose non examination the only explanation given was that they were not necessary witnesses.
The High Court does not appear to have been satisfied with this explanation and, therefore, has observed that it would have been better if these two persons had been examined.
At the same time it refused to draw from their non examination an adverse inference under section 114(g) of the Evidence Act.
Counsel argued that the High Court erred in declining to do so and relied on Habeeb Mohammed V. State of Hyderabad(1), where it has been observed that it is the bounded duty of the prosecution to examine a material witness particularly when no allegation has been made that, if produced, he would not speak the truth.
The decision further observes that not only does an adverse inference arise against the prosecution case from his nonproduction as a witness in view of illustration (g) to section 114, but that the circumstance of his being withheld from the court would cast a serious reflection on the fairness of the trial.
In Darya Singh vs State of Punjab(1) also this Court has observed that a prosecutor should never adopt the device of keeping back eye witnesses only because their evidence is likely to go against the prosecution and that the duty of the prosecutor is to assist the Court in reaching a proper conclusion.
It is open, however, to the prosecutor not to examine witnesses who in his opinion have not witnessed the incident, but normally, he ought to examine all 'the eye witnesses in support of his case.
But in a case where a ,large number of persons have witnessed the incident, it is open to him to make a selection.
The selection must, however, be fair and honest and not with a view to suppress inconvenient witnesses.
Therefore, if it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an (1) A. I. R. (2) , 408, 782 adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case.
As stated earlier, it appears that the persons mentioned by P. W. 1 were not examined either because the prosecution believed that they had been won over by the opposite side or because in the parades held for them they had not identified the appellants or committed errors.
If that was so, it is manifest that no useful purpose would have been served by examining the persons who had failed to identify the appellants.
But then neither Parsad nor Paragu falls in this category of persons for the explanation given in regard to them was that they were not necessary.
For one reason or the other the defence seems to have remained content with that explanation, for they asked no question either to P.W. 1 or to the Investigating Officer to elicit why these two persons were considered unnecessary witnesses.
, It may be that if a clarification had been demanded, they would have given some explanation.
Besides, there is nothing in the evidence to suggest that they were not produced because they would have turned out to be inconvenient witnesses.
The High Court on an examination of the evidence held that it was not possible to say that the prosecution had delibe rately withheld these two persons for any oblique motive.
In these circumstances it is difficult to persuade ourselves to take the view pressed upon us by counsel that the High Court ought to have drawn an adverse inference.
For the reasons aforesaid, the contentions of Mr. Garg cannot be sustained.
Consequently, we do not find any reason to interfere with the concurrent findings of the trial court and the High Court that the appellants were responsible for the deaths of Lal Singh and Harihar and were guilty of the offences charged against them.
As regards the sentence of death imposed on appellants Karnesh, Krishna, Kaushal and Chhetrapal, it is difficult for us to agree with that order passed by the trial court and confirmed by the High Court.
In imposing the sentence of death on these four appellants, the trial court made a distinction between them on the one hand and the rest of the appellants on the other.
The distinction was made on the ground that three of them were armed with fire arms and that they all fired at Lal Singh simultaneously, that appellant Chhetrapal had shot at Harihar also and finally, that appellant Kaushal had given a hatchet blow to Harihar.
In our view, the evidence on which this distinction was made cannot be said to be fully satisfactory.
It is true that P. W. 1 while giving evidence stated that the three appellants had fired simultaneously at Lal Singh, that Chhetrapal had also fired at Harihar and that Kaushal had given a hatchet blow to him.
But the F.I.R. merely states that three shots were fired at Lal Singh but does not state that they were fired by the three appellants simultaneously, nor does it state that Chhetrapal had fired at Harihar after he had been 783 dragged out on the road.
It is hardly conceivable that if P. W. 1 had seen these appellants firing either at Lal Singh or at Harihar, he would have forgotten to make a positive statement about it in the F.I.R.
In view of this omission, it is difficult to build the conclusion with any certainty on his subsequent statement that the three appellants had simultaneously fired at Lal Singh and that Chhetrapal had shot at Harihar after he had been brought out of the house.
The possibility of any one or two of them having fired the three shots in quick succession cannot, therefore, be ruled out.
In that case the distinction made on the basis that all the three of them had fired at Lal Singh cannot be sustained.
Therefore, the reason given by the trial judge for imposing the extreme penalty on these four appellants as against the rest becomes difficult to sustain.
It is true that these four appellants were armed with firearms and a hatchet.
But the others also were armed with equally dangerous weapons, such as spears and bankas.
The said distinction being not sustainable, the proper punishment that should have been awarded to the four appellants in the absence of clear evidence, as to who inflicted the fatal blows, should have been the same punishment as imposed on the rest.
, We have,; therefore, to set aside the sentence of death imposed on the aforesaid four appellants and impose on them the sentence of rigorous imprisonment for life.
Except for this modification the appeal fails and is dismissed,.
R.K.P.S. Appeal dismissed.

summary:
The ten appellants were convicted under sections 302 and 201 both read with section 149 of the I.P.C. mainly on the evidence of four eye witnesses who were members of the family of the two murdered persons.
Four of the appellants were sentenced to death and the rest to imprisonment for life.
The High Court confirmed the convictions and sentences.
in appeal to this Court by special leave it was contended, inter alia, on behalf of the appellants that (i) there were various discrepancies and inconsistencies in the evidence showing miscarriage of justice; (ii) though two independent eye witnesses were available they were purposely excluded and only the family members were examined as eye witnesses; and the High Court had wrongly refused to draw from their non examination an adverse inference under section 114(g) of the Evidence Act; and (iii) the sentences on the appellants were wrongly confirmed by the High Court.
HELD : (i) There was no reason to interfere with the concurrent findings of the trial court and the, High Court that the appellants were responsible for the deaths of the two deceased persons and were guilty of ,the offences they were charged with.
