judgement:
iminal Appeal No. 73 of 1961.
777 Appeal by special leave from the judgment and order dated November 3, 1960 of the Patna High Court in Criminal Appeal No. 326 of 1958.
Jai Gopal Sethi, C.L. Sareen and R. L. Kohli, for the appellants.
, S.P. Varma, and R. N. Sachthey, for respondent.
January 29.
The judgment of the Court was delivered by MUDHOLKAR, J.
This is an appeal by special leave from a judgment of the High Court of Patna altering the conviction of the appellants under section 304, Part 11 read with section 149 of the Indian Penal Code into convictions under section 326 read with section 149, I.P.C. but maintaining the sentences and affirming the convictions under section 147 and section 426, I.P.C. as well as the sentences awarded in respect of those offences.
The prosecution case was that there was a dispute between Ram Bilas Singh of Shahpore and, his two sons Ram Naresh Singh and Dinesh Singh on the one hand (appellants before us) and Deva Singh (P. W. 2) and his brothers on the other with respect to a Dochara in a village Dihara.
On April 22, 1957, at about 9.00 a.m. while Deva Singh, along with his brother Laldeo Singh, the deceased and two other persons Dhunmun Singh (P. W. 4) and Dasain Hajam were sitting in the Dochara the appellant No. 1 Ram Bilas Singh arrived there in a truck with a mob of 40 to 50 persons which included the other two appellants before us, besides four other persons who were acquitted by the trial court.
Ram Bilas Singh is said to have fired from the gun which he was carrying which hit Laldeo Singh on the chest as a result of which he fell down, but got up later.
778 Thereupon Ramdeo Singh (acquitted by the trial court) fired from his gun and the shot hit Laldeo Singh on the chest and he fell down again.
After that, Ram Bilas Singh Gumasta of Dihara (acquitted by the trial court) fired a second shot ' from his gun hitting Laldeo Singh on the abdomen and killing him instantaneously.
The appellant Ram Bilas Singh is further said to have fired two shots at Deva Singh hitting him on his right thigh.
Appellants Ram Naresh Singh and Dinesh Singh are said to have assaulted Deva Singh with lathis as a result of which he fell down and thereafter the mob proceeded to dismantle the Dochara by demolishing its mud pillars, as a result of which its thatched roof fell down.
Having achieved their object, the mob is said to have left the place, taking away along with them a palang, a bamboo cot, two quilts, one lantern and one garansa.
The incident attracted it number of villagers to the spot including jagdish Singh, Bhagwat Singh (since dead) and Ajodhya Singh.
After report was lodged of the incident, the police arrived on the spot, held the panchnama (inquest) on the body of Lal Deo Singh and followed the ' usual procedure.
A starch was made for the seven accused persons, including the appellants, but it took some time to find them out and arrest them.
Eventually, they were placed before a magistrate who committed them for trial for offences under section 148, section 302 read with section 149 and section 426, I.P.C., the appellant Ram Bilas Singh, Ramdeo Singh and Ram Bilas Singh Gumasta of Dihara were specifically charged with offences under section 302, I.P.C. for having committed the murder of Laldeo Singh.
Ram Bilas Singh was further charged under section 307 of the Indian Penal Code for attempt to commit the murder of Deva Singh while Ram Naresh Singh and Dinesh Singh (appellants 2 and 3) were further charged with offences under section 323, I.P.C. for assaulting Dhunmun Singh (P. W. 4).
The court of 779 Session acquitted both Ram Bilas Singh as well as Ramdeo Singh of the offence under section 302, I. P.C. and also acquitted all the seven accused persons of the offence under section 302 read with section 149, I.P.C. It, however, convicted the three appellants before us under section 304, second part, read with section 149 of the I.P.C. and under sections 147 and 426, I.P.C. but acquitted the appellants 2 and 3 of the offence under section 323, I.P.C. Briefly stated, the defence of the three appellants was that the appellant Ram Bilas Singh was in possession of the dochara, that it was Laldeo Singh and Deva Singh who threatened to dismantle the dochara and, therefore, they marched there on the date of the incident at the head of a mob consisting of 15 or 20 persons carrying with them various weapons.
During the incident, Laldeo Singh and Deva Singh are said to have flourished their farsis and gandasas while some other members of their party are said to have used their lathis and spears as a result of which four persons on the side of the appellants received injuries.
In the meantime, in self defence, one Ram Lakhan Singh (since deceased) fired a shot from his gun and ran away.
This shot is said to have hit Laldeo Singh and also Deva Singh.
After being injured in this manner, Laldeo Singh is said to have dropped down dead and then the mob dispersed.
The defence of the appellants that they were in possession of the dochara and that Laldeo Singh and Deva Singh were the aggressors has been rejected by both the courts below and Mr. Sethi who appears for the appellants has not even sought to controvert the finding on that point.
His contention, however, is that the appellants having been acquitted of the offence under section 302 read with section 149, 1.
P. C. and appellant No. 1 having been acquitted of the offences under section 302 and section 307, I.P.C. none of them could 780 be convicted under section 326 read with section 149, I.P.C. Learned counsel points out that the clear case of the prosecution in the charge sheet was against seven named persons i.e., the three appellants before us, Ram Bilas Singh Gumasta of Dihara, Sudarshan Singh son of Ram Bilas Singh Gumasta, Ramdeo Singh and Sakal Singh sons of Raghoo Singh and contends that out of these, four persons having been acquitted, the remaining three persons could not be said to have been members of an unlawful assembly and, therefore, they could neither e convicted under section 147 I.P.C. nor could they be convicted of any other offences with the aid of section 149, I. P.C. All that it was competent for the court to do was to convict each of them for their individual acts and no more.
Learned counsel further contends that without setting aside the acquittal of the four alleged associates of the appellants, there could be no finding to the effect that there was an unlawful assembly of which the appellants were members and were, therefore, liable for the acts of other members thereof.
Further, it was urged by learned counsel that an accused person cannot be held liable vicariously for the act of an acquitted person and, therefore, even assuming that the fatal injuries were caused to Laldeo Singh by one of the four acquitted persons, it was not open to the High Court to hold any of the appellants liable for that act with the aid of section 149, I.P.C. Learned counsel relied upon a passage in the judgment of Agarwala J., in Harchanda vs Rex which reads thus : "Now in a criminal case the burden of proof is always on the prosecution.
It is for the prosecution to establish the responsibility of the accused for the crime alleged.
Having regard to the fact that there is no appeal against the acquittal of the other five accused before us, and having regard to the fact that we cannot (1)I.L.R. (1951) 2 All.
62, 73.
781 interfere with the finding of the learned Sessions judge, so far as it concerns those accused, we cannot hold that either Durga Das or Sukhbir was responsible for inflicting the incised wounds: and since it was not the prosecution case that there was some unknown person along with the accused, who was also holding a sharp edged weapon, we cannot ascribe the infliction of the incised wounds to some such unknown person.
The result of the prosecution evidence, taken with the findings of the learned Sessions judge, is that the prosecution is unable to explain the infliction of the incised wounds.
in my opinion in such a case the accused cannot be held constructively liable for the infliction of those wounds.
" There is no doubt that the High Court has observed in its judgment under appeal that Laldeo Singh was killed as a result of one of the shots fired at him by Ram Bilas Singh Gumasta who was acquitted by the court of Session.
We may quote the observations made by it in this regard.
They are "It seems, as I shall show hereafter, the trial court was greatly prepossessed in favour of Ram Bilas Singh of Dihara, and therefore it ruled out without disbelieving the evidence, the possibility of Laldeo Singh having been killed by the third shot fired by Rambilas Singh of Dihara.
It is admitted that the two Rambilas Singh and Ramdeo Singh have each held a licensed gun empty cartridge. .These guns and the which had been found by P W. 21 at the place of occurrence were examined by the Fire Arms Expert The trial court has explained away this very strong piece of evidence of unimpeachable character, supporting the version of the witnesses 782 that Rambilas Singh of Dihara had fired one shot from his gun, on a very flimsy ground.
" Then the High Court observed that the evidence of the ballistic expert was disregarded by the Court of Session on flimsy grounds.
The point, however, is that the High Court has come to the conclusion that the shot which resulted in the death of Laldeo Singh was fired by an acquitted person.
