judgement:
ISDICTION: Writ Petition (Criminal) No. 136 of 1986.
Under Article 32 of the Constitution of India with Special Leave Petition (Criminal) No. 630 of 1986 From the Judgment and Order dated 17.1.1986 of the Patna High Court in Crl.
No. 367 of 1986.
and Writ Petition (Criminal) No. 137 of 1986 Under Article 32 of the Constitution of India.
with Special Leave Petition (Criminal) No. 577 of 1986.
From the Judgment and Order dated 7.2.1986 of the Special Judge (Vigilance) Bihar, Patna in S.C. No. 6 of 1986.
Ram Jethmalani, Miss Rani Jethmalani, K.N. Madhusoodhanan and Ashok Sharma for the Petitioners.
A.N. Mulla, D.Goburdhan and Basudeo Prasad for the Respondents.
810 The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On the intervening night of November 29/30, 1984, the Security Police Petrol on duty near Jogbani Checkpost noticed a jeep speeding towards the Indo Nepal border.
The jeep was stopped.
There were five occupants in the jeep.
One of them was Simranjit Singh Mann who had been dismissed from the Indian Police Service.
An order of preventive detention under the National Security Act had been made against him on August 28, 1986.
He was wanted in that connection but had gone 'underground '.
On being questioned by the police petrol party, they first refused to disclose their names and identity.
This aroused the suspicions of the police party.
One of the officers was able to identify Simranjit Singh Mann.
The five occupants in the jeep were searched as also their baggage.
A sum of Rs.62,722 was found with one of the occupants, who it is alleged offered the police party a large amount as bribe if they were allowed to cross the Indo Nepal Border.
As a result of the search, a number of documents and other articles were seized.
From the person of Simranjit Singh Mann were seized, a copy of a letter dated June 2, 1984 from Simranjit Singh Mann to the Chief Secretary, Punjab, a copy of the letter of resignation dated June 18, 1984 of Simranjit Singh Mann, the Passport of Simranjit Singh Mann, two photographs of Jarnail Singh Bhindrawala, a letter from Simranjit Singh Mann to Birbal Nath, a letter addressed to one Arun Kumar Agarwal asking him to help the bearer in all possible ways and Raghubir Singh.
Kamikar Singh was the person who had made the offer of bribe.
A First Information Report was then registered at the Jogbani Police Station for references under secs.
121 A, 124 A, 123, 153 A, 505 and 120 B of the Indian Penal Code and section 5(iii) of the Prevention of Corruption Act.
Investigation started.
On December 11, 1985 a charge sheet was submitted before the Judicial Magistrate First Class Araria against the five accused persons for offences under secs.
121 A, 123, 124 A, 153 A, 165 A, 505 and 120 B of Indian Penal Code.
Before the charge sheet was filed, on December 4, 1984 Simranjit Singh Mann was served with the order of detention under the National Security Act and sent to Bhagalpur Jail.
The other four accused were also detained under the National Security Act at Bhagalpur.
On March 1, 1985 the four accused other than Simranjit Singh Mann moved the Judicial Magistrate First Class Araria for bail in the criminal case which was then being investigated claiming to be released under the proviso (a) of section 167(2) of the Code of Criminal Procedure.
The learned Magistrate directed their release on bail, but imposed a 811 condition that the sureties should be residents of Araria town.
The four accused persons filed a petition requesting the Magistrate to accept sureties from Purnea or cash.
Anonymous letter warning Simranjit Singh Mann of likely attempts to liquidate him and advertising him to leave the country.
Simranjit Singh Mann refused to sign the seizure memo.
From Kamikar Singh 's person, currency notes of the value of Rs.62,722 were seized.
An amount of Rs.25,000, it is said, was offered as bribe to the Police Officers.
From Jagpal Singh 's suitcase was seized a booklet in English entitled 'Sikhs and Foreign Affairs ' and a combined road map of India, Pakistan, Bangladesh, Sri Lanka and Nepal.
Among other articles seized were a booklet in English written by Narinder Singh Bhuller said to contain anti Government and Sikh separatist propaganda, a notebook containing meterial about the world 's leading underground organisations said to be in Mann 's hand writing, a register in which Mann was said to be writing the history of Amritsar in which the Indian Army is said to have been described as the enemy, consequent on operation Blue Star, extremist Sikhs are said to be described as nationalists and defendars of the motherland and Mrs. Gandhi, the then Prime Minister is described in a derogatory fashion.
At the check post, a photograph of Simranjit Singh Mann was available and it was varified that the person suspected to be Simranjit Singh Mann was actually Simranjit Singh Mann.
The other persons gave their names as Kamikar Singh, Charan Singh, Jagpal Singh.
The petition was rejected.
Ultimately the four accused were able to get sureties from Araria, but even so they could not be released as they were under detention under the National Security Act.
Simranjit Singh Mann was also directed to be released under the proviso to sec.
167(2) on his application on October 28, 1985.
The same condition was imposed that the sureties should be from Araria.
He furnished necessary sureties on October 29, 1985, but could not be released as he was under detention under the National Security Act.
While so Gauri Shankar Jha who was a surety for all the five accused filed a petition and personally appeared in court praying that he may be discharged from suretyship as he did not want to continue to be a surety of the accused persons.
On December 5, 1985 the learned Magistrate made an order discharging the surety and issuing formal warrants of arrest under section 444(2) of the Code of Criminal Procedure.
It was at that stage that the order of detention against Simranjit Singh Mann was quashed by the High Court of Punjab and Haryana on December 9, 1985.
The charge sheet in the court of the Judicial Magistrate First Class Araria was filed on December 14, 1985.
The learned Magistrate took cognizance of the case under sec 812 tions 121A, 123, 124A, 153A, 165A and 120 B Indian Penal Code on December 18, 1985.
On the same day he also made an order that Simranjit Singh Mann should be kept in the Central Jail at Bhagalpur in the interests of security.
On December 19, 1985, the Investigating Officer filed a petition requesting expeditious trial of the case as it was one of special importance.
On December 20, 1985, fresh bail bonds were filed on behalf of the accused Raghubir Singh, Jagpal Singh, Kamikar Singh and Charan Singh.
However the bail bonds were rejected as the surety, Kirtyanand Mishra could not name either the accused persons or their fathers.
On January 2, 1986 all the accused persons were produced from custody before the Magistrate who further remanded them to custody till January 13, 1986.
The learned Magistrate took up for hearing a petition which had been previously filed on behalf of the accused persons requesting that Kirtyanand Mishra may be accepted as a surety as he had once previously been accepted as surety.
It was prayed that the order dated December 20, 1985 might be recalled.
The petition was rejected on the ground that the earlier order could not be reviewed.
Later, on the same day, two sureties, Mir Majid and Kirtyanand Mishra filed petitions requesting that they should be discharged from suretyship as they did not want to continue as sureties for the accused persons.
On January 7, 1986 the Session Judge, Purnea transferred the case from the file of Shri R.B. Roy, Joint Magistrate, First Class, Araria to the Court of Shri U.N. Yadav, Joint Magistrate, First Class, Araria.
On January 10, 1986, the learned Magistrate made an order fixing January 11, 1986 for the supply of 'police papers and necessary orders '.
On January 11, 1986 the five accused persons were produced before the Magistrate.
A petition was filed on behalf of the State to commit the case to the Court of session after delivering the police papers to the accused persons and thereafter to cancel the bail of the accused persons and remand them to custody.
Another petition was filed on behalf of the accused to transfer the case to the Special Judge, Purnea.
The accused persons also filed a petition to adjourn the case.
The Magistrate requested the accused to receive the documents furnished under section 207 Criminal Penal Code but the accused refused to receive the same claiming that their petition should be disposed of first so that if necessary they may go to the higher court in revision.
The Public Prosecutor objected to the petition of the accused on the ground that the accused persons were merely trying to delay the disposal of the commitment proceedings.
The advocate for the accused persons appears to have made a submission that the case was triable by the Court of Special Judge and therefore it should be transferred to him.
The learned Magistrate held that cognizance had already been taken of the case by his court and the 813 order taking cognizance could not be recalled.
The question whether the case should be transferred to the court of Special Judge could be considered at the stage when the question whether there was a prima facie case was to be considered.
The learned Magistrate then fixed January 18, 1986 as the date for furnishing copies of documents to the accused persons.
On January 16, 1986 the learned Magistrate rejected an application by the accused other than Simranjit Singh for acceptance of cash deposit or in the alternative sureties from outside Araria town.
The learned Magistrate held that he had no power to review his earlier order.
They then moved to the High Court for Bail but that application was also rejected.
On January 18, 1986, the learned Magistrate purported to transfer the record of the case to the Special Judge (Vigilance), North Bihar, Patna and directed the accused to be produced before the Special Judge on January 31, 1986.
On January 31, 1986 Simranjit Singh Mann offered cash security and that the joint trial was not permissible.
The learned Special Judge upheld that submissions and held that the offences were not committed in the course of the same transaction and therefore the trial for the offences under secs.
165A and section 165A read with section 34 should be separated from the other offences.