[782 E] (ii) The prosecutor need not examine witnesses who, in his opinion, have not witnessed the incident.
Normally, he ought to examine all the eye witnesses in support of his case.
But in a case where a large number of persons have witnessed the incident, it is open to him to make a selec tion which must, however, be fair and honest and not with a view to suppress inconvenient witnesses.
If it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure.
as constituting a serious infirmity in the proof of the prosecution case.
[781 G H; 782 A] In the present case, the prosecution had explained that the two independent eye witnesses were not necessary.
The defence remained content with that explanation and did not ask the other concerned witnesses any questions to elicit why these two persons were considered unnecessary witnesses.
Furthermore, there was nothing in the evidence to suggest that they were not produced because they would have turned out to be inconvenient witnesses.
It was not therefore possible to say that the prosecution had deliberately withheld these two persons for any oblique motive or that the High Court ought to have drawn an adverse inference.
[782 C D] (iii) The sentence of death on four of the ten appellants must be set aside and the sentence of rigorous life imprisonment substituted therefore.
775 In imposing the sentence of death on four of the appellants the trial court made a distinction between them and the others as three of them were armed with firearms and the fourth with a hatchet.
This reason for imposing the extreme penalty on the four appellants could not be sustained on the evidence as the others were also armed with equally, dangerous weapons.
In the absence of evidence as to who inflicted the fatal blows, the same punishment should have been imposed on all of them.
[783 C D]


judgement:
ivil Appeal No. 14 of 1953.
Appeal by special leave granted by the Supreme Court, by its Order dated the 29th October, 1951, from the Judgment and Decree dated the 19th July, 1950, of the High Court of Judicature at Patna (Sinha and Rai JJ.) in appeal from Appellate Decree No. 1152 of 1946 from the Judgment and Decree dated the 24th day of May, 1946, of the Court of the 1st Additional District Judge in section J. Title Appeal No. I of 1946 arising out of the Judgment and Decree dated the 27th November, 1945, of the First Court of Subordinate Judge at Monghyr in Title Suit No. 34 of 1944.
S.C. Issacs (Ganeshwar Prasad and R. C. Prasad, with him) for the appellants.
B.K. Saran and M. M. Sinha for respondents Nos.
1 9. 1954.
April 14.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This appeal raises a question on the construction of section 11 of the Suits Valuation Act.
The appellants instituted the suit out of which this appeal arises, in the Court of the Subordinate Judge, Monghyr, for recovery of possession of 12 acres 51 cents of land situated in mauza Bardih, of which defendants Nos. 12 and 13, forming the second party, are the proprietors.
The allegations in the plaint are that on 12th April, 1943, the plaintiffs were admitted by the second party as occupancy tenants on payment of a sum of Rs. 1,950 as salami and put into possession of the. lands, and that thereafter, the first party consisting of defendants Nos. 1 to 11 trespassed on them and carried away the crops.
The, suit was 119 accordingly laid for ejecting defendants Nos.
I to II and for mesne profits, past and future, and it was valued at Rs. 2,950, made up of Rs. 1,950 being the value of the relief for possession and Rs. 1,000, being the past mesne profits claimed.
Defendants Nos.
I to II contested the suit.
They pleaded that they had been in possession of the lands as tenants on batai system, sharing the produce with the landlord., from fasli 1336 and had acquired occupancy rights in the tenements, that the second party had no right to settle them on the plaintiffs, and that the latter acquired ' no rights under the settlement dated 12th April, 1943.
Defendants Nos. 12 and 13 remained ex parte.
The Subordinate Judge held, relying on certain receipts marked as Exhibits A to A 114 which were in the handwriting of the patwaris of the second party and which ranged over the period from fasli 1336 to 1347, that defendants Nos.
I to II had been in possession for over 12 years as cultivating tenants and had acquired occupancy rights, and that the settlement dated 12th April, ' 1943, conferred no rights on the plaintiffs.
He accordingly dismissed the suit.
The plaintiffs preferred an appeal against this decision to the Court of the District Judge.
Monghyr, who agreed with the trial Court that the receipts, Exhibits A to A 114 were genuine, and that defendants Nos.
I to 11 had acquired occupancy rights, and accordingly dismissed the appeal.
The plaintiffs took up the matter in second appeal to the High Court, Patna, S.A. No. 1152 of 1946, and there, for the first time; an objection was taken by the Stamp Reporter to the valuation in the plaint and after enquiry, the Court determined that the correct valuation of the suit was Rs. 9,980.
The plaintiffs paid the additional Court fees required of them, and then raised the contention that on the revised valuation, the appeal from the decree of the Subordinater Judge would lie not to the District Court but to the High Court, and that accordingly section A. No. 1152 of 1946 should be heard as a first appeal, ignoring the judgment of the District Court.
The learned Judges held following the decision 120 of a Full Bench of that Court in Ramdeo Singh vs Raj Narain (1), that the appeal to the District Court was competent, and that its decision could be reversed only if the appellants could establish prejudice on the merits, and holding that on a consideration of the evidence no such prejudice had been shown, they dismissed the second appeal.
The matter now comes before us on special leave.
It will be noticed that the proper Court to try the present action would be the Subordinate Court, Monghyr, whether the valuation of the suit was Rs. 2,950 as given in the plaint, or Rs. 9,880 as determined by the High Court; but it will make a difference in the forum to which the appeal from its judgment would lie, whether the one valuation or the other is to be accepted as the deciding factor.
On the plaint valuation, the appeal would lie to the District Court; on the valuation as determined by the High Court, it is that Court that would be competent to entertain the appeal.
