judgement:
ivil Appeal No. 2792 of 1988 Etc.
From the Judgment and Order dated 27.7.1988 of the Bombay High Court in W.P. No. 3264 of 1988.
G. Ramaswamy, Additional Solicitor General, T.R. Andya rujuna, V.V. Vaze, V.M. Tarkude, D.N. Misra, M.D. Siodia, Pinaki Misra, P.H. Parekh, Ms. Sunita Sharma, A.M. Khanwil kar, A.S. Bhasme, Dalveer Bhandari, Vijay Thorat, Raian Karanjawala, Mrs. Manik Karanjawala, Ms. Meenakshi Arora, V.D. Khanna, Rameshwar Nath, B.R. Agarwal, P.K. Pillai, P.N. Gupta, Shri Narain, Madhuri Gokhale, Prangalia and N. Nettar for the appearing parties.
The Judgment of the Court was delivered by DUTT, J.
The principal point involved in these appeals relates to the constitutional validity of rule 4(A) of the Rules flamed by the Bombay Municipal Corporation for admis sion to post graduate degree and diploma courses in its medical colleges framed on June 18, 1988 and rule 5 framed under the Government Resolution dated June 18, 1971 for admission to the Government Medical College, both the rules providing for collegewise institutional preference for admission in the M.D. Course.
By the impugned judgment, the High Court allowed the writ petitions out of which these appeals arise, and struck down the impugned rule 4(A) in whole and rule 5 (wrongly stated as rule 6 in the High Court judgment), in so far as it applies to the Government Medical College in the city of Bombay, as discriminatory and viola tive of Article 14 of the Constitution and, accordingly, invalid.
Rule 4(A) is as follows: "4.
PREFERENCE: (A) While selecting candidates for admission to the postgraduate courses preference will be given in the following order: 922 (a) Candidates applying for admission at the parent institution.
(Note: Parent institution means the medical college at which the candidate has passed his qualifying examination).
(b) Candidates who have graduated from other Municipal Medical Colleges in Brihan Mumbai.
" Relevant portion of rule 5 framed under the Government Resolution dated June 18, 1971 reads as follows: " 5. . . . . . . . . . .
While selecting from amongst eligi ble candidates preference will be given to the students of that college i.e. who passed their final M.B.B.S. Examination from that college in Broad specialities and their ancillary discipline.
" There are four medical colleges in the city of Bombay, and affiliated to the University of Bombay.
Of these four medical colleges, three are run and conducted by the Bombay Municipal Corporation, namely, Lokmanya Tilak Memorial Medical College (LTMMC), Seth G.S. Medical College (GSMC) and Topiwalla National Medical College (TNMC).
The only college that is being run by the Maharashtra Government in the city of Bombay is Grant Medical College (GMC).
It is not necessary to state in details the facts leading to the filing of the writ petitions before the High Court out of which these appeals arise.
Suffice it to say that some candidates who were not admitted in the M.D. Course in the respective colleges from which they had passed their MBBS Examination, were not also admitted in the other medical colleges in the city of Bombay, in view of collegewise institutional preference as provided by rule 4(A) in respect of three Municipal Colleges and by rule 5 relating to GMC, the Maharashtra Government College.
The High Court, as stated already, struck down rule 4(A) and rule 5 in part and allowed the writ petitions.
Hence these appeals by special leave.
It is Urged by Mr. G. Ramaswamy, the learned Additional Solicitor General, that this Court in Dr. Pradeep Jain vs Union of India & Ors., ; has given sufficient indication of its approval 923 of collegewise institutional preference.
While the learned Additional Solicitor General frankly concedes that he is not in a position to support cent percent institutional prefer ence or reservation of seats for admission in the M.D. Course in the Municipal Colleges and the Government College in the city of Bombay, such preference or reservation in respect of certain percentage of seats is quite permissible and will not be hit by the provision of Article 14 of the Constitution.
In Pradeep Jain 's case, the question that has been considered by this Court as noted by Bhagwati, J. (as he then was) is whether, consistently with the constitutional values, admissions to a medical college or any other insti tution of higher learning situate in a State can be confined to those who have their domicile within the State or who are resident within the State for a specified number of years or can any reservation in admissions be made for them so as to give them precedence over those who do not possess domicile or residential qualification within the State, irrespective of merit.