If the view taken by the Allahabad High Court is correct then it would follow that it was not open to the High Court before which the acquittal of Rambilas Singh Gumasta was not challenged., to reassess the evidence with regard to him and hold that it was he who had caused the death of Laldeo Singh.
We will deal with the decision of the Allahabad High Court presently, but we must refer to certain decisions of this court to which reference was made during arguments.
In Topandas vs The State of Bombay (1), this court has held 'that where four named individuals were charged with having committed an offence of criminal conspiracy under section 120 B, I.P.C. and three out of those four were acquitted of that charge, the fourth accused could not be held guilty of the offence of criminal conspiracy.
In support of this view, this court ha , relied upon a passage in Archbald 's Criminal Pleading, Evidence and Practice (33rd edn.p. 201, paragraph 361) which reads thus "Where several prisoners are included in the same indictment, the jury may find one guilty and acquit the others, and vice versa.
But if several are indicated for a riot, and the jury acquit all but two, they must acquit those two also, unless it is charged in the indictment and proved, that they committed the riot together with some other person not tried upon that (1) [1955]2 S.C.R. 881.
783 indictment.
2 Hawk c. 47 section 8.
And, if upon an indictment for a conspiracy, the jury acquit all the prisoners but one, they must acquit that one also, unless it is charged in the indictment, and proved, that he conspired with some other person not tried upon that indictment.
" This court has also quoted with approval a passage from the judgment in R. vs Plummer (1), which is one of the decisions on which the above 'passage is founded.
In Bharwad Mepa Dana vs State of Bombay (2), this court had to consider the correctness of the conviction of three persons under section 302 read with section 149 I.P.C. when one other person who had been convicted by the Sessions judge of a similar offence had been acquitted by the High Court.
It may be mentioned that originally twelve persons were named in the charge and it was alleged that they had formed an unlawful assembly with the common object of murdering certain persons.
Seven of them were acquitted by the Sessions judge and only five were convicted under section 302 read with section 149, I.P.C. The High Court, while acquitting one of the five persons, convicted by the Sessions Judge, held that there were ten to thirteen persons in the unlawful assembly though the identity of all the persons except four had not been established, that all these persons had the common object and the common intention of killing the victims and that the killing was done in prosecution of the common object of the unlawful assembly and in ' furtherance of the common intention of all.
Upon these facts, this court held that the appellants before it were rightly convicted under section 302 read with section 149, I.P.C., and that there was nothing in law which prevented the High Court from finding that the unlawful assembly consisted of the four convicted persons and some unidentified persons, who, (1) (2) ; , 181.
784 together numbered more than five.
This court further observed : embark on a discussion as to the legal effect of the acquittal of nine of the accused persons, except to state that we may proceed on the footing that the acquittal was good for all purposes and none of those nine persons can now be held to have participated in the crime so that the remaining four persons may I be held guilty under section 149 Indian Penal Code.
" It is on the above observations that reliance has been placed by Mr. Sethi.
He contends that the High Court was wrong in observing that Laldeo Singh was killed as a result of a shot fired at him by Ram Bilas Singh Gumasta and that he has escaped the charge.
of murder as he was acquitted by the Sessions judge.
Then, there is the decision of this court in Kartar Singh vs State of Punjab (1), where this court has held that if the trial court can legally find that the actual number of members in the assailants party was more than five, that party will in law constitute an unlawful assembly even though ultimately three of the accused persons are convicted.
It has further held that it is only when the number of the alleged assailants is definite and all of them are named and the number of persons found to have taken part in the incident is less than five, it cannot be held that they formed an unlawful assembly.
Then this court observed "The acquittal of the remaining named persons must mean that they were not in the incident.
The fact that they were named, excludes the possibility of other persons to be in the appellant 's party and especially when there be no occasion to think that the witnesses naming all (1) ; 399. 785 the accused could have committed mistakes in recognising them." In support of the above conclusion, reliance was placed by this court upon the decision of this court in Dalip Singh vs State of Punjab (1).
In Sunder Singh vs State of Punjab (2) , also this court has considered the effect of the acquittal of some persons of the offence under section 302 read with section 149, I.P.C. on the conviction of the remaining persons who numbered less than five.
In dealing with this matter it has observed : Cases sometimes arise where persons are charged with being members of an unlawful assembly and other charges are framed against them in respect of offence committed by such an unlawful assembly.
In such cases; if the names of persons constituting the unlawful assembly are specifically and clearly recited in the charge and it is not suggested that any other persons known or unknown also were members of the unlawful assembly, it may be that if one or more persons specifically charged, are acquitted, that may introduce a serious infirmity in the charge in respect of the others against whom the prosecution case may be proved.
It is in this class of cases, for instance, that the principle laid down in the case of Plummer may have some relevance.
If out of the six persons charged under section 149 of the Indian Penal Code along with other offences, two persons are acquitted, the remaining four may not be convicted because the essential requirement of an unlawful assembly might be lacking.
" Upon the facts of the case before it, this court held that the principle set out in Plummer 's case (3), (1) ; (2) [1962] Supp. 2 S.C.R. 654. 663.
(3) 786 and which has been accepted by this court in Topan Das 's case (1), did not apply to the case before it.
This court then proceeded to consider the powers of the court of appeal under section 423 (1) (a) of the Criminal Procedure Code and observed that if in dealing with a case before it, it became necessary for the High Court to deal indirectly or incidentally with the case against the acquitted accused, it could well do so and there is no legal bar to such a course.
Upon the view we are taking it is unnecessary to express any opinion as to whether the interpretation placed in this case upon the ambit of the powers under section 423, Cr. P. C. is consistent with the principle in Plummer 's case (2).
Finally, there is the decision of this court in Mohan Singh vs The State of Punjab (3), where a similar question arose for consideration.
There, this court, after pointing out that where five or more persons are shown to have formed an unlawful assembly, the mere fact that less than that number are actually tried for the offence committed by the assembly and convicted of that offence would not necessarily render their conviction illegal, because other persons may not have been available for trial or may not be properly identified or for some other reason.
This court has observed : ". . .
In such cases, if both the charge and the evidence are confined to the persons named in the charge and out of the persons so named two or more are acquitted leaving before the court less than five persons to be tried, then section 149 cannot be invoked.
Even in such cases.
it is possible that though the charge names five or more persons as composing an unlawful assembly, evidence may nevertheless show that the unlawful assembly consisted of some other persons as well who were not identified and so not named.
In such cases, either the trial court (1) (2) [1902] 2 K.B. 339.
(3) [1962] supp.
3 S.C.R. 848, 858.
787 or even the High Court in appeal may be able to come to the conclusion that the acquittal of some of the persons named in the charge and tried will not necessarily displace the charge under section 149 because along with the two or three persons convicted were others who com posed the unlawful assembly but who have not been identified and so have not been named.
In such cases, the acquittal of one or more persons named in the charge does not affect the validity of the charge under section 149 because on the evidence the court of fact is able to reach the conclusion that the persons composing the unlawful assembly nevertheless were five or more than five.
" The decisions of this court quoted above thus make it clear that where the prosecution case as set out in the charge and as supported by the evidence is to the effect that the alleged unlawful assembly consists of five or more named persons and no others, and there is no question of any participation by other persons not identified or identifiable it is not open to the court to hold that there was an unlawful assembly unless it comes to the definite conclusion that five or more of the named persons were members thereof.
Where, however, the case of the prosecution and the evidence adduced indicates that a number in excess of five persons participated in the incident and some of them could not be identified, it would be open to the court to convict less than five of the offence of being members of the unlawful assembly or convict them of the offence committed by the unlawful assembly with the aid of s; 149, 1.
P. C. provided, it comes to the conclusion that five or more persons participated in the incident.
Again, it is clear from these decisions that when a person has been acquitted of an offence, his acquittal will be good for all purposes when the incident in connection with which he was implicated comes up for consideration before 788 the High Court in appeal by a person or persons who were tried along with him and convicted of some offence with the aid of section 149, I. P. C. Sunder Singh 's case (1), has carved out an exception to this rule to the effect that the High Court can, under section 423, Cr. P. C. consider incidentally the question whether the acquitted person was a member of the unlawful assembly for the purpose of determining the case of the appellants before it.
