judgement:
No. 105 of 1969.
Petition under Article 32 of the Constitution of India for the enforcement of fundamental rights and Civil and Appeals Nos. 1402 and 1403 of 1969.
Appeals by special leave from the judgment and order dated July 25, 1968 of the Allahabad High Court at Allahabad in Second Appeal Nos. 425 of 1960 and 1649 of 1962.
R. K. Garg and section C. Agarwal for the petitioners (in writ petition) and for the appellants (in appeals) G. N. Dikshit and 0.
P. Rana, for the respondents (in writ petition) C. B. Agarwala and M. Al.
Kshatriya, for the respondents (in appeals).
The Judgment of the Court was delivered by DWIVEDI, J.
These three cases have a common origin and are accordingly being disposed of by a common judgment.
The city of Meerut is a municipality in Uttar Pradesh.
Plot No. 4635A (old number 5199) is located therein.
It has an area of bigha and 2 biswas.
It formed part of the zamindari estate belonging to Lala Nanak Chand Trust.
The trust is a charitable trust vested in the Treasurer of Charitable Endowments 785 and is managed by the Collector of Meerut through a committee of trustees.
On June 23, 1926, a lease deed was executed on behalf of the trust and in favour of one Bateshwar Dayal.
By the deed the aforesaid plot was let to Bateshwar Dayal.
The lease was granted "for the purpose of planting a grove, erecting buildings and digging wells etc." The yearly rent was fixed at Rs. 12/8/ .
The lease was a for a terms of 30 years with effect from June 1, 1926.
The lessee agreed to surrender the land and all buildings standing thereon to the lessor on the expiry of the period of lease.
The buildings would become the property of the lessor.
He would have them without paying any compensation to the lessee.
The lessor agreed that on the expiration of the period of lease he would at the request of the lessee grant to the lessee a new lease for another term of 30 years.
The initial period of 30 years expired on July 1, 1956.
Thereupon the trust instituted suit No. 690 of 1956 for recovery of possession over the aforesaid land from Bateshwar Dayal.
During pendency of this suit Bateshyar Dayal died on March 6, 1958.
The suit was dismissed by the trial court on October 24, 1958.
It was, however, decreed by the first appellate court on November 30, 1959.
The appellate court granted six months ' time to the defendants to institute a suit in the appropriate court for specific performance of the agreement to re let for another term of 30 years.
Bhagwat Dayal and others, heirs of Bateshwar Dayal, then instituted suit No. 34 of 1960 in the appropriate court for specific performance of the agreement to re let the land for another term of 30 years.
The Trust contested this suit, inter alia, on the ground that it was barred by limitation.
This plea was upheld by the trial court and the suit was dismissed on October 30, 1961.
The first appellate court affirmed, the decree of the trial court on March 23, 1962.
Bhagwat Dayal and other 's filed a second appeal in the Allahabad High Court against the judgment and decree passed in the suit filed by the Trust on January 5, 1960.
They also filed a second appeal against the judgment and decree in their own suit on April 23, 1962.
While those appeals were pending, the U.P. Urban Area Zamindari Abolition and Land Reforms Act, 1956 (hereinafter called the Act) was enforced in the city of Meerut.
The land in dispute was declared "agricultural area" under the said Act.
Thereafter a notification was issued on June 16, 1964 under section 8 of the Act vesting the land in the State.
786 Bhagwat Dayal then moved an application before the High Court for abating the two appeals as well as the two suits out of which those appeals had arisen in accordance with the provisions of the Act.
The High Court passed an order abating both the suits and appeals.
The order was made on July 25, 1968.
Against this order the appellants have filed two appeals in this Court by special leave.
The appellants say that they have filed the writ petition No. 105 of 1969 byway of abundant caution.
The prayer in the petition is that the notification issued under section 8 of the Act should be quashed.
Itis alleged in paragraph 4 of the petition that the disputed plotis a part of Kothi Babu Wali.
In paragraph 20 of the writ petition it is reiterated that the disputed plot forms part of a residential Kothi within the municipality of Meerut and is nonagricultural area.
It is alleged that the impugned notification is violative of the provisions of Articles 14, 19 (1) (f) and 3 1 of the Constitution and is accordingly unconstitutional.
Before mentioning the arguments of Shri R. K. Garg, counsel for the appellants, it is necessary to have a look at the relevant provisions of the Act.
The preamble to the Act states that it is expedient to provide for the abolition of Zamindari system in agricultural areas situate in urban areas in Uttar Pradesh and "for the acquisition of the rights, title and interest of intermediaries between the tiller of the soil and the State in such areas and for the introduction of the land reforms therein.
" Section 2 in the definition clause, Sub section (1) of it defines the expression "agricultural area".
As this provision is important for this case, we are setting out its relevant portion.
"Agricultural area" as respects any urban area means an area which, with reference to such date as the State Government may notify in that behalf, is (a) in the possession of or held or deemed to be held by an intermediary as sir, khudkasht or an intermediary 's grove; (b) held as a grove by or in the personal cultivation of a permanent lessee in Avadh; or (c) included in the holding of (i) a fixed rate tenant, (ii)an ex proprietary tenant, (iii)an occupancy tenant, (iv)a tenant holding on special terms in Avadh.
(v) a rent free grantee, (vi)a grantee at a favourable rate of rent.
787 (vii)a hereditary tenant, (viii)a grove holder, (ix)a sub tenant referred to in sub section (4) of section 47 of the U.P. Tenancy Act,.
1938, or (x) a non occupancy tenant of land other than land referred to in sub section (3) of Section 30 of the U.P. Tenancy Act, 1939, and is used by the holder thereof for purposes of agriculture or horticulture : Provided always that land which on the date aforesaid is occupied by building not being "improvements" as defined in Section 3 of the U.P. Tenancy Act, 1939, and land appurtenant to such buildings.
shall not be deemed to be agricultural area.
(d) held on a lease duly executed before the first day of July, 1955 for the purposes of erecting buildings thereon; or (e) held or occupied by an occupier. .
Section 2(7) defines an "intermediary", inter alia, as a proprietor of an agricultural area, Section 2 (12) defines "proprietor" as a person owning whether in trust or for his own benefits an agricultural area.
Section 2(16) states that the words and expressions, "grove", "grove holder", "grove land" and "holding"shall have the meaning assigned to them in the U.P Tenancy Act, 1939.
Section 3 provides for demarcation of agricultural area in urban areas.
Section 4 provides for publication of preliminary proposals with respect to demarcation of agricultural areas.
It provides also for inviting objections to the proposals.
Final de marcation is made by the Commissioner under section 5.
Section 8 provides that after agricultural areas have been demarcated under section 5, the State Government may, at any time by notification in the gazette, declare that as from a date to 'be specified all such areas situate in the urban area shall vest in the State.
From that date all such agricultural areas shall stand transferred to and vest in the State free from all encumbrances.
Section 10 provides for the consequences of vesting.
All rights, title and interest of an intermediary in an agricultural area cease and become vested ill the State free from all encumbrances.
All suits and proceedings of the nature to be prescribed by rules, and pending in any court,, on the date of vesting, shall be stayed.
Section 17(1) is important for our purposes, and we are quoting the material portion of it.
788 "Section 17.
Settlement of certain lands with intermediaries or cultivators as bhumidhars (1) subject to the provisions of Section 16 and 18 (a) all lands in an agricultural area (i) in possession of, or held or deemed to be held by an intermediary as Sir, khudkasht or an intermediary 's grove, (ii)held as a grove by, or in the personal cultivation of a permanent lessee in Avadh, (iii) held 'by a fixed rate tenant or a rent free as such, or (iv)held as such by (i) an occupancy tenant, (ii) a hereditary tenant, (iii)a tenant on patta dawami or istamrari or (iv) held by a grove holder (1) an occupancy tenant possessing the right (ii) a hereditary tenant to transfer (iii) a tenant on patta the holding by sale.
dawami or istamarari on the date immediately preceding the date of vesting, and (b) all lands in an agricultural area held on lease duly made before the first day of July, 1955, for the purpose of erecting building thereon, shall be deemed to be settled by the State Government with such intermediary, lessee, tenant, grantee or groveholder, as the case may be, who shall subject to the provisions of this Act, be entitled to take or retain possession as a bhumidhar thereof." Section 19(j) provides that notwithstanding anything con tained in the Act, every person who, on the date immediately preceding the date of vesting occupied or held land in an agricultural area as a sub lessee from a person holding land under a lease referred to in cl.
(b) of sub section (1) shall be deemed to be an asami thereof.
Section 20(1) provides that a bhumidhar of the land referred to in cl.
(b) of sub s.(1) of section 17, may, within one year from the date of vesting, apply to the Assistant Collector, Incharge of the Sub Division for ejectment of asami belonging to the class mentioned in section 19(j) on the ground that he wants to use the land held by the asami for the purpose of erecting buildings thereon.