The question that has been formulated and consid ered does not show, on the face of it, that collegewise institutional preference was also involved as a part of the question.
It has been ruled in Pradeep Jain 's case that effort must always be to select the best and most meritori ous students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country, and that it would be against na tional interest to admit in medical colleges or other insti tutions giving instruction in specialities, less meritorious students when more meritorious students are available.
So, wholesale reservation on the basis of domicile or residen tial requirement within the State or on the basis of insti tutional preference for students who have passed the quali fying examination held by the University or the State ex cluding all students not satisfying this requirement, re gardless of merit, has been condemned.
The Court took the view that reservation of seats based on residential require ment within the State or on institutional preference should, in no event, exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservation validly made, the 70 per cent reserva tions needs to be reduced if the Indian Medical Council determines a shorter outer limit.
The institutional preference that has been referred to in the observation of Bhagwati, J. does not at all relate to collegewise institutional preference, with which we are concerned.
The learned Additional Solicitor General has, however, placed strong reliance on the following observation made by Bhagwati, J. in Pradeep Jain 's case which is ex tracted below: 924 "We are therefore of the view that so far as admissions to post graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence re quirement within the State or on institutional preference.
But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the State shall not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed M.B.B .S. course from a medical college or university may be given preference for admission to the post graduate course in the same medical colleges or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course.
This outer limit which we are fixing will also be subject to revision on the lower side by the Indian Medical Council in the same manner as directed by us in the case of admissions to the M.B.B.S. course.
But, even in regard to admis sions to the post graduate course, we would direct that so far as super specialities such as neuro surgery and cardiology are concerned, there should be no reservation at all even on the basis of institutional preference and admissions should be granted purely on merit on all India basis.
" It is urged by the learned Additional Solicitor General that in Pradeep Jain 's case collegewise institutional pref erence has been recognised and upheld, as is apparent from ,the above observation, particularly from the observation "a certain percentage of seats may, in the present circum stances, be reserved on the basis of institutional prefer ence in the sense that a student who has passed MBBS Course from a medical college or University may be given preference for admission to the post graduate course in the same medi cal colleges or university, but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats avail able for admission to the post graduate course.
" It is true the expression "institutional preference" has been used in the said observation in respect of a medical college or a university, but we do not think that in making that observa tion Bhagwati, J. had in his mind 925 collegewise institutional preference.
Any observation in a judgment has to be read and understood in the context of facts of that particular case in respect of which such observation has been made.
As has been pointed out, the question that has been considered in Pradeep Jain 's case relates to reservation of seats in medical colleges on the ground of domicile or residential qualification within the State irrespective of merit.
It was not the case of anybody that reservation of seats.
should be made on the ground of collegewise institutional preference.
The institutional preference that was considered in the case was university wise institutional preference and not collegewise institu tional preference.
It is also apparent from the judgment of Amarendra Nath Sen, J., who delivered a separate but concur ring judgment, that the Court had no occasion to consider the question of collegewise institutional preference in matters of admission to M.D. Course.
In the circumstances, we are unable to accept the contention of the learned Addi tional Solicitor General that this Court in Pradeep 's Jain 's case has upheld or recognised collegewise institutional preference of seats in medical colleges for admission in M.D. Course.
The position is clarified in a subsequent decision of this Court in Nidamarti Mahesh Kumar vs State of Maharashtra and others; , which related to the constitu tional validity of regionwise reservation of seats in medi cal colleges.
It has been observed by Bhagwati, C.J. that where the region from which the students of a university are largely drawn is backward either from the point of view of opportunities for medical education or availability of competent and adequate medical services, it will be consti tutionally permissible, without violating the mandate of the equality clause to provide a high percentage of reservation or preference for students coming from that region because without reservation or preference students from such back ward region will hardly be able to compete with those from advanced regions, since they would not have adequate oppor tunity for development so as to be in a position to compete with others.
Further, it has been observed that it would not be unconstitutional for the State to provide for reservation or preference in respect of a certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the State Government is on the higher side, it would not fall foul of the constitutional mandate of equality.
