judgement:
Civil Appeal Nos.
1306, 1310, 1370 1380 and 1422 to 1424 of 1975.
Appeals by special leave from the judgment and orders dated the 9th July 1975 of the Punjab & Haryana High Court at Chandigarh in Civil Writ Petitions Nos. 733, 595, 725, 681, 720, 723, 726, 728, 777, 780, 781, 833, 892, 884, 885 and 887 of 1975 respectively.
M. C. Bhandare, (In 1306) and Mrs. section Bhandare for the appellants in C.As.
1306, 1370 1980 and 1422 1424 of 1975.
F. section Nariman, A. K. Srivastava and B. P. Singh for the appellants in C.A. 1310.
A. K. Sen, (In CA 1306), Dr. L. M. Singhvi, (In 1310), K. K. Jain, Bishamber Lal, section K. Gupta and P. Dayal for the Respondent No. 2 in all the appeals.
L. N. Sinha, Sol.
General (In CAs.
1306 and 1310) and R. N. Sachthey for Respondent No. 1 in all the appeals.
Several connected Writ Petitions were disposed of by the High Court of Punjab & Haryarna by a common Judgment and this judgment will govern all the cases which had been heard together by us.
Civil Appeal No. 1306/1975 is by M/s Northern India Iron & Steel Co. Ltd. and arises out of Writ Petition No. 733/1975.
We may state a few necessary facts of this case; those of the other cases being more or less similar.
The appellant owns a factory and manufactures alloy steel and steel castings.
It is a large consumer of electricity supplied by the Board.
As per the contract between the appellant and the board be total connected load of the installation in question is 8687, 649 Kilowatts and its contract demand is the same.
At the ratio of one K.V. to 0.85 KW, the corresponding K.V. Of the contract demand works to 10,221 K.V.
The appellant was allotted 1,06,590 units on daily basis as its power quota by the Board.
There was shortage of electric energy in the State of Haryana.
The State Government, there are, issued orders and directions for maintaining the supply and securing the equitable distribution of the energy.
Orders were issued by the State Government under section 679 228 of the Indian Electricity Act, 1910 hereinafter called the 1910 A Act, restricting considerably the supply of electric energy by the Board lo the large industrial consumers as a result of which power cut was introduced.
It is not necessary to give the facts and figures of the amount of power cut, suffice it to say that at the relevant time there were substantial power cuts and the appellant was not able to get supply of energy according to demand as per the quantity mentioned in the contract.
In these circumstances a dispute arose between the parties as to whether the Board was entitled to get any demand charge, if so to what extent, and whether the State could demand any duty on such charge.
Under Section 49 of the hereinafter called the 1948 Act, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs of course, the power of the Board is subject to the other provisions of the Act and regulations, if any made in this behalf There are two well known systems of tariffs one is the flat rate system and the other is known as the two part tariff system.
Under the former a flat rate is charged on unit of energy consumed.
The letter system is meant for big consumers of electricity and it comprised of (1) demand charges to cover investment, installation and the standing charges to some extent and (2) energy charges for the actual amount of energy consumed.
The Board has framed in exercise of its power under section 49 of the 1948 Act certain terms and conditions and procedure in regard to supply of electricity to its consumers.
They are applicable in the cases of the appellants also.
Demand Charge has been defined in clause 1(h) thus: "Demand charge" shall mean the amount chargeable per month in respect of Board 's readiness to serve the con summer irrespective of whether he consumes any energy or not, and is based upon the connected load, the maximum demand or the contract demand, as the case may be and as prescribed in the relevant schedule of tariff.
And in sub clause (1) "Energy Charge" has been defined thus: "Energy charge" shall mean the charge for energy actually taken by the consumer and is applicable to the units consumed by him in any month.
This is in addition to any demand charge, if applicable.
A schedule of tariff for supply of energy which is amended from time to time has been framed by the Board.
Such schedule of tariff for steel furnace power supply mentions in item 2 the character of service.
Clause 3 provides for tariff and clause 4 deals with the demand assessment.
The two part tariff mentioned in clause 3 in case of the appellant was "Demand Charges Rs. 12/ per KVA per month PLUS Energy charges Rs. 7.00 passe per Kwh".
There was some surcharge on the above rates.
The relevant Sub clauses of clause 4 i.e., Demand Assessment may now be quoted here: 680 "(a) The demand for any month shall be defined as the highest average load measured in Kilovolt amperes during any consecutive minutes period of the month.
(b) The monthly demand charges shall be based on (1) the actual maximum demand during the month or (ii) 65%% of the contract demand or (iii) 75% of the highest maximum demand during the preceding eleven months or (iv) 100 KVA whichever is the highest.
For the first 11 months from the commencement of Supply alternative (iii) shall not be applicable.
(c) The contract demand means the maximum K.W. KVA for the supply of which the Board undertakes to provide facilities from time to time.
NOTE In case the consumer exceeds his contract demand in any month by more than 71/2% a surcharge of 25 % will be levied on the SOP/Monthly minimum charges (industrial, Factory lighting and colony supply).
(d) If in any case the maximum demand is being measured in KW the same shall be converted into KVA by the use of actual power factor and KVA tariff applied for working out the demand charges.
(e) In case the supply has been given on restricted hours basis then a reduction of 30% in demand charges will be given if supply is for 12 hours or less, occasional break downs or shut downs if any, on the part of the supplier, shall, however, not entitle a consumer to any reductions.
(f) Force Majeure: In the event of lock out, fire or and other circumstances considered by the supplier to be beyond the control of the consumer the consumer shall be entitled to a proportionate reduction of demand charges/minimum charges provided he serves at least 3 days notice on the supplier for shut down of not less than 15 days duration.
It appears from the judgment of the High Court that some reduction (perhaps upto 60%) was given by the Board in the demand charges because of the inability of the Board to supply energy as per the requirement of the appellant consumers due to power cuts imposed by the Government.
But the appellant seems to have taken the stand that either there should be no demand charge at all when the Board was not in a position to supply electric energy as per is requirement or there should be a proportionate reduction of the demand charge.
Hence it filed a Writ petition.
The High Court has noted the reduction made by the Board and has held that the Board is entitled to the demand charge.
It has, however, not been 681 decided as to what should be the basis for and in what proportion the demand charges be reduced.
The stand of the appellant as respects the charge of duty by the State Government under the Punjab Electricity (Duty) Act, 1958 hereinafter called the Duty Act, was that no duty could be levied on the demand charge.
The High Court has repelled this contention.
The two questions which fall our determination in these appeals are: (1) Whether on the facts and in the circumstances of the cases the Board is entitled to claim any demand charge; if so, to what extent? (2) Whether any duty is leviable on the demand charge; if so, to what extent ? An argument was advanced before us in the first instance by counsel for the appellants with reference to the definition of the demand change in clause 1(h) of the terms and conditions of supply framed by the Board that since the Board was not ready to serve the consumer and the consumer was ready to consume maximum electric energy the former was not entitled to ask for any demand charge.
This argument, in the beginning was combated with equal force, if not more, on behalf of the Board and it was asserted that the Board was entitled to assess and claim the full demand charge as per clause 4 of the tariff irrespective of the fact whether it was in a position to supply the energy according to the demand of the consumer or not.
Such an extreme stand on either side appeared to us a bit puzzling and leading to inequitable results.
The difficulty was not easy to solve.
If we were to hold that for the Board 's inability to supply a fraction of the consumer 's demand as per the contract it could claim only the energy charge and not the demand charge, it would have been very hard and injurious to the Board and the consumer would have unjustifiably got the supply at a very cheap rate If on the other hand, we were to say that the consumer was liable to pay the entire demand charge as per the method of assessment provided in clause 4 of the tariff even when for no fault of it, it could get only a fraction of its demand fulfilled, resulting in its not being able to run the industry to its full capacity, it would be liable to pay a huge amount per month, and this will not only be uneconomical but would seriously affect its economic structure.
But we were happy to find that a just, equitable and legal solution of the difficulty was provided during the course of the argument on either side and that is with reference to sub clause (f) of clause 4 of the tariff.
It is, therefore, not necessary to resolve the extreme stand taken on either side.
Under clause 4(f) the consumer is entitled to a proportionate reduction of demand charges in the event of lock out, fire or any other circumstances considered by the supplier beyond the control of the 682 consumer; that is to say, if the consumer is not able to consume any part of the electric energy due to any circumstance beyond its control and which is considered by the Board to be so, then it shall get a proportionate reduction in the demand charge.
The circumstance of power cut which disabled the Board to give the full supply to the appellant because of the Government order under section 228 of the 1910 Act, undoubtedly would be a circumstance which disabled the consumer from consuming electricity as per the contract.
And this was circumstance which was beyond its control and could not be considered otherwise by the Board.
It entitled the consumer to a proportionate reduction of the demand charges.