The learned judge further held that he was not competent to try the accused for the offences under secs.
121A, 124A etc.
as the case had not been committed to the court of Session by the Magistrate of Araria.
In regard to those offences the learned special Judge directed the record to be sent back to the District and Sessions Judge, Purnea for proceeding further in accordance with law.
Alleging that the Special Public Prosecutor had never been instructed to file a petition before the special Judge suggesting that the offences under secs.
165 and 165A read with section 34 and the remaining offences under section 121A, 124A etc.
were not committed in the course of the same transaction and that they should be tried separately, the State of Bihar filed a writ petition in the High Court of Patna and obtained a stay of further proceedings before the Special Judge.
The question of the link between the offences under secs.
165A and 165A read with section 34 and the offences under secs.
121A, 124A etc.
and the question of the jurisdiction of the Special Judge to try the offences under secs.
121A, 124A etc.
were also raised before us but we refrain from expressing any opinion on these questions as these questions are to be considered by the High Court in the Revision Petition before it.
In the two writ petitions filed by the accused persons, Shri Ram 814 Jethmalani made a forceful and passionate plea that the fundamental right of his clients under article 21 of the Constitution has been frustrated by the tactics of the State of Bihar whose only object was to somehow keep the petitioners in prison.
He submitted that the case of bribery rested on what took place on the night of 29/30 November, 1984 and that investigation into that part of the case was complete in the course of a few days.
The offences of waging war etc.
rested primarily on the letters said to have been written by Simranjit Singh Mann to the President of India and others and investigation into these offences could not possibly take very long as all that was necessary was to examine the recipients of the letters.
Yet the chargesheet was filed only in December, 1985 and even thereafter various tactics were adopted by the prosecution to prevent the trial of the case.
According to Shri Jethmalani, the prosecution being fully aware that there was no merit in the allegations was merely trying to prolong the case as long as possible to harass the accused and to keep them in prison.
He submitted that there was no material whatever to substantiate the offences of waging war etc.
and that the proceedings deserved to be quashed on that ground also.
He argued that if the offences of waging war etc.
rested on the letters written by Simranjit Singh Mann to the President of India and the Chief Secretary, as indeed they were, then the prosecution could have been launched as soon as the letters were received.
There was no need to launch the prosecution now and link it with the offence of bribery where the letters had been published in the daily press long ago.
It was also submitted the proceedings before the Special Judge, Purnea were without jurisdiction both for the reason that he was not competent to try the offences under section 121A, section 124A etc.
and also for the reason that he came to be seised of the case at the instance of the Executive Government, who had no authority to transfer the case from the court of the Special Judge, Patna to the court of the Special Judge, Purnea.
Shri Jethmalani submitted that the very principle of rule of law would be defeated if the Executive Government were to be permitted to have cases decided by judges of their choice.
In the Special leave petitions, Shri Jethmalani submitted that the High Court and the Special Judge were wrong in not permitting the accused to offer fresh sureties or cash security.
He submitted that the High Court and the Special Judge were wrong in holding that the order of the Magistrate directing them to be released on bail under section 167(2) had come to an end by the passage of time, particularly after cognizance had been taken of the case.
815 The constitutional position is now well settled that the right to a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by article 21 of the Constitution: Vide Hussainara Khatton (I) vs State of Bihar, (per Bhagwati and Koshal, JJ), Kadra Pehdiya (I) vs State of Bihar, AIR 1981 SC 939 (per Bhagwati and Sen, JJ.), Kadra Pehdiya (II) vs State of Bihar, AIR 1982 SC 1167 (per Bhagwati and Eradi, JJ) and State of Maharashtra vs Champa Lal Punjaji Shah, (per Chinnappa Reddy, Sen and Baharul Islam, JJ).
In foreign jurisdictions also, where the right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been held in appropriate cases sufficient to quash a conviction or to stop further proceedings: Strunk vs United States, 37 Law Ed.
2d 56 and Barkar vs Wingo, ; two cases decided by the United States Supreme Court and Bell vs Director of Public Prosecutions.
Jamaica, [1985] (II) All ER 585 a case from Jamaica decided by the Privy Council.
Several questions arise for consideration.
Was there delay? How long was the delay? Was the delay inevitable having regard to the nature of the case, the sparse availability of legal services and other relevant circumstances? Was the delay unreasonable? Was any part of the delay caused by the wilfulness or the negligence of the prosecuting agency? Was any part of the delay caused by the tactics of the defence? Was the delay due to causes beyond the control of the prosecuting and defending agencies? Did the accused have the ability and the opportunity to assert his right to a speedy trial? Was there a likelihood of the accused being prejudiced in his defence? Irrespective of any likelihood of prejudice in the conduct of his defence, was the very length of the delay sufficiently prejudicial to the accused? Some of these factors have been identified in Barker vs Wingo (supra).
A host of other questions may arise which we may not be able to readily visualise just now.
The question whether the right to a speedy trial which forms part of the fundamental right to life and liberty guaranteed by article 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as 'acting fairly ' is of the essence of the principles of natural justice (In re H.K. 1967(1) All ER 226) and a 'fair and reasonable procedure ' is what is contemplated by the expression 'procedure established by law ' in article 21(Maneka Gandhi).
What do we have here? Five persons were seen in a jeep going towards the Indo Nepal border, obviously in an attempt to cross the border.
The border patrol thought that their movements were suspicious.
Their answers to questions regarding their names and parentage were not satisfactory.
One of them was identified as a police officer, 816 who had been dismissed from service and who was wanted in connection with an offer of detention under the National Security Act.
In the light of contemporary history and in the light of the documents lound in the possession of the accused, (to the contents of one of which we will presently refer), the police party suspected that they were crossing the border and going to Nepal in the course of a conspiracy to commit the offences of waging war, etc.
Their suspicion must have been strengthened by the offer of a bribe to be allowed to cross the border.
The police officer whom they apprehended, though apparently a Punjabi, had previously served in the State of Maharashtra while the others were from Calcutta.
That several persons from different parts of the country with no apparent connection with each other except that they appeared to belong to the same Community were together trying to cross the country 's frontier, apparently made the police suspect, in the context of the political situation in the country, that they belonged to some group of persons of that community who were campaigning against the Government, call it what you will, agitating or waging war, a suspicion which must have been further influenced by the letters found in their possession.
It may be that these circumstances may lead to no more than suspicion but the suspicion was enough to justify an investigation by the Police.
We may digress here and consider a submission of Mr. Jethmalani that the letter addressed to the President showed that Simranjit Singh Mann wanted to devote himself to the rehabilitation of those who had suffered during the army action and the letter could never possibly be evidence of a conspiracy to wage war against the Government.
It is true that in this long letter, there is a sentence. "In future, I will devote myself to the rehabilitation of those who have suffered during the army action.
" It is sufficient for us to mention that there is in the letter enough incendiary material to ignite the combustible.
We do not want to refer to the various other statements made in the letter.
It is possible that the effect of some of those statements on the minds and actions of the susceptible could be disastrous.
Simranjit Singh Mann, as a highly educated person and as a highly placed officer, was bound to emerge, on his dismissal from service, as a hero and martyr in the eyes of a certain section of the people.
His statements would be accepted by them as gospel truths and pronouncements of the oracle on the basis of which they should act.
If the letter remained addressed to the President and not publicised, it would cause little or no harm.
But the letter though addressed to the president was clearly meant to be what is called an 'open letter ', to be given wide publicity.
Indeed its full text had been published in the daily press and the accused them 817 selves had such a copy in their possession when they were stopped and searched.
We do not know whether any of the accused ' was responsible for the publicity and whether it was in pursuance of the conspiracy.
It may be that Simranjit Singh Mann meant no harm and that the contents of the letter were no more than the vehement outpourings of a bitter, and distressed but honest mind in the zealot 's jargon.
On the other hand it is possible that the letter was designed to become or became an instrument of faith and used as such.
All these are matters for evidence at the trial.
Reverting to what we were saying earlier, if the police officers had some justification for suspecting a conspiracy, they would be well justified in suspecting ramifications of the conspiracy elsewhere in the country necessitating investigation into the conspiracy in Punjab, Delhi, Maharashtra, Calcutta and other parts of the country.
If the Investigating agency suspected a conspiracy to wage war, it was its bounden duty to search for evidence wherever it could be found and not content itself by reading the letters and examining the recipients of the letters.
It is not again correct to say that the case of waging war is founded entirely on the letters addressed to the President of India, etc.
and that all that was necessary for the investigating agency to do was to examine the recipients of the letters.
The letters are only items of evidence and not the totality of the evidence.
From the affidavits filed on behalf of the State of Bihar and from the records produced before us, we find that the investigating agency conducted enquiries not only at Jogbani(Purnea), but also at Delhi, Calcutta and Bombay and in Punjab, Maharashtra and Nepal.
It is one thing to analyse and arrange the facts and plan an orderly course of action when all the facts are known, it is quite another thing to do when the facts are to be discovered or unearthed, particularly in cases of suspected conspiracies bristling with all manner of complexities and complications including those of a sensitive, political nature, where the investigating agency has to tread warily and with circumspection.