As already pointed out it is not necessary in this case to say whether such an exception can be recognised consistently with the principle in Plummer 's case (2) which has so far been uniformly accepted by this court.
We have had occasion to consider recently in Krishna Govind Patil vs The State of Maharashtra (3), the effect of the acquittal of person . who were tried along with the persons convicted of an offence under section 302 read with section 3 t. One of us (Subba Rao. J.) speaking for the court, has observed "It is well settled that common intention within the meaning of the section implied a pre arranged plan and the criminal act was done pursuant to the pre arranged plan.
The said plan may also develop on the spot during the course of the commission of the offence; but the crucial circumstance is that the said plan must precede the act constituting the offence.
If that be so, before a court can convict a person under section 302, read with section 34 of the Indian Penal Code, it should come to a definite conclusion that the said person had a prior concert with one or more other persons, named or unnamed, ' for committing the said offence.
A few illustrations will bring out the impact of s.34 on different situations.
(i) A, B, C and D are charged under section 302, read with section 34 of the Indian Penal Code, (1) [1962] Supp. 2 S.C.R. 654, 663.
(2)[1902] 2 K B. 339.
(3 [1964] Vol. 1 S.C.R. 678.
789 for committing the murder of E.
The evidence is directed to establish that the said four persons have taken part in the murder.
(2) A, B, C and D and unnamed others arc charged under the said sections.
But evidence is adduced to prove that the said persons, along with others, named or unnamed, participated jointly in the commission of that offence.
(3) A, B, C and D are charged under the said sections.
But the evidence is directed to prove that A, B, C and D, along with 3 others, have jointly committed the offence.
As regards the third illustration a Court is certainly entitled to come to the conclusion that one of the named accused is guilty of murder under section 302, read with section 34 of the Indian Penal Code, though the other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence.
In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge.
But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence.
But what is the position if the Court acquits 3 of the 4 accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused? Can it hold, in the absence of a charge as well as evidence, that though the three accused are acquitted, some other unidentified persons acted 790 conjointly along with one of the named per sons? If the Court could do so, it would be making out a new case for the prosecution : it would be deciding contrary to the evidence adduced in the case.
A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence.
There must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration.
" What has been held in this case would apply also to a case where a person is convicted with the aid of section 149, Indian Penal Code instead of section 34.
Thus all the decisions of this court to which we have referred make it clear that it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, even if less than that number have been convicted by it if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and evidence led to prove this is accepted by the court; (b) or that the first information report and the evidence shows such to be the case even though the charge does not state so, (c) or that though the charge and the prosecution wit nesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided, in cases (b) and (c), no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had.
also participated in the offence.
Now, coming to the Allahabad High Court decision relied upon, it is sufficient to say that the 791 observations made therein which have been quoted earlier appear to be in consonance with the principle in Plummer 's case (1), and thus affords support to the argument of learned counsel.
Applying the law as set out above, we must find out whether what the High Court has done in this case is right.
In the first place, though it was vaguely stated by some of the witnesses examined in the case that 40 or 50 persons took part in the incident including the 7 persons mentioned in the first information report and the charge sheet, the prosecution case throughout has been that only seven named persons took part in the incident.
Even the first information report of Deva Singh (P. W. 2), one of the injured persons, mentions only the seven persons who were placed for trial and no other.
There is no suggestion therein that any other persons took part in the incident.
The Court of Session, however, without discussing the point and without finding as to how many persons were members thereof, has come to the conclusion that there was an unlawful assembly, the common object of which was to dis mantle the Dochara and assault Laldeo Singh and Deva Singh.
The High Court has proceeded more or less on the assumption that there was an unlawful assembly, only some members of which were put up for trial, four of whom were acquitted and three convicted.
It was necessary for the High Court to consider whether the statements of some of the witnesses that the unlawful assembly consisted of many more than seven persons are true or whether they should be rejected in view of the fact that the first information report shows that only seven persons who were named therein, committed the offence.
It had also to consider the further question of prejudice by reason of the defect in the charge.
Upon the law as stated by this court in Mohan Singh 's case (2) and in other cases it would have been competent to the High Court to look into the entire evidence in (1) (2) [1962] Supp. 3 S.C.R. 848, 858.
792 the case, oral and documentary, and consider whether there was an unlawful assembly or not.
But it has not done so.
Had the High Court, come to a reasoned conclusion that there was an unlawful assembly consisting of more than five persons, including the appellants and some other persons who were unidentified and convicted the appellants under section 147 and, with the aid of section 149, also of some other offence committed by a member or members of the unlawful assembly other than the acquitted persons the matter would have stood on a different footing.
But it has not done so.
It is clear from its judgment that the High Court was not satis fied by the manner in which the case had been dealt with by the Court of Session; but then, it should not have stopped there.
Instead, it should have fully examined the evidence and come to a definite conclusion as to whether there was an unlawful assembly or not hadstated its reasons for coming to such a conclusion.
It should then have ascertained the particularacts committed by any member or members of that assembly in furtherance of the common object as also the question whether any of the appellants had participated in the incident.
In the light of its findings on these matters the High Court should then have proceeded to consider whether all or any of the appellants could be held liable vicariously for all or any of the acts found to have been committed by the unlawful assembly or any member or members thereof other than those alleged to have been committed by persons whose acquittal has become final.
It is a matter of regret that the High Court has failed to determine questions which it was essential for it to determine.
We, therefore, set aside that judgment and send back the case to the High Court for deciding it afresh.
Appeal allowed.
Case remanded.

summary:
The facts alleged by the prosecution were these The first appellant brought with him in a truck to the scene of the occurrence a mob of 40 to 50 persons including the other two appellants and four other persons who were acquitted by the trial court.
The first appellant fired a shot from the gun which he was carrying which hit Laldeo Singh on the chest as a result of which he fell down.
Thereupon none of the acquitted persons fired from his gun and the shot hit Laldeo Singh again.
Thereupon another of the acquitted persons fired a shot at Laldeo Singh which.
killed him instantaneously.
The first appellant fired two shots at one Deva Singh who was hit on his thigh.
The other two appellants assaulted Deva Singh with lathis of the seven persons charged, four were acquitted.
The appellants were convicted under section 304 Part II read with section 149 of the Indian Penal Code by the trial court.
On appeal the High Court altered their conviction into one under section 326 read with section 149 of the Indian Penal Code but maintained the convictions under section 147 and section 426 of the Indian Penal Code.
It was contended before the Supreme Court that as there was no appeal before the High Court against the acquittal of the four acquitted persons who were alleged to have constituted the unlawful assembly along with the appellants there could be no finding that there was an unlawful assembly of which appellants were members and therefore, were liable, for the acts of other members 776 thereof and that an accused person cannot be held liable vicariously for the act of an acquitted person.
Held, that even assuming that the fatal in juries were caused to Laldeo Singh by one of the four acquitted persons, it was not open to the High Court to hold any of the appellants liable for that act by resort to section 149 of the Indian Penal Code.
Held, further that the legal position deducible from the authorities was (i) that it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, and actually convict less than that number for the offence if (a) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and the evidence led to prove this is accepted by the court ; (b) or that the first information report and the evidence shows such to be the case even though the charge does not state so ; (c) or that though the charge and the prosecution witnesses named only the acquitted and the convicted accused persons there is other evidence which discloses the existence of named or other persons provided that in cases (b) and (c) no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence.
Harchandra vs Rex.
I.L.R. (1951) 2 All. 62, approved.
To pandas vs State of Bombay, , R. vs Plummer, , Bharwad Mepa Dana vs State of Bombay, ; , Kartar Singh vs State of Punjab, ; , Dalip Singh vs State of Punjab, ; , Sunder Singh vs State of Punjab [1962] Supp. 2 S.C.R 634, Mohan Singh vs State of Punjab, [1962] Supp. 3 S.C.R. 848, and Krishna Govind Patil vs State of Maharashtra, [1964) Vol.
1 S.C.R. 678, referred to.
Held, also that the High Court had failed to determine material questions necessary for property deciding the case, namely that it had not fully examined the evidence to come, to a definite conclusion as to whether there was an unlawful assembly or not consisting of persons other than the acquitted persons and that the High Court had also failed to ascertain the particular act committed by any member or members of that assembly in furtherance of the common object as also whether any of the appellants had participated in, the said incident.