If the Assistant Collector is satisfied after inquiry that the applicant intends to use the land for the purpose of erecting buildings thereon, be may order ejectment of the asami from such land.
After ejectment of the asami, the applicant shall erect a building thereon within three years of the date of the order of ejectment.
If the bhumidhar does not file an application for ejectment or if the order of ejectment passed on any application is not executed within the prescribed period of limitation, the asami shall become a sirdar of the land.
The rights, title and 789 interest of the bhumidhar shall be deemed to have been acquired under section 10, "as if the bhumidhar were an intermediary on the date of vesting.
" If the bhumidhar fails to erect buildings within three years, he.shall be liable to pay to the asami or any person claiming through him an amount equal to five times the rent payable by asami at the time of his ejectment.
According to section 24 an intermediary whose right, title or interest in any agricultural area is acquired under the Act shall be entitled to receive compensation as provided for therein.
Rules have been framed under the Act.
They are known as the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reform Rules, 1957.
Rule 38 provides for stay, inter alia, of suits and appeals arising under section 180 of the U.P. Tenancy Act or of a similar nature pending in a civil court.
Rule 39 provides for abatment of such suits and appeals.
In the present case the second appeals and the suits from which they had arisen were abated under this rule by the High Court.
Section 2(6) of the U.P. Tenancy Act, 1939 defines "grove land" as meaning "any specific piece of land in a mahal or mahals having trees planted thereon in such numbers that they preclude, .or when full grown will preclude the land or any considerable portion thereof from being used primarily for any other purpose, and the trees on such land constitute a grove." Section 2(7) defines the word "holding".
It means a parcel or parcels of land held under one lease.
Section 2(10) defines the word "land" as meaning land which is let or held for growing of crops, or as grove land or for pasturage.
It does not include land for the time being occupied by buildings or appurtenant thereto other than the buildings which are improvements.
The word "grove holder" is defined in section 205 of the said Act.
A person who has planted a grove on land which was let or granted to him by a landlord for the purpose of planting a grove is called a "grove holder" of the grove.
The first argument_ of Shri Garg is that the lease involved in 'these cases was a lease for the purpose of erecting buildings and that accordingly it falls within the purview of cl.
(d) of sub section (1) of section 2 of the Act.
It is urged that cl.
(d) is violative of Articles 14, 19 and 31 of the Constitution and is invalid.
On that premise being correct, it is further said that the land in dispute will not be an agricultural area within the meaning of the said expression under the Act.
Consequently, the notification of the State Government acquiring the land in dispute is invalid.
The lease is "for the purpose of planting a grove, erecting buildings and digging well etc.
" It may be observed that the lease is not an exclusively building lease.
Instead of erecting buildings, 790 the lessee could, plant a grove.
Admittedly no buildings have been ,constructed.
The case of the respondents was that Bateshwar Dayal had planted a grove.
If Bateshwar Dayal had planted a grove and if the grove was existing on the date specified under section 2 of the Act and was then being used by the respondents as a grove the land in dispute would be covered 'by section 2 ( 1 ) (c) (viii) ,of the Act.
In that event it will be out of the purview of section 2(1) (d) of the Act.
As the lease is liable to be placed under either of these two, classes, it will not be correct to place it exclusively ,,under cl.
The Act as a whole is protected by Article 31A of the Constitution.
Shri Garg 's contention, however, is that as section 2 (1) (d) is not at all connected with agricultural reforms, it cannot receive the protection of Article 31A and will be open to challenge for violation of Articles 14, 19 and 31.
In terms section 2(1)(d) does not appear to be connected with the object of agricultural reform.
But a close scrutiny of its context and the object of the Act would ,reveal that it is so connected.
All other clauses of section 2(1) except cl.
(d), are clearly connected with the object of agricultural reform.
They include in an "agricultural area" only such land as is being used for growing crop or as a grove or as a pasture land on the date specified in section 2 (1).
The proviso to section 2 (1) (c) expressly excludes from "agricultural area" land which is occupied by buildings, not being improvements, and land appurtenant to such buildings.
Having regard to this proviso, it is difficult to believe that section 2 (1 ) (d) was intended by the legislature to apply to land which is not an agricultural area.
"Agriculture" means "the science and the art of cultivating the soil; including the gathering in of the crops, and The rearing of live stock; farming (in the widest sense)".
(Shorter ,Oxford Dictionary, 3rd Edn.
I, p.37).
So, ordinarily "agricultural area" would mean an area used for cultivation or farming. 'Section 2(1) includes groves also.
Clause (d) should take its colour from this inherent meaning of "agricultural area" which is being defined in section 2(1).
section 17(1) confers bhumidhari rights on certain classes of persons over certain kinds of lands.
Section 17(1) has two clauses (a) and (b).
Lands specified in cl.
(a) are used for growing crops or as a grove.
It is significant to observe the difference between the language of section 2 (1) (d) and section 17 (1) (b) While section 2(1)(d) refers to "agricultural area", section 17(1)(b) is expressly limited to "lands in agricultural area held on lease.
for the purpose of erecting buildings thereon.
" As the subject matter of section 2(1)(d) and section 17(1)(b) should be identical, it appears to us that the expression "agricultural area ' in section 2 (1) (d) should be construed as "lands in agricultural area".
If the defini 791 tion of "land" in the U.P. Tenancy Act is applied to section 17 ( 1), as it should be, section 17(1)(b) will confer bhumindhari rights on a lessee of land which is used for growing crops or as a grove or as a pasture land although the lease may have been granted for erecting buildings.
The marginal note to the section supports this construction.
Section 19(j) provides that a sub lessee from a person "holding land under a lease referred to in cl.
(b) of sub section (1) of section 17".
shall be an asami.
This provision also shows that the agricultural area referred to in section 2(1) (d) should on the relevant date be used for growing crops or as a grove or as a pasture land.
It is not possible to take the view that section 2 (1) (d) compasses a wider geography than section 17(1) (b).
Such a construction would create an anomaly.
The lessee would become bhumidhar of only such portion of the land as is being used ',or growing crops or as a grove or as a pasture land.
The rest of the agricultural area let out to him for the purpose of erecting buildings would vest in the Government.
But he would get no compensation for that portion, for under section 24 compensation is payable only to an intermediary.
But he is not an "intermediary" as defined in section 2(7), nor a sub intermediary as defined in section 2(14).
lie is deemed to be an intermediary for a limited purpose under section 20(4) but that provision is not material for our purpose.
This anomaly will not result if "agricultural area" in section 2(1) (d) and 'land in an agricultural ' area in section 17 (1) (b) are construed as perfectly over lapping.
The preamble to the Act shows that the object of the Act is to acquire right, title or interest of intermediaries between the tiller of the, soil and the State and for the introduction of land reforms therein.
Having regard to the context already pointed out and this object of the Act it seems to us that section 2 (1) (d), though apparently expressed in wide language, is limited to lands which, are on the relevant date being used for growing crops or as grove or as pasture land.
It does not apply to lands which are not being so used.
The history of the framing of section 2 (1) (d) fortifies this inference.
The Bill which consummated in the Act was introduced in the Legislative Assembly on August 6, 1955.
It was referred to a Joint Select Committee.
The Joint Select Committee 's report and the Bill as amended by it were published in the Uttar Pradesh Gazette, dated February 4, 1956.
Clause (d) of section 2(1) was incorporated in the amended Bill by the Joint Select Committee.
It read as follows : "held on a lease duly executed before the first day of July, 1955 for the purpose of erecting buildings thereon, but which is being used for the purposes of agriculture either by the bolder thereof 792 or by any person claiming under him." Clause (d) was passed in this form by the Legislative Assembly on December 3, 1956.
The Bill then went to the Legislative Council.
But before reaching there it was pruned by the Secretary of the Assembly.
He deleted the last part of cl.
(d) as passed by the Legislative Assembly.
The Legislative Council passed cl.
(d) as pruned by the Legislative Secretary.
Thereafter the Bill received the assent of the Governor and of the President.
It seems that the Secretary thought that the deleted portion of cl.
(d) was redundant; and so he eliminated it.
In Durga Prasad versus Board of Revenue U.P. Allahabad and others,(1) the Allahabad High Court has pointed out this history of cl.
The High Court has taken the view that section 2(1) (d) is limited to lands which are being used for agricultural purposes.
We have come to the same conclusion though for different reasons.
On this construction of section 2 (1) (d) it cannot 'be said that this provision is not connected with agricultural reforms.
It would accordingly receive the protection of article 31A and would be immune from attack on the ground of violation of Articles 14, 19 and 31.
It would follow from the foregoing discussion that only such lands as are being used for growing crops or as grove or as pasture land may be acquired under the Act.
It is alleged in the writ petition that the land in dispute is a part of kothi Babu Wali and was not used for agricultural purposes.
The petition mentions the old number of the plot which was 5199.
The new number of the plot is 4635A.
The State Government has filed a counteraffidavit.
They have assumed that the petition refers to the plot now given the new number 5199.
The counter affidavit does not deal with the disputed plot now numbered 4635A.