In respect of such reservation of preference the reasons that have been given are that it would cause considerable hardship and incon 926 venience if students residing in the region of a particular university are compelled to move to the region of another university for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reserva tion or preference regionwise.
There may be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result, they would be effectively deprived of real opportu nity for pursuing the medical course even though on paper they would have got admission in the medical college.
Fur ther, it has been pointed out that some difficulty would arise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical educa tion in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available, the parents may hesitate to send them to the hotels.
Even with regard to regionwise reservation of certain percentage of seats in medical colleges, except for the reasons mentioned above, this Court in Nidamarti 's case has turned down the contention that the provision of the im pugned rule, that is, students from a school or college situate within the jurisdiction of a particular university would not be eligible for admission to medical college or colleges situate in the jurisdiction of another university, but would be confined only to medical college or ,colleges within the jurisdiction of the same university, was intended to give protection to students in certain rural areaS, the population of which is socially, economically and education ally backward, for otherwise they would have not been able to compete with students from advanced regions and, conse quently, the classification made by the provision was con stitutionally permissible.
Thus, except in certain circum stances, even regionwise reservation of seats in medical colleges has not been approved by this Court.
In Pradeep Jain 's case, merely because the expression "institutional preference" has been used with reference to a student pass ing the MBBS Course from a medical college or a university, it does not necessarily follow that the Court had in its contemplation or was laying down collegewise institutional preference.
In support of the contention that collegewise institu tional preference or reservation of seats was in the contem plation of this Court, reliance has been placed on behalf of the appellants on an earlier 927 decision of this court in Jagdish Saran & Ors.
vs Union of India & Ors.
, ; In that case, of the three learned Judges, Krishna Iyer, J. delivered the judgment for himself and for Chinnappa Reddy, J. Pathak, J. (as he then was) agreed with the judgment of Krishna Iyer, J. that the writ petition should be dismissed, but he gave his own reasons.
The reasons of Pathak, J. are, inter alia, con tained in the following observations: "It is not beyond reason that a student who enters a medical college for his graduate studies and pursues them for the requisite period of years should prefer on graduation to continue in the same institution for his post graduate studies.
There is the strong argument of convenience, of stability and familiarity with an educational environment which in different parts of the country is subject to varying economic and psychological pressures.
But much more than convenience is involved.
There are all the advantages of a continuing frame of educational experience in the same educational institution.
It must be remembered that it is not an entirely differ ent course of studies which is contemplated; it is a specialised and deeper experience in what has gone before.
The student has become familiar with the teaching techniques and standards of scholarship, and has adjusted his responses and reactions accordingly.
The continuity of studies ensures a higher degree of competence in the assimilation of knowledge and experience.
Not infrequently some of the same staff of Professors and Readers may lecture to the post graduate classes also.
Over the under graduate years the teacher has come to understand the particular needs of the student, where he excels and where he needs an especial encouragement in the removal of deficiencies.
In my judgment, there is good reason in an educational institution extending a certain degree of preference to its graduate for admission to its post graduate classes.
The preference is based on a reasonable clas sification and bears a just relationship to the object of the education provided in the post graduate classes.
The concept of equality codified in our constitutional system is not violated.
It has been said sometimes that classification contradicts equality.
To my mind, classification is a feature of the very core of equality.
It is a vital concept in ensuring equality, for those who are similarly situated alone from a class between them selves, and the classification is not 928 vulnerable to challenge if its constituent basis is reasonably related to achieving the object of the concerned law.
An institutional preference of the kind considered here does not offend the constitutional guarantee of equality.
" The above observations or reasons should not be read or understood dehors the facts and the questions involved for the determination of this Court.
The facts of that case will be stated presently.
The University of Delhi has many post graduate and diploma courses in the faculty of medicine providing in all 250 seats.
The three medical colleges in Delhi turn out annually 400 medical graduates who get house jobs in the local hospitals and qualify themselves for postgraduate course.
As the graduates from the Delhi Univer sity could not be accommodated fully or even in part for the post graduate course in Medicine and as these graduates were not considered for admission into other universities, Delhi University had earmarked some seats at the post graduate level in Medicine for the medical graduates of Delhi Univer sity.