judgement:
Appeal No. 65 of 1953.
Appeal by special leave granted by the Supreme Court on 13th March, 1953, from the Judgment and Order dated the 30th July, 1951,.
of the Custodian General of Evacuee Property in No. 31 A/Judi./50.
Petition No. 247 of 1952, a petition under Article 32 of the Constitution for enforcement of fundamental rights, and Petition for Special Leave to Appeal No. 106 of 1952 were also beard along with Civil Appeal No. 66 of 1953.
692 K.T. Desai for the appellants and petitioners.
C.K. Daphtary, Solicitor General for India (Porus A.Mehta with him) for the respondent in Petition No. 247. 1953.
April 10, The Judgment of the Court was delivered by GHULAM HASAN J.
In order to understand and appreciate the point arising for consideration in this case, it will be necessary to set out a few preliminary facts : One Aboobaker Abdul Rehman, a resident of Bombay, received on December 16, 1949, from the Additional Custodian, Bombay, a notice under section 7 of Ordinance No. XXVII of 1949 calling upon him to show cause why his interest in certain specific property should not be declared to be evacuee property.
A further notice issued on January 11, 1950, required him to show cause why he should not be declared an evacuee and all his properties declared to be evacuee properties.
On February 8, 1950, the Additional Custodian decided that Aboobaker was not an evacuee, but at the same time issued a fresh notice to him under section 19, requiring him to show cause why he should not be declared an "intending evacuee" and on the following day, February 9, he declared Aboobaker as an "intending evacuee" upon the same evidence.
Aboobaker does, not appear to have contested this order, but one Tek Chand Dolwani, first informant, carried the matter in appeal to the Custodian General, praying that Aboobaker be declared an evacuee and that the Imperial Cinema, one of his properties, be allotted to him.
The Ordinance expired on October 18, 1949, and was replaced by Act XXXI of 1950 (The ) which came into operation on April 17, 1950.
It is not denied that although the Ordinance was repealed by section 58, the proceedings taken in the exercise of any powers conferred by the Ordinance shall be deemed to have 693 been taken in the exercise of the powers conferred by the Act as if the Act were in force on the day the proceedings were taken.
The appeal was heard on May 13, 1950, when the preliminary objections in regard to the maintainability of the appeal were argued and the appeal was adjourned to May 15 for orders.
On May 14, Aboobaker died leaving him surviving three son and 9 daughter as his heirs under the Mohammedan law, the sons taking 2/7th share each and the daughter 1/7th.
On May 15, the Custodian General pronounced the order which was, however,, dated May 13.
By this order he dismissed the preliminary objections and directed that further enquiries should be made and that Aboobaker be examined further on August 19, 1950.
The hearing of the appeal was adjourned from time to time and was fixed for final disposal on March 7, 1951.
Notice of this hearing was issued to Ebrahim Aboobaker (son) and Hawabai Aboobaker (daughter) who owned between themselves 3/7th share to appear as the heirs and legal representatives of the deceased.
The petitioners, who are residents of India their two brothers are said to have migrated to Pakistan filed on February 26, 1951, Miscellaneous Petition No. 15 of 1951, in the Punjab High Court for a writ of prohibition or for directions or order directing the Custodian General to forbear from proceeding with the hearing of the appeal or making any order in the said appeal or from declaring the properties left by the deceased as evacuee properties.
The petitioners contended inter alia that after the death of Aboobaker the Custodian General had no jurisdiction to proceed with the appeal.
The petition was dismissed on May 24, 1951, the High Court holding that the Custodian General had jurisdiction.
Leave to appeal was granted but the High Court did not stay the hearing of the appeal by the Custodian General which was fixed for July 3, 1951, and directed that the Custodian General should not pass final orders until July 23, 1951.
On ,July 3, the Custodian General heard the appeal and 90 694 on July 30 which was the date fixed for final orders he declared Aboobaker to be &a evacuee and his properties to be evacuee properties.
On August 6, 1951, the petitioners filed a petition (Miscellaneous Petition No. 191 of 1951) under article 226 of the Constitution in the Bombay High Court against the Custodian General and the Custodian, Bombay, for a writ of certiorari for quashing and setting aside the said order and for an order directing the Custodian General and the local Custodian from acting upon the order or from taking possession of the property which was situate in Bombay.
The petition was dismissed by Shah J. on October 4, 1951, on the ground that the Bombay High Court had no jurisdiction against the Custodian General and that the petition against the local Custodian was premature.
Appeal No. 88 of 1951 was filed on October 5, 1951 against the said order to the Bombay High Court.
An interim order was passed whereby the petitioners undertook to keep accounts and not to dispose of the properties while the Custodian General gave an undertaking not to take possession pending the hearing of the appeal.
The appeal came up for hearing on November 20, 1951, before the Chief Justice and Gajendragadkar J. but it was allowed to stand over with a view to await the decision of this Court in appeal against the order of the Punjab High Court as they did not wish to pass any order which might conflict with the decision of this court.
That appeal was dismissed by this Court on May 26, 1952.
See Ebrahim Aboobaker and Another vs Custodian General of Evacuee Property(1).
This Court decided only the preliminary point that Tek Chand Dolwani was entitled to prefer an appeal but left the question about the jurisdiction of the Custodian General to declare the properties of Aboobaker as evacuee properties after his death open as that question was not raised before it, the order of the 30th July, 1951, having been passed after the filing of the appeal in the Supreme Court and also because that question (1) ; 695 was pending determination in the appeal before the Bombay High Court.
Appeal No. 88 of 1951 was dismissed on 1st/2nd July, 1952, by the Chief Justice and Gajendragadkar J. on the preliminary ground that they had no jurisdiction to quash the order of the Custodian General passed on 30th July,1951.
They declined to pass any order against the local Custodian observing that they could not do indirectly what could not be done directly.
A petition for leave to appeal was also rejected by the High Court on the 14th July, 1952.
Petition No. 105 of 1952 is for special leave to appeal against the order of the Custodian General dated July 30, 1951.
Petition No. 106 of 1952 is against the order of the Appellate Bench of the Bombay High Court dated 1st/2nd July, 1952.
Petition No. 247 of 1952 is an independent petition under article 32 of the Constitution, challenging the order of the Custodian General dated July 30, 1951, as being in violation of the fundamental rights of the petitioners and being without jurisdiction.
Tek Chand Dolwani has filed a caveat against the Petition No. 105 of 1952, while the petition under article 32 has been heard upon notice to the Custodian General.
In this petition it is submitted that on a true construction of the relevant provisions of the Ordinance and the , the Custodian General had no jurisdiction to hear the appeal after the death of Aboobaker, or to make any order declaring the properties left by him to be evacuee properties as the appeal abated on his death and the properties vested in specific shares in his heirs under the Mohammedan law.
It was urged that as the said properties did not fall within the definition of evacuee property on the 30th July, 1951, or at any time after the death of Aboobaker, the Custodian General had no jurisdiction to declare the properties to be evacuee properties.
As a matter of fact, the deceased had no right, title or interest in the said properties after his death; nor were the said properties acquired by his heirs by any mode of transfer 696 from the deceased.
The order of the 30th July, 1951, is challenged as being void and inoperative as it violates the fundamental rights of the petitioners under articles 19(1) (f) and 31 (1) of the Constitution.
The petitioners pray for the issue of a writ of certiorari against the Custodian General calling for the records of the case relating to the above order and after looking into the same and going into the question of the legality thereof quash and set aside the same.
They also ask for a writ of prohibition or mandamus or directions or an order or a writ directing the Custodian General, his servants and agents to for bear from acting upon or enforcing the order dated the 30th July, 1951, or from taking any steps or proceedings in enforcement of the same.
We heard the petitioners and the Solicitor General on the petition under article 32 and reserved orders till we had beard Dolwani who was the caveator in the application for special leave to Appeal.
Dolwani,was served with a notice personally and through his agent but neither put in appearance.
We granted the application for leave to appeal against the order of the Custodian General and directed the appeal to be posted for hearing along with the application under article 32.
Dolwani again did not appear and we ' proceed, therefore, to dispose of the appeal and the petition by a common judgment.
The crucial question which arises for consideration before us is whether a person can be declared an evacuee after his death and whether the properties which upon his death vest in his heirs under the Mohammedan law can be declared evacuee properties.