The investigating agency cannot, therefore, be blamed for the slow progress that they made in investigating a case of this nature.
It is true that there were what appeared to be lulls in investigation for fairly long spells but we are unable to see anything sinister in the lulls.
We have to remember that investigation of this case was not the only task of the investigating agency.
There must have been other cases and tasks.
In our country, the police are not only incharge of the investigation into crimes, but they are also incharge of Law and Order.
We have to take into account the extraordinary law and order situation obtaining in various parts of the country necessitating the placing of a great addi 818 tional burden on the police.
We are satisfied that such delay as there was in the investigation of this case was not wanton and that it was the outcome of the nature of the case and the general situation prevailing in the country.
We may also note in passing that the accused in the present case do not belong to the category of persons who are not well able to take care of themselves.
They are persons who are capable of asserting their rights whenever and wherever necessary and who did in fact asserts their rights as and when necessary, as is evident from the number of petitions filed before the Magistrate, and the special judge, from time to time.
We do not suggest that the ability of the accused to assert their rights should penalise them and still the voice of protest against the delay.
But, as pointed out by Powell, J. in Barker vs Wingo (supra) and by Lord Templeman in Bell vs DPP of Jamaica, (supra) one of the factors to be considered in determining whether an accused person has been deprived of his right is the responsibility of the accused for asserting his rights.
It was said: "Whether, and how, a defendant asserts his right is closely related to the other factors we have mentioned.
The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences.
The more serious the deprivation, the more likely a defendant is to complain.
" Until the filing of the present writ petitions we find that there was no serious protest by the accused about any delay.
After the charge sheet was filed, we notice that at least on two occasions the prosecuting agency expressed an anxiety to have the case disposed of as expeditiously as possible.
We find from the order sheet of the learned Special Judge that on December 19, 1985 the Public Prosecutor filed a petition before him requesting expeditious trial of the case as it was a case of a special importance.
From the order sheet we find that on January 9, 1986, another petition was filed by the Public Prosecutor again requesting that an early date may be fixed for the speedy disposal of the case.
Having regard to all the circumstances of the case, we do not think that the delay in the investigation and in the trial of the case is so unfair as to warrant our quashing the proceedings on the ground of infringement of the right of the accused to a speedy trial, a part of their fundamental right under article 21 of the Constitution.
We think that a direction by us that the trial should start soon and proceed from day to day is all that is called for in the present case.
819 It was strenuously contended by Shri Jethmalani that there was no material whatsoever to warrant the framing of charges for any of the offences mentioned in the charge sheet other than sec.
We desire to express no opinion on this question.
It is not a matter to be investigated by us in a petition under article 32 of the Constitution.
We wish to emphasise that this Court cannot convert itself into the court of a Magistrate or a Special Judge to consider whether there is evidence or not justifying the framing of charges.
Two other questions, one relating to the jurisdiction of the Special Judge to try the accused for the offences under secs.
121, 121A, etc.
and the other the question of the link between the offences under secs.
165 A and 165 A read with sec.
34 on the one hand and the offences under secs.
121 and 121A etc.
on the other are questions which are awaiting the decision of the High Court of Patna and we leave those questions to be decided by the High Court.
Another question which was raised before us was that the Special Judge, Purnea was chosen by the Executive Government to try the present case.
The submission was that it was destructive of the very principle of Rule of law and Equality before the Law if the Prosecutor is to be permitted to have the Judge of his choice to try the case.
Nothing as drastic as that suggested by Mr. Jethmalani has happened.
All that has in fact happened is that a Special Judge 's court was created for Purnea Division under sec.
6 of the Criminal Law Amendment Act and Shri Bindeshwari Prasad Verma, Additional District Judge, West Champaran, who was under orders of transfer as Additional District Judge, Bhagalpur was designated as the Special Judge.
The case, Jogbani P.S. No. 110/84, was mentioned within brackets as that was apparently the only case awaiting trial in Purnea Division under the Criminal Law Amendment Act.
A Special Judge 's court was created for Purnea Division as it was thought that it would be more convenient for the accused and also in the interests of security if the case was tried at Bhagalpur where the accused were imprisoned rather than to have the trial of the case at Patna to which place the accused would have to be taken from Bhagalpur for every hearing.
The accused had to be imprisoned at Bhagalpur, as already mentioned by us, in the interests of security.
We are unable to see any evil design in the creation of a Special Judge 's court for Purnea Division at Bhagalpur under the Criminal Law Amendment Act and the designation of a Judge to preside over that court.
Shri Jethmalani urged that in the case of the accused persons 820 other than Simranjit Singh Mann, there was nothing whatever to connect them with the offences under secs.
121 A, 124 A, etc.
It was said that they were not even the authors of any of the letters which were found in the course of the search.
We do not want to express any opinion except to say that authorship of seditious material alone is not the gist of any of the offences.
Distribution or circulation of seditious material may also be sufficient on the facts and circumstances of a case.
To act as a courier is sometimes enough in a case of conspiracy.
It is also not necessary that a person should be a participant in a conspiracy from start to finish.
Conspirators may appear and disappear from stage to stage in the course of a conspiracy.
We wish to say no more on the submission of the learned Counsel.
Whether such evidence as may now be available in the record to justify the framing of charges is a matter for the trial court and not for us.
We refrain from expressing any opinion.
Having regard to the subsequent events that have taken place, we think that the only appropriate direction that we can give is to request the Patna High Court to dispose of the criminal revision petition before it as expeditiously as possible preferably within three or four weeks.
Whatever be the outcome of the criminal revision petition, the High Court should also direct the Special Judge or other Judge who may have to try the case, or the one or the other of the cases as the case may be, to try the cases expeditiously, setting a near date for the trial of the case or cases and to proceed with the trial from day to day.
We then come to the two special leave petitions filed by the accused persons.
We may recapitulate that the five accused persons were directed to be released on bail under the proviso(a) to section 167(2) for the default of the prosecution in not completing the investigation within 60 days.
It may be remembered that there was no provision corresponding to the proviso to sec.
167(2) in the old Code of Criminal Procedure.
The proviso was introduced for the first time in the new Code of 1973.
The reason for the introduction of the proviso was stated in the Statement of Objects and Reasons as follows: "At present section 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days on the whole.
There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice.
The practice of doubtful legality has grown 821 whereby the police file a "preliminary" or incomplete chargesheet and move the court for a remand under section 344 which is not intended to apply to the stage of investigation.
While in some cases, the delay in the investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete investigation in 15 days.
The Commission recommended that the period should be extended to 60 days, but if this is done, 60 days would become the rule and there is no guarantee that the illegal practice referred to above would not continue.
It is considered that the most satisfactory solution to the problem would be to extend the period of detention beyond 15 days whenever he is satisfied that adequate grounds exist for granting such detention." (section 344 of the Old Code Corresponded to section 309 of the present Code.) The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days.
A person released on bail under the proviso to section 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter 33 of the Code for the purposes of that chapter.
That is provided by the proviso to section 167(2) itself.
This means, first, the provisions relating to bonds and sureties are attracted.
section 441 provides for the execution of bonds, with or without sureties, by persons ordered to be released on bail.
One of the provisions relating to bonds is section 445 which enables the court to accept the deposit of a sum of money in lieu of execution of a bond by the person required to execute it with or without sureties.
If the bond is executed (or the deposit of cash is accepted), the court admitting an accused person to bail is required by section 442(1) to issue an order of release to the officer in charge of the jail in which such accused person is incarcerated.
Sections 441 and 442, to borrow the language of the Civil Procedure Code, are in the nature of provisions for the execution of orders for the release on bail of accused persons.
What is of importance is that there is no limit of time within which the bond may be executed after the order for release on bail is made.
Very often accused persons find it difficult to furnish bail soon after the making of an order for release on bail.
This frequently happens because of the poverty of the accused persons.
It also happens frequently that for various reasons the sureties produced on behalf of accused persons may not be acceptable to the court and fresh sureties will have to be 822 produced in such an event.
The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straight away.
Orders for release on bail are effective until an order is made under section 437(5) or section 439(2).
These two provisions enable the Magistrate who has released an accused on bail or the court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody.
The two provisions deal with what is known in ordinary parlance as cancellation of bail.
Since release on bail under the proviso to section 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to section 167(2) is also subject to the provisions of section 437(5) and 439(2) and may be extinguished by an order under either of these provisions.
It may happen that a person who has been accepted as a surety may later desire not to continue as a surety.
Section 444 enables such a person, at any time, to apply to a Magistrate to discharge a bond either wholly or so far as it relates to the surety.
On such an application being made, the Magistrate is required to issue a warrant of arrest directing the person released on bail to be brought before him.
On the appearance of such person or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as it relates to the surety, and shall call upon such person to find other sufficient surety and if he fails to do so, he may commit him to jail.
(sec. 444).
On the discharge of the bond, the responsibility of the surety ceases and the accused person is put back in the position where he was immediately before the execution of the bond.
The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straight away produce a fresh surety.
The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety.
The argument of the learned counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody under section 309(2) of the Code of Criminal Procedure.