This interpretation of subclause (f) of clause 4 of the tariff was accepted to be the correct, legal and equitable interpretation on all hands.
In our opinion it is so.
In a circumstance like this, it is plain, the obligation of the consumer to serve at least 3 days notice on the supplier as per the latter part of sub clause (f) was not attracted, as the requirement of notice was only in the case of shut down of not less than 15 days duration.
We are, therefore, of the view that the inability of the Board to supply electric energy due to power cut or any other circumstance beyond its control as per the demand of the consumer according to the contract will be reflected in and considered as a circumstance beyond the control of the consumer which prevented it from consuming electricity as per the contract and to the extent it wanted to consume.
The monthly demand charge for a particular month will have to be assessed in accordance with sub clause (b) of clause 4 of the tariff and therefore from a proportionate reduction will have to be made as per sub clause (f).
We hope, in the light of the judgment, there will be no difficulty in working out the figures of the proportionate reduction in any of the cases and for any period.
In case of any difference or dispute as to the quantum of the demand charge or the proportionate reduction, parties will be at liberty to pursue their remedy as may be available to them in accordance with law.
Coming to the question of duty, we have no hesitation in an out right rejection of the extreme contention put forward on behalf of the appellants that no duty is leviable at all on the demand charge.
But it is clear, and this was fairly conceded to by the Solicitor General appearing for the State of Haryana, that the amount of duty payable will be on the actual amount of demand charge realisable from the consumer after the proportionate reduction under clause 4(f) of the tariff.
Section 3 of the Duty Act says that there shall be levied and paid to the State Government on the energy supplied by the Board to a consumer a duty to be called the "electricity duty", computed at the rates indicated in the various clauses of sub section (1) of section 3.
The expression used in the various clauses is "where the energy is supplied" to a particular type of consumer, then the rate of duty will be as specified therein.
On the basis of the said expression the argument put forward on behalf of the appellant was that the duty could be levied only on the energy charges for the actual amount of energy 683 supplied.
Such an argument is too obviously wrong to be accepted.
Reading the clauses as a whole it would be seen that the duty is chargeable on the price of energy supplied in a month.
The price of energy in a two part tariff system would mean and include the energy charge as also the demand charge.
This is made further, clear by the manner of calculation provided in Rule 3 of the Punjab Electricity (Duty) Rules, 1958.
Sub rule (1) says: "The duty under clause (iii) and (iv) of sub section (1) of section 3 of the Act shall be calculated on the price of the energy recoverable at the net rate of the Board which will include the demand charge when the Supply is governed by a two part tariff.
" It is therefore, manifest that the duty under the Duty Act is chargeable not only on the energy charge but also on the demand charge when the supply is governed by two part tariff and it is chargeable on the actual amount of demand charge realisable from the consumer For the reasons stated above, we allow these appeals in part to the extent indicated above.
In the circumstances we shall make no order as to costs in any of the appeals.
P.B.R. Appeals partly allowed.

summary:
The State Electricity Board had framed, in exercise of its power under section 49 of the , certain terms and conditions and, the procedure in regard to supply of electricity to its.
consumers.
For big consumers the system of tariff is the two part tariff system comprising of (1) Demand charge and (ii) Energy charge.
A "Demand charge" means the amount chargeable per month in respect of the Electricity Board 's readiness to serve the consumer irrespective of whether he consumes any energy or not and is based upon certain factors.
"Energy charge" means the charge for energy actually taken by the consumer and is applicable to the units consumed by him in any Month.
This was in addition to any demand charge, if applicable.
A schedule of tariff of energy was framed by the Board.
4(b) mentions how the monthly demand charge shall be calculated and sub clause (f) of this clause states that in the event of lock out, fire or any other circumstances considered by the supper to be beyond the control of the consumer, the consumer shall be entitled to a proportionate reduction of demand charges/minimum charges.
As a result of shortage of electricity the State Electricity Board considerably restricted the supply to large industrial concerns.
Because of this the Board allowed some reduction in the demand charges.
The appellant, who was a bulk consumer of electricity, could not get the full quantity as per the contract between the parties.
The appellant, therefore, filed a writ petition that there should be either no demand charge at all.
when the Board was not in a position to supply electric energy, or there should be a proportionate reduction of the demand charge.
The High Count noted the reduction made by the Board and held that the Board was entitled to the demand charge.
It did Dot, however decide as to what should be the basis for and in what proportion the demand char o should be reduced.
The appellant also contended that no duty was lovable on the demand charge, under the Punjab Electricity (Duty) Act, 1958 but only on the energy charge, for the actual amount of energy supplied but the High Court rejected this contention.
Allowing the appeal in part on the first contention, ^ HELD: (1) The circumstance of power cut which disabled the Board to give the full supply to the appellant would be a circumstance which disabled the consumer from consuming electricity as per the contract and this was a circumstance which was beyond it control and could not be considered otherwise by the Board.
It entitled the consumer to a proportionate reduction of the demand charge.
In a circumstance like this the obligation of the consumer o serve at least 3 days ' notice on the supplier as per the later part of sub clause (f) was not attracted as the requirement of the notice was only in the case of shut down of not less than 15 days ' duration [682 A, B, C] Therefore, the inability of the Board to supply electric energy due to power cut as per the demand of the consumer according to the contract will be reflected in and considered as n circumstance beyond the control of the consumer which prevented him from consuming electricity as per the contract to the extent it wanted to consume.
[682, D] 2 L159SCT/76 678 (2) A reading of the clauses of the Schedule of tariff as a whole makes it clear that the duty under the Punjab Act is chargeable on the price of energy supplied in a month.
Therefore, the duty is chargeable not only on the energy charge but also on the demand charge.
It is, however, chargeable on the actual amount of demand charge realizable from the consumer.


judgement:
Civil Appeal No. 947 of 1975.
Appeal by Special Leave from the Judgment and order dated the 2nd April, 1971 of the Punjab and Haryana High Court in Civil Writ No. 1039 of 1974.
Kapil Sibal and section K. Gambhir for the appellant.
section K. Nandy for the respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
What appears to have been a clear case of refusal of admission to the appellant or the cancellation of his candidature at the proper time has been completely bungled and destroyed by the inherent inconsistency and seemingly contradictory stand taken by the respondent and lack of proper vigilance on the part of the Head of the Department of Law.
The facts of the present case lie within a very narrow compass and only two short points of law have been raised before us by Mr. Kapil Sibbal learned counsel for the appellant.
The appellant was a teacher in the Government High School, Dumarkha in the District of Jind (Haryana).
The University of Kurukshetra was running law classes for three years Course and had extended the facility to persons who were in service to attend the evening classes and complete the three years course in that manner.
The appellant decided to take the benefit of the facility given by the Kurukshetra University and joined the LL.B. Part I classes some time in the year 1971.
According to the University statute a student of the Faculty of Law was given the option to clear certain subjects in which he may have failed at one of the examinations before completing the three years course.
The students were to appear in six papers each year.
In April 1972 the petitioner appeared in the annual examination of Part I but failed in three subjects, namely, Legal Theory, Comparative Law and Constitutional Law of India Subsequently he was promoted to Part II which he joined in the year 1972.
Under the University Statute the appellant was to appear in part II Examination in April 1973.
On April 26, 1973 the appellant applied for his Roll number to the University in order to reappear in the subjects in which he had failed and to clear them but he was refused permission and according to the appellant without any reasons.
The annual examination for Part II was to be held on May 19, 1973 and the appellant approached the University for granting him provisional permission to 724 appear subject to his getting the permission from his employer to attend the Law Faculty.
In between it appears that the appellant had been prosecuted for offence under sections 376, 366 and 363 I.P.C. and was suspended during the period when the case was going on against him.
The appellant was, however, acquitted and was reinstated by his employer on August 22, 1972.
It would thus appear that on May 18, 1973 as also on April 25, 1973 when he had applied for his Roll Number to clear the subjects, the stigma of criminal case had been completely removed.
To start the thread the appellant as mentioned already approached the University on May 18, 1973 and wrote a letter to the University authorities giving an undertaking that if he was not able to get the requisite permission from his employer to join the Law Classes, he would abide by any order that the University may pass.
It appears that on the basis of this undertaking he was allowed to appear at the Part II Examination on May 19, 1973.
On June 20, 1973 the appellant wrote to the University authorities that the condition on which he was to get the permission was not at all necessary and that his results may now be announced.
On June 26, 1973 the respondent informed the appellant that since his percentage was short in Part I his candidature stood cancelled.
Thereafter there were series of correspondence between the appellant and the University authorities but the appellant was refused admission to LL.B. Part III Class.
The appellant then filed an appeal to the Vice Chancellor of the University on September 26, 1973 which was also rejected on November 3, 1973.
Thereafter the appellant approached the High Court of Punjab and Haryana for a writ of certiorari to quash the order of the respondent canceling the candidature of the appellant but the High Court after issuing notice to the other side and persuing the application form rejected the petition in limine.