But the description of the plot in dispute given in the petition leaves no room for doubt about the identity of the plot.
It is strange that the counter affidavit did not squarely deal with the allegations in the petition.
The appellants ' allegation that the land in dispute is non agricultural land and forms part of a residential kothi remains unanswered in the counter affidavit.
In the suit the respondent 's case was that Bateshwar Dayal, their predecessor in interest, had planted a grove on the land in dispute.
The trial court had appointed a Commissioner for finding out whether there stood a grove on the land in dispute.
On October 16, 1956, the Commissioner submitted his report to the trial court.
It appears from his report that about a half of the plot towards the western side was then "quite vacant." On the western boundary of the plot there stood two sheesham and three mango trees; on the northern 'boundary of the plot there were four (1) A.I.R. 1970 All 159.
793 guava trees, one plum tree and a thorny tree.
In the eastern half of the plot there were about 18 or 19 "scattered guava trees".
Trees standing on the boundary of the plot will not prevent the use of the land for a purpose other than grove.
The western half could be used for any other purpose.
In the eastern half the 18 or 19 "scattered" guava trees could apparently not prevent the use of the land for any other purpose.
The report of the Com missioner would not show that the land in dispute was a grove within the meaning of section 2(6) of the U.P. Tenancy Act, 1939.
As the appellants had given the old number of the plot in their petition, the Government did not reply to the allegations in the petition.
Accordingly, it is not possible to express any concluded opinion on the question whether the land in dispute was an "agricultural area" on the date specified under section 2(1) and was being used for horticulture.
The issue should now be decided afresh by the appropriate authority under the Act.
, in the result, we allow the writ petition and quash the Government notification under section 8 of the Act, dated June 16, 1964 with respect to the land in dispute.
We direct the Government to proceed afresh with respect to the land in dispute in accordance with sections 3, 4, 5 and 8 of the Act.
If it is found in the course of enquiry under sections 3, 4, and 5 that the land in dispute was an ,.,agricultural area" and was being used for agriculture or horticulture on the relevant date, it will be open to the Government to issue a notification with respect to it under section 8.
If, on the other hand, it is found in that enquiry that it was not an "agricultural area" on the said date, no notification under section 8 should be issued with respect to it.
The appeals are also allowed.
The orders of the High Court abating the appeals and the suits are set aside.
The High Court will restore the appeals and the suits to their original numbers.
The appeals will be decided on merits when the appropriate authority under section 5 of the Act has held that the land in dispute is not an "agricultural area".
If it is held by him ,that the land in dispute is an "agricultural area" and the State Government issues a notification under section 8 of the Act with respect to the land, the appeals will be disposed of in accordance with the provisions of the Act.
In the circumstances of this case parties shall bear their own cost,,.
G.C. Appeals allowed.

summary/full:
Plot No. 4635A (old number 5199) admeasuring bigha and 2 biswas and located in the Meerut municipal area was leased by the Lala Nanak Chand Trust to the predecessor in interest of the present respondents.
According to the lease deed dated June 23, 1926 the lease was granted "for the purpose of planting a grove, erecting buildings and digging wells etc.".
The period of the lease was 30 years but the lessor agreed that on the expiration of that period he would at the request of the lessee renew the lease for another 30 years.
On the expiry of the initial period of 30 years on July 1, 1956 the lessor Trust instituted a suit for recovery of possession of the aforesaid land.
The suit was dismissed by the trial court but decreed by the first appellate court.
The respondents thereafter, on permission granted by the said first appellate court instituted a suit for the specific performance of the agreement to re let the land for another term of 30 years.
The suit was dismissed on the ground of limitation by the trial court, as well as the first appellate court.
In both the suits the present respondents filed second appeals in the High Court.
While these appeals were pending the U.P. Urban Areas Zamindari Abolition and Land Reforms Act, 1956 was enforced in the city of Meerut.
The land in dispute was declared an agricultural area ' under the Act and a notification under section 8 of the Act vesting the land in the State was issued on July 16, 1964.
Rule 39 of the Uttar Pradesh Urban Areas Zamindari Abolition and Land Reforms Rules, 1957 provided for abatement of certain suits and appeals.
Applying the rule the High Court abated the two aforesaid appeals filed by the respondents before it.
The Trustees appealed to this Court by special leave.
They also filed a writ petition under article 32 of the Constitution praying that the notifica tion under section, 8 of the Act dated July 16, 1964 be quashed as violative of Articles 14, 19(1)(f) and 31 of the Constitution.
It was further contended that section 2(1)(d) of the Act whereby land held on lease duly executed before the first day of July 1955 for the purposes of erecting buildings thereon was included in the term 'agricultural area ' was protected by article 31 A of the Constitution.
HELD : (i) The lease was not exclusively a building lease.
Admittedly no building had been constructed.
The respondents claimed to have planted a grove.
If so, the land would be covered by section 2(1)(c)(viii) The lease could not therefore be held to fall exclusively under section 2(1)(d).
[790B] 784 (ii) In Durga Prasad 's case the Allahabad High Court has pointed out the history of cl.
The High Court has taken the view that section 2(1)(d) is limited to lands which are being used for agricultural purposes.
The conclusion must be held to be correct though for different reasons, On this construction of section 2(1)(d) it cannot be said that this provision is not connected with agricultural reforms.
It could accordingly receive the protection of article 31A and would be immune from attack on the ground of violation of Articles 14, 19 and 31.
[792C] Durga Prasad vs Board of Revenue U.P. Allahabad and others, A.I.R. 1970 All. 159, referred to.
(iii) The report of the Commission would not show that the land in dispute was a grove within the meaning of section 2(6) of the U.P. Tenancy Act, 1939.
As the appellants had given the old number of the plot in their petition the Government did not reply to the allegation in the petition.
Accordingly it was not possible to express any concluded opinion on the question whether the land in dispute was an 'agricultural area ' on the date specified under section 2(1) and was being used for horticulture.
, The issue must be decided afresh by the appropriate authority under the Act.
If it is held by him that the land in dispute is an 'agricultural area ' and the State Government issues a notification under section 8 of the Act with respect to the land, the appeals will be, disposed of by the High Court in accordance with the provisions of the Act.
[793C] [Notification dated June 16, 1964 quashed, and orders of the High Court abating the appeals and suits set aside.]


judgement:
iminal Appeal No. 50 of 1973.
845 Appeal by special leave from the judgment and order dated January 24, 1972 of the Andhra Pradesh High Court in Cr. A. No. 796 of 1971 and Referred Trial No. 9 of 1971.
O. P. Rana, for the appellant.
The Judgment of the Court was delivered by DUA, J.
In this appeal from the judgment and order of the Andhra Pradesh High Court convicting the appellant for the murder of one Gadusula Seetha under section 302, I.P.C. and sentencing him to death, special leave granted by this Court was limited only to the question of sentence.
The preparation of the record was dispensed with and the appeal was directed to be heard on the S.L.P. paper book.
In the order granting special leave dated March 1, 1973 it was specifically directed as under : "Let an actual date of hearing of the appeal be fixed ,which will not be longer than one month from today, and notice of the actual date of hearing of the appeal shall be sent to the respondent forthwith." Earlier, on July 5, 1972 the special leave petition has been placed before the vacation Judge (K. K. Mathew J) and notice was directed to go to the respondent to show cause why special leave should not be granted in regard to the sentence only.
It is unfortunate that the matter could not be placed before the Bench after service of 'show cause notice for nearly eight months.
The appellant had been sentenced to death as far back as October 30, 1971 by the Additional Sessions Judge, West Godavari Division at Eluru and the death sentence was confirmed by the High Court.
on January 24, 1972.
The prosecution story as upheld by the High Court stated briefly is that the deceased, who was a married woman, was having :an illicit intimacy with the appellant and they were both living at Tadimalla.
Before they came to Tadmalla to settle down there, the deceased was married to one Basavaiah of Eythapuram.
There, she had developed illicit intimacy with her husband 's brother and is stated to have eloped with him.
Sometime later, she patched up with her husband and they both then went down to Tadimalla to live there, which was the native village of the deceased.
But there also the deceased developed illicit intimacy with the appellant who belonged to Harijan community.
Apparently the deceased belonged to a higher caste.
It appears that the appellant and the deceased started living together in a portion of the appellant 's house in Harijanwada of Tadimalla village.
According to the testimony of Osha Tharmaiah (P.W. 14) even ,when the deceased was living with the appellant she was having a liaison with this witness.
The deceased met with her death on 846 April 24, 1971 at about 6 a.m. About 20 days prior to this date, the deceased left the appellant 's house and started living in a portion of the house of Gapapati Bapanamma (P.W. 13), the maternal grandmother of Osha Thammaiah (P.W. 14).
According to P.W. 14 the deceased did so in order to continue her illicit intimacy with that witness.
The appellant apparently felt distressed on account of this conduct on the part of the deceased.