Before we proceed to determine that question we must notice the objection raised by the Solicitor General about the maintainability of the petition under article 32 of the Constitution.
He contends that there is no question of any infraction of fundamental right in the present case as the petitioners have not been deprived of any property without the authority of law.
The Custodian General, it is said, undoubtedly purported to act under an express statutory enactment.
He might have misapplied or 697 misappreciated the law or committed an error in the assumption or exercise of jurisdiction, but that would not bring the case within the purview of article 31 (1 read with article 19(1) (f) of the Constitution.
The point is debatable and we do not desire to express any opinion upon this point as we propose to examine the validity of the order of the Custodian General dated July 30, 1951, in the appeal (Civil Appeal No. 65 of 1953) which arose out of Petition No. 105 of 1952 for special leave and not on the petition under article 32.
Section 2 (d) and (f) define "evacuee" and " 'evacuee property" respectively as follows: (d) "Evacuee " means any person (i) who, on account of the setting up of the Dominions of India and Pakistan or on account of civil disturbances or the fear of such disturbances, leaves or has ' on or after the 1st day of March, 1947, left, any place in a State for any place outside the territories now forming part of India,or (ii) who is resident in any place now forming part of Pakistan and who for that reason is unable to occupy, supervise or manage in person his property in any part of the territories to which this Act extends, or whose property in any part of the said territories has ceased to be occupied, supervised or managed by any person or is being.
occupied, supervised or managed by an unauthorised person, or (iii) who has, after the 14th day of August, 1947, obtained, otherwise than by way of purchase or exchange, any right to, interest in or benefit from any property which is treated as evacuee or abandoned property under any law for the time being in force in Pakistan ; (f) " Evacuee property " means any property in which an evacuee has any right or interest (whether personally or as a, trustee or as a beneficiary or in any other capacity), and includes any property (1) which has been obtained by any person from an evacuee after the 14th day of August, 1947, by 698 any mode of transfer, unless such transfer has been confirmed by the Custodian.
The use of the present tense "leaves" or "has left" in the definition of evacuee and " has " in the definition of evacuee property is relied upon in support of the contention that the object of the legislature in enacting these provisions was to confine their operation to a living person only.
This line of argument may not per se be of any compelling force but it receives support from the rest of the provisions of the Act to which reference will be made hereafter.
It may, however, be pointed out here that clause (f) (1) will not apply to the case of the petitioners for they do not claim the property from the evacuee after the 14th day of August, 1947, by any mode of transfer but by right of succession under the Mohammedan law.
Succession to property implies devolution by operation of law and cannot appropriately be described as mode of transfer, as contended for by the Solicitor General, which obviously contemplates a transfer inter vivos.
Section 7 refers to the notification of the evacuee property.
It lays down that "where the Custodian a of opinion that any property is evacuee property within the meaning of this Act, he may, after causing notice there of to be given in such manner as may be prescribed to the persons interested, and after holding such inquiry into ' the matter as the circumstances f the case permit, pass an order declaring any such property to be evacuee property.
" Rule 6, which is framed in exercise of the powers conferred by section 56 of the Act, lays down the manner of inquiry under section 7 and is as follows:" `` (1) Where the Custodian is satisfied from information in his possession or otherwise that any property or an interest therein is prima facie evacuee property, he shall cause a notice to be served, in Form No. 1, on the person claiming title to such property or interest and on any other person or persons whom he considers to be interested in the property.
699 (2) The notice shall,as far as practicable,mention the grounds on which the property is sought to be declared evacuee property and shall specify the provision of the Act under which the person claiming any title to, or interest in, such property is alleged to be an evacuee.
(3) The notice shall be served personally, but if that is not practicable the service may be effected in any manner provided in rule 28.
(This rule refers to a mode of substituted service).
(4) Where a notice has been duty served, and the party called upon to show cause why the, property should not be declared an evacuee property, fails to appear on the date fixed for hearing, the Custodian may proceed to hear the matter ex parte and pass such order on the material before him as he deems fit.
(5) Where such party appears and contests the notice he shall forthwith file a written statement verified in the same manner as a pleading under the Code of Civil Procedure, 1908, stating the reasons why he should not be deemed to be an evacuee and why the property or his interest therein should not be declared as evacuee property.
Any person or persons claiming to be interested in the enquiry or in the property being declared as evacuee property, may file a reply to such written statement.
The Custodian shall then, either on the same day or on any subsequent day to which the hearing may be adjourned, proceed to hear the evidence, if any, which the party appearing to show cause may produce and also evidence which the party claiming to be interested as mentioned above may adduce.
(6) After the whole evidence has been duly recorded in a summary manner, the Custodian shall proceed to pronounce his order.
The order shall state the points for determination, and the findings thereon with brief reasons.
" Form No. 1 in Appendix A to the rules is as follows; .
700 "WHEREAS there is credible information in possession of the Custodian that you are an evacuee under clause (iii) of section 2(d) of the on account of the grounds mentioned below: AND WHEREAS it is desirable to hear you in person ; Now, therefore, you are hereby called upon to show cause (with all material evidence on which you wish to rely) why orders should not be passed declaring you an evacuee and all your property as evacuee property under the provisions of the said Act.
Deputy Custodian.
" Assistant The next important section is section 8 the relevant portion of which is as follows: "(1) Any property declared to be evacuee property under section 7 shall be deemed to have vested in the Custodian for the State, (a) in the case of the property of an evacuee as defined in sub clause (i) of clause (d) of section 2, from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India; ' ' If we substitute in section 8 the definition of evacuee property given in section 2, the meaning of section 8 will become clearer.
Any property declared to be : (i) property in which an evacuee has any right or interest, (ii) property which has been obtained by any person from an evacuee after the 14th of August, 1947, by any, mode of transfer unless that transfer has been confirmed by the Custodian under section 7, shall be deemed to have vested in the Custodian for the State : (a) in the case of the property of an evacuee as defined in sub clause (i) of clause (d) of section 2, 701 from the date on which he leaves or left any place in a State for any place outside the territories now forming part of India.
" The language of the rule read with the Form given above, the notice issued to the person claiming interest in the property which, according to the information in the possession of the Custodian, is prima facie evacuee property, the manner of its service and the mode of inquiry, lead to the unmistakable conclusion that the object of section 7 was to take proceedings against a living person and to that extent the use of the present tense in the definition of "evacuee" and "evacuee property" lends corroboration to the contention raised that the proceedings are intended to be applicable to living persons only.
The property which is declared to vest under (i) must be one in which an evacuee has any right or interest but the deceased has no right or interest after his death as his property vests in his heirs.
Nor does (ii) apply as petitioners have not obtained the property from an evacuee by any mode of transfer.
It is obvious that property must be declared to be evacuee property under section 7 before it can vest under section 8.
There is no doubt that when the property does so vest the vesting takes effect retrospectively, but where the man dies before any such declaration is made, the doctrine of relation back cannot be invoked so as to affect the vesting of such property in the legal heirs by operation of law.
To take a simple illustration, if a person leaves India after the 1st of March, 1947, the date given in section 2(d), and dies in Pakistan before any notice is issued to him under section 7 and before any inquiry is held in pursuance thereof, it is obvious that the heirs, who have succeeded to his property, cannot be deprived of it by conducting an inquiry into the status of the deceased and investigating his right or interest in property which has already devolved on legal heirs.
Section 8 in such a case will not come into play and there can be no vesting of the property retros pectively before such property is declared as evacuee 91 702 property within the meaning of section 2(f) of the Act.
Reading sections 7 and 8 together it appears that the Custodian gets dominion over the property only after the declaration is made.
The declaration follows upon the inquiry made under section 7, but until the proceeding is taken under section 7, there can be no vesting of the property and consequently no right in the Custodian 'to take possession of it.
Now if the alleged evacuee dies before the declaration, has the Custodian any right to take possession of the property? If he cannot take possession of the property of a living person before the declaration, by the same token he cannot take possession after the death of the alleged evacuee when the property had passed into the hands of the heirs, The enquiry under section 7 is a condition precedent to the making of a declaration under section 8 and the right of the Custodian to exercise dominion over the property does not arise until the declaration is made.
There is no reason therefore why the heirs should be deprived of their property before the Custodian obtains dominion.