Hence this appeal by the appellant by special leave to this Court.
The sheet anchor of the case of the respondent was that the appellant had been involved in a criminal case` and therefore the Head of Institution could not give the certificate in the prescribed form that the appellant bore a good moral character.
Subsequently it was said that as the appellant was short of the requisite percentage in LL.B. Part I he could not insist on his being admitted to the Part II Examination; and lastly the stand taken by the respondent was that the Evening Law Classes were held to benefit the members of the Services and it was incumbent on the appellant to have obtained permission of his superior officers and as he did not do so, the University was well within its rights in refusing him permission to appear at the Part II Examination or in admitting him to Part III Law course.
A long counter affidavit has been filed by the respondent of which some paragraphs are extracted below : 4.
Para 4 of the writ petition is rebutted.
The petitioner was involved in a case under sections 363 and 366 of the Indian Penal Code.
As a result, he was suspended.
He remained under suspension till August 23, 1972, when he 725 was reinstated.
Consequently, he attended the lectures in Part I. So far as Part II is concerned, the petitioner didn 't attend the requisite number of lectures.
According to the notice displayed on the notice board of the Department of Laws on January 24, 1973, the petitioner was falling short of attendance by 48 lectures upto December, 1972.
There after, another notice was displayed on the notice board on r April 16, 1973, according to which the petitioner was falling short of attendance by 46 lectures.
As such, the averment in the writ petition that he attended his lectures according to the rules is absolutely false.
Vide letter dated November 17, 1972, the Headmaster, Government High School, Dumarkha (District Jind) made an inquiry from the University regarding the petitioner 's result in the LL.B. Part I Examination.
The intimation was sent by the University vide their letter dated November 17, 1972.
Thereafter, a letter dated January 1, 1973, was received in the University from the District Education officer stating inter alia that "it may also be pointed out that Shri Siri Krishan, Teacher was reinstated on 23 3 1972 and there after he is attending his duties in School.
I am amazed to learn that he is declared by your Law Department to be attending classes in LL.B. Part II simultaneously".
"A copy of this letter is appended as Annexure 'R.1 ' to this affidavit.
A perusal of this letter would show that the petitioner had not been granted permission by his employer to attend the law classes at the University.
Furthermore, the approximate distance between his station of posting and the University is more than ' fifty miles.
Keeping m view the fact that he was posted in the interior of District Jind, it is impossible that the petitioner could have attended the requisite number of lectures.
Evidently, the petitioner was himself aware of the fact that he had not attended the re quisite number of lectures.
It is also incorrect to suggest that the petitioner 's name could be sent for the examination only if he had completed and required minimum attendance of lectures.
The examination forms are always sent in December.
Rule 2(b) of Ordinance 10 of the Kurukshetra University Calendar, Volume I, provides as under inter alia: "B. that he has attended regular course of study for the prescribed number of academic years.
Certificate (b) will be provisional and can be withdrawn at any time before.
the examination if the applicant fails to attend the prescribed course of lectures before the end of his term.
" 5 L159SCI/76 726 The petitioner 's examination form was, as such, sent provisionally and could be withdrawn at any time in case of his failure to attend the requisite percentage of lectures." 23.
(i) In reply to sub para (i) of the writ petition, it is submitted that the cancellation of the candidature of the petitioner for LL.B. Part II was not based on any extraneous considerations.
Under the rules of the University every student is required to attend the prescribed course of lectures delivered to the class in each of the subjects offered.
, I Mr. Sri Krishan was short of attendance which was duly notified on the notice board of the Department of Law twice; once on January 24, 1973 and again on April 16, 1973.
The admission of the petitioner to Law course in the University was under dispute as a result of a complaint from the District Education officer, Jind.
The petitioner came to the Magistrate on May 18, 1973, with an application that pending final decision of his case, he may be allowed to sit `` in the examination provisionally at his own risk and responsibility.
In this application, the petitioner did not mention that he was also falling short in lectures as notified by the Head of the Department of Law.
Since the office was closed at that time and the examination was to start at 8.00 a.m.
On May 19, 1973, the candidate was allowed to appear in the examination provisionally at his own risk and responsibility.
(viii) In reply to sub para (viii) of the writ petition, it is submitted that in the admission notice printed at page 75 in the Hand Book of Information for the session 1971 72 to which the application for admission to the Department forms a part, mentions that LL.B. Classes in the evening were for employed persons only.
It was, therefore, implied that the applicant while seeking admission in this class would obtain the approval of his employers.
This approval became particularly necessary because of the constant complaints of ill serious nature from the employers (the Government) of the petitioner who insisted that he must obtain such permission.
It may be recalled that the petitioner in his undertaking to the Registrar on May 18, 1973 promised to produce the required permission.
" It will be seen from the above affidavit that the stand taken by the respondent is by no means consistent.
It may be mentioned that at one stage the University takes the stand that it was a case of shortage of , percentage and therefore the appellant was refused admission to appear at Part II Examination.
Later on this stand is given up and the respondent averred that as the appellant did not get the permission of his superior officers and since the University was moved by the District Education Officer to cancel the candidature of the appellant the impugned order was passed by the University.
It was also argued by Mr. section K. Nandy counsel for the respondent that the appellant knew fully well that his percentage was short and in spite of that be fraudulently suppressed this fact from the University authorities 727 when he was allowed to appear in the LL.B. Part I Examination in April 1972.
Mr. Sibbal learned counsel for the appellant submitted two points before us.
In the first place it was argued that once the appellant was allowed to appear at L.L.B. Part II Examination held on May 19, 1973 his candidature could not be withdrawn for any reason whatsoever, in view of the mandatory provisions of clause 2(b) of the Kurukshetra University Calendar Vol.
I, ordinance X under which the candidature could be withdrawn before the candidate took the examination.
Secondly it was argued that the order of the University was mala fide because the real reason for cancelling the candidature of the appellant was the insistence of the District Education officer that the appellant should not have been admitted to the Law Faculty unless he had obtained the permission of his superior officers.
In order to appreciate the first contention it may be necessary to extract the relevant portions of the statute contained in Kurukshetra University Calendar Volume I, ordinance X. Clause 2 of this ordinance runs as follows: "2.
The following certificates, signed by the Principal of the College/Head of the Department concerned, shall be required from each applicant: (a) that the candidate has satisfied him by the production of the certificate of a competent authority that he has passed the examinations which qualified him for admission to the examination; and (b) that he has attended a regular course of study for the prescribed number of academic years.
Certificate (b) will be provisional and can be withdrawn at any time before the examination if the applicant fails to attend the prescribed course of lectures before the end of his term." The last part of this statute clearly shows that the University could withdraw the certificate if the applicant had failed to attend the prescribed course of lectures.
But this could be done only before the examination.
It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear.
It was, however, submitted by Mr. Nandy learned counsel for the respondent that the names of the candidates who were short of percentage were displayed on the Notice Board of the College and the appellant was fully aware of the same and yet he did not draw the attention of the University authorities when he applied for admission to appear in LL.B. Part II Examination.
Thus the appellant was guilty of committing serious fraud and was not entitled to any indulgence from this Court.
It appears from the averments made in the counter affidavit that according to the procedure prevalent in the College the admission forms are forwarded by the Head of the Department in December preceding 728 the year when the Examination is held.
In the instant case the admission form of the appellant must have been forwarded in December 1971 whereas the examination was to take place in April/May 1972.
It is obvious that during this period of four to five months it was the duty of the University authorities to scrutinise the form in order to find out whether it was in order.
Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements of law.
If neither the Head of the Department nor the University authorities took care to scrutinise the admission form, then the question of the appellant committing a fraud did not arise.
It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved.
It was neither a case of suggestio falsi, or suppressio veri.
The appellant never wrote to the University authorities that he had attended the prescribed number of lectures.
There was ample time and opportunity for the University authorities to have found out the defect.
In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April 1972, then by force of the University Statute the University had no power to withdraw the candidature of the appellant.
A somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshatriya vs Vice Chancellor, Ravishankar University, Raipur and others(ii) where a Division Bench of the High Court of Madhya Pradesh observed as follows: "From the provisions of ordinance Nos. 19 and 48 it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued.
Once the admission cards are issued permitting the candidates to take their examination, there is no provision in Ordinance No. 19 or ordinance No. 48 which would enable the Vice Chancellor to withdraw the permission.
The discretion having been clearly exercised in favour of the petitioner by permitting him to appear at the examination, it was not open to the Vice Chancellor to withdraw that permission subsequently and to withhold his result.
" We find ourselves in complete agreement with the reasons given by the Madhya Pradesh High Court and the view of law taken by the learned Judges.
In these circumstances, therefore, once the appellant was allowed to appear at the Examination in May 1973, the respondent had no jurisdiction to cancel his candidature for that examination.