There is no substance whatever in this submission.
Section 309(2) merely enables the Court to 'remand the accused if in custody. ' It does not empower the Court to remand the accused if he is on bail.
It does not enable the Court to 'cancel bail ' as it were.
That can only be done under section 437(5) and section 439(2).
When an accused person is granted bail, whether under the proviso to section 167(2) or under the provisions of Chapter XXXIII the only way the bail may be cancelled is to proceed under section 437(5) or section 439(2).
In Natabar Parida vs State of Orissa, ; the Court 823 explained the mandatory character of the requirement of the proviso to section 167(2) that an accused person is entitled to be released on bail if the investigation is not completed within sixty days.
The Court said, "But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding.
In serious offences of criminal conspiracy murders dacoities, robberies by interstate gangs or the like, it may not be possible for the police, in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days.
Yet the intention of the Legislature seems to be to grant no descretion to the court and to make it obligatory for it to release the accused on bail.
Of course, it has been provided in proviso (a) that the accused released on bail under section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter.
That may empower the court releasing him on bail, if it considers necessary so to do to direct that such person be arrested and committed to custody as provided in sub section (5) of section 437 occuring in Chapter XXXIII.
It is also clear that after the taking of the cognizance the power of remand is to be exercised under section 309 of the New Code.
But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghastly types of crimes the accused will be entitled to be released on bail.
Such a law may be a "paradise for the criminals," but surely it would not be so, as sometimes it is supposed to be because of the courts.
It would be so under the command of the Legislature.
" In Bashir vs State of Haryana, ; , the question arose whether a person who has been released under the proviso to section 167(2) could later be committed to custody merely because a challan was subsequently filed.
The court held that he could not be so committed to custody.
But, the bail could be cancelled under section 437(5) if the court came to the conclusion that there were sufficient grounds, after the filing of the challan to believe that the accused had committed a nonbailable offence and that it was necessary to arrest him and commit him to custody.
The court said, 824 "Sub section (2) of Section 167 and proviso (a) thereto make it clear that no Magistrate shall authorise the retention of the accused person in custody under this section for a total period exceeding sixty days.
On the expiry of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail.
So far there is no controversy.
The question arises as to what is the position of the person so released when a challan is subsequently filed by the police." * * * * "Sub section (5) to section 437 is important.
It provides that any court which has released a person on bail under sub section (1) or sub section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
As under Section 167(2) a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under section 437(1) or (2).
Section 437(5) empowers the court to direct that the person so released may be arrested if it considers it necessary to do so.
The power of the court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under section 437(1) or (2) and these provisions are applicable to a person who has been released under Section 167(2).
Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he has committed a nonbailable offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed.
As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released under section 167(2) the mere fact that subsequent to his release a challan has been filed, is not sufficient to commit him to custody.
In this case the bail was cancelled and the appellants were ordered to be arrested and committed to custody on the ground that subsequently a chargesheet had been filed and that before the appellants were directed to be released under Section 167(2) their bail petitions were dismissed on 825 merits by the Session Court and the High Court.
The fact that before an order was passed under Section 167(2) the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action under Section 437(5).
Neither is it a valid ground that subsequent to release of the appellants a challan was filed by the police.
The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5).
This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non bailable offence and that it is necessary that he should be arrested and committed to custody.
It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice.
But it is necessary that the Court should proceed on the basis that he has been deemed to have released under Section 437(1) and (2).
" In Talab Hazi Hussain vs Mondkar, ; a case arising under the old code, the court considered the grounds on which bail might be cancelled.
It was said.
"There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the (inherent) powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial.
Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercise of the (inherent) power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country.
In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the (inherent) power of the High Court can be legitimately 826 invoked.
In regard to non bailable offences there is no need to invoke such power because section 497(5) specifically deals with such cases.
" The result of our discussion and the case law in this: An order for release on bail made under the proviso to section 167(2) is not defeated by lapse of time, the filing of the chargesheet or by remand to custody under section 309(2).
The order for release on bail may however be cancelled under section 437(5) or section 439(2).
Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him.
The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc.
The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties.
He may abuse the liberty granted to him by indulging in similar or other unlawful acts.
Where bail has been granted under the proviso to section 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non bailable offence and that it is necessary to arrest him and commit him to custody.
In the last mentioned case, one would expect very strong grounds indeed.
In the present case, the High Court and following the High Court, the Special Judge have held that the order for release on bail came to an end with the passage of time on the filing of the chargesheet.
That we have explained is not a correct view.
The question now is what is the appropriate order to make? The order for release on bail was not an order on merits but was what one may call an order on default, an order that could be rectified for special reasons after the defect was cured.
The order was made long ago but for one reason or the other, the accused failed to take advantage of the order for several months.
Probably for that reason, the prosecuting agency did not move in the matter and seems to have proceeded on the assumption that the order had lapsed with the filing of the chargesheet.
The question is should we now send the matter down to the High Court to give an opportunity to the prosecution to move that court for cancellation of bail? Having regard to the entirety of the 827 circumstances, the long lapse of time since the original order for bail was made, the consequent change in circumstances and situation, and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under article 136 of the Constitution in these matters at this stage.
The special leave petitions are, therefore, dismissed.
Nothing that we have said is to be construed as an expression of opinion on the merits of the case.
M.L.A. Petitions dismissed.

dataset_name: IN-Abs

summary/full:
The petitioners accused were arrested by the Security Police Patrol Party in the State of Bihar while attempting to cross Indo Nepal border.
One of them was identified Simranjit Singh Mann a dismissed Police Officer who had gone underground after an order of detention under the National Security Act was passed against him.
As a result of 803 the search, currency notes and a number of documents and other articles were seized from the petitioners.
It is alleged that one of the accused also offered a bribe to the police officers.
The police registered a first information report and commenced investigation.
A chargesheet was filed on 11th December, 1985 before judicial Magistrate First Class against the five accused petitioners for offences under sections 121 A, 123, 124 A, 153A, 165 A, 505 and 120 B of the Indian Penal Code.
However, before the chargesheet was filed, the accused petitioner, Simranjit Singh Mann was served with an order of detention under the National Security Act and sent to Bhagalpur jail.
The other four accused were also detained under the National Security Act at Bhagalpur.
All the petitioners moved the Judicial Magistrate for bail in the aforesaid criminal case claiming to be released under proviso (a) of section 167(2) of the Code of Criminal Procedure.
They were granted bail but, they could not be released because of their detention under the National Security Act.
While so, the surety for all the five accused filed a petition requesting the Magistrate to discharge him from suretyship as he did not want to continue to be the surety of the accused persons.
The Magistrate discharged the surety from suretyship and issued formal warrants of arrest under section 444(2) of the Code of Criminal Procedure.
At this stage, the High Court of Punjab and Haryana made an order quashing the detention of Simranjit Singh Mann.
The Magistrate took cognizance of the case under sections 121A, 123, 124A, 153A, 165A and 120B of the Indian Penal Code on December 18, 1985.
Thereafter the investigating Officer filed a petition requesting expeditious trial as the case was one of special importance.
All the petitioners except Simranjit Singh Mann filed fresh bail bonds.
The said bail bonds were rejected on December 20, 1985 as the surety could not name either the accused persons or their fathers.
The accused moved another petition for recalling the order dated December 20, 1985 and accepting the same person as surety.
This petition was rejected on the ground that the earlier order could not be reviewed.
The High Court also rejected the bail applications of these accused persons.
The case was thereafter, transferred to the Special Judge (Vigilance) North Bihar, Patna.
The accused Simranjit Singh Mann moved an application before the Special Judge offering cash security and asking for bail but it was rejected on the ground that the High Court had alread rejected the application of the other four accused.
The case was later transferred to the Court of Special Judge, Bhagalpur and was 804 finally adjourned to August 8, 1986 for arguments on the question of charges to be framed and on the question of jurisdiction.
At this stage, the Special Public Prosecutor filed a petition stating that the offences under section 165 and sections 165A read with section 34 were not committed in the course of the same transaction as the offences under sections 124 A etc., and therefore it was necessary that the offences under sections 165 and 165A read with section 34 should be tried separately from the offences under secs.
124A etc.
The accused also filed a petition to the same effect.
The Special Judge allowed the aforesaid petition holding that the offences were not committed in the course of the same transaction and therefore the trial for the offences under sections 165 and 165A read with section 34 should be separated from the other offences.
It was further held that he was not competent to try the accused for the offences under secs.
121A, 124A etc.
as the case had not been committed to the court of Sessions by the Trial Magistrate and directed that in regard to those offences the record be sent back to the District and Sessions Judge, Purnea for proceeding further in accordance with law.
Alleging that the Special Public Prosecutor had never been instructed to file such a petition before the Special Judge, the respondent State of Bihar filed a writ petition in the High Court and obtained a stay of further proceedings before the Special Judge.
The accused petitioners filed special leave petitions and writ petitions before the Supreme Court against the rejection of their bail applications and for quashing the proceedings before the Special Judge.