The matter may be looked at from another point of view.
Section 141 of the Civil Procedure Code which makes the procedure of the Court in regard to suits applicable in all proceedings in any Court of civil jurisdiction does not apply, as the Custodian is not a Court, though the proceedings held by him are of a quasi judicial nature.
, Section 45 of the Act applies the provisions of the Code only in respect of enforcing the attendance of any person and examining him on oath and compelling the discovery and production of documents.
The provisions of the Code relating to substitution are, therefore, inapplicable and there is no other provision in the Act for the heirs to be substituted in place of the deceased so as to continue proceedings against them.
If the proceedings cannot be continued against the heirs upon the death of the alleged evacuee, it is logical to hold that they cannot be 703 initiated against them.
We hold, therefore, that the proceedings must lapse upon the death of such person.
There is no provision in the Act that after a man is de ad, his property can be declared evacuee property.
If such a provision had been made, then the vesting contemplated in section 8 of the Act would have by its statutory force displaced the vesting of the property under the Mohammedan law in the heirs after death.
It is a well recognised proposition of law that the estate of a deceased Mohammedan devolves on his heirs in specific shares at the moment of his death, and the devolution is neither suspended by reason of debts due from the deceased, nor is the distribution of the shares inherited postponed till the payment of the debts.
It is also well understood that property vests in the heirs under the Mohammedan law, unlike the Indian Succession Act, without the intervention of an administrator.
Section 40 of the Act imposes a restriction upon the right of an evacuee to transfer property after the 14th August, 1947.
This section prohibits transfers inter vivos but cannot affect devolution by operation of law such as, on death According to this section where the property of a person is notified or declared to be an evacuee property, he cannot transfer that property after the 14th of August, 1947, so as to confer any right on the transferee unless it is confirmed by the Custodian.
This shows that a transfer between the 1st of March and the 14th of August, 1947, is immune from the disability of being treated as evacuee property notwithstanding the fact that the transferor migrated after the 1st of March.
If he made a bonafide transfer of his entire property before the 14th of August,,1947, then the property does not acquire the character of evacuee property and such a transfer does not require.
confirmation by the Custodian, although all transfers after that date are held suspect.
If the transfer between the two crucial dates is held valid, then on a parity of reasoning the death of the transferor before the declaration after the 14th of August should lead to the same result.
704 It was contended before us that the Act aims at fixing the nature of the property from a particular date and that the proceedings taken are against the property and not against the person.
This argument is fallacious.
There can be no property, evacuee or otherwise, unless there is a person who owns that property.
It is the property of the owner which is declared to be evacuee property by reason of the fact that he is subject to disability on certain grounds.
The definition of evacuee property in the Act begins by Baying "property in which an evacuee has any right or interest in any capacity".
The Act also shows that the property cannot be notified as evacuee property unless and until the.
person claiming interest in it has been given notice.
Reference may also be made to section 43 as indicating that the declaration under section 8 was intended to be made during the lifetime of the alleged evacuee.
This section lays down "where in pursuance of the provisions of this Act any property has vested in the Custodian neither the death of the evacuee at any time thereafter nor the fact that the evacuee who had a right or interest in that property had ceased to be an evacuee at any material time shall affect the vesting or render invalid anything done in consequence thereof." The section shows that where the property has vested in the Custodian, then the death of the evacuee or his ceasing to be an evacuee afterwards shall not affect the vesting or render invalid anything done in consequence thereof.
The section seems to suggest that the vesting must take place in the lifetime of the alleged evacuee, otherwise there was no point in providing that the vesting will not be affected by the death of the evacuee or the evacuee ceasing to be so.
The Solicitor General contended that section 43 embodies the principle "once an evacuee always an evacuee",, This conclusion is hardly justified on the terms of section 43 as explained above and it finds no support from the other provisions of the Act.
The object and the scheme of the Act leave little doubt 705 that the Act was intended, as its title shows, to provide for the administration of evacuee property and it is common ground that this property has ultimately.
to be used for compensating the refugees who had lost their, property in Pakistan.
The Act contains elaborate provisions as to how the administration is to be carried out.
Section 9 enables the Custodian to take possession of the evacuee property vested in him under section 8 and section 10 which defines the powers of the Custodian generally enables him to take such measures as he considers necessary or expedient for the purposes of administering, preserving and managing any evacuee property.
These are mentioned in detail in sub section (2) of section 10, clause (j), which authorises the Custodian to institute, defend or continue any legal proceedings in any civil or revenue Court on behalf of the evacuee.
, Section 15 imposes an obligation on him to maintain a separate account of the property of each evacuee.
Section 16 empowers the Custodian to restore the evacuee property upon application to the evacuee or any person claiming to be his heir provided he produces a certificate from the Central Government that the evacuee property may be restored to him.
Upon restoration the Custodian shall stand absolved of all responsibilities in respect of the property so restored, but such restoration shall not prejudice the rights, if any, in respect of the property which any other person may be entitled to enforce against the person to whom the property has been so restored.
By section 62 of the Act it is open to the Central Government by notification in the Official Gazette, to exempt any person or class of persons or any property or class of property from the operation of all or any of the provisions of this Act.
In pursuance of this section the Central Government issued Notification No. S.R.O. 260, dated the 3rd July, 1960, which was published in the Gazette of India, Part II, section 3, 706 dated the 15th July, 1950, page 254, in which broadly three categories of persons were exempted: (a) Any person who on or after the 1st day of March, 1947, migrated from India to Pakistan but had returned to India before the 18th day of July, 1948, and had settled therein ; (b) Any person who has left or leaves for Pakistan on a temporary visit taking with himself a "No objection to return" certificate, and has returned, or returns, to India under a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent return to India; and (c) Any person who has come from Pakistan to India before the 18th day of October, 1949, under 'a valid permit issued under the Influx from Pakistan (Control) Act, 1949, for permanent resettlement in India.
These provisions far from suggesting that the person declared an evacuee suffers a civil death and remains an evacuee for all time show on the other hand that the person may cease to be an evacuee under certain circumstances that he is reinstated to his original position and his property restored to him subject to certain conditions and without prejudice to the rights if any in respect of the property which any other person may be entitled to enforce against him.
These provisions also establish that the fact of a property being evacuee property is not a permanent attribute of such property and that it may cease to be so under given conditions.
The property does not suffer from any inherent infirmity but becomes evacuee property because of the disability attaching to the owner.
Once that disability ceases, the property is rid of that disability and becomes liable to be restored to the owner.
Mr. Desai counsel for the petitioner referred in the course of the arguments to section 93 of the Presidency Towns Insolvency Act and section 17 ' of the Provincial Insolvency Act.
According to the former "if a debtor by or against whom an insolvency petition has been presented dies, the proceedings in the 707 matter shall, unless the Court otherwise orders, be continued as if he were alive".
By the latter section "if a debtor by or against whom an insolvency petition has been presented dies, 'the proceedings in the matter shall, unless the Court otherwise orders, be continued so far as may be necessary for the realisation and distribution of the property of the debtor".
Though there is slight difference in the language of these two sections, the principle underlying the insolvency law seems to be that the death of the insolvent during the pendency of the application for insolvency does not cause the proceedings to abate but that they must be continued so that his property could be administered for the benefit of the creditors.
There is no such provision in, the Act before us.
It follows therefore that if the intention of the legislature had been to treat the person proceeded against under section 7 as alive for purposes of the proceedings even after his death, such a provision would have been incorporated into the Act.
After giving our best consideration to the case we are of opinion that the order of the 30th July, 1951, passed by the Custodian General declaring Aboobaker Abdul Rehman deceased as an evacuee and the property left by him as evacuee property cannot stand and must be set aside.
We accordingly allow Appeal No. 65 of 1953, arising out of Petition No. 105 of 1952 and hold that the Custodian General had no jurisdiction to pass the order of the 30th July, 1951, and set it aside.
We make no order as to costs.
Petition No. 106 of 1952 is not pressed and no order need be passed in respect thereto.
In view of our order in Appeal No. 65 of 1953, no orders are called for in Petition No. 247 of 1952.
Appeal allowed.
Agent for the appellants and petitioners : Rajinder Narain.
Agent for the respondent in Petioion No. 247: G. H. Rajadhyaksha.