This was not a case where on the undertaking given by a candidate for fulfilment of a specified condition a provisional admission was given by the University to appear at the examination which could be withdrawn at any moment on the non fulfilment of the aforesaid condition.
If this was the situation then the candidate himself would have contracted out of the statute which was for his benefit and the statute (1) A.T.R. 1967 M. P. 194,197.
729 therefore would not have stood in the way of the University authorities in cancelling the candidature of the appellant.
As regards the second point that the order was passed mala fide, it is difficult to find any evidence of mala fide in this case.
The order suffers from yet another infirmity.
The annexures filed by the appellant and the respondent as also the allegations made in the counter affidavit clearly show that there were series of parleys and correspondence between the District Education officer and the respondent in the course of which the respondent was being persuaded, to the extent of compulsion, to withdraw the candidature of the appellant because he had not obtained the permission of his superior officers.
Mr. Nandy appearing for the respondent has not been able to show any provision in the statutes of the University which required that the candidates attending the evening law classes who are in service should first get the prior permission of their superior officers.
We have also perused the University Statute placed before us by counsel for the appellant and we do not find any provision which could have afforded justification for the respondent to cancel the candidature of the appellant on the ground that he had not obtained the previous permission of his superior officers.
Mr. Nandy counsel for the respondent placed great reliance on the letter written by the appellant to the respondent wherein he undertook to file the requisite permission or to abide by any other order that may be passed by the University authorities.
This letter was obviously written because the appellant was very anxious to appeal in Part II Examination and the letter was written in terrorem and in complete ignorance of his legal rights.
The appellant did not know that there was any provision in the University Statute which required that he should obtain the permission of his superior officers.
But as the respondent was bent on prohibiting him from taking the examination he had no alternative but to write a letter per force.
It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission.
In these circumstances we are clearly of the opinion that the letter written by the appellant does not put him out of court.
If only the University authorities would have exercised proper diligence and care by scrutinising the admission form when it was sent by the Head of the Department to the University as Ear back as December 1971 they could have detected the defects or infirmities from which the form suffered according to the University Statute.
The Head of the Department of Law was also guilty of dereliction of duty in not scrutinising the admission form of the appellant before he forwarded the same to the University.
Moreover, the stand taken by the respondent that as the appellant did not get the requisite permission from his superior officers, therefore he was not allowed to appear at the examination, does not merit consideration, because the impugned order does not mention this ground at all and it was not open to the respondent to have refused admission to the appellant to LL.B. Part III or for that matter to refuse permission to appear at the examination on a ground which was not mentioned in the impugned order.
730 Having gone into the circumstances mentioned above, we are of the view that the impugned order suffers from errors of law patent on the face of the record, and in any event this was not a case which should have been dismissed by the High Court in limine.
The appeal is accordingly allowed and the order of the University dated June 26, 1973, is hereby quashed by a writ of certiorari.
The respondent is directed to declare the result of LL.B. Part II Examination in which the appellant had appeared on May 19, 1973 and also to give him an opportunity to appear in the three subjects in which he had failed in LL.B. Part I Examination, at the next examination which may be held by the University.
In the peculiar circumstances of this case, however, we leave the parties to bear their own costs.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary:
Under the statutes of the respondent University persons in service could take the three year degree course in law by attending the evening classes.
A candidate who had failed in some of the papers of one year could clear those papers before completing the three year course.
Under cl. 2(b) of Ordinance X contained in the University Calendar Volume I, a candidate should submit to the University an application seeking permission to appear for an examination which should be signed by the Principal of the College or the head of the department concerned certifying that the candidate had attended a regular course of study for the prescribed number of academic years.
But, this certificate is provisional and could be withdrawn at any time before the examination if the applicant failed to attend the prescribed course of lectures before the end of his term.
The appellant, a Government servant, joined the LL.B.
I year class of the University.
He failed in three papers, but was promoted to the second year.
Before appearing in the second examination, however, he wrote to the University stating that if he was not able to get the requisite permission from his employer to join the law classes he would abide by any order that the University might pass.
The appellant, however, wrote to the University later that this condition was not at all necessary and requested that his result in Part II might be announced.
In reply the University wrote to the appellant that since his percentage of marks in Part I was short, his candidature for Part II examination stood cancelled.
Having failed in his appeal to the Vice Chancellor, he moved the High Court which dismissed his writ petition in limine.
Allowing the appeal to this Court, ^ HELD: The impugned order of the university suffers from errors of law patent on the face of ' the record.
This was not a case which should have been dismissed by the High Court in limine.
[730 A] (1) The last part of cl. 2(b) clearly shows that the University could with draw the certificate if the applicant had failed to attend the prescribed course of lectures.
But, this could be done only before the examination.
Once an applicant was allowed to take the examination, the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving permission to appear.
[727 E F] (2) It was the duty of the University to scrutinise the form for admission to the examination in order to find out whether it was in order.
It was also the duty of the head of the department of law, before submitting the form to the University, to see that the form complied with all the requirements of law.
Ff neither took care to scrutinise the admission form, then the question of the appellant committing a fraud did not arise.
Where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. ' It was neither a case of suggestion, falsi nor of suppressio [728 A C] 723 Premji Bhai Ganesh Bhai Kshatriya vs Vice Chancellor, Ravishankar University, Raipur and others,, A.I.R. 1967 M.P. 194, 197, approved.
(3)(a) There is no provision of the University statutes which could have afforded jurisdiction to it to cancel the candiditure of the appellant on the ground that he had not obtained the previous permission of his superior officers.
The impugned order did not mention this ground at all.
[728G, 729 BC] (b) The undertaking given by the appellant that he would get the requisite permission of the employer did not put him out of court.
It was written because he was anxious to appear in Part II examination and was written in terrorem and in complete ignorance of his legal rights.
Any admissions made in ignorance of legal rights or under duress cannot bind the maker of the . admission.
[729 DE]


judgement:
N: Criminal Appeal No. 1 34 Of 1975.
Appeal by Special Leave from the Judgment and order dated the 11th December 1974 of the Madhya Pradesh High Court in Criminal Revision No. 729 of 1970.
S.S. Khanduja for the Appellant.
Ram Panjwani, Dy.
Advocate Genl.
(M.P.), H. section Parihar and K. N. Shroff, for the Respondent.
The Judgment of the Court was delivered by GOSWAMI, J.
In this appeal by special leave the only point that arises for consideration is whether the appeal filed by the State of Madhya Pradesh in the High Court against the order of acquittal of the appellant under section 465 read with section 471 or the Indian Penal Code was competent under the law.
The accused (appellant) secured an appointment of Senior operator Trainee in the Bhilai Steel Project by submitting two forged certificates.
The first certificate was regarding his passing the Bachelor of Science examination with Mathematics,` Physics and Chemistry in 2nd Division from the University of Sagar.
The second document was an attested copy of his Matriculation certificate in proof of age where his date of birth was shown as `August 21, 1941. ' ,, The minimum educational qualification for the post was that the candidate must be a Science Graduate of a recognised University with any two of the three subjects Mathematics, Physics and Chemistry and the age limit was prescribed between 18 to 23 years as on 1 10 1963.
The accused who registered himself as a Science Graduate in the Employment Exchange, Bhilai, was sponsored for the above mentioned post on January 28, 1964.
He was ultimately selected for the post placing reliance on the aforesaid two certificates and the joined the appointment.
That, as it transpired, prosecution was launched against the accused on the complaint of the Superintendent of Police, Delhi Special police establishment, Jabalpur, and a case was registered against him under sections 182, 471 and 420 IPC.
Indue course a charge sheet was submitted against the accused and he was tried under section 465/471 and section ,420 IPC.
According to the prosecution the accused was 'born on August 21, 1936 and he had not passed his B.Sc. ' ' examination at all and after tendering the forged certificates procured the employment.
The accused was tried by the Special Magistrate, First Class, Jabalpur, for offences under Section 465 read with section 471 and under section 420 IPC.
The trial court acquitted the accused under section 465 read with section 471 IPC and convicted him under section 420 IPC and sentenced him to rigorous imprisonment for one 755 year and to pay a fine of Rs. 500/ .
The learned Additional Sessions A Judge on appeal maintained the conviction but reduced the sentence to six months ' rigorous imprisonment maintaining the fine.
The State of Madhya Pradesh preferred an appeal to the High Court against the acquittal of the accused under section 465 read with section 471 ' IPC.
The accused also preferred a revision application against his conviction under section 420 IPC.
Both the matters were heard together and by a common judgment the High Court dismissed the revision application of the accused and allowed the State 's appeal and convicted the accused under section 465 read with section 471 and sentenced him to rigorous imprisonment for one year.
Hence this appeal by special leave.
It is submitted on behalf of the appellant that the appeal to the High Court was not competent in view of the provisions of section 417(2) of the Criminal Procedure Code It is admitted that this case is governed by the old Criminal Procedure Code, 1898.