The contention of the appellants is that as on the valuation of the suit as ultimately determined, the District Court was not competent to entertain the appeal, the decree and judgment passed by that Court must be treated as a nullity, that the High Court should have accordingly heard S.A. No. 1152 of 1946 not as a second appeal with its limitations under section 100 of the Civil Procedure Code but as a first appeal against the judgment and decree of the Subordinate Judge, Monghyr, and that the appellants were entitled to a full heating as well on questions of fact as of law.
And alternatively, it is contended that even if the decree and judgment of the District Court on appeal are not to be treated as a nullity and the matter is to be dealt with under section 11 of the Suits Valuation Act, the appellants had suffered "Prejudice" within the meaning of that section, in that their appeal against the judgment of the Subordinate Judge was heard not by the High Court but by a Court of inferior jurisdiction, viz., the District Court of Monghyr, and that its decree was therefore liable to be set aside, and the appeal heard by the High Court on the merits, as a first appeal.
(1) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278, 121 The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section II of the Suits Valuation Act is on that position.
It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings.
A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.
If the question now under consideration fell to be ' determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities.
The question is what is the effect of section 11 of the Suits Valuation Act on this position.
Section 11 enacts that notwithstanding anything in section 578 of the Code of Civil Procedure, an objection that a Court which had 'no jurisdiction over a suit or appeal had exercised it by reason of over valuation or under valuation, should not be entertained by an appellate Court., except as provided in the section.
Then follow provisions as to when the objections could be entertained, and how they are to be dealt with.
The drafting of the section has come in and deservedlyfor considerable criticism; but amidst much that is obscure and confused, there is one principle which stands out clear and conspicuous.
It is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over valuation or under valuation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on over valuation or undervaluation should be dealt with under that section and not otherwise.
The reference to section 578, now section 99, of the Civil Procedure Code, in the opening words of the section is significant.
That section, while providing that no decree shall be reversed or varied in 16 122 appeal on account of the defects mentioned therein when they do not affect the merits of the case, excepts from its operation defects of jurisdiction.
Section 99 therefore gives no protection to decrees passed on merits, when the Courts which passed them lacked jurisdiction as a result of over valuation or undervaluation.
It is with a view to avoid this result that section 11 was enacted.
It provides that objections to the jurisdiction of a Court based on over valuation or under valuation shall Dot be entertained by an appellate Court except in the manner and to the extent mentioned in the section.
It is a self contained provision complete in itself, and no objection to jurisdiction based on over valuation or under valuation can be raised otherwise than in accordance with it.
With reference to objections relating to territorial jurisdiction, section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or revisional Court, unless there was a consequent failure of justice.
It is the same principle that has been adopted in section 1 1 of the Suits Valuation Act with reference to pecuniary jurisdiction.
The policy underlying sections 21 and 99 of the Civil Procedure Code and section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the Legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits, The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under section 11 of the Suits Valuation Act.
On behalf of the appellants Rajlakshmi Dasee V. Katyayani Dasee(1) and Shidappa Venkatrao vs Rachappa Subrao(2) which was affirmed by the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav(3) were relied on as supporting the contention (1) I.L.R. (2) I.L.R. 36 Bom, 628.
(3) 46 I.A. 24.
123 that if the appellate Court would have had no jurisdiction to entertain the appeal if the suit had been correctly valued, a decree passed by it must be treated as a nullity.
In Rajlakshmi Dasee vs Katyayani Dasee(1), the facts were that one Katyayani Dasee instituted a suit to recover the estate of her husband Jogendra in the Court of the Subordinate Judge, Alipore, valuing the claim at Rs. 2,100, whereas the estate was worth more than a lakh of rupees.
The suit was decreed, and the defendants preferred an appeal to the District Court, which was the proper Court to entertain the appeal on the plaint valuation.
There, the parties compromised the matter, and a consent decree was passed, recognising the title of the defendants to portions of the estate.
Then, Rajlakshmi Dasee, the daughter of Jogendra, filed a suit for a declaration that the consent decree to which her mother was a party was not binding on the reversioners.
One of the grounds urged by her was that the suit of Katyayani was deliberately under valued, that if it had been correctly valued, it was the High Court that would have had the ,competence to entertain the appeal, and that the con,sent decree passed by the District Judge was accordingly a nullity.
In agreeing with this contention, the High Court observed that a decree passed by a Court which had no jurisdiction was a nullity, and that even consent of the partes could not cure the defect.
In that case, the question was raised by a person who was not a party to the action and in a collateral proceeding, and the Court observed: " We are not now called upon to consider what the effect of such lack of, jurisdiction would be upon the decree, in so far as the parties thereto were concerned.
It is manifest that so fir as a stranger to the decree is concerned, who is interested in the property affected by the decree, he can obviously ask for a declaration that the decree is a nullity, because made by a Court which had no jurisdiction over the subject matter of the litigation" On the facts, the question of the effect of section 11 of the Suits Valuation Act did not arise for determination, and was not considered.
(1) I.L.R. 124 In Shidappa Venkatrao vs Rachappa Subrao(1) the plaintiffs instituted a suit in the Court of the Subordinate Judge, First Class, for a declaration that he was the adopted son of one Venkatrao and for an injunction restraining the defendant from interfering with his possession of a house.
The plaint valued the declaration at Rs. 130 and the injunction at Rs. 5, and the suit was valued for purposes of pleader 's fee at Rs. 69,016 9 0 being the value of the estate.
The suit was decreed by the Subordinate Judge, and against his decree the defendant preferred an appeal to the District Court, which allowed the appeal and dismissed the suit.
The plaintiff took up the matter in second appeal to the High Court, and contended that on the valuation in the plaint the appeal against the decree of the Subordinate Judge lay to the High Court, and that the appeal to the District Court was incompetent.
This contention was upheld, and the decree of the District Judge was set aside.