dataset_name: IN-Abs

summary: Where a Mohammedan against whom proceedings are commenced under the , for declaring him an evacuee and his properties evacuee properties dies during the pendency of the proceedings he cannot be declared an evacuee after his death, and his properties which on his death vest in his heirs under the Mohammedan law cannot be declared evacuee properties.


judgement:
Appeal No. 676 of 1962.
Appeal by special leave from the judgment and decree dated September 5, 1961, of the Andhra Pradesh High Court at Hyderabad in Special Appeal No. 3 of 1961.
K. Bhimsankaram, A. Ranganadham Chetty,A. Vadavalli, E. Udayarathnam and A. V. Rangam, for the appellant.
37 A. V. Viswanatha Sastri and P. Thiagarajan, for respondent No. 1.
K. R. Chaudhri, V. C. Prashar and Amarsingh Chaturvedi for respondent No. 2. 1963.
February 12.
J. This is an appeal against a judgment and order of the High Court of Andhra Pradesh confirming.
an order of the Election Tribunal, Hyderabad by which the Tribunal dismissed an election petition filed by the present appellant.
By that petition this appellant sought a declaration that the election of three persons, the present respondent, Seetharam Reddy, one Anandam and M. Ataur Rahman be declared void and that he, the petitioner, be declared as duly elected to the Legislative Council of the Andhra Pradesh from Telangana Graduates Constituency.
In this appeal we are no longer concerned with the question of validity of elections of Mr. Anandam or Mr. M. Ataur Rahman but only with that of the respondent Seetharam Reddy.
The appellant challenges the decision of the High Court mainly on the ground that in reaching its conclusion on 'the vital question of the age of Seetharam Reddy on the date of election the High Court took into consideration evidence which was not legally available for such consideration.
Though a large number of objections were raised in the petition to contest the validity of Seetharam Reddy 's election, only four of them were ultimately pressed before the Election Tribunal, viz., (1) That Seetharam Reddy was disqualified to be chosen to fill a seat in the Legislative Council under article 173 (b) of the Constitution his age being 38 below 30 years on the relevant date; (2) That the election was vitiated by undue influence exercised on the voters by some Ministers of the State of Andhra Pradesh ; (3) That the secrecy of the ballot was not maintained, and (4) That the election was void on account of improper deletion of names of voters in the final list.
All these objections were rejected by the Election Tribunal which accordingly dismissed the petition.
On appeal, the High Court confirmed the findings of the Election Tribunal on all these points and dismissed the appeal.
Faced with the position that the correctness of these findings which are all findings of facts is not open to challenge before this Court in this appeal by special leave, the appellant has raised the contention that the High Court 's decision on the question of age of Seetharam Reddy was vitiated by the error of law in that additional evidence was admitted and considered by the High Court without complying with the provisions of law.
It appears that a considerable amount of oral and documentary evidence was adduced before the Tribunal on this question of Seetharam Reddy 's age.
While the petitioner tried to establish that Seetharam Reddy was born.
in October 1931, Seetharam Reddy tried to establish that he was born sometime in 1928.
The Tribunal rejected as unworthy of credit the oral testimony adduced by either side.
It also rejected most of the documentary evidence, including R 5 and R 6, R 11 and R 12.
R 5 is a birth register; R 6 is an entry therein, R 11 is a certificate purporting to be issued by the Head Master of the Muslim High School, Kurnool, in respect of the age of the respondent Seetharam Reddy while R 12 is an application said to have been made at the time of his admission to this school.
The 39 Tribunal 's finding was that Seetharam Reddy did not study in the Kurnool Muslim High School.
The Tribunal also rejected the documentary evidence produced on behalf of the petitioner seeking to show that the respondent Seetharam Reddy was born on October 10, 1931.
Ultimately, however, the Tribunal decided the issue as regards the age against the petitioner on the basis of certain documents in con nection with the proceedings before the judicial Committee of the Privy Council which showed that the respondent Seetharam Reddy was a major by the year 1356 Fasli.
It appears that in that year an appeal was pending in the judicial Committee of the Privy Council which had arisen out of a suit regarding the adoption of Seetharam Reddy by one Tuisamma, and the party who contested the alleged adoption filed a petition to declare him (Seetbaram Reddy) as a major.
Exhibit R 10 is that petition.
After notice was served a power (wakalatnama) was filed by Seetharam Reddy as a major in the appeal.
In this wakalatnama (exhibit R 3) Seetharam Reddy 's age was given as 19 years.
Exhibit R 13 was the notice issued to Seetharam Reddy in those proceed ings.
The Tribunal was of opinion that the genuineness of these documents, Exhibits R 3, R 10 and R 13, could not be q questioned and it was clear that the respondent was treated as a major in the proceedings before the judicial Committee from and after 1356 Fasli.
That showed, according to the Tribunal, that he was not less than 30 years of age on the date of election or nomination.
The High Court also came to the same conclusion on this issue as regards Seetharam Reddy 's age.
In coming to this conclusion it has relied not only on the wakalatnama exhibit R 3 mentioned above but also on four other documents, viz., Exs.
R 5 and R 6, which the Tribunal rejected as unreliable and 40 Exs.
R 19 and R 20 which were not tendered in evidence before the Tribunal but came before the High Court as additional evidence.
The appellant contends that the High Court acted without jurisdiction in admitting additional evidence.
We are clearly of opinion that even if it was found that the High Court erred in taking the additional evidence that would not be a case of lack of jurisdiction but would be an error in the exercise of jurisdiction.
As was pointed out however by this Court in Arjan Singh vs Kartar Singh (1).
"The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order XLI, rule 27, of the Code of Civil procedure.
" The question whether in the present case the High Court exercised the discretion judicially has therefore to be examined by us.
Section 107 of the Code of Civil Procedure ' empowers the appellate court "to take additional evidence or to require such evidence to be taken," "subject to such conditions and limitations as may be prescribed.
" Rule 27 of Or.
41 of the Code of Civil Procedure prescribes the conditions and limitations in the matter.
The Rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court.
It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced.
One class is where the Court appealed from has refused to admit evidence which ought to have been admitted.
The other class is where the appellate court requires such additional evidence for itself either to enable it to pronounce judgment or for any other substantial cause.
The second class of the rule requires that when additional evidence is allowed to be produced by an appellate court the Court shall record the reason for its admission.
(1) ; 41 The additional evidence that was produced in this case had not been tendered in evidence before the Election Tribunal and so this case does not fall within the first class mentioned above.
Obviously, therefore, the High Court allowed the. production of this evidence on its own requirement.
It is contended before us on behalf of the appellant that the learned judges made the order mechanically without applying their minds to the requirements of Or.
41 r. 27 of the Code of Civil Procedure.
Support for this contention is sought from the fact that the High Court did not record its reasons for the admission of the additional evidence as required by the second clause of the rule.
The importance of this provision for recording of the reasons for admission of additional evidence has been emphasized in several cases (Vide., Sreemanchunder vs Gopalchunder (1) Manmohan Das vs Mutsammat Ramdei (2)) .
It is very much to be desired that the courts of appeal should not overlook the provisions of cl.
(2) of the Rule and should record their reasons for admitting additional evidence.
We are not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission of the evidence.
Clearly, the object of the provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced whether this was done on the ground (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause.
Where a further appeal lies from the decision of the appellate court such recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the (1) [1866] 11 M.1.A. 28 (2) 42 rule has been judicially exercised by the court below.
The omission to record the reason must therefore be treated as a serious defect.
Even so, we are unable to persuade ourselves that this provision is mandatory.
For, it does not seem reasonable to think that the legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate court allowed additional evidence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the Rule all that should be set at naught merely because the provision in the second clause was not complied with.
It may be mentioned that as early as 1885 when considering a similar provision in the corresponding section of the Code of 1882, viz., section 586, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative vide Gopal Singh vs Jhakri Rai(1).
We are aware of no case in which the correctness of this view has been doubted.
It is worth noticing that when the 1908 Code was framed and Or.
41 r. 27 took the.
place of the old section 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recording reasons imperative.
It is true that the word " 'shall" is used in R. 27 (2); but that by itself does not make it mandatory.
We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission.
Nor are we prepared to agree with the learned Counsel that this omission justifies the conclusion that the High Court acted mechanically in the matter, without applying its mind to the requirements of the Rule.