We may, therefore, at once read section 417, Criminal Procedure Code, so far it is relevant for our purpose: "417(1) Subject to the provisions of sub section (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case in which the offence has been lnvestigated by the Delhi Special Police Establishment constituted under the the Central Government may also direct the Public Prosecutor to present an appeal to the High Court from the order of acquittal".
* * * * Section 417, Criminal Procedure Code, prior to the Amendment Act XXVI of 1955 provided for presentation of appeals by the public prosecutor on the direction of the State Government.
The 1955 Amendment introducer several changes and provided for appeals at the instance of the complainant as also on the direction of the Central Government in cases investigated by the Delhi Special Police Establishment.
Furthe changes were introduced in the matter of appeals against acquittal under section 378 of the Code of Criminal Procedure, 1973, with which we are not concerned in this appeal in view of the repeal provisions under section 484(1), Cr.
The Delhi Special Police Establishment (briefly the Establishment), a central police force, is constituted under the (Act XXV of 1946) (briefly the Delhi Act).
Under section 2 of the Act, the Central Government may constitute a special police force, called the Delhi Special Police Establishment, for investigation of certain offences or class of offences as notified under section 3 of the Delhi Act.
Under section 756 4 of the Act the Superintendence of the Delhi Special Police Establishment vests in the Central Government and administration of the Special Police Establishment vests in an officer appointed by the Central Government who exercises powers exercisable by an Inspector General of Police as the Central Government may specify.
Under section 5 the powers and the jurisdiction of the Establishment can be extended by the Central Government to, other areas in a State although not a Union Territory.
Once there is an extension of the powers and jurisdiction of the members of the Establishment, the members thereof while discharging such functions are deemed to be members of the Police force of the area and are vested with the powers, functions and privileges and are subject to the liabilities of a police officer belonging to that force.
The police officer also subject to the orders of the Central Government exercises the powers of the officer incharge of a police station in the extended area.
Under section 6 consent of the State Government is necessary to enable the officer of the Establishment to exercise powers and jurisdiction in any area in the State not being a Union Territory or railway area.
Investigation under the Delhi Act is, therefore, a central investigation and the officers concerned are under the superintendence of the officer appointed by the Central Government.
The superintendence of the Establishment is also under the Central Government.
The Central Government, therefore, is concerned with the investigation of the cases by the Establishment and its ultimate result.
It is in that background that in 1955 section 417 was amended by adding subsection (2) to the section to provide for appeal against acquittal in cases investigated by the Establishment also on the direction of the Central Government.
In view of the provisions of the Delhi Act it was necessary to introduce sub section (2) in section 417 so that this Central Agency which is solely and intimately connected with the investigation of the specified offences may also approach the Central Government for direction to appeal in appropriate cases.
This, however, does not bar the jurisdiction of the State Government also to direct presentation of appeals when it is moved by the Establishment.
The establishment can move either the Central Government or the State Government.
It will be purely a matter of procedure whether it moves the State Government directly or through the Central Government or in a given case moves the Central Government alone.
It will again be a matter of procedure when the Central Government decides to appeal it requests the State Government to do the needful through the public prosecutor appointed under the Code.
The word 'also ' in sub section (2) of section 417 is very significant.
This word seems not to bar the jurisdiction of the State government to direct the public prosecutor to present an appeal even in cases investigated by the Establishment.
Sub section (1) of section 417 is in general terms and would take in its purview all types of cases since the expression used in that sub section is "in any case".
We do not see any limitation on the power of the State Government to direct institution of appeal with regard to any particular type of 757 cases, Sub section ' (1) of section 417 being in general terms is as A such of wider amplitude.
Sub section (2) advisedly uses the word 'also ' when power is given to the Central Government in addition to direct the public prosecutor to appeal.
In the present case we find from the documents produced before us that the move was made by the Superintendent, Delhi Special Police Establishment, by requesting the Secretary, Law Department of the Government of Madhya Pradesh and the decision was taken by the State Government as it appears from the letter of the Under Secretary dated January 28, 1969, to the Advocate General, Madhya Pradesh.
The appeal was thereafter` filed in the name of the State of Madhya Pradesh.
No objection, therefore, can be taken about the competency of the appeal being filed by the State of Madhya Pradesh in this case.
As a matter of procedure it will be even permissible for the appeal against acquittal to be filed by the public prosecutor under the direction of the State Government or the Central Government without impleading either as a party.
The objection of the appellant is, therefore, devoid of substance.
We may mention that no such objection was even taken in the High Court.
In the result the appeal fails and is dismissed.
S.R. Appeal dismissed.

summary:
'K ' was charged and tried for the offences under Ss. 465 r/w 471, for using a forged B.Sc.
Certificate and a Date of Birth Certificate Convicted under section 420 I.P.C. by the trial court and sentenced to Rigorous Imprisonment for one year and to pay a fine of Rs. 500/ .
On an appeal the conviction was maintained, but the sentence was altered to one of six months Rigorous Imprisonment.
On an appeal by the State and the Revision by 'K ', the revision petition was dismissed and the appeal allowed convicting him under Sections 465 & 471 Indian Penal Code and sentenced to one year Rigorous Imprisonment.
D On an appeal by special leave, on the question of competency of the state appeal under section 417(2) of the Criminal Procedure Code 1898, in a case investigated by the Delhi Special Police Establishment, while dismissing the appeal, the Court ^ HELD: (i) Under section 5 of the (Act XXV of 1946) the powers and the jurisdiction of the Government to other areas in a state, although not a Union Territory.
Once there is an extension of the powers and jurisdiction of the members of the Establishment, the members thereof while discharging such functions are deemed to be members of the Police force of the area and are vested with such powers functions and privileges and are subject to the liabilities of a police officer belonging to that force.
[756 BC] (ii) Investigation under the Delhi Act is a central investigation and the Central Government is concerned with the investigation of the cases by the Establishment and its ultimate result.
It is in that background that in 1955 section 417 Cr P.C. was amended adding sub section (2) in the section to provide for appeal against acquittal.
[756 CE] (iii) This, however, does not bar the jurisdiction of the State Government also to direct presentation of appeals when it is moved by the Establishment The Establishment can move either the Central Government or the State Government.
It will be purely a matter of procedure.
[756 E] (iv) The word "also" in sub section (2) of section 417 of the Criminal Procedure Code does not bar the jurisdiction of the State Government to direct the public prosecutor to present an appeal even in cases investigated by the Establishment.
Sub section (1) of section 417 is in general terms and would take in its purview all types of cases, since the expression used in that section is "in any case".
[756 G Hl (v) There is no limitation on the power of the State Government to direct institution of appeal with regard to any particular type of cases.
Sub section (1) of section 417 being in general terms is as such of wider amplitude Sub section (2) advisedly uses the word "also" when power is given to the Central Government is addition to direct the public prosecutor to appeal.
[756H, 757A] 754


judgement:
RISDICTION: Criminal Appeal N4.
133 of 1971.
Appeal by special leave from the judgment and order dated the 15 2 1971 of the Borrrbay High Court in Criminal Appeal No. 1354 (lf 1 969.
section K. Gambhir and 5.
M. Sikka for the appellant.
M. C. Bhandare and M. N. Shroff for Respondent.
The Judgment of the Court was delivered by BEG, J.
The appellant before us by special leave was charged as follows by the Presidency Magistrate of Bombay: "I.B. P. Saptarshi, Presidency Magistrate 6th Court, Mazaagaon, Bombay, do hereby charge you: Karnal Singh S/o Uttam Singh as follows: "That you on or about the 20th day of February, 1968 at Bombay along with one Balwant Singh s/o Uttam Singh who has absconded, at 171, Kazi Sayyed Street, being entrusted with certain property to wit M/Lorry No. 7372 valued at Rs. 52,000/ belonging to the complainant Shankar Dhondiba Sutar as driver committed criminal breach of trust in respect of the said property and aided and abetted to the absconding accused in commission of the said offence and thereby committed an offence punishable under Sec.
408 r.w. 114 of the Indian Penal Code and within my cognizance.
And I hereby direct that you be tried by me on the said charge".
The prosecution evidence in the case was: one Shankar Dhondiba Sutar a member of the Ex Servicemen Transport Cooperative Society Ltd., Bombay, had purchased the Truck No.
MRS 7372 after taking a loan of Rs. 50,000/ from the Society out of which he had paid up Rs. 43,000/ .
He had entrusted Balwant Singh Uttam Singh, the brother of the appellant, with the truck.
He had a contract with Balwant Singh Uttam Singh under which he used to get a net income of Rs. 2000/ to Rs. 2200/ p.m. from Balwantsingh Uttamsingh who was running the truck and seemed to be incurring all necessary expenses of it.
This amount was paid regularly upto December, 1967.
