judgement:
Civil Appeal No. 504 (N) of 1971.
Appeal from the Judgment and order dated the 24th April 1970 of the Madhya Pradesh High Court in Misc.
Petition No. 246 of 1967.
545 R.P. Bhatt, Ashok Mehta, J.B. Dadachanji and D.N. Misra for the appellant.
Gopal Subramanium and section A. Shroff for the respondents.
The Judgment of the Court was delivered by B TULZAPURKAR, J.
Two questions were raised for our determination in this appeal by a certificate: (a) Whether the Sugarcane Development Council, Sehore (respondent No. 2) can charge commission under section 21 (1) of the Madhya Pradesh Sugar Cane (Regulation of Supply & Purchase) Act, 1958 on purchases of sugarcane made by the appellant company from outside the "reserved area" ? and (b) Whether the Sugar Cane Growers Development Co operative Union Ltd., Sehore (respondent No. 3: the concerned Cane Growers Co operative Society) can charge commission under section 21 (l) (a) of the Act in respect of the purchases of sugarcane made by the appellant through the Union when there is no quid pro quo by way of rendering any services by Union to the appellant company ? The short facts giving rise to the above questions may be stated: The appellant company crushes sugarcane in its factory at Sehore in Madhya Pradesh.
For its business it purchases sugarcane from "reserved area" as well as from outside both directly from the cane growers as well as through respondent No. 3, a Cane growers Co operative Society, Sehore.
Section 21 of the Act imposes an obligation upon the appellant company to pay commission on all its purchases of cane at prescribed rates and it has to pay such commission in respect of purchases made through the Society to the Society and the Development Council and in respect of purchases made directly from the cane growers to the Development Council.
According to the appellant company judicial decisions rendered by Madhya Pradesh High Court as well as this Court have settled the position that the commission chargeable under section 21 of the Act is in the nature of a fee the imposition of which is supported on the basis of quid pro quo in the shape of services rendered by the Development 546 Council to a factory (vide: Jaora Sugar Mills (P) Ltd. vs State of Madhya Pradesh and others.
It appears that during the seasons 1960 61 to 1964 65 the appellant company purchased cane directly from the cultivators of "reserved area" as well as from the cultivators of "non reserved area" and respondent No. 2 (Development Council, Sehore) made a demand of commission from the appellant company in respect of such purchases both from "reserved area" as well as from "non reserved area.
" Similarly, during the crushing seasons 1963 64 to 1966 67 the appellant company made purchases of cane from or through respondent No. 3 (Co operative Society) in respect whereof a demand of commission was made by respondent No. 3 from the appellant company.
By a writ petition (being Misc.
Petition No. 246 of 1967) filed in the Madhya Pradesh High Court at Jabalpur the appellant company challenged the validity of the demand made by respondent No. 2 insofar as it related to purchases made from non reserved area on the ground that it (Council) was established for the reserved area of the appellant company 's factory and its functions were confined to that area and as such no commission (fee) could be recovered by it in respect of purchases made by appellant company from non reserved area; similarly, the demand made by respondent No. 3 (Co operative Society) was challenged on the ground that no services of any kind whatsoever were rendered by it to the appellant company, and the charge would be invalid in the absence of any quid pro quo.
The High Court negatived both the contentions and dismissed the petition.
It is this decision of the High Court that is challenged before us in the appeal and counsel for the appellant company raised the two questions mentioned at the commencement of the judgment.
Section 21, which deals with commission on.
purchase of cane, runs thus: "(1) There shall be paid by the occupier a commission for every one maund of cane purchased by the factory (a) where the purchase is made through a Cane growers ' Co operative Society, the commission shall be payable to the Cane growers ' Cooperative 547 Society and the Council in such proportion as the State Government may declare; and (b) where the purchase is made directly from the cane grower, the commission shall be payable to the Council.
(2) The Commission payable under clauses (a) and (b) of sub section (1) shall be at such rates as may be prescribed provided, however, that the rate fixed under clause (b) shall not exceed the rate at which the com mission may be payable to the Council under clause (a).
" Section 30 confers power on the State Government to make rules for the purpose of carrying into effect the provisions of the Act and under cl.