It will be seen that the point in dispute was whether on the allegations in the plaint the value for purposes of jurisdiction was Rs. 135 or Rs. 69,016 9 0, and the decision was that it was the latter.
No question of over valuation or under valuation arose, ' and no decision on the scope of section 11 of the Suits Valuation Act was given.
As a result of its decision, the High Court came to entertain the matter as a first appeal and affirmed the decree of the Subordinate Judge.
The defendant then took up the matter in appeal to the Privy Council in Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav(2), and there, his contention was that, in fact, on its true valuation the suit was triable by the Court of the Subordinate Judge of the Second Class, and that the District Court was the proper Court to entertain the appeal.
The Privy Council held that this objection which was " the most technical of technicalities " was not taken in the Court of first instance, and that the Court would not be justified " in assisting an objection of that type," and that it was also untenable.
Before concluding, it observed: " The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his (1) I.L.R. 36 Bom.
(2) 46 I.A. 24.
125 opponent but to secure revenue for the benefit of the State. .The defendant in this suit seeks to utilise the provisions of the Act not to safeguard the interests of the State,but to obstruct, the plaintiff ; he does not contend that the Court wrongly decided to ' the detriment of the revenue but that it dealt with the case without jurisdiction.
In the circumstances this plea, advanced for the first time at the hearing of the appeal in the District Court, is misconceived, and was rightly rejected by the High Court.
" Far from supporting the contention of the appellants that the decree passed in appeal by the District Court of Monghyr should be regarded as a nullity, these observations show that an objection of the kind now put forward being highly technical in character should not be entertained if not raised in the Court of first instance.
We are therefore of opinion that the decree and judgment of the District Court, Monghyr, cannot be regarded as a nullity.
It is next contended that even treating the matter as governed by section 11 of the Suits Valuation Act, there was prejudice to the appellants, in that by reason of the under valuation, their appeal was heard by a Court of inferior jurisdiction, while they were entitled to a bearing by the High Court on the facts.
It was argued that the right of appeal was a valuable one, and that deprivation of the right of the appellants to appeal to the High Court on facts must therefore be held, without more, to constitute prejudice.
This argument proceeds on a misconception.
The right of appeal is no doubt a substantive right, and its deprivation is a serious prejudice; but the appellants have not been deprived of the right of appeal against the judgment of the Subordinate Court.
The law does provide an appeal against that judgment to the District Court, and the plaintiffs have exercised that right.
Indeed, the undervaluation has enlarged the appellants ' right of appeal, because while they would have had only a right of one appeal and that to the High Court if the suit had been correctly valued, by reason of the under valuation they obtained right to two appeals, one to the District Court and another to the High Court.
The complaint of the 126 appellants really is not that they had been deprived of a right of appeal against the judgment of the Subordinate Court, which they have not been, but that an appeal on the facts against that judgment was heard by the District Court and not by the High ,Court.
This objection therefore amounts to this that a change in the forum of appeal is by itself a matter of prejudice for the purpose of section 1 1 of the Suits Valuation Act.
The question, therefore, is, can a decree passed on appeal by a Court which had jurisdiction to entertain it only by reason of under valuation be set aside on the ground that on a true valuation that Court was not competent to entertain the appeal? Three High Courts have considered the matter in Full Benches, and have come to the conclusion that mere change of forum is not a prejudice within the meaning of section 11 of the Suits Valuation Act.
Vide Kelu Achan vs Cheriya Parvathi Nethiar (1), Mool Chand vs Ram Kishan (2) and Ramdeo Singh y. Baj Narain (3).
In our judgment, the opinion expressed in these decisions is correct.
Indeed, it is impossible on the language of the section to come to a different conclusion.
If the fact of an appeal being heard by a Subordinate Court or District Court where the appeal would have lain to the High Court if the correct valuation had been given is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words "unless the overvaluation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits" would become wholly useless.
These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate Court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results.
And the prejudice envisaged by that section therefore must be something other than the appeal being heard in a different forum.
A contrary conclusion will lead to the surprising result that the section was enacted with the object of curing (1) I.L.R. 46 Mad.
(2) I.L.R. 55 All.
(3) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278.
127 defects of jurisdiction arising by reason of over valuation, or under valuation but that, in fact, this object has not been achieved.
We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined.
It is next argued that in the view that the decree of the lower appellate Court is liable to be reversed only on proof of prejudice on the merits, the second appellate Court must, for the purpose of ascertaining whether there was prejudice, hear the appeal fully on the facts, and that, in effect, it should be Heard as a first appeal.
Reliance is placed in support of this contention on the observations of two of the learned Judges in Ramdeo Singh vs Rai Narain (1).
There, Sinha J. observed that though the second appeal could not be treated as a first appeal, prejudice could be established by going into the merits of the decision both on questions of fact and of law,, and that that could be done under section 103 of the Civil Procedure Code.
Meredith J. agreed that for determining whether there was prejudice or not, there must be an enquiry on the merits of the decisions on questions of fact but he was of opinion that that could be done under section I I of the Suits Valuation Act itself.
Das J., however, declined to express any opinion on this point, as it did not arise at that stage.
The complaint of the appellants is that the learned Judges who heard the second appeal, though they purported to follow the decision in Ramdeo Singh vs A. Narain (1) did not, in fact, do so, and that there was no consideration of the evidence bearing on the questions of fact on which the parties were in dispute.
That brings us to the question as to what is meant by prejudice" in section II of the Suits Valuation Act.
Does it include errors in findings on questions of fact in issue between the parties ? If it does, then it will be obligatory on the Court hearing the second appeal to examine the evidence in full and decide whether the (1) I.L.R. 27 Patna tog; A.I. R, 1949 Patna 278.
128 conclusions reached by the lower appellate Court are right.
If it agrees with those findings, then it will affirm the judgment; if it does not, it will reverse it.
That means that the Court of second appeal is virtually in the position of a Court of first appeal.