It was contended on behalf of the petitioners (a) that the fundamental right of the petitioners under article 21 of the Constitution had been frustrated by the tactics of the State whose only object was to somehow keep the petitioners in prison; (b) that there was no material whatever to substantiate the offences of waging war etc.
and that the proceedings deserved to be quashed on that ground also; (c) that the proceedings before the Special Judge, Purnea were without jurisdiction both for the reason that he was not competent to try the offences under section 121A and section 124A etc.
and also for the reason that he came to be seised of the case at the instance of the Executive Government, who had no authority to transfer the case from the court of the Special Judge, Patna to the Court of the Special Judge, Purnea, since the rule of law would be defeated if the Executive Government were to be permitted to have cases decided by Judges of their choice; (d) that the High Court and the Special Judge were wrong in not permitting the accused to offer fresh sureties or cash security; (e) that the High Court and the Special 805 Judge were wrong in holding that the order of the Magistrate directing them to be released on bail under section 167(2) had come to an end by the passage of time, particularly after cognizance had been taken of the case; (f) that there was no material whatsoever to warrant the framing of charges for any of the offences mentioned in the charge sheet other than sec.
165A; (g) that in the case of the accused persons other than Simranjit Singh Mann, there was nothing whatever to connect them with the offences under sections 121A and 124A. On behalf of the respondent State it was argued that the order for release on bail stood extinguished on the remand of the accused to custody under section 309(2) of the Code of Criminal Procedure.
Dismissing the petitions, ^ HELD: 1.1 The delay in the investigation and in the trial of the case is not so unfair as to warrant quashing the proceedings on the ground of infringement of the right of the accused to a speedy trial, a part of their fundamental right under article 21 of the Constitution.
Having regard to the entirety of the circumstances, the long lapse of time since the original order for bail was made, the consequent change in circumstances and situation, and the directions that were now given for the expeditious disposal of the case, there would be no justification for exercising the court 's discretion to interfere under article 136 of the Constitution at this stage.
[818G H; 827A B] 1.2 The High Court is directed to dispose of the criminal revision petition before it as expeditiously as possible preferably within three or four weeks.
Whatever be its outcome the High Court should also direct the Special Judge or other Judge who may have to try the case, or the cases as the case may be, to try the cases expeditiously setting a near date for the trial and to proceed with the trial from day to day.
[820D ] 2.
The right to a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by article 21 of the Constitution.
The question whether this right has been infringed is ultimately a question of fairness in the administration of criminal justice even as "acting fairly" is of the essence of the principles of natural justice.
A "fair and reasonable procedure" is what is contemplated by the expression "procedure established by law" in article 21.[815F G] Hussainara Khatoon (I) vs State of Bihar, [1979] 3 SCR 169, Kadra Pehadiya (I) vs State of Bihar, AIR 1981 SC 939, Kadra Pehdiya(II) vs State of Bihar, AIR 1982 SC 1167, State of Maharashtra 806 vs Champa Lal Punjaji Shah; , and Menaka Gandhi 's case followed.
Strunk vs United States, 56, Barkar vs Wingo; , and Boll vs Director of Public Prosecutions, Jamaica, [1985] (II) All ER 585, referred to.
3.1 The question whether there was any material whatsoever to warrant the framing of charges for any of the offences mentioned in the charge sheet other than sec.
165A is not a matter to be investigated by the Supreme Court in a petition under article 32 of the Constitution.
This Court cannot convert itself into the court of a Magistrate or a Special Judge to consider whether there is evidence or not justifying the framing of charges.
[819A B] 3.2 The questions relating to the jurisdiction of the Special Judge to try the accused for the offences under secs.
121, 121A, etc.
and the link between the offences under secs.
165A and 165A read with sec.
34 on the one hand and the offences under secs.
121 and 121A etc.
on the other are questions which are awaiting the decision of the High Court.
These questions are left to be decided by the High Court.
[819C] 4.
There was no evil design in the creation of a Special Judge 's court for Purnea Division at Bhagalpur under the Criminal Law Amendment Act and the designation of a Judge to preside over that court.
All that has, in fact happened is that a Special Judge 's court was created for Purnea Division under section 6 of the Criminal Law Amendment Act and Shri Bindeshwari Prasad Verma, Additional District Judge West Champaran, who was under orders of transfer as Additional District Judge Bhagalpur was designated as the Special Judge.
The case Jogbani P.S. No. 110/84, was mentioned within brackets as that was apparently the only case awaiting trial in Purnea Division under the Criminal Law Amendment Act.
The Special Judge 's court was created for Purnea Division as it was thought that it would be more convenient for the accused and also in the interests of security if the case was tried at Bhagalpur where the accused were imprisoned rather than to have the trial of the case at Patna to which place the accused would have to be taken from Bhagalpur for every hearing.
[819E ] 5.
The authorship of seditious material alone is not the gist of any of the offences.
Distribution or circulation of seditious material may also be sufficient on the facts and circumstances of a case.
To act as a courier is sometimes enough in a case of conspiracy.
It is also not 807 necessary that a person should be a participant in a conspiracy from start to finish.
Conspirators may appear and disappear from stage to stage in the course of a conspiracy.
[820B C] In the instant case, whether such evidence as may now be available in the record to justify the framing of charges is a matter for the trial court and not for the Supreme Court.[820C] 6.1 The effect of the proviso to section 167(2) of the Code of Criminal Procedure, 1973, is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days.
A person released on bail under the proviso to section 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter 33 of the Code for the purposes of that Chapter.
That is provided by the proviso to section 167(2) itself.
This means, first, the provisions relating to bonds and sureties are attracted.
Section 441 provides for the execution of bonds, with or without sureties, by persons ordered to be released on bail.
One of the provisions relating to bonds is section 445 which enables the court to accept the deposit of a sum of money in lieu of execution of a bond by the person required to execute it with or without sureties.
If the bond is executed (or the deposit of cash is accepted), the court admitting an accused person to bail is required by section 442(1) to issue an order of release to the officer in charge of the jail in which such accused person is incarcerated.
Sections 441 and 442 are in the nature of provisions for the execution of orders for the release on bail of accused persons.
[821D G] 6.2 There is no limit of time within which the bond may be executed after the order for release on bail is made.
Very often accused persons find it difficult to furnish bail soon after the making of an order for release on bail.
This frequently happens because of the poverty of the accused persons.
It also happens frequently that for various reasons the sureties produced on behalf of accused persons may not be acceptable to the court and fresh sureties will have to be produced in such an event.
The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straight away.
[821G H; 822A] 6.3 Orders for release on bail are effective until an order is made under section 437(5) or section 439(2).
These two provisions enable the Magistrate who has released an accused on bail or the court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody.
The two provisions deal with what is known as cancella 808 tion of bail.
Since release on bail under the proviso to section 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to section 167(2) is also subject to the provisions of section 437(3) and 439(2) and may be extinguished by an order under either of these provisions.
[822A C] 6.4 The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straight away produce a fresh surety.
The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety.
[822E F] 6.5 Section 309(2) merely enables the court to "remand the accused if in custody".
It does not empower the court to remand the accused if he is on bail.
It does not enable the court to "cancel bail" as it were.
That can only be done under section 437(5) and section 439(2).
When an accused person is granted bail, whether under the proviso to section 167(2) or under the provision of Chapter XXXIII the only way the bail may be cancelled is to proceed under section 437(5) or section 439(2).
[822F H] 7.1 An order for release on bail made under the proviso to section 167(2) is not defeated by lapse of time, the filing of the chargesheet or by remand to custody under section 309(2).
The order for release on bail may however be cancelled under section 437(5) or section 439(2).
Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him.
[826B C] 7.2 Where bail has been granted under the proviso to section 167(2) for the default of the prosecution is not completing the investigation in sixty days, after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non bailable offence and that it is necessary to arrest him and commit him to custody.
In the last mentioned case, one would expect very strong grounds indeed.
[826D E] In the instant case, the High Court and following the High Court, the Special Judge have held that the order for release on bail came to an end with the passage of time on the filing of the chargesheet.
That is not a correct view.
The order for release on bail was not an order on merits but was, what one may call an order on default, an order that could be 809 rectified for special reasons after the defect was cured.
The order was made long ago but for one reason or the other, the accused failed to take advantage of the order for several months.
Probably for that reason, the prosecuting agency did not move in the matter and seems to have proceeded on the assumption that the order had lapsed with the filing of the chargesheet.
Having regard to the entirety of circumstances the Court did not exercise its discretion under article 136 of the Constitution.
[826F H] Natabar Parida vs State of Orissa, ; , Bashir vs State of Haryana, ; and Talab Hazi Hussain vs Mondkar, ; , referred to.


judgement:
Civil Appeal No. 2062 of 1972.
From the Judgment and order dated 14.10.1971 of the Punjab and Haryana High Court in Letters Patent Appeal No. 63 of 1971.
951 Rajinder Sacchar, Naunit Lal, Kailash Vasdev and P.R. Ramesesh for the Appellant.
A. Minocha and Mrs. Veena Minocha for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the Judgment of a Division Bench of Punjab & Haryana High Court setting aside order of a Single Judge and also the order made by the Central Govt.
granting extension of time to the appellant to deposit purchase price in connection with the auction sale dated August 24, 1959 held in appellant 's favour, and directing the Rehabilitation Department to take further proceedings regarding auction sale held in favour of the respondents.