(j) of sub section
(2) such Rules may provide for "the rate at which and the manner in which commission shall be paid to the Cane growers ' Co operative Society on the supply of cane by them.
" Under the aforesaid provisions certain rules called the Madhya Pradesh Sugar Cane (Regulation of Supply and Purchase) Rules, 1959 have been framed by the State Government.
Rules 45 and 46 occurring in Chapter X of the Rules are material and they are as follows: "45.
The occupier of factory shall pay a commission for the cane purchased at the following rates namely: (i) Where the purchase is made through a Cane growers ' Co operative Society, at the rate of 5 Naya Paise per maund out of which 2 Naya Paise shall be payable to the Society and 3 Naya Paise to the Council; (ii) Where the purchase is made directly from the cane growers, at the rate of 3 Naya Paise per maund, payable to the Council.
In determining the proportion to which payments out of commission shall be made to the Council and the Cane growers ' Co operative Society of an are the State Government may take into consideration the 548 financial resources and the working requirements of the Council and the Cane growers ' Co operative Society.
" It is thus clear from the aforesaid statutory provisions that every factory is under an obligation to pay commission on all its purchases of cane at the prescribed rates and it has to pay such commission at the rate of 2 Naya Paise per maund to the Society and 3 Naya Paise to the Council in respect of purchases made through a Cane growers ' Co operative Society and at the rate of 3 Naya Paise per maund to the Council where the purchases are made directly from the cultivators or cane growers.
It cannot be and was not disputed by Counsel on behalf of the respondents that the levy under section 21 of the Act though called "commission" is really in the nature of a fee, the imposition of which is supportable only on the basis of quid pro quo in the shape of rendition of services to the factory in the matter of cane purchased by it and Counsel accepted this position as emerging from this Court 's decision in Jaora Sugar Mills ' case (supra).
Now, turning to the first question raised before us Counsel for the appellant company contended that respondent No. 2 Council has been established for the "reserved area" of the appellant 's factory so declared under section 15 of the Act, that respondent No. 2 Council is required to discharge its statutory functions and duties under section 6 of the Act confined to the "reserved area" meant for the appellant 's factory and as such the demand for commission (fee) in respect of purchases of cane made by the appellant factory from non reserved areas (which it is entitled to make along with its purchases from the "reserved area") would be illegal and without any authority of law because in respect of such purchases there is no quid pro quo in the shape of rendering of services by respondent No. 2 to the appellant factory.
It is not possible to accept this contention for more than one reason.
In the first place there are no qualifying words to be found in section 21 of the Act which limit the imposition of commission (fee) to purchases of cane made by a factory from reserved area only; the imposition is on every maund of cane purchased by factory irrespective of the area from where such purchases may have been made.
Secondly, and this is important, if the relevant provisions of sections 5 and 6 of the Act are carefully examined it will appear that the functions and duties of the Development Council are not confined to the "reserved area" of a factory as 549 urged by the Counsel for the appellant company.
Under section 5 "there shall be established, by notification, for the reserved area of a factory a Cane Development Council which shall be a body cooperate provided that where the Cane Commissioner so directs, the Council may be established for a larger or smaller area "than the reserved area of a factory" and sub section
(2) provides that "the area for which a council is established shall be called a Zone".
In other words, the Zone area of operation) of a Council could be larger than the "reserved area" of a factory i.e. would, include area outside the reserved area of the factory.
Further, the functions and duties of the Council are indicated seriatim in cls.
(a) to (g) of sub section
(1) of section 6 and these include functions like considering and approving development programmes for the Zone, devising ways and means for execution of development plan in all its essentials such as cane varieties, cane seed, sowing programme, fertilizers and manures, taking steps for the prevention of diseases and pests and rendering all help in soil extension work, etc.
and it will be noticed that some of these functions under cl.
(b), (d) and (e) are of general character and not confined even to the Zone of the Council.
In other words, the functions and duties of the Council which are in the nature of rendering services in the matter of better cane production, distribution and supply thereof to the factory are not confined to the "reserved area" so declared for a factory under sec.
15 of the Act.
If that be so it is difficult to accept the contention that in the matter of cane purchases made by the appellant 's factory from non reserved areas no services are rendered by the respondent No. 2 Council to the appellant 's factory.