The language of section 11 of the Suits Valuation Act is plainly against such a view.
It provides that overvaluation or under valuation must have prejudicially affected the disposal of the case on the merits.
The prejudice on the merits must be directly attributable to over valuation or under valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over valution or under valuation.
Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section.
It must further be noted that there is no provision in the Civil Procedure Code, which authorises a Court of second appeal to go into questions of fact on which the lower appellate Court has recorded findings and to reverse them.
Section 103 was relied on in Ramdeo Singh vs Raj Narain (1) as conferring such a power.
But that section applies only when the lower appellate Court has failed to record a finding on any issue, or when there had been irregularities or defects such as fall under section 100 of the Civil Procedure Code.
If these conditions exist, the judgment under appeal is liable to be set aside in the exercise of the normal powers of a Court of second appeal without resort to section 11 of the Suits Valuation Act.
If they do not exist, there is no other power under the Civil Procedure Code authorising the Court of second appeal to set aside findings of fact and to re hear the appeal itself on those questions.
We must accordingly hold that an appellate Court has no power under section 1 1 of the Suits Valuation Act to consider whether 'the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of that section.
So far, the definition of "prejudice" has been negative in terms that it cannot be mere change of forum (1) I.L.R. 27 Patna 109.
129 Dr mere error in the decision on the merits.
What then is Positively prejudice for the purpose of section 11 ? That is a question which has agitated Courts in India ever.
since the enactment of the section.
It has been suggested that if there was no proper hearing of the suit or appeal and that had resulted in injustice, that would be prejudice within section 11 of the Suits Valuation Act.
Another instance of prejudice is when a suit which ought to have been filed as an original suit is filed as a result of under valuation on the small cause side.
The procedure for trial of suits in the Small Cause Court is summary; there are no provisions for discovery or inspection; evidence is not recorded in extenso, and there is no right of appeal against its deci sion.
The defendant thus loses the benefit of an elaborate procedure and a right of appeal which he would have had, if the suit had been filed on the original side.
It can be said in such a case that the disposal of the suit by the Court of Small Causes has prejudicially affected the merits of the case.
No purpose, however, is.
served by attempting to enumerate exhaustively all possible cases of prejudice which might come under section II of the Suits Valuation Act.
The jurisdiction that is conferred on appellate Courts under that section is an equitable one, to be exercised when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over valuation or under valuation and a consequential failure of justice.
It is neither possible nor even desirable to define such a risdiction.
closely, or confine it within stated bounds.
Pt can only be predicated of it that it is in the nature of a revisional jurisdiction to be exercised with caution and for the ends of justice, whenever the facts and ,situations call for it.
Whether there has been prejudice or not is, accordingly, a matter to be determined on the facts of each case.
We have now to see whether the appellants have suffered any prejudice by reason of the under valuation.
They were.
the plaintiffs in the action.
They valued the suit at Rs. 2,950.
The defendants raised no objection to the jurisdiction of the Court at any time.
When the plaintiffs lost the suit after an elaborate 17 130 trial, it is they who appealed to the District Court as they were bound to, on their valuation.
Even there, the defendants took no objection to the jurisdiction of the District Court to hear the appeal.
When the deci sion went on the merits against the plaintiffs, they preferred section A. No. 1152 of 1946 to the High Court of Patna, and if the Stamp Reporter had not raised the objection to the valuation and to the Court fee paid, the plaintiffs would not have challenged the jurisdiction of the District Court to hear the appeal.
It would be an unfortunate state of the law, if the plaintiffs who initiated proceedings in a Court of their own choice could subsequently turn round and question its jurisdiction on the ground of an error in valuation which was their own.
If the law were that the decree of a Court which would have had no jurisdiction over the suit or appeal but for the over valuation or undervaluation should be treated as a nullity, then of course, they would not be estopped from setting up want of jurisdiction in the Court by the fact of their having themselves invoked it.
That, however, is not the position under section 1 1 of the Suits Valuation Act.
Why then should the plaintiffs be allowed to resile from the position taken up by them to.
the prejudice of their opponents, who had acquiesced therein ? There is considerable authority in the Indian Courts that clausts (a) and (b) of section I 1 of the Suits Valuation Act should be read conjunctively, notwithstanding the use of the word "or." If that is the correct interpretation, the plaintiffs would be precluded from raising the objection about jurisdiction in an appellate Court.
But even if the two provisions are to be construed disjunctively, and the parties held entitled under section 1 1 (1) (b) to raise the objection for the first time in the appellate Court, even then, the recuirement as to prejudice has to be satisfied, and the party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice.
Prejudice can be a ground for relief only when it is due to the action of another party and not when it results from one 's own act.
Courts cannot recognise that as prejudice which flows from the action of the 131 very party who complains about it.
Even apart from this, we are satisfied that no prejudice was caused to the appellants by their appeal having been heard by the District Court.
There was a fair and full hearing of the appeal by that Court; ' it gave its decision on the merits on a consideration of the entire evidence in the case, and no injustice is shown to have resulted in its disposal of the matter.
The decision of the learned Judges that there were no grounds for interference under section 11 of the Suits Valuation Act is correct.
In the result, the appeal fails and is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary:
The policy underlying section 11 of the Suits Valuation Act,as also of sections 21 and 99 of the Code of Civil Procedure, is that when a case has been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless a failure of justice has resulted.
The policy of the Legislature has been to treat objections as to jurisdiction, both territorial and pecuniary, as technical and not open to consideration by an appellate Court, unless there has been prejudice on the merits.
Mere change of form is not prejudice within the meaning of section 11 of the Suits Valuation Act; nor a mere error in the decision on the merits of the case.
It must be one directly attributable to over valuation or under valuation.
Whether there has been prejudice or not is a matter to be determined on the facts of each case.