On the morning of April 14, 1971, the deceased went to the Panchayat well to take water to her house and while she was standing there on the platform of the well, the appellant went there, caught hold of her pig tail from behind with his left hand and delivered two blows on the left side,, of her neck and gave two or three blows on her left upper fore arm.
The deceased tried to free herself from the appellant 's grip but fell down flat about six yards away from the well.
The appellant is said to have delivered another blow with the knife on the left side of her abdomen which resulted in her intestines protruding out.
The deceased it appears died soon after the receipt of these injuries.
In the High Court on behalf of the appellant it was argued that the sentence should be reduced to life imprisonment because(1) the appellant is a very young man of about 20 years of age; (2) the incident arose out of sexual jealously and (3) the crime was not pre meditated.
The High Court did not consider these circumstances to be sufficient to merit a lesser sentence, because from the evidence of the doctor and the.
postmortem certificate given by him it was evident that the appellant had inflicted as many as ten incised injuries out of which two injuries were fatal and even after inflicting the injuries on the deceased indiscriminately the appellant stabbed her in the abdomen With such violence that the intestines actually came out and this happened after the deceased had fallen down.
From the injuries caused by the appellant to the deceased the High Court felt that the accused must have intended to murder her and his intention in attacking the deceased was only to chastise her or to teach her a lesson.
Finding no reason to reduce the sentence passed by the trial court the High Court confirmed the capital sentence.
In this Court it was contended on behalf of the appellant that there was grave provocation for the appellant in that the appellant had sacrified everything for the sake of keeping the deceased with him but she had proved unfaithful and had not only started living with someone else but had even ridiculed him.
It was also contended that the courts below had completely ignored the effect of the recent amendment of s.357, Cr.
P.C. and that they have proceeded as if there must be some mitigating circumstance in order to justify the.
imposition of a lesser penalty in case of con viction under section 302, I.P.C. 847 The learned additional Sessions Judge, when dealing with the question of sentence observed that there were "absolutely no extenuating circumstances to justify imposition of lesser sentence".
No doubt, according to the trial court, the murder was committed in broad day light in the presence of many persons in the heart of the Harijanwada and nothing had transpired on the day of the occurrence which could have conceivably given any provocation to the appellant so as to incite him to commit the offence and the murder was committed in cold blood with pre meditation.
But it does appear to us that the learned additional Sessions Judge was perhaps not fully conscious of the amendment and his approach suggests that he was looking for some mitigating circumstance to justify the imposition of lesser penalty.
Having found none, the capital sentence was imposed.
In the High Court also when the question of sentence was raised it was observed as follows : "It is clear that the accused intended to murder the deceased.
We do not find any reason to reduce the sentence passed by the lower court.
We confirm the sentence." While confirming the capital sentence the High Court had quite clearly an obligation to itself consider what sentence should 'be imposed and not be content with the trial court 's decision on the point unless some reason was shown for reducing that sentence.
As observed in Jumman & others vs The State of Punjab(1), in such a case, "it is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge.
In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge, but under the pro visions of the law above mentioned it is for the High Court to come to an independent conclusion of its own." No doubt, as observed by the High Court there were as many as ten incised injuries on the deceased and injuries nos.
1 and 4 were considered by the medical evidence to be fatal.
It is also clear that on the day of the incident nothing had happened to cause sudden provocation which should be grave enough to make the appellant lose his balance of mind.
But in that case an argument would be open to take the offence out of the purview of sections 300 and 302, I.P.C.
That point does not appear to be open to the appellant because this appeal was not admitted on the merits and we are only required to consider whether on the conclusions of the High Court and on the assumption that the offence (1) A. 1.
R. 848 is one of murder, lesser penalty should be imposed in *,he present case.
Apart from the question of what sentence should have been imposed by the trial court, in our opinion, it is open to this Court under article 136 of the Constitution to see what sentence permissible under the law would meet the ends of justice now when we are called upon to consider that question.
The appellant was clearly on terms of improper intimacy with the deceased and was perhaps overcome by a sense of jealousy or indignation of ' what he thought was unfaithfulness on the part of the deceased.
Assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question of sentence by us, in our opinion, constitutes a relevant ground for reducing the sentence to life imprisonment.
In the present case the appellant must have been in the condemned cell ever since October 30, 1971 when the sentence of death was imposed on him by the trial court.
The High Court confirmed the sentence as far back is January 24, 1972.
Since then the agonising consciousness and feeling of being under the sentence of death must have constantly haunted the appellant.
No doubt, this delay has been caused because of the time taken by the High Court in disposing of the application for leave to appeal to this Court and because of the pendency of the application for special leave to appeal in this Court since October, 1972.
But that cannot detract from the acute mental agony to which the appellant must have been subjected ever since the imposition of the capital sentence on him.
We find that in July, 1972 this Court issued notice to the respondent State to show cause why special leave should not be granted in regard to the sentence.
The notice was apparently issued without any delay.
But the matter was unfortunately not set down for hearing till March 1, 1973.
This delay was perhaps due to the fact that the respondent State did not put in appearance.
Indeed, he State was not represented at the hearing either of the special leave petition or of the appeal before us.
Now the importance of speedy disposal of cases involving sentence of death has been recognised by this Court, for, in r. 21(2) of O.XXI,,it is expressly provided that in such cases the printed record shall be made ready and despatched to this Court within a period of 60 days after the receipt of intimation from the registry of this Court of the filing of the petition of appeal or of the order granting special leave to appeal.
The same anxiety and concern for speedy disposal of special leave petitions in such cases is equally desirable.
It appears that the importance of speedy hearing of the petition for special leave was not realised in this case.
In our view, the neglect or unwillingness of the State to enter appearance should not have prevented the posting of the special leave.
petition for hearing with the greatest possible dispatch.
849 On the facts and circumstances of this case we feel that the interests of justice require that the sentence of death should be reduced to that of life imprisonment and we so order.
The fact that the State of Andhra Pradesh has not cared to enter appearance in spite of notice suggests that in the opinion of the legal advisors of the State there was no good cause to show against the reduction of sentence.
In Piare Dusadh & others vs Emperor(1) the sentence of death was reduced to one of transportation for life when the convict had inter alia been awaiting execution of death sentence for over a year.
The Federal Court there observed: "In committing the offence the appellant must have been actuated by jealousy or by indignation either of which would tend further to disturb the balance of his mind.
He has besides been awaiting the execution of his death sentence for over a year.
We think that in this case a sentence of transportation for life would be more appropriate than the sentence of death.
" These observations are equally pertinent to the case in hand.
The appeal is accordingly allowed and the appellant 's sentence is reduced to that of imprisonment for life.

dataset_name: IN-Abs

summary/full:
Appellant, aged 20, was convicted and sentenced to death for murdering his wife on October 30, 1971 and the High Court confirmed the death sentence on January 24, 1972.
The appeal to this Court was limited only to the question of sentence.
In the High Court it was argued that the sentence should be reduced to life imprisonment because, the appellant was a young man of 20 years of age, the incident arose out of sexual jealousy and the crime was not pre meditated.
The High Court did not consider these circumstances to be sufficient to merit a lesser sentence.
In this Court it was contended that appellant acted under grave provocation and secondly, the Courts below had ignored the effect of the recent amendment of section 357 Cr.
Allowing the appeal, HELD : (1) While confirming the capital sentence, the High Court has an obligation to itself to consider why sentence should be imposed and should not be content with the trial court 's decision on the point.
It is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge.
, In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge but the law requires that the High Court should come to an independent conclusion of its own.
[847E] Jumman & others vs The State of Punjab, A.I.R. 1957 S.C. 469, referred to.
(ii)In the present case, assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question by this Court, constitutes a relevant ground for reducing the sentence to life imprisonment.
The appellant must have been in the condemned cell ever since the death penalty was imposed on him.
The appellant must have been subjected to acute mental agony ever since the death penalty was imposed on him.
Therefore, the sentence of capital punishment must be reduced to life imprisonment in the present case.
[848C] in Piare Dusadh & Others vs Emperor A.I.R. 1944 F.C. 1, the sentence of death was reduced to one of transportation for life when the convict had inter alia, been awaiting execution of death sentence for over a year.


judgement:
iminal Appeals Nos.
161 to 163 of 1970.
Appeals by certificate from the.
judgment and order dated May 23, 1969 of the Assam and Nagaland High Court at Gauhati in Cr.
Rev. Nos. 36, 39 and 46 of 1968.
82 0 D. Mookherjee, Avtar Singh, G. Das, section P. Nayar and R. N. Sachthey, for the appellant.
Nuruddin Ahmad and N. N. Keswani, for the respondent.
Harbans Singh, for the respondents.
V. M. Tarkunade, A. L. Arora and D. D. Sharma, for the respondent.
The Judgment of the Court was delivered by ALAGIRISWAMI, J.
Two of the appellants, Major Lala and Lt. Col. Khanna are Army officers and the appellant in the 3rd appeal, Gupta, is a businessman of Gauhati.