The quid pro quo being there the imposition of a fee on such purchases from non reserved areas would be proper and justified.
As regards the demand and recovery of commission (fee) by respondent No. 3 under section 21(1)(a) in respect of purchases of sugarcane made by the appellant 's factory through it, the contention of Counsel for the appellant company has been that respondent No. 3 is the concerned Cane growers ' Co operative Society in the area, one of the objects of which is to sell cane grown by its members to the appellant 's factory, that the said Society does not render any services to the appellant 's factory under the Act or otherwise and hence is not entitled to recover any fee from the appellant company.
It is pointed out that respondent No. 3 is meant for helping its members and in fact renders various types of services to its cultivator members 550 so that they are not exploited.
In fact in the matter of supplies of cane made through the respondent No. 3 it is the Society which deals with its members who receive their price from the Society.
Counsel pointed out that even in the return filed by respondent No. 3 to the writ petition, respondent No. 3 enumerated four types of services which it claimed was rendering to the appellant 's factory, namely, (a) it made arrangements for lump sum cane supply on lump sum demand from the factory; apart from convenience this resulted in economy to the factory as it had to maintain less staff; (b) it undertook equitable distribution of quota and the factory had not to undertake this function; (c) it undertook the maintenance of the records of individual growers for cane supplies and the factory had not to undertake this function and (d) it made payment to the suppliers though the factory is required to make payments for supplies effected immediately and in actual practice mostly the factory made payments late at its convenience but the Society made payments to the suppliers regularly according to the programme drawn by it; the appellant 's factory thus benefited by the existence of this Society.
But according to Counsel for the appellant company none of these items referred to above really amounts to rendering any service to the appellant 's factory by way of conferring on it some special benefit having a direct, close or reasonable correlation to its transactions of purchase of cane and, if at all, all these items referred to in the Return are really for the benefit of cultivator members of the Society and in this behalf, Counsel relied upon a decision of this Court in Kewal Krishan Puri 's case where in the context of enhanced market fee levied under Punjab Agricultural Produce Market Act, 1961 this Court has observed that the quid pro quo by way of rendering services must result in the conferral of some special benefits to the persons charged which have a direct, close and reasonable correlation between such persons and their transactions and that any indirect or remote benefit to them would in no sense be such benefit.
Counsel for the appellant company, therefore, urged that since in everything that is being done by it respondent No. 3 is rendering services to its own members and no services resulting in any special benefit to the appellant 's factory are rendered, no charge by way of any fee would be legally recoverable by respondent No. 3 from the appellant 's factory.
551 In our view having regard to the scheme of the Act and the activities which respondent No. 3 has been undertaking in the discharge of its normal functions it will be difficult to accept the contention urged by Counsel for the appellant 's factory that no services of any kind whatsoever resulting in conferral of special benefits on the appellant 's factory in regard to its transactions of purchases of cane are rendered by respondent No. 3 to the appellant 's factory.
The scheme of the Act is that under sections 15 and 16 a declaration of reserved and assigned areas for purchase and supply of sugarcane is made by the Cane Commissioner for every factory after consulting in the manner prescribed the occupier of the factory and the Cane growers ' Co operative Society, if any, in that area and upon declaration of such areas an obligation is cast upon the occupier of the factory, in the case of "reserved area", to purchase all cane grown in such area which is offered for sale and in respect of "assigned area" to purchase such quantity of cane grown therein and offered for sale for the factory as may be determined by the Cane Commissioner.
Further, under section 19 the State Government can by order regulate the distribution, sale and purchase of cane within any "reserved and assigned area" as also from areas other than "reserved and assigned areas" and under cl.
(b) of sub sec.
(2) such order made by the State Government may provide for the manner in which cane grown in the "reserved area" or the "assigned area" shall be purchased by the factory and the cane grown by a cane grower shall not be purchased except through a Cane growers ' Co operative Society.
In other words the scheme of Act contemplates situations where the appellant 's factory may have to purchase cane from within reserved or assigned areas only through the respondent No. 3 Society.
Moreover in its Return the respondent No. 3 has averred that under its bye laws the Society is established to develop scientific methods of sugar cane growing and calls on its members to introduce modern means of implements for cultivating sugarcane which unquestionably makes for assured bulk supply of uniformly good quality cane through its members to the appellant 's factory.