The jurisdiction under section 11 is an equitable one to be exercised, when there has been an erroneous assumption of jurisdiction by a Subordinate Court as a result of over valuation or under valuation and a consequential failure of justice.
It is neither possible, nor desirable to define such jurisdiction closely or confine it within stated bounds.
118 A party who has resorted to a forum of his own choice on his own valuation cannot himself be heard to complain of any prejudice.
Ramdeo Singh vs Baj Narain (I.L.R. 27 Patna 109); Bajlakshmi Dasee vs Katyayani Dasee (I.L.R. ; Shidappa Venkatrao vs Rachappa Subrao (I L.R. 36 Bom.
628) ; Rachappa Subrao Jadhav vs Shidappa Venkatrao Jadhav (46 I.A. 24) ; Kelu Achan vs Cheriya Parvathi Nethiar (I.L.R. 46 Mad.
631) Mool Chand vs Bam Kishan (I.L.R. 55 All. 315) referred to.


judgement:
minal Appeal No. 145 of 1965.
Appeal by special leave from the judgment and order dated January 15, 1965 of the Mysore High Court in Cr.
Revision Petition 299 of 1964.
H. R. Gokhale and R. B. Datar, for the appellant.
R. Gopalakrishnan, and S.P. Nayar, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
The appellant, K. M. Kanavi, was the President of the Municipal Borough of Gadag Betgeri from 11th January, 1960 to 15th March, 1963.
He was removed from the President ship on 15th March, 1963 by an Order passed by the Government of Mysore for neglect of duty and incapacity under section 21(2) of the Bombay Municipal Boroughs Act, 1925 (No. XVIII of 1925) (hereinafter referred to as "the Act") which was applicable to Gadag Betgeri, even though it was situated in the State of Mysore, because it was earlier a part of the State of Bombay.
On the next day, i.e., on 16th March, 1963, the Government passed an order superseding the Borough.
The appellant filed two writ petitions challenging these two orders of his removal and supersession of the Borough.
The order of supersession was quashed by the High Court of Mysore by its judgment dated 10th April 1963 in Writ Petition No. 492/1963 reported in The Presi dent, Gadag Betgeri Municipal Borough vs State of Mysore(1).
Thereafter, elections were held for the office of the President, because the appellant had ceased to be the President under the order of removal.
One Malashetti was elected as the President of the Borough on 22nd April, 1963.
On 25th April, 1963, the new President asked the appellant to hand over all the papers, documents and property belonging to the Municipal Administration.
On 2nd May, 1963, the appellant sent three keys and two files of papers by registered parcel to the new President.
The new President returned it on the ground that those articles had not been delivered to him in person by the appellant and be considered it unsafe to take delivery of the registered parcel.
When sending this parcel, the appellant wrote an accompanying letter in which he specifically stated that he was retaining certain papers as they were needed by him for his writ petition which was pending against his order of removal.
Thereafter, on 20th June, 1963, the State Government made an order under sub section
(2) of section 23A of the Act directing the appellant to hand over charge of all the papers (1) 823 And properties which were in his possession to the new President.
He was also asked to hand over an iron cupboard with its keys and contents which were with him.
This Government Order was served on the appellant on 9th July, 1963.
The appellant did not comply with the Order and, consequently, on 21st September, 1963, the Government of Mysore sent an order to the Divisional Commissioner directing him to take necessary action under section 23A of the Act to prosecute the appellant, since he had defied the Government Orders and had refused to hand over charge of the papers and properties of the Borough to, the newly elected President.
The Divisional Commissioner, in turn, wrote to the Deputy Commissioner on 5th October, 1963, requesting him to take immediate action under section 23A(3) of the Act to prosecute the appellant.
The Deputy Commissioner then passed an order authorising the newly elected President of the Borough to be the formal complainant in respect of this prosecution which had been ordered by the Government and to file a criminal complaint against the appellant.
This order was made by the Deputy Commissioner on 24th December, 1963.
The new President, Malashetti, thereupon filed a complaint against the appellant for an offence punishable under section 23A(3) of the Act.
The complaint itself is dated as 3rd January, 1964, but the judgment of the High Court mentions that the complaint was actually presented in Court on 8th January, 1964.
Since these dates are not very material for decision of the point on the basis of which this appeal is being decided, we have not tried to ascertain the exact date of presentation of the complaint in court.
On the basis of this complaint and the facts mentioned above, the appellant was convicted by a Magistrate for the offence under section 23A(3) of the Act and was sentenced to pay a fine of Rs. 501 , in default to suffer simple imprisonment for seven days.
The appellant filed a revision against this order of conviction in the High Court of Mysore and challenged it on three grounds.
One ground was that the complaint filed by the new President Malashetti was incompetent as it was not filed in accordance with the procedure laid down in the Act, so that the proceedings taken by the Magistrate were without jurisdiction.
The second point was that, even if it be held that the complaint was validly filed the provisions of section 23A of the Act were not attracted, as the appellant could not be held to be a retiring President and an order under section 23A(2) can only be made against a retiring President.
The third plea was taken that the complaint was barred by time.
The High Court did not accept any of these three pleas and dismissed the revision.
The appellant has, therefore, come up to this Court in appeal by special leave.
In this case, the facts, which have been enumerated above, were not disputed even during the trial of the case, and the defence 8Sup CI/68 13 824 of the appellant was confined to the three grounds mentioned above which were urged in the revision before the High Court.
To appreciate the first ground mentioned above, it is necessary to reproduce section 23A and sub section
(1) of section 200 of the Act which are as follows : "23A. (1) On the election of a new President or Vice President, the retiring President or Vice President in whose place the new President or Vice President has been elected shall hand over charge of his office to such new President or Vice President, as the case may be.