Plot No. 168 situate in Jalandhar City, an evacuee property was included in the compensation pool under Sec.
14 of the Displaced Persons (Compensation and Rehabilitation Compensation) Act, 1954.
This plot was put to auction sale on August 24, 1959.
The appellant who was displaced person made the highest bid of Rs.20,000, it was provisionally accepted and he deposited one fifth of the amount at the conclusion of the auction, but he failed to deposit the balance amount.
The Managing officer therefore cancelled the auction sale.
On a Revision Petition filed by the appellant, the Chief Settlement Commissioner by his order dated March 30, 1968 set aside the order of the Managing officer and allowed time to the appellant to deposit the balance of purchase price by May 30, 1968.
The appellant again failed to deposit the amount within time, consequently Settlement officer by his order dated 2.10.1968 cancelled the auction sale made in appellant 's favour.
Thereafter the property was put to auction sale on January 17, 1969.
At that auction sale Sohan Lal and Sunder Lal, respondents who are also displaced persons made their highest bid for Rs.27,025 and they deposited 20% of the amount at the conclusion of the auction.
Meanwhile the appellant preferred an appeal against the order dated 2.10.1968 cancelling the auction sale before the Asstt.
Settlement officer, but the appeal was rejected on 2.4.1969.
The appellant preferred a Revision Petition before the Chief Settlement Commissioner but that too was dismissed on August 13, 1969.
Thereafter the appellant made a petition under sec.
33 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as the Act) before the Central Government.
Shri Rajni 952 Kant exercising the delegated powers of the Central Govt.
set aside the order cancelling the auction sale held on August 24, 1959 and granted 15 days ' time to the appellant for depositing the balance of the purchase price by his order dated February 6, 1970 with a condition that on failure to deposit the balance of the auction price the petition shall stand dismissed.
The appellant again failed to deposit the amount within time, but on a request made by the appellant Shri Rajni Kant extended time till February 28, 1970 for depositing the remaining amount of purchase money.
Admittedly the appellant deposited the remaining auction price by February 28, 1970.
The respondents filed a Writ Petition under Article 226 of the Constitution of India before the Punjab & Haryana High Court challenging the order of Shri Rajni Kant dated February 6, 1970 as well as his subsequent order extending time till February 28, 1970 and also for issue of a direction to the authorities to finalise the auction sale held in their favour on January 17, 1969.
A learned Single Judge after hearing the parties dismissed the petition.
On a Letters Patent Appeal a Division Bench of the High Court allowed the appeal set aside the order of the learned Single Judge dismissing the writ petition, and quashed the order of Shri Rajni Kant granting time to the appellant to deposit the balance amount of the sale price under sec.
33 of the Act.
The Division Bench directed the authorities to finalise the auction sale held in respondents ' favour.
Aggreived the appellant has preferred this appeal on a certificate granted by the High Court.
The High Court held that sale of urban agricultural property which formed part of the compensation pool could be held only in accordance with the Rules framed under the Act as contemplated by sec. 8 and sec.
Since no rules had been framed for the disposal of the urban agricultural property; the Central Government could not lawfully provide for sale of the urban agricultural land by executive directions.
Consequently auction sale held on August 24, 1959 was illegal.
The High Court further held that Sri Rajni Kant exercising the powers under sec.
33 of the Act had no jurisdiction to grant time to the appellant for making deposit or to further extend the time to enable him to deposit balance of auction price by February 28, 1970.
Lastly the High Court held that Shri Rajni Kant had passed orders in violation of natural justice as no notice was issued to the respondents Sohan Lal and Sunder Lal and no opportunity of hearing was afforded to them.
The first question which falls for consideration is as to whether in 953 the absence of the rules the Central Govt.
had authority in law to provide for disposal of urban agricultural land by auction sale.
In order to appreciate the problem it is necessary to refer to the relevant provisions of the Act and the rules.
The Act was enacted by the Parliament to provide for the payment of compensation and rehabilitation of the displaced persons and to provide for matters connected therewith.
A large number of persons had been displaced on account of the civil disturbances which occurred due to partition of the country in 1947.
The Act provides for payment of compensation to the "displaced persons" as defined by sec.
2(b) of the Act.
Section 4 provides for making of an application by displaced persons for payment of compensation.
Section 8 lays down that a displaced person shall be paid compensation as determined under sec.
7 "subject to any rules that may be made under this Act" in any one of the forms, namely: (a) in cash; (b) in Govt.
bonds; (c) by sale to the displaced person of any property from the compensation pool and setting off the purchase money against the compensation payable to him; (d) by any other mode of transfer to the displaced person of any property from the compensation pool and setting off the valuation of the property against the (e) transfer of shares or debentures in any company or corporation; (f) in such other form as may be prescribed.
Section 14 constitutes compensation pool which consists of evacuee property including urban and rural agricultural land.
Section 16 confers power on the Central Govt.
to take such measures as it considers necessary or expedient for the custody, management and "disposal" of the compensation pool in order that it may be effectively utilised in accordance with the provisions of the Act.
20 provides that subject to any rules that may be made under the Act the Managing officer or Managing Corporation may transfer any property by sale or by lease to a displaced person or by allotment or in any other manner as may be prescribed.
Section 40 confers power, on the Central 954 Government to frame rules to carry out the purpose of the Act.
Subsec.
(2) specifies the matters in respect of which rules may provide for payment of compensation.
Clause (j) provides for framing of rules laying down procedure for transfer of property out of the compensation pool and the manner of realisation of the sale proceeds or the adjust ment of the value of the property transferred against the amount of compensation.
The Central Govt.
in exercise of its powers under the Act framed rules known as the "Displaced Persons (Compensation & Rehabilitation) Rules 1955.
These rules were notified on May 21, 1955.
The rules did not contain any express provision for the disposal of urban agricultural property by sale.
Since the Central Govt.
had not framed rules regulating the disposal by sale or otherwise of urban agricultural land forming part of the compensation pool, it issued press notes and memorandum in 1957 & 1958 containing executive directions laying down principles and procedure for the transfer of urban agricultural land to displaced persons.
According to these directions the evacuee urban agricultural land was to be disposed of in the same manner as other urban evacuee property.
These directions accordingly authorised disposal of the urban agricultural property by auction sale in case the value of the property was more than Rs. 10,000.
The auction sale of the plot in dispute on August 24, 1959 was held in accordance with the aforesaid directions issued by the Central Govt.
The High Court has held that the disposal of property forming part of the compensation pool was "subject" to the rules framed as contemplated by sections 8 and 40 of the Act and since no rules had been framed by the Central Government with regard to the disposal of the urban agricultural property forming part of the compensation pool, the authority constituted under the Act had no jurisdiction to dispose of urban agricultural property by auction sale.
Unless rules were framed as contemplated by the Act, according to the High Court the Central Govt.
had no authority in law to issue executive directions for the sale and disposal of urban agricultural property.
This view was taken, placing reliance on an earlier decision of a Deviation Bench of that Could in "Bishan Singh vs The Central Govt.
& Ors.
", 1961 (63) Punjab Law Reporter P. 75.
The Division Bench in Bishan 's case took the view that since the disposal of the compensation pool property was subject to the rules that may be made, and as no rules had been framed, the Central Govt.
had no authority in law to issue administrative directions providing for the transfer of the urban agricultural land by auction sale.
In our opinion the view taken by the High Court is incorrect.
Where a statute confers powers on an authority to do certain 955 acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of Rules unless the statute expressly provides for the same.
In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute.
The expression "subject to the Rules only means, in accordance with the rules, if any.
If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules.
But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute.
In "T. Cajee vs U. Jormanik Siem & Anr.
"; , the Supreme Court reversed the order of the High Court whereby the order of District Council removing Siem, was quashed by the High Court on the ground that the District Council had not framed any rules for the exercise of its powers as contemplated by para 3(1) (g) of 6th Schedule to the Constitution.
The High Court had taken the view that until a law as contemplated by para 3(1) (g) was made there could be no question of exercise of power of appointment of a Chief or Siem or removal either.
Setting aside the order of the High Court, a Constitution Bench of this Court held that the administration of the District including the appointment or removal of Siem could not come to a stop till regulations under para 3(1) (g) were framed.
The view taken by the High Court that there could be no appointment or removal by the District Council without framing of the Regulation was set aside.
Similar view was taken by this Court in B.N. Nagarajan & Ors.
vs State of Mysore & Ors.
, , Mysore State Road Transport Corporation vs Gopinath, ; In U.P. State Electricity Board vs City Board Mussoorie & Ors., ; validity of fixation of Grid Tarrif was under challenge.
Section 46 of the provide that tariff known as the Grid Tariff shall be fixed from time to time in accordance with any regulations made in that behalf.
Section 79 of the Act conferred power on the Electricity Board to frame regulations.
The contention that Grid Tariff as contemplated by sec.