All of them were put up for trial before the Special Judge appointed under the Criminal Law Amendment Act 1952.
One charge which was ,common to all the three of them was that between June 1962 and January 1963 all of them agreed to commit or cause to be committed offences under section 5(2) of the Prevention of Corruption Act, and of cheating punishable under section 420 of the Indian Penal Code, and these offences having been committed in pursuance of a conspiracy were punishable under section 120B of the Indian Penal Code read with section 5 (2) of the Prevention of Corruption Act and section 420 I.P.C. Mr. Gupta, the businessman was charged under section 420 I.P.C. as well as section 511 read with section 420 I.P.C.
The two Army officers were also charged with offences under section 420 read with section 5 (1) (d) of the Prevention of Corruption Act.
The case was filed before the Special Judge on 28 6 1963 and the charge was framed on 13 2 65.
After about 18 out of the 52 witnesses cited by the prosecution had been examined the three respondents filed petitions under section 561A read with section 439 of Code of Criminal Procedure before the High Court of Assam & Nagaland on 28 3 68, 1 4 68 and 10 4 68 respectively for quashing the charges.
A learned Single Judge allowed these petitions on 23 5 1969 and quashed the charges and the proceedings before the learned Special Judge.
He did this on three grounds (1) that the officer who investigated the case was not competent to do so; (2) that the offences that were being tried were noncognizable and the Special Judge could not have taken cognizance of them without sanction under section 196A of the Code of Criminal Procedure, and (3) that in view of the enormous length of time between 2 2 63, the date on which the case was 821 registered and 1 4 68, upto which date some witness had been examined, the last witness having been examined on 15 1 67, it entailed undue harassment to the accused persons and the proceedings have to be quashed to prevent further harassment, abuse of the process of the court and vexation to the accused persons.
These three appeals have, therefore, been filed by the Union of India by certificate granted by the High Court.
We shall first of all deal with the question whether the officer who investigated into these cases was not properly authorized to do so.
The officer was an Inspector of the Delhi Special Police Establishment.
Under section 5A of the Prevention of Corruption.
Act, before it was amended in 1964, no officer below the rank of the Deputy Superintendent of Police could investigate into offences punishable under sections 161, 165 and 165A of the Indian Penal Code or under section 5 of the Prevention of Corruption Act without the order of a Presidency Magistrate or a Magistrate of the First Class.
In this case the Inspector concerned had obtained the order of the First Class Magistrate of Tezpur.
The argument before the High Court, which was accepted by the learned Judge, was that as the offences of conspiracy were alleged to have been committed both at Tezpur as well as at Gauhati, the investigation based on the order of the Tezpur Magistrate alone was not a proper one.
In other words, the argument was that unless the Inspector had been authorized to investigate not only by the First Class Magistrate of Tezpur but also by the First Class of Gauhati district, he could not have done so.
The learned Judge referred to and relied upon the decision in Chinnappa vs State of Mysore(1).
It was decided in that case that any First Class Magistrate appointed in a district can issue orders under section 5A of the Prevention of Corruption Act for investigation of a case.
From this the learned Single Judge drew the conclusion that in respect of an offence said to have been committed at Gauhati as well as at Tezpur the order of the Tezpur Magistrate was not enough.
He also relied upon the decision of the High Court of Assam and Nagaland in Chatterjee vs Delhi Special Police Establishment ( 2 ) .
This decision has been upheld by this Court in Union of India vs B. N. Ananthapadmanabhiah(3).
But that was a case of a Delhi Magistrate sanctioning an investigation of offences committed in Assam and it was held that such an order was not valid.
That decision is.
no authority for the proposition that where an offence is committed in more than one place the order of every Magistrate within whose.
jurisdiction the offence or part of the offence was committed was necessary in order to (1) A. I. R. (2) I. L. R. 1969 Assam & Nagaland 275.
(3) A. I. R. 822 enable the investigation to be carried on.
All that is necessary is that the Magistrate who makes the order under section 5A should have territorial jurisdiction over the place where any part of the ingredients of the offence took place.
That criterion is amply satisfied in this case.
On principle also such a contention seems to be devoid of any substance.
The offence of conspiracy or for that matter any other offence might consist of a series of acts and incidents spread over the whole country.
Very often one conspirator or one of the offenders might, not have even met the other conspirator or offender.
To accept this contention would be to hold that the Police should go to every Magistrate within whose jurisdiction some part of the conspiracy or one of the ingredients of the offence has taken place.
We have no hesitation in rejecting it.
He also seemed to have had some doubt as to whether the order of the Magistrate of Tezpur produced before him was a genuine one.
To say the least, the attitude of the learned Judge is most surprising.
To put it in his own words : "It does not appear that any order of a Magistrate form part of the record.
But at the time of hearing, such an order was placed before me on behalf of the Prosecution.
The application on which the order is said to have been passed by the Magistrate appears to have been addressed to the Court of the Magistrate first class at Tezpur, wherein it was stated that for preoccupation of the Deputy Superintendent of Police, the investigation was sought to be made by an Inspector (A Police.
The petition is unnumbered undated.
What appears curious is that although the application was made before a Magistrate of the first class, the order passed is supported by a seal of the District Magistrate, Darrang.
The order of the Magistrate runs as follows : "Paper and F.I.R. seen.
Shri H. B. D. Baijal, Inspector is permitted to investigate the case.
" There is an illegible signature with date 4 2 63 and below the signature the official designation has not been stated.
It appears that no order sheet of the Magistrate has been produced in this regard and in above circums tances, it cannot be unequivocally said that this document wag obtained in due course of business in compliance with section 5A of the Prevention of Corruption Act.
Even assuming that the order is free from doubt, learned counsel appearing for the petitioners has urged before me that since the venue of the offences has been clearly stated in the charge, the permission given by the Magistrate for investigation of the offences at Gauhati is not valid." 8 23 If he had any doubts about the genuineness of the order of sanction it was his duty to have gone into the matter thoroughly and satisfied himself whether the order was genuine, or not.
It was his duty to have given a categorical finding regarding the matter.
There should have been no room allowed for any doubt or suspicion of any underhand dealing and unfair conduct in a matter of this kind.
It was even alleged on behalf of the, respondents that an order was produced for the first time before the learned Judge and it was taken back by the prosecution.
If that was so it proves a woeful lack of care on the part of the learned Judge.
He should have retained the order on file and called for the necessary records and information in order to find out whether the order was a genuine one or not.
We have before us the order of the Superintendent of the Special Police Establishment dated 2 2 63 entrusting the investigation to Inspector Baijal and directing him to obtain the necessary permission from a competent Magistrate for doing so.
We have also been shown the papers relating to the prosecution, papers given to the accused under section 173 of the Code of Criminal Procedure.
Item 71 of those papers relates to the order of sanction dated 4 2 1963 given by the Magistrate of Tezpur authorizing the Inspector of the S.P.E. to investigate.
Thus, there is no doubt at all that Inspecor Baijal had been authorized to investigate into, this case.
It only shows rather superficial way the learned Judge chose to deal with this matter.
The next question is whether offences under section 161, 165 and 165A of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act are cognizable or non cognizable offences.
This becomes important for the purpose of deciding whether a sanction under section 196A is necessary.
The sanction necessary under section 6 of the Prevention of Corruption Act and section 197 of the Code of Criminal Procedure has been accorded by the Government of India.
What was contended by the respondents before the, High Court and was accepted by that Court was that these offences being non cognizable offences a sanction under section 196A(2) is necessary and that prosecution without such sanction is bad.
Cognizable offence is defined in section 4(1) (f) of the Code of Criminal Procedure as an offence for which a police officer, within or without the presidency towns, may in accordance with the second schedule, or under any law for the time bring in force, arrest without warrant.
The argument which appealed to the learned Judge of the High Court was that as under section 5A of the Prevention of Corruption Act no officer below the rank of Deputy Superintendent of Police could investigate or make any arrest without a warrant in respect of offences punishable under section 161, 165 or 165A I.P.C. and section 5 of the Prevention of Corruption Act, they were not offences for which any police officer can arrest without warrant, and therefore, 824 they are not cognizable offences.
The same argument was repeated before this Court 'by Mr. Tarkunde, emphasising that "a police officer" means "any police officer" and as any police officer cannot, under section 5A of the Prevention of Corruption Act, arrest without warrant but only officers of and above the rank of Dy.
Superintendent, the offences mentioned in that section are noncognizable offences.
If we pursue the same line of argument and look at the definition of non cognizable offence in section 4(1) (n) which defines non cognizable offence as an offence for which a police officer, within or without a Presidency town, may not arrest without warrant, it might mean that as these are cases where i police officer of the rank of Dy.
Superintendent and above can arrest without warrant these are not non cognizable offences either.
How can there be a case which is neither cognizable nor cognizable ? It was sought to be argued that these offences would 'be cognizable offences when they are investigated by the Deputy Superintendents of Police and superior officers and non cognizable when they are investigated by officers below the rank of Deputy Superintendents.