(2) If the retiring President or Vice President fails or refuses to hand over charge of his office as required under sub se ction (1) the State Government or any authority empowered by the State Government in this behalf may, by order in writing, direct the President or the Vice President, as the case may be, to forthwith hand overcharge of his office and all papers and property of the municipality, if any, in his possession as such President or Vice President, to the new President or Vice President.
(3) If the retiring President or Vice President to whom a direction has been issued under sub section (2) does not comply with such direction, he shall, on conviction, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to Rs. 500 or with both.
(1) The standing committee and, subject to the provisions of sub section (3) the Chief Officer may direct any prosecution for any public nuisance whatever and may order proceedings to be taken for the recovery of any penalties and for the punishment of any persons offending against the provisions of this Act or of any rule or by law thereunder and may order the expenses of such prosecutions or other proceedings to be paid out of the municipal fund : Provided that no prosecution for an offence under this Act or by laws framed thereunder shall be instituted except within six months next after the date of the commission of the offence or if such date is not known or the offence is a continuing one within six months next after the commission or discovery of such offence.
" Sub section
(1) of section 23A casts the duty on the retiring President to hand over charge of his office to the new President, when a_new President has been elected.
It is obvious that, when handing over 825 charge, the retiring President must hand over to his successor all the papers and property belonging to the Borough.
Sub section (2) of section 23A envisages a case where the retiring President fails or refuses to hand over charge of his office in that manner.
This sub section empowers the State Government or any authority empowered by the State Government in this behalf to make an order in writing directing the retiring President to forthwith hand over charge of his office and all papers and property of the municipality to the new President.
Sub section (3) of section 23A prescribes the punishment which can be awarded to a retiring President who is convicted for not complying with a direction issued under sub section
It is clear that, in the present case, the appellant was not liable to conviction under section 23A(3) merely because he refused to hand over complete charge to Malashetti when the latter asked him to do so by his letter dated 25th April, 1963 or even by the subsequent reminder dated, 6th May, 1963.
The failure of the appellant to hand over the property, however, led the State Government to make a direction under section 23A(2) on 20th June, 1963 and this Order of the Government was served on the appellant on 9th July, 1963.
This Order was not complied with by the appellant according to the case of the prosecution.
It was because of the failure of the appellant to comply with this Order that the complaint was filed by the new President under section 23A(3).
The complaint was, therefore, clearly for initiating a proceeding for the punishment of the appellant who had offended against the provision under sub section
(2) of section 23A of the Act.
Under section 200(1) of the Act, direction for taking such proceedings could be made either by the standing committee or by the Chief Officer.
Admittedly, Malashetty was not the Chief Officer, nor did he file the complaint under any direction made by the Standing Committee of the Borough.
It is on this ground that the plea has been put forward on behalf of the appellant that the complaints against him was incompetent and no conviction could be validly recorded against him on its basis.
The High Court rejected this plea on the ground that, in its opinion, section 200(1) of the Act is only an enabling section which gives the power to the Standing Committee and the Chief Officer to make directions for taking of proceedings of this nature and it cannot be held to be exhaustive of the authorities who could make directions for initiation of such proceedings.
The High Court took notice of the fact that in the Act, there is no provision forbidding cognizance of an offence being taken except on a complaint made under a direction of the Standing Committee or the Chief Officer, and interpreted the expression "may direct" used in section 200(1) of the Act as indicating that it was an enabling section permitting the Standing Committee and the Chief Officer to make necessary directions.
In these circumstances, the High Court con . 826 cluded that this provision could not be held as laying down that the Standing Committee and the Chief Officer were the exclusive authorities who could institute proceedings of the nature mentioned in that sub section.
On this view, the High Court further proceeded to hold that a complaint could have been filed for an offence under the Act by even a private individual, so that the complaint filed by Malashetty, who was interested in his capacity as the newly elected President, was competent and valid.
We are unable to accept the interpretation put by the High Court on section 200(1) of the Act.
It is true that there is no specific provision in the Act laying down that cognizance of an offence under the Act is not to be taken except on a complaint filed in accordance with a direction made under section 200 (1 ), but the scheme of the Act and the purpose of this provision in section 200(1) makes it clear that the legislature intended that such proceedings should only be instituted in the manner laid down in that sub section.
The word "may" was used only because the legislature could not have enacted a mandatory provision requiring the Standing Committee or the Chief Officer to make a direction for institution of proceedings in all cases.
This word was intended to give a discretion to the Standing Committee or the Chief Officer to make directions for taking proceedings only when they considered it appropriate that such a direction should be made and to avoid compelling the Standing Committee or the Chief Officer to make such directions in all cases.
The use of this word "may cannot be interpreted as laying down that, if a proceeding for punishment of any person for con travention of any of the provisions of the Act is to be instituted, it can be instituted in any manner without complying with the requirements of section 200(1) of the Act.
If the interpretation put by the High Court on this provision is accepted, it would mean that this provision was totally unnecessary, because there would be no need to confer power on the standing committee or the Chief Officer to make such directions if such directions could be made or proceedings instituted at the instance of any private individual.
We cannot accept the submission that this provision was made in the Act simply by way of abundant caution.
In fact, if the provision had been made with such an object in view, there is no reason why the power should have been expressed to be conferred on the standing committee and the Chief Officer only and not on the President of the Municipality.
We, consequently, hold that, if any proceeding for punishment of any person for contravention of any of the provisions of the Act is to be instituted, it must be instituted in the manner laid down in section 200(1) of the Act and in that manner ,only.
This view of ours follows the principle laid down by this Court in Ballavdas Agarwalay.
Shikri J. C.Chakravarty(1).
In that case, (1) ; 827 the Court had to interpret a similar provision in section 537 of the Calcutta Municipal Act, 1923, under which it was laid down that the Commissioner may institute, defend or withdraw from legal proceedings under that Act or under any rule or bye law made thereunder.