In other words this function undertaken by respondent No. 3 is of a nature or kind similar to that undertaken by the council and therefore it cannot be said that no services conferring special benefit on the appellant 's factory in the matter of its purchases of cane are rendered by respondent No; 3 to the appellant 's factory.
Having regard to the aforesaid position it is not possible to accept the contention that in respect of purchases of cane made through the respondent No. 3 Society there is no 552 element of quid pro quo in the shape of rendering services by respondent No. 3 to the appellant 's factory.
In the result both the questions are answered against the appellant company and the appeal is dismissed with costs.
H.L.C. Appeal dismissed.

summary:
Section 21 (1) of the Madhya Pradesh Sugar Cane (Regulation of Supply & Purchase) Act, 1958, imposes an obligation upon an occupier of a factory to pay commission at prescribed rates on all its purchases of sugarcane.
While in respect of purchases made through a Cane growers ' Cooperative Society the commission is payable to that Society and the Cane Development Council under section 21 (1) (a), in respect of purchases made directly from the cane growers the commission is payable to the Cane Development Council under section 21 (1) (b).
The appellant, a company which crushes sugar cane in its factory, purchased cane directly from the cultivators of 'reserved area ' as well as of 'non reserved area '.
Respondent No. 2, the Cane Development Council, demanded commission in respect of purchases made from both 'reserved ' as well as 'non reserved ' areas.
The appellant also purchased cane from or through respondent No. 3, a Cane growers ' Cooperative Society and in respect of those purchases, the demand for commission was made by that Society.
The demands for payment of commission were challenged by the appellant by a petition under article 226 which was dismissed by the High Court.
In appeal to this Court it was contended on behalf of the appellant that since the Cane Development Council had been established for the 'reserved area ' of the appellant 's factory so declared under section 15 of the Act and its statutory functions and duties were confined to that area under section 6 of the Act, its demand for commission on purchases made from 'non reserved area ' was illegal, there being no quid pro quo in the shape of rendering services in respect of purchases made from 'non reserved area '.
As Regards the demand of the Cane growers ' Cooperative Society for commission in respect of purchases made through it, the contention was that in everything being done by it, the Society was rendering services to its own members and since no services resulting in any special benefit to the appellant were being rendered by it in terms of the decision of this Court in Kewal Krishan Puri 's case; , , there was no quid pro quo and therefore no commission was legally recoverable by tho Society.
544 Dismissing the appeal, ^ HELD: 1.
The levy under section 21 of the Act though called 'commission ' is really in the nature of a fee and its imposition is supportable only on the basis of quid pro quo in the shape of rendition of services to a factory in the matter of cane purchased by it.
[548 C D] Jaora Sugar Mills (P) Ltd. vs State of Madhya Pradesh and Ors. , referred to.
The imposition of commission by the Cane Development Council on purchases of cane from 'non reserved area ' was proper and justified as there was quid pro quo in the form of rendering services in the matter of better cane production, distribution and supply thereof.
The area of operation or the 'zone ' of the Council could include areas outside the 'reserved area ' of the factory as a Council could be established for a larger or smaller area "than the reserved area of a factory" under section S of the Act, and its functions and duties under cls.
(a) to (g) of section 6(1) included functions like considering and approving development programmes for the zone, devising ways and means for execution of development plan in all its essentials such as cane varieties, cane seed, sowing programme, fertilizers and manures, taking steps for prevention of diseases and pests and rendering all help in soil extension work, etc.
Some of these functions mentioned in cls.
(b), (d) and (e) of section 6(1) are of general character and not confined to even the zone of the Council.
Further, section 21 of the Act does not contain any qualifying words limiting the imposition of commission to purchases of cane made by a factory from 'reserved area ' only; the imposition is on every maund of cane purchased by a factory irrespective of the area from where such purchases might have been made.
[549 A P] 3.
The contention that in respect of purchases of cane made through the Cane growers ' Cooperative Society there was no element of quid pro quo cannot be accepted having regard to the scheme of the Act and the activities undertaken by the Society in the discharge of its normal functions.
The scheme of the Act, particularly in sections 15, 16 and 19, contemplated situations where the appellant 's factory might have had to purchase cane from within reserved or assigned areas, only through the Society.