By the impugened rule, 70 per cent of the seats at the post graduate level was reserved for Delhi graduates and 30 per cent of the seats was kept open to all including gradu ates of Delhi.
It was, therefore, not a case of collegewise reservation, but 70 per cent reservation of seats in the medical colleges under the Delhi University for the medical graduates of that University.
The question of collegewise institutional preference or reservation of seats did not at all arise, nor was it argued or sought to be decided in Jagdish Saran 's case.
It is true that the observation of Pathak, J., without reference to the context of the facts and the question involved in that case, may support to some extent the contention of the appellants, but the contention has to be rejected on a reference to the facts and the question involved in that case.
It is, however, submitted by the learned Additional Solicitor General that there are some special facts and circumstances which justify collegewise reservation as provided by the impugned rules 4(A) and 5.
It is stated by him that while the theoretical examinations in MBBS Course are conducted by the University, the practical examinations involving 50 per cent of the total marks are held by the individual colleges.
Counsel submits that in such circum stances the merits of the candidates passing the MBBS Exami nation from these four colleges are difficult to be compared and evaluated for the purpose of admission in the M.D. Course.
This submission has also been made by Mr. Baze, learned Counsel appearing on behalf of the University of Bombay.
929 We regret, we are unable to accept such a contention.
It is not disputed that in each college the practical examina tions are conducted by a set of four examiners consisting of one internal examiner from the same college, one external examiner from one of the other three colleges and two exter nal examiners from outside Bombay.
Thus, excepting one internal examiner, three other examiners are external exam iners and all those examiners are presumably appointed by the University.
These examiners are of high academic quali fications and we fail to understand why they would deviate from the standard prescribed by the University for the assessment and evaluation of the merits of the students in the practical examinations.
There is, therefore, no sub stance in the contention that the standard of examination and evaluation of the merits of students in such practical examinations differ from college to college.
Indeed, no material has been placed before us in support of the conten tion that different standards are adopted by the colleges in MBBS practical examinations.
Equally untenable is the con tention that because of institutional preference, the dif ferent marks given by different colleges do not affect the students, as it is the relative merit of the student in the same college which matters in the selection of post graduate students.
We do not find any justification for the apprehen sion that if the institutional preference is removed and all the candidates from the University are pooled together, a process of dilution and undesirable racing are likely to start making a mockery of the examination system and creat ing mad race of overtaking the other colleges.
This appre hension has been expressed by the Dean of Lokmanya Tilak Memorial Medical College in his.
affidavit filed before the High Court.
Another ground in justification of collegewise institu tional preference which has been relied on by the Dean in his affidavit and urged before us on behalf of the appel lants is that the facilities differ from college to college in respect of the pattern of patients coming to the hospital attached to each college.
By way of illustration, it is stated that in the hospital attached to Lokmanya Tilak Memorial Medical College there is maximum load of trauma cases (accidents and injuries), the number of such cases is much higher than that in the hospital attached to the three other colleges.
The under graduate students in Lokmanya Tilak Memorial Medical College will have a wider exposure to these cases and will be far more suitable for seat in the post graduate course in Surgery where he will have to actu ally deal with these cases than a student of any other college.
Even assuming that the facts stated above are correct, we do not think that the same constitute any ground in support of institutional preference.
It is the university which is required to maintain a standard in respect of the 930 subjects in the colleges affiliated to it.
It is not the case of the University that the standard prescribed by it is not maintained in different colleges or that any particular college is higher in standard in a particular subject than that in another college.
It may be that the number of acce dent and injury cases in the hospital attached to Lokmanya Tilak Memorial Medical College is higher than the number of such cases in the hospitals attached to other colleges, but that does not prove or lead to the conclusion that the students of other colleges will be deficient in surgery or less meritorious than the students of Lokmanya Tilak Memori al Medical College.
The contention in this regard is without substance and is rejected.
Let us now examine the question of collegewise institu tional preference from the point of view of Article 14 of the Constitution.
By the impugned rules, a classification has been sought to be made with the students of each partic ular college passing their MBBS Examination from that col lege to the exclusion of all other students obtaining their MBBS Degree from the other colleges.