The Court held that, though the word used was "may".
this provision must be read as requiring that the institution or withdrawal from legal proceedings under that Act must be by the Commissioners and no other authority.
The decision was given on the basis that the scheme of the Act made it clear that section was intended to confer exclusive power on the Commissioners.
The interpretation that it was a mere enabling section because of the use of the word "may" was rejected and it was hold that, if the other interpretation canvassed was accepted, the section would become clearly otiose.
That principle clearly applies to the interpretation of section 200 (1) of the Act with which we are concerned.
In Mangulal Chunilal vs Manilal Maganlal and Another(1), a similar interpretation was put on section 481 ( 1 ) of the Bombay Provincial Municipal Corporation Act, 1949, which also used the word "may" when laying down that the Commissioner may take or withdraw from proceedings against any person who is charged with any offence against this Act or.
This Court referred to the decision in Ballavdas Agarwala(2) and said : "Similarly, here it seems to us that only the authorities mentioned in section 481, read with section 69, can launch proceedings against persons charged with offences under the Act or the rules, regulations or by laws made under it." In the case before us, reliance was placed on the other side on a decision of the Bombay High Court in The State vs Manilal Jethalal(3).
That decision has already been disapproved by this Court in the case of Mangulal Chunilal(1), and need not detain us.
On this view, it must be held that the complaint in the present case, which was instituted by Malashetty, the newly elected President, without any order or direction by the standing committee or by the Chief Officer was not competent as it did not comply with the requirements of section 200(1) of the Act.
In this connection, a new point that was raised was that, whenever an Order under section 23A(2) of the Act is made and is disobeyed, only the State Government, which made the Order or the new President to whom the papers and property of the Borough have to be given under the direction made by the Government will have the knowledge that the retiring President has failed to (1) Criminal Appeal No. 59 of 1965 decided on 23 11 1967.
(2) ; (3) 828 comply with the direction and has, thus, committed an offence punishable, under section 23A(2) of the Act and, consequently, it should be held that a complaint in respect of such an offence was not intended to be covered by the provisions of section 200(1) of the Act.
On the language of section 200(1) of the Act, however, we must reject this contention, because it clearly lays down that the Standing Committee and the Chief Officer are the authorities who can order proceedings to be taken for the punishment of any person offending against the provisions of the Act, and the present prosecution of the appellant is clearly for an offence of failing to comply with a direction under section 23A(2) made punishable under section 23A(3) of the Act.
It may, no doubt, appear anomalous that the prosecution of even a retiring President in such circumstances has to be ordered by the Chief Officer, who was his subordinate at least during the time when he was working as the President.
It seems to us that this anomaly has arisen, because, when section 23A in its present form was introduced in the Act by the Bombay Act XL of 1950 and for the first time a retiring President was made liable to conviction for failing to comply with a direction made under sub section (2) of that section, the Legislature did not notice that section 200(1) of the Act would govern even such a proceeding.
The legislature left section 200(1) of the Act untouched.
That provision, as it stands at present, is clearly applicable even to a proceeding for punishment of a retiring President under section 23A(3) of the Act, so that the remedy may now lie in a suitable amendment of section 200(1) of the Act.
The conviction of the appellant on the basis of the complaint filed by the new President Malashetty, in disregard of the provisions of section 200(1) of the Act, must, therefore, be held to be invalid and set aside.
Since the appeal succeeds on this one ground, we do not con sider it necessary to discuss the other two grounds raised by the appellant for challenging his conviction.
The appeal is allowed and the conviction and sentence of the appellant are set aside R.K.P.S. Appeal allowed.

summary:
Section 23A(3) of the Bombay Municipal Boroughs Act, 1925, makes it an offence if a retiring President to whom a direction has been issued by the State Government to hand over charge of his office does not comply with such direction and under section 200(1) the authorities who "may direct" ' any prosecution for punishment of any person offending against the provisions of the Act are the Standing Committee and the Chief Officer.
The appellant who was removed from the office of President ship refused to obey the order of the State Government directing him to hand over charge to the newly elected President.
He was prosecuted and convicted for an offence under section 23A(3), not on the direction of the Standing Committee or the Chief Officer as required by section 200(1) but on a complaint filed at the instance of the State Government by the newly elected President.
The High Court, dismissing revision application against the order of conviction, took the view that section 200(1) was only an enabling provision and it could not be held to be exhaustive of the authorities who could make directions for initiation of such proceedings.
In appeal to this Court, HELD: The conviction must be set aside.
The Scheme of the Act and the purpose of section 200(1) make it clear that if any proceeding for punishment of any person for contravention of any of the provisions of the Act is to be instituted, it must be instituted in the manner laid down in section 200(1) of the Act and in that manner only.
The word "may" was intended to give a discretion to the Standing Committee or the Chief Officer to make directions for taking proceedings only when they considered it appropriate that such a direction should be made and to avoid compelling the Standing Committee or the Chief Officer to make such directions in all cases.
If the interpretation of the High Court were to be accepted it would mean that this provision was totally unnecessary, because, there would be no need to confer power on the Standing Committee or the Chief Officer to make such directions if such directions could be made or proceedings instituted at the instance of any private individual.
[826 C D. F] Baliavdass Agarwala vs Shri J. C. Chakravarty, ; Mangulal Chunilal vs Manilal Maganlal and Another, Criminal Appeal No. 59 of 1965 decided on 23 11 1967, followed : The State vs Manilal Jethalal, , referred to.
Section 200(1), as it stands at present, is clearly applicable even to a proceeding for punishment of a retiring President under section 23A(3) even though it might look anomalous that the prosecution in such 822 circumstances has to be ordered by the Chief Officer who was his subordinate at least during the time when he was working as the President.
The remedy lies in suitable amendment of section 200(1).
L828 E]