Thereafter, Balwantsingh Uttamsingh, the driver, avoided meeting the purchaser of the truck and was said to be absconding.
On 4 3 1968, the truck met with an accident and Balwantsingh Uttamsingh is said to have sent information of it to section D. Sutar.
On 9 3 1968, according to Sutar, Balwantsingh him self went to Sutar.
And, when the owner asked him to take him to the truck, it is alleged that he did not comply with this request.
749 As Shankar Dhondiba Sutar had not paid up the whole amount due for the truck which he had borrowed from the Society, the owner of the truck, as entered in the Insurance papers, was the Society itself.
section D. Sutar stated that he found the truck at Thana Katha where he also found the appellant before us, Karnalsingh Uttamsingh, who had been, apparently, driving the truck.
The First Information Report was lodged on 20 4 1968 at 12.30 p.m. by section D. Sutar.
It is against Balwantsingh Uttamsingh and makes no allegations against the present appellant.
It is said that Balwant Singh Uttarnsingh had met section D. Sutar again on 12 3 1968 and told him that he would turn up again.
Vazir Singh Gaya Singh, PW 2, the Secretary of the Bombay Ex Servicemen Transport Co. deposed that section D. Sutar was a shareholder in the Company and proved the terms of his contract with Balwantsingh.
He also made no complaint whatsoever against the present appellant.
All that he said was that the truck was seen near Kashali Bridge and the present accused was its driver.
Sub Inspector Ramesh Damodar, PW 3, stated that, on 13 5 1968, Vazir Singh, PW 2, and a police constable brought the truck to Pydhonie Police Station and that it was being driven by the present appellant at that time.
This is all the evidence against the appellant.
The only question that the appellant was asked by the learned Magistrate under Section 342 Criminal Procedure Code and the appellant 's reply are: "Q.
What do you wish to say with reference to the evidence given and recorded against you? A.
I do not know whether M/Lorry No. MRS 7372 was handed over to the complainant on sale purchase agreement and that the complainant had paid Rs. 43,000/ towards the instalment.
I do not know whether the price was fixed at Rs. 50,000/ .
Balwant Singh is my brother but I do not know if the complainant had given lorry in his possession in his capacity as a driver.
I do not know whether Balwant Singh left with M/Lorry in Dec. 1967.
I do not know anything about Balwant Singh not meeting the complainant thereafter.
Mangal Singh told me that this lorry had met with an accident and that I should invest the amount over repair, and after the amount is recovered from the plying of the lorry, the lorry would be returned to him.
It is true that Vazir Singh and one P.C. had told me to take the lorry at the Pydhonie Police Stn.
I was the driver on the said vehicle at that time.
I do not know where is my brother at present.
He meets me at times.
I have not spoken to him about the case.
I want to lead defence witness".
He led some evidence in defence.
Mangaldas Purshottam, D.W. 1, stated that,one Kartar Singh the driver of the truck had sent him a Trunk Call from Jalan that the truck in question had met with an accident on 4 3 1968 and that he gave this message to section D. Sutar.
As the accident was serious and the damage was considerable 750 section D. Sutar was unable to meet with the money required to repair it.
According to Vazir Singh, PW 2, the claim against Insurance Co. was of Rs.,11000/ .
According to Mangaldas, DW 1, the complainant had agreed that the appellant should repair the truck and deduct its expenses out of the income he could make from plying the truck on hire.
He proved Exhibit 1 dated 12 3 1968 containing a writing, signed by section D. Sutar.
It has been translated as follows: "Ext. '1 ' Dated 12 3 1968.
National India Roadways, "I, shankar Dhondiba give you in writing today that my Lorry No. MRS 7372 which had met with an accident, I am bound to pay total costs whatever comes to of its reparation".
Sd./ Shankar Dhondiba Sutar".
This was put to section D. Sutar in cross examination.
He admitted his signature under the writing and gave no explanation about it.
It is significant that it was executed on the very day on which, according to an admission of section D. Sutar, Balwant Singh also saw section D. Sutar.
Perhaps the defence has also yet come out with the whole truth.
It is, however, quite inconceivable that section D. Sutar would be completely unconcerned as to what had happen to the truck if he had not entrusted it to somebody other than Balwantsingh Uttamsingh for repairs to it.
The matter seems to have been report ed to the police only as a result of some quarrel or differences between parties.
Moreover, nobody would repair the truck without being paid for it.
The explanation given by the appellant was, on the face of it, quite reasonable and credible.
It was not merely supported by Mangaldas Purshottarn, D.W.l, whose cross examination did not elicit anything to show that he was unreliable but also, indirectly, by Ashok Jugannath, DW2, the Superintendent of the Commonwealth Insurance Co. `who proved the bills supplied to the Company on the strength of which the Insurance Co. had paid Rs. 6078.35.
It was, therefore, clear that somebody had got the truck repaired and realised the amounts to be paid for repairs from the Insurance Company.
The beneficiary of the contract of insurance was the Bombay Ex Servicemen Transport Co. of which section D. Sutar was a member.
Apparently, the amount had been realised by somebody on behalf of this Company.
The bills could have been given by the appellant.
In the absence of any proof as to who else could have or had repaired the truck the version of the appellant could not be said to be quite unbelievable.
751 A remarkable part of the case is that the Trying Magistrate had A convicted the appellant under Section 411 Indian Penal Code and sentenced him to six months rigorous imprisonment and to pay a fine of Rs., 500/ when he was not even charged with this offence.
, The High Court had maintained this conviction and the sentence and had not even mentioned the defects in the trial.
There was neither a charge under Section 411 I.P.C. nor was the appellant asked to explain his Possession of the truck although he did account for it.
The appellant 's explanation appeared quite plausible.
It may have been difficult to hold that the appellant could not have been prejudiced by the omission to frame a charge or by the manner in which he was put one omnibus question under Section 342 Criminal Procedure Code without giving him an intimation of the offence of which he was likely to be convicted, if these questions had been seriously raised.
However, as these questions do not appear to have been argued in the High Court and were`not even raised in the grounds of appeal in this Court, we will not consider them further.
We think that this appeal is bound to succeed on the view of the facts we have taken above.
The presumption from recent possession of stolen property is an optional presumption of fact under Section 114 Indian Evidence Act.
It is open to the Court to convict an appellant by using the presumption where the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the appellant is open to the prosecution.
In the case before us, the appellant had given a fairly acceptable explanations.
The prosecution had been unable to repel the effect of it.
The owner of the truck, section D. Sutar, had made admissions which indicated that the prosecution case of an unlawful possession on the part of the appellant was not likely.
It is more likely that the appellant had been entrusted with the truck in order that he might repair it and realise the costs.
However, we express no opinion on this aspect of the matter as the sentence of such a contract may involve a civil liability.
All we need say is that the explanation which the appellant had given was good enough to raise serious doubts about the sustainability of a charge under Section 411 Indian Penal Code on the strength of what was laid down in Otto George Gfeller vs The King(1), the appellant was entitled to an acquittal.
It was held there (at p. 215): "The appellant did not have to prove his story but if his story broke down the jury might convict.
In other words, the jury might think that the explanation given was one which could not reasonably be true, attributing a reticence or an incuriosity or a guilelessness to the appellant beyond anything that could fairly be supposed".
In that case, the question had to go before the Jury and the charge was found to be defective.
The principle of benefit of doubt, on questions of fact, applies whether the verdict is of a Jury or the finding is to be given by a Judge or a Magistrate.
The principle laid down in Gfeller 's case (supra) (at p. 214) was: 752 ". that upon the prosecution establishing that the accused were in possession of goods recently stolen they may in the absence of any explanation by the accused of the way in which the goods came into their possession which might reasonably be true find them guilty, but that if an explanation were given which the jury think right reasonably be true, and which is consistent with innocence although they were not convinced of its truth the prisoners were entitled to be acquitted inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilt.
Of the accused" Consequently, we allow this appeal and set aside the conviction and sentence of the appellant.
His bail bonds are discharged.
S.R. Appeal allowed.

summary:
On 4 3 1968, the date of the accident.
Karnal Singh, the accused was driving the truck No. MRS 7372.
purchased out of the loan advanced by the ex serviceman Co operative Society to one Sutar who entrusted the vehicle to Balwant Singh, the brother of the appellant, a co accused, under a contract for hire against a monthly payment of Rs. 2000 2200, after incurring all expenses over the truck.
The payment was regular up to December, 1967, and, thereafter, Balwant Singh avoided Sutar.
Though Balwant Singh met Sutar on 9 3 1968 and 12 3 1968 ie.
after the date of accident and promised to meet him later, The actually absconded resulting in the lodging of a First Information Report by Sutar on 20 4 1968 at 12.30 p.m. against Balwant Singh Uttam Singh for taking appropriate action under section 408, I.P.C. Since Balwant Singh was absconding and the vehicle was found in the possession of Karnal Singh, the police apprehended him and filed the charge sheet.