The Society had been established to develop scientific methods of sugar cane growing and it had called upon its members to introduce modern means of implements for cultivating sugarcane which unquestionably made for assured bulk supply of uniformly good quality cane through its members to the appellant 's factory.
It could not, therefore, be said that no services conferring special benefit on the appellant 's factory in the matter of purchases of cane were being rendered by the Society to the appellant 's factory.
[551 A H; 552 A]


judgement:
l Misc.
Petitions Nos.
8774 of 1980 & 2581 of 1981.
IN Writ Petition No. 5352 of 1980.
(Under Article 32 of the Constitution) B. L. Das Petitioner in person.
K G. Bhagat and D. Goburdhan for the Respondent (State).
R.N. Poddar for the Respondent (CBI).
The order of the Court was delivered by CHANDRCHUD, C.J.
These Misc.
Petitions are an off shoot of the blindings of undertrial prisoners at Bhagalpur in the State of Bihar.
Truth has a strange habit of revealing itself and in spite of the veil of secrecy behind which the blindings of those prisoners lay concealed or suppressed, this Court and the country awoke one day to the incredible fact that, in Bhagalpur, undertrial prisoners were subjected to the most inhuman torture imaginable: their eyes were pierced with needles and acid poured into them.
Whether these barbarous acts were committed by members of the public after the prisoners were caught or by the police after they were arrested, is not a matter directly in issue before us.
The greater probability is that these acts may have been committed mostly by the police.
535 But this much is certain, that six prisoners were thus blinded between October 1979 and May 1980 and twelve between June 11 and July 25, 1980.
The petitioner Bachcho Lal Das, who has filed these Misc.
Petitions, had assumed charge as the Superintendent of the Bhagalpur Central Jail on April 19? 19791 On October 26, 1979 a prisoner by the name of Arjun Goswami was sent to the Bhagalpur Central Jail.
On November 20, 1979 he addressed an application to the Chief Judicial Magistrate, Bhagalpur, asking that an inquiry be held into the torture inflicted upon him, especially the blinding of his eyes.
That application was forwarded by the petitioner to the Chief Judicial Magistrate.
Later, eleven prisoners made similar complaints which were for warded by the petitioner to the learned Sessions Judge, Bhagalpur, On July 30, 1980.
The complaints made by these prisoners unquestionable demanded the most prompt and careful attention.
But, instead of directing a full and proper inquiry into the allegations made by the undertrial prisoners, the learned Sessions Judge, on August 5, 1980, sent a cold and indifferent reply to the petitioner 's covering letter, saying that "there is no provision in the Cr.
P.C. to provide a lawyer to any person for prosecuting a criminal case as a complaint" and that the petitions of the prisoners were forwarded to the Chief Judicial Magistrate, Bhagalpur, "for needful in accordance with law.
" E On October 9, 1980, ten blinded prisoners filed a Habeas Corpus petition in this Court (Criminal Writ Petition No. 5352 of 1980) asking that: (I) they should be produced in the Court, (2) they should be examined by a Medical Board, (3) they should be paid compensation for the damage done to their eyes and that (4) the police officers guilty of committing atrocities upon them should be suitably punished.
On October 10, 1980 a Bench of this Court consisting of one of us, (the Chief Justice), and Justice A.D. Koshal passed the following order in that petition: "We direct that the petitioners shall be examined by the Jail Doctor forthwith and a report shall be submitted to this Court expeditiously in regard to the allegation in the petition that their eyes have been damaged by certain police officers by putting acid therein.
The report shall be submitted within four weeks from today.
The W.P, be listed for hearing after the report is received.
" 536 By his letter dated October 31, 1980 the petitioner, who is respondent 2 in the Habeas Corpus petition, forwarded to this Court the report of the Jail Doctor on the condition of the eyes of the prisoners.
The remaining 2 prisoners were already released and could not therefore be examined.
The report of the Jail Doctor in regard to one of the prisoners, Anil Yadav, is representative of the condition of all the eight of them and may be extracted here: "(1) Presence of old burn scar around both the eyelids of both the eyes and on left cheek.
(2) Collapse of both the eye balls.
(3) Perception of light and projection of rays absent in both the eyes.