We fail to see how an offence would be cognizable in certain circumstances and non cognizable in certain other circumstances.
The logical consequences of accepting this argument would be that if the offences are investigated by Deputy Superintendents of Police and superior officers no sanction under section 196A(2) would be necessary but sanction would be necessary if they are investigated by officers below the rank of Deputy Superintendents of Police.
One supposes the argument also implies that the fact that an officer below the rank of a Deputy Superintendent is authorized by a Magistrate under the provisions of section 5A would not make any difference, to this situation.
We, do not consider that this is a reasonable interpretation to place.
Under Schedule It of the Code of Criminal Procedure offences under sections 161 to 165 of the Indian Penal Code are shown as cognizable offences.
At the end of that Schedule offences punishable with death, imprisonment for life or imprisonment for 7 years and upwards are also shown as cognizable offences.
Under section 5 (2) of the Prevention of Corruption Act the sentence may extend to seven years.
Therefore, an offence under section 5 of the Prevention of Corruption Act is according to the provision in Schedule II to the Code of Criminal Procedure a cognizable offence.
Therefore, the mere fact that under the Prevention of Corruption Act certain restrictions are placed as to the officers who are competent to investigate into offences mentioned in section 5A would not make those offences any the less cognizable offences.
Tile words "notwithstanding anything contained in the Code of Criminal Procedure" found at the beginning of section 5A(1) merely carve out a limited exemption 'from the provisions of the Code of Criminal Procedure in so far as they limit the class of persons who 82 5 are competent to investigate into offences mentioned in the section and to arrest without a warrant.
It does not mean that the whole of the Code of Criminal Procedure.
including Schedule II thereof, is made inapplicable.
Under section 5 of the Code of Criminal Procedure all offences under the Indian Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions therein contained.
Also, all offences under any other law (which would include the Prevention of Corruption Act) shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions but subject to any enactment for the time bring in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing, with such offences.
Section 5A of the Prevention of Corruption Act should be related to this provision in section 5 (2) of the Code of Criminal Procedure, which limits the application of the provisions of that Code to be subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
The only change which section 5A of the Prevention of Corruption Act makes is with regard to officers competent to investigate and arrest without warrant; in all other respects the Code of Criminal Proce dure applies and, therefore, there is no doubt that all offences mentioned in section 5A of the Prevention of Corruption Act are cognizable offences.
The Assam High Court seems to have taken a line of its own in this matter.
In G. K. Apte vs Union of India(") curiously enough the Bench, of which the learned Judge who dealt with this case was a member, took the view that though an offence under section 161 is a cognizable offence, if investigations were made under section 156 of the Code of Criminal Procedure there would be no need for a sanction under section 196A of the Code of Criminal Procedure, and there can be a conviction under section 161 of the Indian Penal Code, but if the investigation is made under section 5A of the Prevention of Corruption Act it will be an investigation into a non cognizable offence and there should be a sanction under section 196A for the trial following such investigation.
For this conclusion the decision of this Court in H. N. Rishbud & Inder Singh vs The State of Delhi (2) was relied upon.
We can see nothing in that case to support this conclusion.
Nor are we able to see how if the investigation into an offence of misconduct punishable under section 5(2) is done by a police officer of high rank the offence is cognizable and if investigated by ail officer of a lower rank it is non cognizable.
That cannot be a proper criterion for deciding whether an offence is cognizable or non cognizable.
Unless there are clear and compelling reasons (1) A.I.R 1980 Assam & nagaladd 43.
(2) A. I. R. 5 L797Sup.
C. 1./73 826 to hold otherwise the division of offences given in the Code of Criminal Procedure as cognizable and non cognizable should be given effect to.
When the same Code makes sanction under section 196A necessary for trial of non cognizable offences it clearly contemplates non cognizable offences as defined in the Code.
There is no justification for relying upon extraneous considerations and far fetched reasoning in order to get over the effect of these provisions.
We may now refer to certain decisions of various High Courts on this point.
In Taj Khan vs The State(") it was held "The fact that the power to investigate or to arrest without warrant has been circumscribed by certain conditions (which conditions were clearly provided for the purpose of safeguarding public servants from harassment at the hands of subordinate police officers) under the proviso.
to section 3 of the said Act cannot lead to the conclusion that such offence is non cognizable." In Ram Rijhumal vs The State ( 2) it was held : "The provisions of section 3, Prevention of Corruption Act can only have one meaning, and the meaning is that an offence under section 165A of the Penal Code has to be deemed to be a cognizable offence for the purpose of ,the Code of Criminal Procedure.
It is only because the Legislature enacted section 5 A of the Prevention of Corruption Act that, so far as the Presidency town of Bombay was concerned, no police officer below the rank of a Superintendent of Police could in the case of an offence under section 165 A of the Penal Code, investigate it without the order of a Presidency Magistrate.
There is nothing in the language of section 5 A which would suggest that an offence under section 165 A of the Penal Code is not to be treated as a cognizable offence." In Gulabsingh vs State() it was held that "offence under section 161, I.P.C. is a cognizable offence.
Its nature is not Affected by either section 3 or section 5A of the Prevention of Corruption Act.
The requirement that in a cognizable offence, a police officer should be able to arrest without warrant, is without any limita tion and section 5A cannot be split.
up to mean that an offence can be cognizable in reference to one officer and not in reference to another." (1) A. I R. (2) A. I R. 1958 Bombay 125.
(3) A.
I R. 1962 Bombay 263.
8 2 7 The learned Judges specifically dissented from the decision in Union of India vs Mahesh Chandra(").
In Public Prosecutor vs Shaik Sheriff (2) it was held that "these offences cannot be treated as non cognizable offences when investigated by an officer below the rank of Deputy Superintendent of Police simply on the ground that such investigation cannot be done without the order of a Presi dency Magistrate or a Magistrate of the First Class.
In the same way, offences under section 5 of the Act cannot be treated as non cognizable even when investigated by a low rank officer.
Thus, the provision in section 5A is of the nature of a special provision which applies to offences specified therein which are cognizable offences including those under section 5 under all circumstances.
" They also referred to the decision in Union of India vs Mahesh Chandra (supra) to the effect that an offence under section 161 I.P.C. and under sub.
section 2 of section 5, Prevention of Corruption Act is cogni zable so far as officers of the rank of a Deputy Superintendent of Police and above are concerned, but so far as the officers below the rank of Deputy Superintendent of Police are concerned the said offences are non cognizable in so far as they cannot investigate them without the permission of a Magistrate of ' the First Class, and held that : "the learned Judges only intended to emphasise the provision in S.5 A and chose to refer to it as a non cognizable aspect of the offences comprised in the Act and to describe that aspect also as non cognizable for the limited purpose of the provision in section 5 A." Thus, the preponderance of opinion of the various High Courts is in favour of the view we are taking.
We are, therefore, clearly of opinion that the offences under sections 161, 165 and 165A of the Indian Penal Code and section 5 of the Prevention of Corruption Act are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non cognizable when investigated by an Inspector of Police.
Nor can there be any question of those offences being cognizable if they are investigated under section 156 of the Cr.
P.C. but not when investigated in accordance with the provisions of section 5A of the Prevention of Corruption Act.
The question, therefore, of the need for a sanction under section 196A does not arise.
Consequently, the need to order re investigation or to begin the trial again after the sanction under section 196A is obtained, and the consequent inordinate delay and harassment of the officers concerned, reasons that weighed with the learned Single Judge for quashing the charges, does not arise.
It may incidentally be mentioned that the respondents took nearly three years before they moved the High (1) A. 1.
R. 1957 Madhya Bharat 43.
(2) A. 1.
R. 828 Court for quashing the charges and are, thus, to a considerable extent responsible for the delay.
On behalf of Mr. Gupta it was argued that he cannot be tried along with the two Army officers.
Under section 6 of the Criminal Law Amendment Act 1952 the Special Judge may try any conspiracy to commit or any attempt to commit or any abetment of any of the offences punishable under section 161, 165 or 165A of the Indian Penal Code or sub section (2) of section 5 of the Prevention of Corruption Act, and under sub section(3) of section 7 of the same Act a special judge, when trying any case, may also try any offence other than an offence specified in section 6 with which the accused may, under the Code of Criminal Procedure, 1898, be charged at the same trial.
Under section 235 of the Code of Criminal Procedure if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence, and under section 239 persons accused of the same offence committed in the course of the same transaction, as well as persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence, may be charged and tried together.
In The State of Andhra Pradesh vs Kandimalla Subbaih & Anr.(1) this Court observed : "No doubt, the offence mentioned in charge No. 1 is alleged to have been committed not by _just one person but by all the accused and the question is whether all these persons can be joint tried in respect of all these offences.
To this kind of charge section 239 would apply.
This section provides that the following persons may be charged and tried together, namely : (1) persons accused of the same offence committed in the course of the same transaction; (2) persons accused of an offence and persons accused of abetment or an attempt to commit such an offence; (3) persons accused of different offences committed in the course of the same transaction.