The Presidency Magistrate, 6th Court, Mazagaon, Bombay, charged the appellant under section 408 read with section 114 of the Indian Penal Code, but, actually convicted him and sentenced him to six months R.I. and a fine of Rs. 500/ under section 411 Indian Penal Code without appreciating the effect of either the value of Exhibit Dl dated 12 3 1968 written by Sutar indicating that he was agreeable to pay the total costs of the repair of the damaged vehicle, with the admission of its execution by Sutar in cross examination and failure to explain these or of the explanation given by the accused in his 342 statement to how he came into possession of the lorry for repairing it.
The High Court mainfained the conviction and the sentence.
Allowing the appeal by special leave, the Court, F ^ HELD.
(1) the presumption from recent possession of stolen property is an optional Prescription of fact under section 114 of the Indian Evidence Act.
It is open to the Court to convict the appellant by using the presumption when the circumstances indicate that no other reasonable hypothesis except the guilty knowledge of the appellant is open to the prosecution.
[751 D] (2) In the instant case, there was no mention of the appellant 's name in the F.I.R. there was no change under s 411, I.P.C. against him and he was not asked to explain it possession of the truck, but still he did explain it.
The appellant 's answer to the omnibus question under section 342, Criminal Procedure Code, without giving him an intimation of the offence of which he was likely to be convicted, on the face of it, was quite reasonable and credible.
The prosecution had been unable to repel the effect of this fairly acceptable explanation.
The explanation which the appellant had given was good enough to raise serious doubts about the susceptibility of a charge under section 411, Indian Penal Code.
The principle of benefit of doubt on questions of fact applies whether the verdict is of a Jury or the finding is to be given by a Judge or a Magistrate.[751,AB.E H] Otto George Gfeller vs The king, AIR 1943 PC 211 @ 214


judgement:
Civil Appeals Nos.
2070 to 2074 of 1970.
From the Judgment and order dated 4th day of May 1970 of the Bangalore High Court in Writ Petitions Nos.
3958, 4035/68, 18 and 19 of 1969.
V.S.Desai, P. C. Bhartari, J. B. Dadachanji, o. c. Mathur and R. Narain for the appellant.
A. K. Sen and section S.Javali and B.P.Singh for Respondent No. 1.
section N. Prasad and section P. Naydt for Respondent Union of India.
The Judgment of the Court was delivered by RAY, C.J.
These appeals are by certificate from the judgment of the High Court of Mysore dated 4 May, 1970.
The several respondent Co operative Societies filed writ petitions in the High Court for quashing orders dated 11 September 11 1968 passed by the Government of India.
The impeached orders granted exemption, partially or wholly, to the appellant under clause 5(3) of the Sugar Cane Control Order, 1966 (hereinafter referred to as the 1966 Control Order) 742 from the payment of additional cane price fixed by the Price Fixation Authority under clause 5(4) of the 1566 Control order.
The High Court quashed the orders challenged by the respondents.
The use and supply of sugarcane is controlled under the provisions of the .
The Government of India promulgated the Sugar Cane Control order on 27 August 1955.
The 1955 Control Order empowered the Government, inter alia, to fix the minimum price payable by the manufacturer of sugar to the grower of sugarcane.
The Government was competent to fix different prices depending on the areas and qualities of sugarcane or on the basis of recovery of sugar from sugarcane.
In 1966 the Sugar Cane Control (Additional Powers) Act, 1962 came in existence.
In pursuance of powers conferred by the 1962 Act the Central Government amended the 1955 Control order by introducing clause 3A providing for payment of additional price for sugarcane purchased by producers of sugar during each of the four successive years beginning from 1 November 1958.
The 1955 Control order was repealed and replaced by the Sugar cane Control order, 1966 to which reference has already been made.
The 1966 Control order saved all orders made and actions taken under the repealed order.
Under clause 6 of the 1966 Control order the Government was competent to denote an area where sugarcane is grown is a reserved area for a factory.
The sugarcane grown in that area is required to be sold to the factory allotted.
The Central Government determines the quantity of sugarcane to be supplied by the growers in the reserved area and the quantity of sugarcane which the factory requires for crushing during any year.
The growers are required to enter into agreements with the factory to supply sugarcane of the quantity fixed under the provisions of the 1966 Control order.
Restrictions are placed on the growers from using sugarcane grown by them for other purposes.
The Government thus controls all aspects of the use of sugarcane grown hl the reserved area.
It can prohibit or restrict or otherwise regulate export of sugarcane from any area except under and in accordance with a permit issued in that behalf.
Clause 3 of the 1966 Control order provides for fixation of minimum price of sugarcane payable by manufacturers of sugar to the growers.
In determining the minimum price, the Government is required to take into account (a) cost of production of sugarcane, (b) return to the grower from alternative crops and the general trend of prices of agricultural commodities; (c) the availability of sugar to the Consumer at a fair price; (d) the price at which sugar produced from sugarcane is sold by producers of sugar; and (e) the recovery of sugar from sugarcane.
Clause 5 of the 1966 Control order provides for payment of additional price.
Sub clause (1) of clause 5 provides that in respect of sugarcane purchased, by producers of sugar during each of the four successive years beginning from 1 November 1958, the producer is 743 required to pay an additional price in addition to the minimum price A fixed ' under clause 3(1) of the 1966 Control Order.
The additional price is fixed accordance with the provisions of the Schedules to the Order.
On determination of the price, the same is required to be intimate, in writing to the producer of sugar, growers, Cooperative Societies of growers or the local growers association.
Sub clause (5) of clause 5 of the 1966 Control order provides for an appeal to the Government of India from the decision determining additional price.
The relevant provision for purposes of the present appeals is sub.
clause (3) of clause 5 of the. 1966 control order.
Sub clause (3) is as follows : "If the Central Government is satisfied that during any year a factory has made no profit or has made inadequate profit, that Government, may by order in writing, exempt either wholly or partially, any producer of sugar from payment of the additional price due from him under sub clause (1) in respect of sugarcane purchased for that factory during that year.
The appellant in Civil Appeals No. 2070 2074 of 1970 is the factory situate at Hospet manufacturing sugar.
The appellant buys sugarcane from growers in the area reserved for the said factory.
The respondent is a co operative society of growers of sugarcane who k have supplied sugarcane to the appellant factory.
The members of the societies entered into agreement with the appellant factory through the respondent societies for the supply of sugarcane.
The societies advanced monies to the grower members for their agricultural operations.
The societies are recognised both by the Government of India and the appellant factory for the purpose of the 1966 Control order.
The minimum price fixed by the Government of India for the seasons subsequent to 1958 59 was said by the sugarcane growers to be inadequate.
The growers felt that the factories manufacturing sugar were making profits from the sale of sugar and that the minimum price fixed by the Government for supply of sugarcane did not bear any rational relation to the market price or to the profits made by the producers of sugar.
The growers experienced impact of in crease in the cost of growing sugarcane and the restrictions placed by the Government preventing them from selling sugarcane to persons or at prices of their choice.
The growers were also prevented from converting sugarcane to "gur" except in accordance with the terms of a license to be obtained.
In partial redress of the hardship caused to the sugarcane growers Parliament introduced clause 3A to the Sugar Cane Control (Additional Powers) Act, 1962 for fixation of additional prices for sugarcane for four successive years commencing 1 November, 1958.
The provision was thereafter incorporated in the 1966 Control Order.
The relevant Authority under the 1966 Control order on 3 July, 1968 fixed the additional price payable by the appellant to the cane 744 growers for sugarcane supplied during the seasons 1960 61 and 1961 62 at Rs. 4.16 and Rs. 6.09 respectively per metric ton.
This was made payable in addition to the payments made by the factory to the growers during the said seasons.
No appeal was preferred either by the appellant factory or by the respondent Cooperative Societies under clause 5 of the 1966 Control order.
The additional price faced by the Authority thereby became final.
The appellant, however, did not pay the additional price.
The respondent received copies of communication dated 11 September 1968 sent by the Government of India to the appellant exempting it, from making payment of the aforesaid additional price.
It appears that the said order was made pursuant to applications made on behalf of the appellant on or about 11 July 1968 seeking exemption on the ground that the appellant had made inadequate profits.
The Government communication dated 11 September 1968 stated that it was satisfied that the profits made by the appellant were inadequate.
The Government wholly exempted the appellant from paying the additional price form the season 1961 62 and reduced the additional price for the season 1960 61 from 4.16 to 0.70 NP per metric ton.
The respondent challenged the validity of the order of the Government granting exemption wholly or partially to the appellant.
The High Court accepted the contention of the respondent on the ground that the impugned order was violative of principles of natural justice, because the Government failed to afford any opportunity to the growers to be heard in the matter.