(4) Eye sight of both the eyes lost.
The cause is perforation of eye balls by burn with some corrosive substance and puncture by some sharp and pointed weapon.
From the records of Jail Hospital it is known that he was admitted in Jail Hospital on 8.7.1980 for acid burn injury of both the eyes. ' ' On December 1, 1980, the Court (the Chief Justice and Chinnappa Reddy, J.), while directing that the prisoners be brought to Delhi the following week and be examined at the Dr. Rajendra Prasad ophthalmic institute, New Delhi, passed the following order: "The report of the doctor which we had called for by our order dated October 10, 1980 shows that eight out of the ten petitioners before us have lost their eye sight totally or partially.
The report submitted by Dr. K.S. Roy in each individual case shows that: (i) most of the petitioners are suffering from collapse of one or both of the eye balls; (ii) the sight of one or both of their eyes is lost; 537 (iii) there is perforation of their eye balls by burn with a corrosive substance and that (iv) their eyes have been punctured by some sharp and pointed weapon.
The remaining two petitioners have been released and therefore no report could be sent regarding them.
The report of the doctor will shock the conscience of mankind.
There has been the most flagrant violation of the safeguards provided by Articles 19 and 21 of the Constitution.
There is nothing that the Court can do to restore the physical damage, which seems irreparable.
But the offenders must at all events be brought to book, at least in the hope that such brutal atrocities will not be committed again.
With that end in view, we direct the Superintendent D of the Bhagalpur Central Jail to file an affidavit in this Court within two weeks from to day stating: (a) the names of convicts and undertrial prisoners in the jail whose eyes have been damaged or impaired before or after their lodgement in Jail; (b) the names of policemen, police officers and the members of the jail staff who were in charge of those prisoners at the relevant time; (c) the names of doctors who were in charge of the jail dispensary or hospital at the relevant time; and (d) the names of doctors who have examined, from time to time, the petitioners and other prisoners whose eyes have been damaged or impaired after their lodgement in jail.
We direct that the Registrar of the Supreme Court and one other officer of the Court shall visit the Bhagalpur Central Jail during this week and obtain first hand the version of the petitioners and other prisoners similarly situated as regards the impairment or blinding of their eyes.
The two officers of the court shall be granted every facility 538 to meet the prisoners, to talk them beyond the hearing of any jail officer or police officer and to record the statements of the prisoners.
We direct the Jail Superintendent to ensure due and full compliance with these directions.
Issue notice to the State of Bihar asking it to show cause on the petition as also as to why the petitioners should not be released on bail on their personal recognizance.
" Shri R. Narasimhan, Registrar (Judicial) and Shri Y. Lal, Assistant Registrar of this Court visited the Bhagalpur Central Jail on December 3 and 4, 1980 and recorded the statements of 17 prisoners who were blinded.
These statements show that 15 out of the 17 prisoners were blinded by the police and the remaining 2, whose names appear at Serial Nos. 14 and 15 of the report of the Registrar, were blinded by the members of the public.
The method adopted for blinding the undertrial prisoners, as described by the prisoners themselves, was that a 'takwa ' (a long needle used for stitching gunny bags) or a barber 's nail cutter or a cycle spoke was poked into their eyes and acid was poured into the eyes, sometimes with the help of a dropper, sometimes with a syringe and sometimes directly from a bottle.
It is alleged that the prisoners were held firmly on the ground by policemen who either pulled the ropes tied to their feet or sat upon their feet.
The Registrar questioned the Petitioner, Bachcho Lal Das, in Delhi.
The petitioner stated to him that as many as 31 blinded prisoners were brought to the Jail under orders of remand issued by the Magistrate and that they were given medical treatment by the Jail Doctor.
According to the petitioner, he got a blinded prisoner Umesh Yadav examined by the Jail Doctor, since the report of the doctor was required by the learned District and Sessions Judge, Bhagalpur, in connection with a bail application filed by the prisoner.
The petitioner disclosed to the Registrar that he had made inquiries from Umesh Yadav, who told him that V.K. Sharma, D.S.P., had thrust a long needle in both of his eyes and had poured acid into the eyes.
The other blinded persons appear to have taken a cue from Umesh Yadav and submitted similar petitions for being forwarded to the District and Sessions Judge.