Clearly, therefore, all the accused persons could be tried together in respect of all the offences now comprised in charge No. 1.
" In that case the first accused was a public servant and the other accused were private individuals to whom the first accused was alleged to have sold transport permit books intended to be issued (1) 829 to Central Excise Officers for granting permits to persons applying bona fide for licences to transport tobacco.
This Court also pointed out that "sub section
(3) of section 7 provides that when trying any case, a special judge may also try any offences other than an offence specified in section 6 with which the accused may under the Code of Criminal Procedure, 1898 be charged at the same trial, and clearly, therefore, accused No. 1 could be tried by the Special Judge for offences under section 120B read with sections 466, 467 and 420 J.P.C., and similarly the other accused who are, said to have abetted these offences could also be tried by the Special Judge.
" There is, therefore, no objection to Mr. Gupta being tried along with the two Army officers.
Though in the revision petitions filed before the High Court the question as to whether on the evidence produced before the Special Judge the offences with which the respondents had been charged could be said to have been prima facie established, was raised, the learned Single Judge has not dealt with that question apparently because it was not argued before him.
We do not, therefore, propose to say anything about the merits of the case.
It is not necessary to refer to the, decision in Madan Lal vs state of Punjab(1) and Bhanwar Singh vs Rajasthan(2) which are relied upon on behalf of the appellants in the view that we have taken that all the offences with which the, accused are charged are cognizable offences, and therefore, the question whether charges which require sanction under s, 196A could be tried alongwith charges which did not require such sanction and the entire charges are vitiated for want of sanction, as held by the learned Single Judge, does not arise.
The appeals are allowed and the order of the learned Single Judge is set aside.
The Special Judge will now proceed to deal with the cases and dispose of them as expeditiously as possible as the matter has been pending for a long time.
V.P.S. Appeals allowed.

summary/full:
Two army officers and a businessman were put up for trial before the Special Judge under the Criminal Law Amendment Act, 1952.
They were all charged with offences of conspiracy under section 120B, I.P,.
C. read with section 5(2) of the Prevention of Corruption Act and section 420 I.,P.C. The businessman was charged under s.420 and sections 420 and 511, I.P.C.
The two army officers were also charged with the offences under section 420 I.P.C. read with section 5(1)(d) of the Prevention of Corruption Act.
After some witnesses were examined by the prosecution, on a petition by the three accused, the High Court quashed the charges and the proceedings on the grounds, (1) that the officer who investigated the case was not competent to do so; (2) that the offences were non cognizable and hence the Special Judge could not take cognizance of them without sanction under section 196A, Cr.
P.C.; and (3) in view of the enormous length of time that elapsed between the date the registration of the case and the examination of the witnesses (about 4 1/2 years), to proceed further with the case would be an abuse of the process of Court causing harassment to the accused.
Allowing the appeal to this Court, HELD : (1) (a) Under section 5A of the Prevention of Corruption Act, before it was amended in 1964, no officer below the rank of Deputy Superintendent of Police could investigate into offences punishable under Ss. 161, 165, 165A I.P.C., or under section 5 of the Prevention of Corruption Act, without the orders of a Presidency Magistrate or the Magistrate First Class.
Where an offence is committed in more than one place the order of every Magistrate within whose jurisdiction the offence or part of the offence was committed was not necessary to enable the investigation to be carried on.
All that is necessary is that the Magistrate who makes the order under section 5A should have territorial jurisdiction over the place where any part of the offence took place.
In the present case, the offence of conspiracy was alleged to have been committed both at Tejpur as well as at Gauhati and the Inspector concerned had obtained the order of the First Class Magistrate, Tejpur.
[821H; 822A C] Chinnappa vs State of Mysore, A.I.R. , Chatterjea V. Delhi Special Police Establishment I.L.R. 1969 Assam and Nagaland 275 and Union of India vs B. N. Ananthapadmanabbiah, A. I.,R. , referred to.
(b) The High Court expressed doubt whether the order of the Magistrate of Tejpur was a genuine one.
If he had any such doubt it was the duty of the Judge to have gone into the matter thoroughly and satisfied 819 himself whether the order was genuine or not, and given a categorical finding on the matter.
There should have been no room allowed for any doubt, or suspicion of any underhand dealing or unfair conduct, in a matter of this kind.
[823A C] (2) Under Schedule 11 of the Criminal Procedure Code offences under Ss. 161 to 165, I.P.C. and offences punishable with imprisonment for life or imprisonment of 7 years and upwards are shown as cognizable offences.
Under section 5(2) of the Prevention of Corruption Act the sentence may extend to 7 years.
Therefore, an offence under section 5 of the Prevention of Corruption Act is a cognizable offence.
The words 'notwithstanding anything contained in the Code of Criminal Procedure, in the section merely carve out a limited exemption from the provisions of Criminal Procedure Code in so far as they limit the class of persons who are competent to investigate, and to arrest without a warrant.
The mere fact that under the Act certain restrictions are placed as to the officers who are competent to investigate into the offences mentioned in section 5A would not make those offences any the less cognizable.
Therefore, the offences under section 161, 165 and 165A of the I.P.C. and section 5, Prevention of Corruption Act, are cognizable offences and there is no question of their being cognizable if investigated by a Deputy Superintendent of Police and non cognizable when investigated by an Inspector of Police; nor can there be any question of these offences being cognizable if investigated under section 156, Cr.
P.C. but not when investigated under section 5A, Prevention of Corruption Act.
It is illogical to say that offences would be cognizable in certain circumstances and non cognizable in certain other circumstances.
Therefore, the reed for a sanction under section 196A, Cr.
P.C. does not arise.
[824A H; 825A D; 827] Union of India vs B. N. Ananthapadmanabhiah, A.I.R. , Union of India vs Mahesh Chandra, A.I.R. 1957 Madhya Bharat 3 and Public Prosecutor vs Sheikh Shariff, A.I.R. 1965 A.P. 372, referred to.
Taj Khan vs The State, A.I.R. , Ram Bijhumal vs The State, A.I.R. 1958 Bombay 125 and Gulabsingh vs State, A.I.R. 1962 Bombay 263, approved.
G. K. Apte vs Union of India, A.I.R. 1970 Assam & Nagaland 43, disapproved.
(3)The need to order re investigation or to begin the trial again after the sanction under section 196A is obtained, and the consequent inordinate delay and harassment of the officers concerned, do not arise at all.
Hence, there is no question of quashing the charges on that ground.
[827G H] (4) Under section 6 and 7(3) of the Criminal Law Amendment Act, 1952, and Ss. 235 and 239, Cr.
P.C. the businessman (private individual) and the two army officers, (public servants) could be tried together.
[829A C] The State of Andhra Pradesh vs Kandimalla Subbaiah & Anr. , followed.


judgement:
iminal Appeal No. 3 of 1970.
63 Appeal by special leave from the judgment and order dated June 24, 1969 of them Calcutta High Court in Cr.
Appeal No. 378 of 1969.
I. N. Shroff for the appellant.
P. K. Chatterjee and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by DUA, J.
This appeal by special leave is directed against the order of summary dismissal of the appellant 's appeal by the High Court of Calcutta from the judgment and order of a learned Additional Sessions Judge, Asansol dated June 18, 1969 convicting the appellant for offences under sections 25 (1) (a) and 27 of the .
According to the prosecution case, on receipt of secret information, Inspector Kali Prasanna Chaudhury of Detective Department, along with Circle Inspector, section L. Routh, S.I. K. D. Chakravarty, Officer incharge of Hirapur police station and S.I. K. D. Chatterjee, Town Sub Inspector of Asansol and some constables searched the appellant 's house on May 14, 1968 between 6.40 a.m. and 9 a.m. in the presence of some other witnesses.
In the Central Room of the house there was an almirah of which the key was produced by the appellant and handed over to Inspector Kaliprasanna Chaudhury (P.W. 1).
The almirah was opened with the said key wherein was found a bag containing seven.12 bore live cartridges, seven .410 bore live cartridges, nine rifle ammunition and one 12 bore fired cartridge case.
There was also found a gun folded into two parts under a bundle of clothes on the lowest shelf.
The appellant could not produce any licence or permit for the possession of the gun and the cartridges.
As a result of this recovery the appellant was arrested and challenged.
He was duly com mitted by a magistrate to the court of Sessions.
The principal question which fell for decision at his trial was whether it could be said that he was in possession of the articles found from the almirah, as contemplated by section 25 of the .
After discussing the evidence and the legal position on the question of presumption of conscious pos session in circumstances like the present, the learned Additional Sessions Judge came to the conclusion that these articles were in the appellant 's conscious possession.
No licence or permit for these articles having been produced, the appellant was convicted both under section 25(1) (a) and under section 27 of the .
Under section 27 of the no separate sentence was considered necessary but under section 25 (1) (a) he was sentenced to rigorous imprisonment for two years.