The record before us shows that the hearing of the appeal before the High Court commenced on July 18, 1961 and after the (1) Cal.
43 appellant 's Counsel had concluded his arguments the respondent 's Counsel started addressing the Court.
He continued his arguments on the next date, i.e., July 19.
On the next date, i.e., July 20, 1961 an application was made on behalf of the respondent, Seetharam Reddy, praying that two registers of admission and withdrawals of the Government Muslim High School, Kurnool, be received and admitted as additional evidence in the appeal.
(It may be stated that the petition itself bears the date, July 18, but the supporting affidavit bears the date 20 July).
It was stated on affidavit that both these registers had been summoned along with the other documents by the appellant, Venkataramiah, and were actually produced before the Election Tribunal by the Head Master and further that these had been transmitted to the High Court along with the records of the case.
It was stated that these documents had "an important bearing" upon the case and were "required to be looked into" to arrive at a just and correct conclusion in regard to Issue No. 1.
On the following date i. e., of July 21, the appellant Venkataramiah put in his counter affidavit objecting to the respondent 's prayer and in para, 6 of this counter affidavit we find the following statement : "In the circumstances it is submitted that the provisions of Or.
41 Rule 27 C. P. C., are not complied with.
It was not offered as evidence before the Tribunal.
Admittedly it was available at the time of the trial and it is not the case of the petitioner that notwithstanding exercise of due diligence.
, was not within his knowledge or could not be produced by him at the time when the decision was pronounced by the Tribunal.
It is not in the interest ofjustice nor it is necessary to enable this Court to pronounce judgment to admit them as additional evidence.
On the other 44 hand, the admission of the registers as evidence would enable the party to go behind his case stated by him in his counter affidavit before the Election Tribunal and set up altogether an inconsistent case.
Hence the said Admission Registers are neither relevant nor material.
" The High Court passed the order for the taking of additional evidence on the same date.
How the High Court considered the matter is best shown by a passage from the judgment pronounced by the Court in the appeal.
After pointing out that the Tribunal "was not prepared to place any reliance on Exhibits R 11 and R 12 and was of the opinion that the 1st respondent did not study in Government Mohammadan High School, Kurnool, and that Exhibit R 12 was concocted, if it was to be argued that it relates to the present 1st respondent," the judgment proceeds thus : "During the course of the arguments before us, it was noticed that two admission registers relating to the High School for the relevant period were in fact summoned for by the learned Counsel for the petitioner and were produced be fore the Tribunal.
For some reason, which is not clear to us, these registers were not proved and marked as exhibits.
These registers were sent to the High Court for hearing of the above appeal and they were placed before us.
We are told that the 1st respondent also applied that these registers may be summoned for from the High School.
But when he has realised that the petitioner himself has summoned for them, it was not necessary for the 1st respondent to summon for them again.
Whatever it be, these registers were before the Tribunal and are before us.
But as neither party could rely upon them without their being proved and exhibited, the 1st respondent filed C.M.P. No. 7115/61 under Or.
41 r.27 and section 151 C.P.C. to receive them as 45 evidence and mark the registers, as exhibits.
By our order dated 21 7 1961 we permitted the 1st respondent in the appeal to prove these documents before the Election Tribunal.
We also directed that the appellant is at liberty to cross examine the persons, who might be summoned to prove these documents.
We also directed the Tribunal to record the evidence adduced in proof of these two registers and submit the same to the High Court for consideration in the above appeal.
The Tribunal accordingly re.
called R.W.8, the Head Master, Government Muslim High School, Kurnool, and also examined R.W.10, the Head Master of the same school for the years 1936 to 1945.
The Register of Admissions and Withdrawals relating to the School from 7 7 1919 to 15 1 1938 is marked as exhibit R 19 and the register from 30 6 1926 to 14 2 1949 is marked as Exhibit R 20.
The entries in the two registers relating to the 1st respondent are Exhibits R 21 and R 24.
" In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind.
It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy 's age if the entries in the admission registers of the School were made available.
It was vehemently urged by the learned Counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment".
The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have 46 required such additional evidence to enable ""us" to pronounce judgment.
Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for " 'any other substantial cause.
" There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence " 'to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner.
Such a case will be one for allowing additional evidence "for any other substantial cause" under R 27(1) (b) of the Code.
It is easy to see that such requirement of the 'Court to enable it to pronounce judgement or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect become apparent on an examination of the evidence.
That is why in Parsotim 's case (1), the Privy Council while discussing whether additional evidence can be admitted observed: "It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it.
This is the plain grammatical reading of the sub clause.
The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands,.
some inherent lacuna or defect becomes apparent.
" As the Privy Council proceeded to point out: "It may well be that the defect may be pointed out by a party, or that a party, may (1) (1931) L.R. 58 I.A. 254.
47 move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands.
" We are satisfied that in the present case the High Court allowed additional evidence to be admitted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of Rule 27(1)(b) of Or.
41 of the Code.
The contention that the decision of the High Court on the question of the respondent 's age was vitiated by reason of it being based on inadmissible evidence, must therefore fail.
Another difficulty in the appellant 's way may also be mentioned.
As has been said above, the appellant did file before the High Court a petition objecting to the reception of additional evidence.
We find it stated however in the High Court 's order refusing the application for a certificate under Art .
133 (1)(c) of the Constitution that no objection that the requirements of Or. 41 r. 27.
C.P.C., were not satisfied, was raised either at the time when the court directed the Tribunal to record the statements or at the time of the hearing of the appeal.
This order was passed by the learned Chief justice and Mr. justice Chandrasekhara Sastry, who had made the order allowing admission of additional evidence and also heard the appeal.
We are bound to hold therefore that though the appellant did make an application objecting to the admission of additional evidence he did not press that application.
On the principle laid down in Jagarnath Pershad vs Hanumam Pershad (1), that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on, the appellant cannot now be heard to say that the (1) (1909) L.R. 36 I.A. 221.
48 additional evidence was taken in this case in breach of the provisions of law.
There is nothing therefore that would justify us in interfering with the findings of facts on which the High Court based its decision.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

summary:
The appellant challenged the validity of election of respondent on the grounds that he was below 30 years on the relevant date, that his election was vitiated by undue influence exercised on the voters by some Ministers of the State, that the secrecy of ballot was not maintained and that the election was void on account of improper deletion of names of voters from the final list.
All the objections were rejected by the Election Tribunal which dismissed the election petition.
On appeal, the High Court confirmed the findings of the Election Tribunal and dismissed the appeal.
The appellant came to this Court by special leave.
The appellant challenged the decision of the High Court mainly on the ground that in reaching its conclusion on the question of age of the respondent on the date of election, the High Court took into consideration evidence which was not legally available for consideration and that the additional evidence was admitted without complying with the provisions of law.
Held, that the High Court allowed additional evidence to be admitted as it required that evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 2 7 (1) (b) of 0.
41 of the Code of Civil Procedure.
It could not be said that the High Court made the order for admission of additional evidence without applying its mind.
The appellate court has power to allow additional evidence not only if it requires such evidence "to enable it to 36 pronounce judgment" but also for "any other substantial cause.
" There may be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is and so it cannot strictly say that it requires additional evidence "to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner.
Such a case will be one for allowing additional evidence "for any other substantial cause.
" Held, also, that the omission of the High Court to record the reasons for allowing additional evidence does not vitiate such admission.
The provision is not mandatory although where a further appeal lies from the decision of the appellate Court, the recording of the reasons may be necessary and useful to the Court of further appeal for deciding whether the discretion had been judicially exercised by the Court below or not and the omission to record the reasons must be treated as a serious defect.
When additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on.
As the appellant did not press his application against the admission of additional evidence, the objection must be over ruled.
Arjan Singh vs Kartar Singh.
[1951) section C. R. 258, Sreemanchunder vs Gopalchunder, (1866) 11 M. 1.
A. 28 Manmohan Dag vs Musammat Ramdie Gopal Singh vs Jhakri Rai, (1885) 1.
L. R. , Parsotim vs Lal Mohar, (1931) L. R. 58 I.A. 254 and Jagamath Prasad vs Hanuman Pershad (1909) L. R. 36 I.A. 221, referred to.