The petitioner disclosed to the Registrar the names of the police officers who 539 were involved by the prisoners as being responsible for their blindings.
It may be recalled that this Court by its order dated December 1, 1980 had directed the petitioner, who was then the Superintendent of the Bhagalpur Central Jail, to file an affidavit within two weeks on Points (a) to (d) mentioned in that order.
On that very day, the petitioner was suspended by the Government of Bihar on the ground the he was negligent in providing proper medical aid to the blinded undertrial prisoners inside the Jail and that he had failed to make proper entries in the Jail Register as regards the physical condition of the undertrial prisoners.
On December 10, 1980 the petitioner filed the main Misc.
Petition in this Court in the Writ Petition filed by the blinded prisoners.
He prays that the order of suspension dated December 1, 1980 be quashed, since at was passed by the State of Bihar mala fide with the object of preventing him from filing an affidavit in pursuance of the direction issued by this Court on December 1, 1980.
D We would not have entertained a petition of this nature in the normal circumstances, because an order of suspension cannot be challenged in this manner in an incidental proceeding.
We, however, decided to hear the Misc.
Petitions filed by the petitioner for quashing the order of suspension, since he alleged which, at first blush, seemed plausible, that he was suspended in order to defeat the order passed by this Court on December 1, 1980.
The petitioner appeared in person before us and argued his case at great length.
We gave him all reasonable facilities to substantiate his contentions, which he did with the help of the voluminous record prepared by him.
Having considered the submissions of the petitioner and those of Shri K.G. Bhagat, who appeared on behalf of the State of Bihar, we are of the opinion that there is no merit in the complaint of the petitioner that he was suspended on December 1, 1980 in order to prevent him from complying with the order passed by this Court on that day and with the ulterior object of defeating that order.
, Shri Ambika Prasad Poddar, Assistant Inspector General of Prisons, Bihar, has filed an affidavit in this Court, setting out the circumstances in which and the reasons for which the petitioner was suspended by the Government of Bihar, The case made out in that 540 affidavit is that the petitioner failed to discharge his official functions enjoined upon him by Rule 474 (1) of the Bihar Jail Manual, in that he did not scrutinise and sign the entries made in the Admission Register maintained at the Central Jail, in order to satisfy himself whether those entries were correct and whether the relevant rules in regard to the admission of the prisoners were complied with.
It is stated in the affidavit that contrary to Rule 474 (2), the petitioner failed to record any 'special order ' regarding the medical treatment given or to be given to the blinded prisoners, with the result that they were not sent for examination to any eye specialist either in the Jail or at the Bhagalpur Medical College Hospital.
Though the District Magistrate, Bhagalpur, had given his approval on October 21, 1980 to the proposal for sending the blinded prisoners for specialised treatment at the Bhagalpur Medical College Hospital, the petitioner; it is alleged, neglected to discharge his duty and sent the prisoners for medical treatment to the Hospital ten days later on October 31, 1980.
According to Shri Ambika Prasad, Poddar, the petitioner omitted to make a report on the blindings of prisoners lodged in the Jail which was under his charge, he did not hold a parade of the prisoners nor did he make the weekly inspection of the Jail, and on the top of it all, he supplied to newspapermen his own one sided version.
Of the blindings.
The suspension order, according to Shri Poddar, was passed on the basis of the various rules and notifications governing the conditions of the petitioner 's service and was not passed in order to frustrate or defeat the order passed by this Court on December 1, 1980.
On a careful consideration of the aforesaid affidavit and the arguments advanced before us by the parties, we find it difficult to accept the petitioner 's contention that the order of suspension was passed by the Government of Bihar mala fide, that is to say, as a counter blast to the order passed by this Court on December 1, 1980 and to defeat it.
The question for.
inquiry in these Miscellaneous Petitions is very narrow and limited.
The question is not even whether the order of suspension is mala fide in a broad and general sense, covering the entire gamut of extraneousness.
The question before us is whether the motive behind the order was to frustrate the purpose of our direction calling upon the petitioner to file an affidavit, That charge is not substantiated and is difficult to accept.
It appears that officers of the State Government were enquiring into the blindings of the undertrial prisoners at least from November 27, 1980.