In order that a classi fication is a permissible one within the meaning of Article 14 of the Constitution, two tests are to be satisfied, namely, (1) that there is an intelligible differentia which distinguishes persons grouped together from those who are left out of the group; and (2) that there is a rational nexus to the object sought to be achieved by the impugned rules.
The object sought to be achieved by the impugned rules is obviously to prefer merit for the post graduate course and to exclude less meritorious candidates.
It will be presently demonstrated that both the tests are not satis fied in the instant case.
In this connection, we give below following tabular statement showing the number of seats available in each of the said four colleges in some of the disciplines.
COLLEGE LTMMC TNMC GSMC GMS Students Intake 100 100 100 DISCIPLINE 1.
M.D. Obs. & Gyn. 2 1 5 3+ I(R) 2.
M.S. Orthopaedics 2 1 2 1 3.
M.S. General Surgery 4 2 3 3+ I(R) 4.
M.D. General Medicine 4 3 3 3+ I(R) 931 In Seth G.S. Medical College (GSMC), there are five seats in Obstetrics and Gynaecology and one seat in Topiwala Nationl Medical College (TNMC).
In view of the impugned rules providing collegewise institutional preference, five seats in Obstetrics and Gynaecology in Seth G.S. Medical College were allotted to five of its students.
Of these five students, Dr. Ganpat Sawant secured 150 marks and the four other candidates secured marks between 118 and 128 in the MBBS Examination.
The respondents Dr. Anjali Deokumar Thuk ral and Dr. Sumeet Godambe, both students of Topiwala Na tional Medical College obtained respectively 140 and 143 marks in the MBBS examination.
They, however, were not admitted in their college, for there was only one seat in Obstetrics and Gynaecology and that seat was alotted to a student of that college who secured 156 marks in the MBBS examination.
Thus, although Dr. Anjali Deokumar Thukral and Dr. Sumeet Godambe secured more marks than the students admitted in the post graduate course in Obstetrics and Gynaecolocy in the said G.S. Medical College, except the said Dr. Ganpat Sawant, they were refused admission in view of collegewise institutional preference.
Similarly, in respect of other disciplines many meritorious students could not get admission even though they secured higher marks than those admitted in the post graduate degree course by virtue of the impugned rules.
Thus, there is a patent discrimina tion inasmuch as students obtaining lesser marks have been preferred to those obtaining higher marks.
There is no intelligible differentia for the classification by way of collegewise institutional preference as provided by the impugned rules distinguishing the preferred candidates in respect of each college from those excluded from such clas sification.
By such classification or collegewise institu tional preference, merit has been sacrificed, far less it has been preferred.
When the university is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational insti tutions.
In such circumstances, collegewise institutional preference cannot be supported and, it has already been noticed that this Court has not approved of such preference at all.
State of Rajasthan and another vs Dr. Ashok Kumar Gupta and others; , is a case of college based institutional preference in respect of five medical colleges in Rajasthan under the same University.
The impugned Ordi nance of the University provided for addition of 5 per cent of the aggregate of marks which work out to be 932 to 137.5 marks by way of institutional preference in the sense of preference dependant on the particular medical college at which the concerned candidate has passed his final MBBS Examination.
This collegewise institutional preference has been disapproved by this Court in that case and the impugned Ordinance has been struck down.
The learned Additional Solicitor General sought to distinguish Dr. Ashok Kumar Gupta 's case from the instant case.
We do not think that the said case is distinguishable from the case with which we are concerned, inasmuch as in both the cases the question of collegewise or college based institutional preference is involved.
It is stated that mode or method adopted for giving collegewise institutional preference in Dr. Ashok Kumar Gupta 's case is different from the instant case but, in our opinion, nothing turns out of that.
So far as educational institutions are concerned, unless there are strong reasons for exclusion of meritorious candidates, any preference other than in order of merit, will not stand the test of Article 14 of the Constitution.
So, the impugned rules are discriminatory and do not satisfy the tests of reasonable classification and, as much, cannot be sustained.
It is next contended on behalf of the appellants that as the Bombay Municipal Corporation has to spend a lot of money for the running of the three colleges sponsored by it, seats for the postgraduate course should be reserved in these three colleges for the students passing the MBBS Examination from any of these colleges.