It may incidentally be mentioned that in the trial court on behalf of the appellant the legality of the investigation into the offence in question was also assailed, it being further contended that the S.I. K. D. Chakravarty, Officer in charge of Hirapur police station was not empowered to investigate the case.
As these questions are not agitated in this Court, we need say nothing on those points.
Against his conviction the appellant appealed to the High Court under section 410, Cr P.C. but this appeal was dismissed summarily on June 24, 1969 without indicating any reasons in support of the order of summary dismissal.
64 Before us on behalf of the appellant it was contended that the order of summary dismissal by the High Court is contrary to the consistent view taken by this Court in numerous decisions where it has been firmly laid down that if an appeal raises arguable points of fact or law, then, it is undesirable and improper to dismiss it summarily without indicating, at least broadly the reasons for such dismissal.
In this case, according to the submission, the question of the conscious possession of the articles, on the facts and circumstances of this case.
was of considerable importance and it required scrutiny of the evidence on the record.
The appeal also raised some other questions relating to the alleged infirmities in the search conducted during the investigation.
Indeed, according to the appellant 's counsel, there were nearly ten grounds of appeal in the memorandum which suggest that the question of the conscious possession of these articles clearly required a closer scrutiny of the evidence in the case.
In our view, there is force in the appellant 's contention.
Beginning with the decision in Mushtak Hussein vs The State of Bombay(1) this Court has, in numerous cases, emphasised the extreme desirability of indicating, however broadly, the reasons which prevail with the High Court in dismissing summarily an appeal in which questions of act or law are raised, which do not seem to be unarguable or insubstantial.
This, however, does not mean that the statute does not empower the High Court to dismiss an appeal in limine where in its opinion there is no substance in the appeal.
The latest decision of this Court was given on March 13, 1973 in Mustaq Ahmed Mohamed Hussain and Mukhtar Hussain Ali Hussain vs The State of Gujarat(2) in which some of the previous decisions of this Court on this point have been digested.
In arguable cases not only would the reasons recorded by the High Court be helpful to this Court in better understanding and appreciating the High Court 's line of approach, but it would also serve to assure the accused that the arguable points in his appeal were properly argued and duly considered by the High Court.
This assurance cannot be considered to be without importance and value.
The question, however, arises whether it is desirable and necessary in the larger interest of justice to send the present case back to the High Court for re decision or it would be more conducive to the cause of 'justice that we ourselves examine the evidence and dispose of the appeal finally without further prolonging the proceedings against the appellant.
It may be pointed out that the recovery of the articles in question was effected as far back as May, 1968 and the appellant 's conviction by the trial court is dated June 16, 1969.
The High Court dismissed his appeal on June 24, 1969, land this Court granted special leave on January 8, 1970 when the appellant was released on bail.
More than 3 years have now elapsed since the grant of special leave and the appellant 's release on bail.
We consider it would be highly unfair and unjust to the appellant to prolong the uncertainty of the final fate of this case by sending it back to the High Court for final disposal of the appeal after rehearing.
We have.
therefore, undertaken to examine the evidence ourselves because that would guarantee speedy disposal of the case against the appellant.
We may in this con (1) (2) Crl.
A. No. 9 of 1973 decided on 13 3 73.
65 nection point out that undue delay in the final disposal of criminal cases tends, to some extent, to defeat the very purpose of criminal justice.
Speedy disposal of criminal cases for commission of offences promotes confidence of the society in the administration of criminal justice which is essential for sustaining the faith of the law abiding members of the society in the effectiveness of the rule of law.
It also saves the accused from avoidable harassment inherent in unreasonably prolonged trials and appeals.
After having been taken through the evidence, we find that the testimony of K. P. Choudhary, P.W.1 that the appellant had produced the key of the almirah in question and handed it over to the witness who opened the almirah with that key is trust worthy and no infirmity is found in his evidence.
The evidence of Dharmadas Thakur, P.W.2, fully supports the evidence of P.W.1 on this point.
So does the evidence of Santosh Lal Routh, P.W.4.
No doubt P.W.1 and P.W.4 are police officers, but P.W.2 is an employee of Indian Iron & Steel Company Ltd. The appellant worked in the department of P.W. 2.
Now once it is held that the appellant had produced the key of the almirah the presumption arises that the arms found in that almirah were in his possession.
No doubt, there were certain articles belonging to women, but that is immaterial.
It is not the appellant 's case that this key used to be taken by the other members of his family who used to place their articles in this almirah without the appellant 's knowledge and that anyone of them might, therefore, have Placed the arms in question in that almirah without his knowledge.
In fact, the appellant has on the other hand, completely denied the recovery of these articles from the almirah.
His plea is not wholly irrelevant and can certainly be taken.
into consideration.
On the evidence on the record, therefore, it is not possible to hold that the existence of the arms in the almirah were without the appellant 's knowledge or that his possession of the arms was unconscious.
Ms conviction under section 25(1) (a) of the Arms Act, 1969 is, therefore,.
fully justified.
It is, however, difficult to sustain his conviction under section 27 of the Arms Act.
There is no evidence to support the offence under that section and indeed the trial court has convicted him without properly applying its mind to the ingredients of that offence.
judgment of the trial court seems to suggest that mere possession of the arms would also constitute an offence under section 27 of the Arms Act.
This view is clearly not correct.
But since no separate sentence was imposed under section 27, it is unnecessary to say anything more about it than that the conviction under section 27 must be quashed.
The question, however, arises as to what sentence in the circumstances of the case would meet the ends of justice.
As already observed, the offence was committed in May, 1968 and the appellant was convicted in June, 1969.
We are now in April, 1973.
The possession of the arms in question has not been shown to be inspired by any sinister purpose.
There is no evidence of any undesirable antecedents of the appellant, nor is there any suggestion that the arms were likely to be used for some antisocial purpose.
Their possession by the appellant might well have been intended to be utilized for the purpose 944 Sup.
CI/73 66 of self defence, though undoubtedly the possession was without a proper licence.
Considering all the relevant circumstances of the case, we feel that it would meet the ends of justice if the sentence of imprisonment is reduced to that already undergone and a sentence of fine of P.s. 5001 ' is in addition imposed on the appellant and in default of payment of fine, the appellant is directed to serve a sentence of rigorous imprisonment for one month.
We order accordingly.
The appeal succeeds in part to the extent just stated.
V.P.S. Appeal partly allowed.

summary/full:
On receipt of information the police searched the appellants house on May 14, 1968.
In the central room of that house there was an almirah of which the key was produced by the appellant and handed over to the Inspector of Police.
When the almirah was opened with the key it was found to contain a bag with live cartridges and a gun.
As no licence or permit for their possession was produced, the appellant was prosecuted and was convicted under Ss. 25(1)(a) and 27 of the and the appellant was sentenced to imprisonment for two years R.I.
His appeal to the High Court was dismissed summarily.
Special leave to appeal to this Court was granted and the accused was on bail pending disposal of the appeal.
HELD: (1) The High Court has the power to dismiss an appeal in limine where in its opinion there is no substance in the appeal.
But in cases where ,questions of fact or law, which are arguable and which are not unsubstantial, are ,raised, it is desirable that the High Court, while dismissing summarily, should indicate broadly the reasons which prevailed with it.
In such cases not only the reasons recorded by the High Court would be helpful to this Court in better understanding and appreciating the High Court 's 'line of approach but it would also serve to assure the accused that the arguable points in his appeal have been properly argued and duly considered by the High Court.
[64D F] Mushtak Hussain vs Bombay ; and Mushtaq Ahmed Hussain ,and Mukhtar Hussain Ali Hussain vs The State of Guj., Cr.
A. No. 9 of 1973 decided on 13 3 73 followed.
(2) However, it is undesirable and unnecessary in the larger interests of justice to send the present case back to the High Court for re decision.
The appellant was convicted in June 1969 and the High Court 's decision was shortly there after.
Undue delay in final disposal of criminal appeals tends to some extent to defeat the very purpose of criminal justice.
Speedy disposal of criminal cases for commission of offences promotes confidence of the society in the administration of criminal justice which is essential for sustaining the faith of the law abiding members of the society in the effectiveness of the rule of law.
It also saves the accused from avoidable harassment inherent in unreasonably prolonged trials and appeals.
[64F H; 65A B] (3) On the evidence on the record it is not possible to hold that the existence of the arms in the almirah was without the appellant 's knowledge and that his possession of the arms was unconscious.
Therefore, his conviction under section 25(1) (a) was justified.
[65E F] (4) There is no evidence in support of the conviction for the offence under section 27, and therefore, his conviction under that section cannot be sustained.
[65F G] (5) There is no evidence of any undesirable antecedents of the appellant, and the possession of the arms has not been shown to be inspired by any sinister purpose.
Since more than 4 years had elapsed since the date of the offence it would be in the ends of justice if the sentence of imprisonment was reduced to that already undergone and a sentence of fine is, imposed in addition.
[65H; 66A D]