46 of the could not be fixed in the absence of any regulations laying down for fixation of tariff, and that the notification fixing tariff in the absence of such Regulations was illegal, was rejected and this Court observed "It is true that sec.
79(h) of the Act authorises the Electricity Board to make Regulations laying down the principles governing the fixing of Grid Tariffs.
But section 46(1) of the Act does not say that no Grid Tariff can be fixed until such 956 regulations are made.
It only provides that the Grid Tariff shall be in accordance with any Regulations and nothing more.
We are of the view that the framing of regulations under sec.
79(h) of the Act cannot be a condition precedent for fixing Grid Tariff." As noted earlier sections 8 and 20 of the Act provide for payment of compensation to displaced persons in any of the forms as specified including by sale to the displaced persons of any property from the compensation pool and setting off the purchase money against the compensation payable to him.
16 confers power on the Central Govt.
to take measures which it may consider necessary for the custody, management and disposal of the compensation pool property.
The Central Govt.
had therefore ample powers to take steps for disposal of pool property by auction sale and for that purpose it had authority to issue administrative directions.
40(2) (j) provides for framing of rules prescribing procedure for the transfer of property out of the compensation pool and the adjustment of the value of the property so transferred against the amount of compensation.
Neither sections 8, 16, 20 or sec.
40 lays down that payment of compensation by sale of the pool property to a displaced person shall not be done unless rules are framed.
These provisions confer power on the Central Government and the authorities constituted under the Act to pay compensation to displaced persons by sale, or allotment of pool property to them in accordance with rules, if any.
Framing of rules regulating the mode or manner of disposal of urban agricultural property by sale to a displaced person is not a condition precedent for the exercise of power by the authorities concerned under sections 8, 16 and 20 of the Act.
If the legislative intent was that until and unless rules were framed power conferred on the authority under sections 8, 16 and 20 could not be exercised, that intent could have been made clear by using the expressing "except in accordance with the rules framed" a displaced person shall not be paid compensation by sale of pool property.
In the absence of any such provision the framing of rules, could not be a condition precedent for the exercise of power.
The Central Govt.
had ample jurisdiction to issue administrative directions regulating the payment of compensation to the displaced persons by sale of the urban agricultural property.
The view taken by the High Court in Bishan Singh 's case (supra) is not sustainable.
The High Court was therefore in error in holding that the auction sale held in appellant 's favour on August 24, 1959 was illegal and void .
957 The second question relates to the validity of the order of Shri Rajni Kant the officer to whom power under section 33 was delegated, extending time to enable the appellant to deposit the auction sale money.
Shri Rajni Kant by his order dated 6.2.70 exercising the delegated powers of the Central Govt.
under sec.
33 of the Act set aside the order cancelling the auction sale held in August 1959 and permitted the appellant to deposit the balance of the purchase money within fifteen days from the date of the order with a default clause that on his failure his petition would stand dismissed.
In accordance with that order appellant was entitled to deposit the money till February 21, 1970.
It appears that on appellant 's request the office prepared a challan which was valid up to February 20, 1970.
The appellant went to the State Bank on February 20, 1970 to make the deposit but due to rush he could not make the deposit.
On his application Shri Rajni Kant extended the time permitting the deposit by 28.2.1970 as a result of which a fresh challan was prepared which was valid up to 28.2.1970 and within that period appellant deposited the balance purchase money.
The subsequent order of Shri Rajni Kant was challenged by the respondents and the High Court has quashed that order, although that order was not before the High Court as none of the parties filed the same.
The respondents who had challenged the order of Shri Rajni Kant should have filed a copy of the order.
In the absence of the order under challenge the High Court could not quash the same.
Normally whenever an order of Govt.
Or some authority is impugned before the High Court under article 226 of the Constitution, the copy of the order must be produced before it.
In the absence of the impugned order it would not be possible to ascertain the reasons which may have impelled the authority to pass the order.
It is therefore improper to quash an order which is not produced before the High Court in a proceeding under article 226 of the Constitution.
The order of the High Court could be set aside for this reason, but we think it necessary to consider the merits also.
33 reads as under: "Certain residuary powers of Central Govt.
The Central Govt.
may at any time call for the record of any proceeding under this Act and may pass such order in relation thereto as in its opinion the circumstances of the case require and as is not inconsistent with any of the provisions contained in this Act or the rules made thereunder.
" The power conferred upon the Central Govt.
under this provi 958 sion is a residuary power in nature as the title of the section itself indicates.
By enacting this section Parliament has conferred wide powers on the Central Govt.
to call for the record of any case and to pass any order which it may think fit in the circumstances of the case.
The only limitation on exercise of this power is that the Central Govt.
shall not pass any order which may be inconsistent with any of the provisions of the Act and the rules made thereunder.
Therefore the Central Govt.
Or the delegated authority has power to set aside any order of the subordinate authorities, or to issue directions which it may consider necessary on the facts of a case.
subject to the aforesaid rider.
This power is intended to be used to do justice and to mitigate hard t ship to a party unriddled by technicalities.
Sri Rajni Kant while exercising powers of the Central Govt.
under sec.
33 of the Act had ample jurisdiction to set aside the orders of the subordinate authorities cancelling the auction held on August 24, 1959 and to permit the appellant to deposit the balance amount of the purchase money and he further had jurisdiction to extend the time initially granted by him.
Extension of time to enable the appellant to deposit the money did not amount to review of the earlier order dated 6.2.70.
In our opinion the High Court has committed error in holding that extension of time amounted to review of the order dt.
6.2.1970.
The default clause in the initial order dt.
6.2.1970 was intended to ensure compliance of the order.
It did not mean that on expiry of the stipulated period Sri Rajni Kant had no power to extend the period or to pass another order.
The purpose and object of such orders was considered by this Court in Mahanth Ram Das vs Ganga Das ; where the High Court, had granted time to the appellant for payment of deficit court fee with a condition that in default the appeal shall stand dismissed.
The appellant made an application for extension of time but the High Court rejected the application on the ground that grant of time would amount the review of earlier order.
This Court while setting aside the High Court 's order, observed: "Such procedural orders though peremptory (conditional decrees apart) are, in essence, in terrorem, so that dilatory litigants might put themselves in order and avoid delay.
They do not, however, completely stop a Court from taking note of events and circumstances which happen within the time fixed. " This Court further held that the court was not powerless to deal with events which may have taken place subsequently and the court 959 has power to mould its practice to meet a situation.
In the instant case, the Central Govt.
has very wide powers and it could mould its practice in order to mitigate hardship which may be caused to a party in the circumstances of a case and for that purpose it may grant or extend time as it may consider fit in the circumstances of a case having regard to subsequent events.
Such orders do not amount to review.
Sri Rajni Kant had no doubt passed a peremptory order but nonetheless he had jurisdiction to take into account subsequent events and to enlarge time granted to the appellant for making the deposit as that order was not inconsistent with any provision of the Act or Rules.
In our opinion the High Court committed an error in holding that by granting time Sri Rajni Kant had reviewed his earlier order.
The High Court has further held that Sri Rajni Kant had acted in violation of principles of natural justice in passing orders in appellant 's favour as no notice or opportunity of hearing was afforded to respondents Sohan Lal and Sunder Lal.
There is no dispute that after cancellation of the auction sale held in appellant 's favour, the property in dispute was again put to auction sale on January 17, 1969 and at that auction sale Sohan Lal and Sunder Lal respondents were the highest bidders.
Their bid was provisionally accepted and in pursuance thereof they deposited one fifth of the auction sale amount.
If the Central Govt.
Or any other authority exercising power under sec.
33 of the Act were to set aside the order cancelling the auction sale held in appellant 's favour and if he was permitted to deposit the remaining amount of the purchase money the property would be transferred to him and in that event Sohan Lal and Sunder Lal who had also made the highest bid and made the initial deposit would suffer prejudice as they would not be entitled to the property in dispute.
In these circumstances the respondents were interested in supporting the order of cancellation of the auction sale made in appellant 's favour and they had sufficient interest in proceedings taken under sec.
33 of the Act.
We therefore agree with the High Court that in all fairness, respondents should have been afforded opportunity of hearing to the respondents while exercising power under sec.
33 of the Act.
Learned counsel for the appellant urged that the respondents being the highest bidders at the subsequent auction sale had no right in the property and as such they were not entitled to any opportunity of hearing before the Central Govt.
He placed reliance on a decision of this Court in Bombay Salt and Chemical vs Johnson & Ors., AIR 1958 SC 289.
We have considered the said decision, where in this Court has 960 taken the view that the highest bidder at an auction sale does not get any right or interest in the property till the auction sale is approved, confirmed and the sale deed is executed in his favour.
The respondents even though they were the highest bidders at the subsequent auction sale do not have any right or interest in the 'property ' in dispute.
The question is however not whether they have any 'right or interest ' in the property but whether they would be prejudicially affected.
They would certainly be affected, adversely if the appellant get relief in proceedings under sec.
33 of the Act in respect of the said property.
Respondents have been in possession of the property since long and further more on the basis of their highest bid made at the subsequent sale they have sufficient interest in the matter to contest the appellant 's petition made under sec.