The respondent contended that the power of exemption affected the right of growers to get additional price for sugarcane supplied by them and that the Central Government was required to exercise the power judicially and in conformity with the principles of natural justice.
Two questions arise for determination in these appeals.
First, whether in view of the 1966 Control order opportunity should have been given to the respondent when the Government wanted to grant exemption, wholly or partially, to the appellant from paying additional price.
Second, whether the High Court was right in giving direction to the Government to consider giving of an opportunity to the respondent.
The appellant sugar factory contends that the cane growers were not required to be heard when the Government grantee exemption to the factories from payment of additional price.
The respondent cane growers contend to the contrary.
Clause 5 of the 1966 Control order relates to additional price for sugarcane.
Clause 5 (1) of the order speaks of payment of additional price found due in accordance, with the provisions of the Schedule.
Clause S(3) of the 1966 Control order speaks of exemption from payment of additional price.
Clause 5(4) speaks of appointment by the Central Government of persons for determining the additional price under clause 5(1) of the 1966 Control order.
Clause 745 5(5) states that any producer of sugar or grower of sugarcane or growers ' cooperative society who feels aggrieved by any decision of the person or authority referred to in sub clause (4) may appeal to he Central Government.
In the background of these provisions, the appellant contends that the power to grant exemption is where the Government is satisfied that in any year a factory has made no profit or has made inadequate profit and the same should be determined from the balance sheet and profit and loss accounts of a company and there is no obligation to hear any party.
It is also said by the appellant that the determination of additional price and the exemption from payment of the additional price are separate matters independent of each other.
The appellant further contended that right to additional price could not vest in the cane growers until the manner of payment had been decided upon by the Central Government under clause 5(6) of the 1966 Control order, These contentions are unacceptable.
The provision for granting exemption is part of the procedure prescribed by clause $ of the 1966 Control order.
The power to grant exemption cannot be said to be independent of the provisions under clause 5 of the order.
The object of the 1966 Control order is to promote sugar industry and to eliminate unnecessary impediments in the production of sugar.
It also ensures a fair deal to the growers of sugarcane.
The provisions of the Control order are intended to maintain harmony between the growers of sugarcane and the producers of sugar and to enable both of them to share profits reasonably.
Therefore, the power conferred on the Government is required to be exercised having regard to the viewpoints of the growers of sugarcane as well as the producers of sugar.
It is necessary to give opportunity to the growers of sugarcane as well as the producers of sugar to be heard when the Government exercises powers under 1966 Control order for determining the additional price and granting exemption from payment of additional price.
The grant, of exemption from payment of price affects rights and interests of the growers of sugarcane.
The Control order contains elaborate machinery for fixation of additional price having regard to all relevant factors.
The additional price fixation authority afforded opportunity to both the growers of sugarcane as well as the producers of sugar to be heard in the determination of the additional price.
The subsequent order by the Government granting exemption to the factories for payment of additional price takes away rights which had a accrued in favour of the growers of sugarcane.
The manner of payment of additional price under clause S(6) of the 1966 Control order does not affect the right and interest of growers.
ln providing for payment of additional price, the additional price fixation authority takes into account the relevant considerations relating to the conditions of sugarcane growers as well as the promotion of the sugar industry during the relevant period.
The additional price fixation authority ' also considers the conditions and circumstances relating to the appellant factory in determining the additional 746 price payable.
It, is, therefore, necessary for the Government to invite the points of view or objections of the growers on the application made by the factories producing sugar seeking exemption from payment of additional price.
It is equally necessary for the Government to hear the growers of sugarcane in order to satisfy itself as to the bona fide and accuracy of the appellant 's claim for exemption.
The growers should be given an opportunity to show whether the claim by the appellant for exemption from payment of additional price should or should not be granted.
The power to grant exemption to factories from payment of additional price is ultimately connected with the right of sugarcane growers to claim additional price.
The situations in which a duty will arise to act judicially according to natural justice cannot be exhaustively enumerated.
A duty to act judicially will arise in the exercise of a power to deprive a person of legitimate interest or expectation that additional price would be paid.
The factors which power to an exercise of powers judicially are the nature of the interest to be affected, the circumstances in which the power falls to be exercised and the nature of the sanction, if any, involved.
It is clear that the purpose and purport of the 1966 Control order, the scheme of having sugarcane growing areas reserved for factories and in particular, the payment of additional price point to the inescapable conclusion that the sugarcane growers are to be heard not only when additional price is filed but also when any exemption is granted to factories from payment of additional price.
For these reasons, the judgment of the High Court is affirmed.
The appeals are dismissed.
Each party will pay and bear its own costs.
P.H.P. Appeals dismissed.

summary:
The respondent are co operative societies of growers of sugarcane who supplied sugarcane to the appellant which is a sugar manufacturing factory.
The use and supply of sugarcane is controlled under the provisions of the .
The Sugarcane Control order, 1955 empowers the Government to fix the minimum price payable by the manufacturer of sugar to the grower of sugarcane.
In 1962, the Sugarcane Control (Additional Powers) Act 1962 came into existence.
Pursuant to the Powers conferred by the 1962 Act, the Central Government amended the 1955 Control order by introducing clause 3A providing for payment of additional price for sugarcane purchased by the producers of sugar.
The 1955 Control order was repealed and replaced by the Sugarcane Control order 1966.
The respondent are recognised by the Government of India and the appellant for the purpose of 1966 Control order.
Under the 1966 order the Government was competent to denote an area where sugarcane is grown as a reserved area for factory.
The sugarcane grown in that area is required to be sold to the allotted factory.
The Government controls all aspects of the use of sugarcane grown in the reserved area.
The 1966 order provides for fixation of minimum price of sugarcane payable by manufacturers of sugar to the growers.
In determining the minimum price the Government is required to take into account (i) cost of production of sugarcane, (ii) return to the grower from alternative crops and the general trend of prices Of agricultural commodities; (iii) the availability of sugar to the consumer at a fair price; (iv) the price at which sugar is sold by the producers; and (v) the recovery of sugar from sugarcane.
The 1966 Control order further provides for payment of additional price in addition to the minimum price.
On determination of the price the same ` is required to be intimated in writing to the producers of sugar, growers Co operative Societies of Growers or the local Growers ' Association.
An appeal is provided to the Government of India against the determination of the additional price.
Clause 5(3) of the 1966 Control order provides that if the Central Government is satisfied that during any year a factory has made no profit or has made inadequate profit that Government may exempt either wholly or partially any producer of sugar from payment of the additional price.
The relevant authority under the 1966 Control order fixed additional price payable by the appellants to the respondent.
No appeal was preferred either by the appellant or the respondent.
The appellants did not pay the additional price.
appellant made applications seeking exemption on the ground that the appellants had made inadequate profits.
The Government exempted the appellants from paying whose of the additional price for the year 1961 62 and reduced the additional price for the year 1960 61 without giving any opportunity of being heard to the respondent The respondents challenged the validity of the grant of exemption by filing a writ petition in the High Court.
The High Court allowed the said writ petition on the ground that the order of the Central Government was violative of principles of natural justice, since no opportunity was given to the respondents to be heard in the matter.
741 Dismissing the appeal by certificate, ^ HELD: (1) Clause 5(1) provides for the payment of additional price and II clause 5(3) provides for exemption from the payment of additional price.
Clause 5(5) provides for filing an appeal to the Central Government by any person feeling aggrieved by the decision of the fixation of additional price.
The power to grant exemption cannot be said to be independent of the provisions of clause 5 of tho order.
The object of 1966 control order is to promote sugar industry and to eliminate unnecessary impediments in The production of sugar.
It also ensures a fair deal to the growers of the sugarcane.
The provisions of the control order are intended to maintain harmony between the Growers of sugarcane and the producers of sugar and to enable both of them to share profits reasonably.
is necessary to give opportunity to be heard both to the growers of the sugarcane as well as the producers of sugar when the Government exercises powers under 1966 Control order for determining the additional price and granting exemption from payment of additional price.
[744 H, 745 A E] (2) The grant of exemption from payment of price affects rights and interests of the growers of sugarcane.
The order of exemption takes away rights which had accrued in favour of the growers of sugarcane.
It is, therefore necessary for the Government to consider the points of view or objections of the growers on the application made by the factories producing sugar seeking exemption from payment of additional price.
[745F, G, 746A] (3) The situations in which a duty will arise to act judicially according to.
natural justice cannot be exhaustively enumerated.
A duty to act judicially will arise in the exercise of power to deprive a person of legitimate interest or expectation that additional price would be paid.
The factors which point to an exercise of power judicially are the nature of interest to be affected.
the circumstances in which the power falls to be exercised and the nature of the sanctions, if any, involved.
[746 C] (4) It is clear that the purpose and purport of the 1966 Control order point to the inescapable conclusion that the sugarcane growers are to be heard not only when additional price is fixed but also when exemption is granted to factories from payment of additional price.
[746 D]