There is a report dated December 1. 1980 in the Government 541 files, which was produced before us by Shri K.G. Bhagat, by which Shri L.V. Singh, Deputy I.G.P. (Prisons), recommended that for reasons of dereliction of duty the petitioner should be suspended.
We find it quite difficult to accept the petitioner 's contention that the report of Shri Singh was prepared later and was antedated in order to justify the order of suspension.
We are also unable to appreciate how the State government could prevent the petitioner from filing an affidavit as directed by this Court, by placing him under suspension.
The petitioner would be free to file his affidavit in spite of the order of suspension and in fact he has filed an affidavit in this Court after he was suspended.
During the course of arguments before us, he produced photostat copies of quite a few documents, which also show: that the order of suspension is not calculated to interfere with the direction given by this Court, asking the petitioner to file his affidavit.
If we had found that by reason of the order of suspension the petitioner was prevented from filing his affidavit, we would not have hesitated to ask the Government of Bihar to supply copies of necessary documents to the petitioner in order to enable him to file a full and complete affidavit in compliance with our order.
The Miscellaneous petitions have therefore to be dismissed.
We would, however, like to state that we are not called upon to consider in these incidental proceedings, and we have in fact not considered, the question of the validity of the order of suspension dated December 1,1980.
The petitioner will be at liberty to challenge that order, if so advised, in a properly constituted proceedings, on such grounds as may be open to him including the ground that the order was passed mala fide.
We have only dealt with the narrow question as to whether the order of suspension was passed with the object of preventing the petitioner from filing an affidavit in this Court and on that question we have rejected the petitioner 's contention that the order of suspension was passed for that purpose.
We have not inquired into the question whether the order of suspension is vitiated by mala fides for any other reason.
It is desirable and but proper that the State Government ought not to visit the petitioner with any penalty or punishment for app 542 roaching this Court or for having attempted to lay before this Court, what according to the petitioner, was the truth of the matter in regard to the bizarre blindings of the under trial prisoners.
Order accordingly.
N.V.K. Petitions dismissed.

dataset_name: IN-Abs

summary:
The second respondent who was the Superintendent of the Bhagalpur Central Jail was suspended by the State Government on the ground that he was negligent in providing proper medical aid to the blinded undertrial prisoners inside the jail and that he had failed to make entries in the jail register as regards the physical condition of the undertrial prisoners.
In a Miscellaneous Petition filed by him he claimed that his order of suspension be quashed as it was passed mala fide with the object of preventing him from filing the affidavit as directed by the Court.
The State Government contested the petition contending that the respondent was suspended for his failure to comply with the requirements of Rule 474 (1) of the Bihar Jail Manual in that he did not scrutinise and sign the entries made in the Admission Register maintained at the jail to satisfy himself whether those entries were correct and whether the relevant rules in regard to the admission of the prisoners were complied with.
He did not also record any 'special order ' under Rule 474 (2) regarding the medical treatment given or to be given to the blinded prisoners with the result that they were not sent for examination to any eye specialist.
He did not make a report on the blindings of the prisoners and, he supplied to newspapers his own version of the blindings.
Dismissing the petitions, ^ HELD: ordinarily an order of suspension cannot be challenged in an incidental proceeding but it was heard since the allegation was that the petitioner was suspended in order to defeat the order passed by this Court.
[539 E] 2.
The order of Suspension was not passed by the Government mala fide as a counter blast to the order passed by this Court on December 1, 1980 and to defeat it.
The allegation that the motive behind the order was to frustrate the purpose of the Court 's direction calling upon the petitioner to file an affidavit is not proved.
The evidence on record indicates that the State Government officials were enquiring into the blindings of the under trial prisoners and there is a report in the Government files recommending that the petitioner be suspended for dereliction of duty.
It cannot be said that this report was prepared later and antedated to justify the order of suspension.
[540 G H; 541 A B] 4.
By placing the petitioner under suspension the State Government could not prevent him from filing an affidavit in Court.
He was free to file his affidavit and in fact he filed an affidavit after suspension.
[541 C] 5.
The petitioner will be at liberty to challenge the order of suspension in a properly constituted proceedings on such grounds as may be open to him including the ground that the order was passed mala fide.
[541 F]