33 of the Act.
We are therefore in agreement with the High Court that respondents should have been afforded opportunity of hearing before any order on the appellant 's petition was passed.
Since no such opportunity was afforded, the High Court was justified in quashing the orders of Sri Rajni Kant.
We accordingly uphold the High Court 's order to that extent.
We therefore allow the appeal partly and modify the order of the High Court to the extent indicated hereinabove.
The Central Government or the authority exercising its power under sec.
33 of the Act is directed to consider the appellant 's petition afresh in accordance with law after giving notice and affording opportunity of hearing to Sohan Lal and Sunder Lal, respondents.
In these circumstances of the case there will be no order as to costs.
A.P.J. Appeal allowed in part.

summary/full:
The plot in question, being an evacuee property was included in the compensation pool under section 14 of the Displaced Persons (Compensation and Rehabilitation Compensation) Act, 1954 and put to auction sale on August 24, 1959.
The highest bid of the appellant was provision ally accepted and he deposited l/5th of the amount, but failed to deposit the balance amount.
The Managing officer, therefore, cancelled the auction sale.
The Chief Settlement Commissioner set aside the order of the Managing officer and allowed time to the appellant to deposit the balance of purchase price by May 30, 1968, but the appellant again failed to deposit the amount within time.
Consequently the Settlement officer by his order dated October 2, 1968 cancelled the auction sale made in appellant 's favour and the property was put to auction sale on January 17, 1969.
Respondents Nos. 2 and 3 made the highest bid and deposited 20% of the amount.
The appellant appealed before the Assistant Settlement officer against the order dated October 2, 1968 cancelling the auction sale, which was rejected on April 2, 1969.
His revision petition was also dismissed on August 13, 1969.
However, in the petition under section 33 of the Act made before the Central Government, the order cancelling the auction sale held on August 24, 1959 was 947 set aside by the authority exercising the delegated powers of the Central Government and granted 15 days ' time to the appellant for depositing the balance of the purchase price with a condition that on failure to deposit the balance of the auction price the petition shall stand dismissed.
The appellant again failed to deposit the amount within time, but on a request made by him, the time was extended till February 28, 1970 and the appellant deposited the remaining auction price within the extended time.
A petition under Article 226 filed by the respondents Nos. 2 and 3 challenging the order dated February 6, 1970 setting aside the order cancelling the auction sale held on August 24, 1959 and order extending time till February 28, 1970 and also for a direction to the authorities to finalise the auction sale held in their favour on January 17, 1969 was dismissed by a Single Judge.
The Division Bench, however, allowed the Letters Patent Appeal, quashed the orders of delegated authority and directed the authorities to finalise the auction sale held in respondents ' favour and held: (1) that sale of urban agricultural property which formed part of the compensation pool could be held only in accordance with the Rules framed under the Act as contemplated by sections 8 and 40.
Since no rules had been framed for the disposal of the urban agricultural property, the Central Government could not lawfully provide for sale of the urban agricultural land by executive directions and consequently auction sale held on August 24, 1959 was illegal; (2) that the delegated authority exercising powers under section 33 had no jurisdiction to grant time to the appellant for making deposit or to further extend the time to enable him to deposit balance of auction price by February 28, 1970; and (3) that the delegated authority had passed orders in violation of natural justice as no notice was issued to the respondent Nos. 2 and 3 and no opportunity of hearing was afforded to them.
Allowing the appellant 's appeal partly and modifying the order of the High Court, the Court, ^ HELD: 1.
Sections X and 20 of the Displaced Persons (Compensation and Rehabilitation Compensation) Act 1954 provide for payment of compensation to displaced persons in any of the forms as specified including by sale to the displaced persons of any property from the compensation pool and setting off the purchase money against the compensation to them.
[956B C] 2.
Section 16 confers power on the Central Government to take 948 measures which it may consider necessary for the custody, management and disposal of compensation pool property.
The Central Government had, therefore, ample powers to take steps for disposal of pool property by auction sale and for that purpose it had authority to issue administrative directions.
[956C D] 3.
Section 40(2) (j) of the Act provides for framing of rules prescribing procedure for the transfer of property out of the compensation pool and the adjustment of the value of the property so transferred against the amount of compensation.
Neither section 8, 16, 20 nor section 40 lay down that payment of compensation by sale of the pool property to a displaced person shall not be done unless rules are framed.
These provisions confer power on the Central Government and the authorities constituted under the Act to pay compensation to displaced persons by sale, or allotment of pool property to them in accordance with rules, if any.
[956D E] 4.
Framing of rules regulating the mode or manner of disposal of urban agricultural property by sale to a displaced person is not a condition precedent for the exercise of power by the authorities concerned under sections 8, 16 and 20.
If the legislative intent was that until and unless rules were framed power conferred under the said sections could not be exercised, that intent could have been made clear by using the expression "except in accordance with the rules framed" a displaced person shall not be paid compensation by sale of pool property.
In the absence of any such provision the framing of rules, could not be a condition precedent for the exercise of power.
[956E G] 5.
Where a statute confers powers on an authority to do certain act or exercise power in respect of certain matters subject to rules, the exercise of such power does not depend on the existence of Rules unless the statute expressly provides for the same.
In other words, framing of rules is not a condition precedent to the exercise of the power expressly and unconditionally conferred by the statute.
[954H; 955A B] 6.
The expression "subject to Rules" only means in accordance with the rules, if any.
If rules are framed, the powers so conferred on authority could be exercised in accordance with those rules.
But if no rules are framed, there is no void and the authority is not precluded from exercising the Power conferred by the statute.
[955B C] Bishan Singh vs The Central Govt.
and others 1961(63) Punjab Law Reporter p. 75, over ruled.
949 T. Cajee vs U. Jormanik Siem and Anr.
, ; , B.N. Nagarajan and Ors.
vs State of Mysore and Ors.
, , Mysore State Road Transport Corporation vs Gopinath, ; , U.P. State Electricity Board vs City Board Mussoorie and Ors., ; , relied upon.
The Central Government had ample jurisdiction to issue administrative directions regulating the payment of compensation to the displaced persons by sale of the urban agricultural property.
The view taken by the High Court in Bishan Singh 's case is not sustainable.
The High Court was, therefore, in error in holding that the auction sale held in appellant 's favour on August 24, 1959 was illegal and void.
[956G H] 8.
So far as the challenge to the validity of the order of the delegated authority extending time to enable the appellant to deposit the auction sale money is concerned, the High Court had quashed the same although that order was not before it, as none of the parties filed the same.
Respondents who had challenged that order should have filed a copy thereof.
In the absence of the impugned order the High Court could not quash the same.
(9) Normally whenever an order of Government or some authority is impugned before the High Court under Article 226 of the Constitution, the copy of the order must be produced before it.
In the absence of the impugned order it could not be possible to ascertain the reasons which may have impelled the authority to pass the order.
It is, therefore, improper to quash the order which is not produced before the High Court in a proceeding under Article 226 of the Constitution.
[957E F] (10) The power conferred upon the Central Government under section 33 of the Act is a residuary power in nature.
It confers wide powers on the Central Government to call for the record of any case and to pass any order which it may think fit in the circumstances of the case.
The only limitation on exercise of this power is that the Central Government shall not pass any order which may be inconsistent with any of the provisions of the Act and the rules made thereunder.
Therefore, the Central Government or the delegated authority has power to set aside any order of the subordinate authorities, or to issue directions which it may consider necessary on the facts, of the case subject to the aforesaid rider.
This power is intended to be used to do justice and to mitigate hardship to a party unbriddled by technicalities.
Therefore, the 950 delegated authority while exercising powers of the Central Government under section 33 had ample jurisdiction to grant time.
[957H; 958A C] 11.
Extension of time to enable the appellant to deposit the money did not amount to review of the earlier order dated 6.2.70 and the default cause therein was intended to ensure compliance of the order.
[958D] Mahanta Ram Das vs Ganga Das, ; , relied upon.
After cancellation of the auction sale held in appellant 's favour, the property in dispute was again put to auction sale and at that auction sale respondent Nos. 2 and 3 were the highest bidders.
Their bid was provisionally accepted and they had deposited one fifth of the auction sale amount.
[959D E] 13.
The highest bidder at an auction sale does not get any right or interest in the property till the auction sale is approved, confirmed and the sale deed is executed in his favour.
The respondents have been in possession of the property since long and furthermore on the basis of their highest bid made at the subsequent sale they had sufficient interest in the matter to contest the appellant 's petition made under section 33 of the Act.
The High Court was, therefore, right in holding that the respondents should have been afforded opportunity of hearing before any order on the appellant 's petition was passed.
Since no such opportunity was afforded, the High Court was justified in quashing the order.
The High Court 's order to that extent is upheld.
[960A D] Bombay Salt and Chemical vs Johnson and Ors., AIR 1958 SC 289, referred to.
The Central Government or the authority exercising its power under section 33 of the Act is directed to consider the appellant 's petition afresh in accordance with law after giving notice and affording opportunity of hearing to respondent Nos. 2 and 3.
[960D E]