If such reservation is allowed, the students of the Maharashtra Government College, namely, the Grant Medical College, will not get any admission in any of the three Municipal Colleges, even if the students or some of them passing the MBBS Course from the Government College are more meritorious than the students for whom the seats will be kept reserved in the Municipal Colleges.
It is urged that it will not be a case of collegewise institution al preference so far as the Municipal Colleges are concerned and there should be no objection for the Bombay Municipal Corporation to give preference to the students of the Munic ipal Colleges, of course, to the exclusion of the students of the Government College.
This contention, in our opinion, is without any substance.
It may be that the Bombay Munici pal Corporation has to spend a lot of money for the colleges run by it, but that will be no ground for making a discrimi nation between the students of the Municipal Colleges and those of the Government College affiliated to the same university, for the purpose of admission in the post gradu ate degree course.
Such discrimination will not serve any object which can be justified on any rational basis.
Such reservation or preference also cannot be allowed, for if allowed, rule 5 of the Rules framed under the 933 Government Resolution dated June 18, 197 1 will survive inasmuch as the students of the Grant Medical College will only be admitted in the M.D. Course.
But, those students who could not be admitted in that College, will not be eligible for admission in the Municipal Colleges.
We are unable to permit such discrimination in the matter of admission in the M.D. Course.
Another ground on which collegewise institutional preference has been sought to be justified by the learned Additional Solicitor General is on the basis of institutional continui ty.
In support of this ground of institutional continuity, the learned Additional Solicitor General has placed much reliance on the observations of Pathak, J. in Jagdish Sa ran 's case, which has already been extracted above.
It was not a case of collegewise institutional preference or insti tutional continuity, and the said observations should not be understood in that sense, but in the sense of institutional continuity in the same university.
After giving our thoughtful consideration to the question of collegewise institutional preference, we are of the view that such preference or reservation of seats is not permissible and the High Court has rightly struck down both the impugned rule 4(A) flamed by the Bombay Municipal Corpo ration and part of rule 5 flamed under the Government Reso lution, that is to say, only in respect of its application to the Grant Medical College in the city of Bombay relating to admission to post graduate M.D. Course.
We, however, make it clear that the students who have been admitted to post graduate M.D. Course pursuant to the impugned rules, their admission shall not be interfered with or disturbed.
At this state, we may consider the submission of Mr. Lalit, learned Counsel appearing on behalf of the applicants in C.M.P. No. 20748 of 1988 praying for their impleadment as party respondents to Civil Appeal No. 2792 of 1988.
We do not think that any useful purpose will be served by implead ing them as party respondents to the appeal.
The only prayer that has been made by Mr. Lalit is that the applicants who have passed the diploma course from the Municipal Colleges should be held to be eligible for admission in the M.D. Course with credit for the diploma course in any of the Municipal Colleges.
We are told by the learned Counsel appearing for the State Government and the Bombay Municipal Corporation that if the impugned rules are struck down, they will have to frame fresh rules consistent with the judgment of this Court and, as we have directed not 934 to disturb admission of the candidates in the post graduate M.D. Course pursuant to the impugned rules, we consider the prayer made by the applicants as quite reasonable and, accordingly, direct that the applicants who have passed the diploma course in the Municipal Colleges after passing the MBBS Examination, will be eligible for admission in the post graduate M.D. Course in any one of the Municipal Col leges with credit for the diploma course.
Mr. Tarkunde, learned Counsel appearing on behalf of the respondents writ petitioners, submits that the cases of admission of some of the respondents, who have not been admitted to the postgraduate degree course in certain spe cialities of their choice in view of the impugned rules, may be considered by the State of Maharashtra and the Municipal Corporation of Greater Bombay, in case seats are available, either in the Municipal Colleges or in the Grant Medical College, which is a Government College.
In our opinion, the prayer is quite reasonable and the State of Maharashtra and the Bombay Municipal Corporation are directed to consider the question of their admission, provided seats are avail able.
The names of the said respondents and the respective disciplines of their choice are given below: 1.
Dr. Anjali Deokumar Thukral M.D. Gynaecology and Obstetrics 2.
Dr. Atul Jaywant Galtonde M.S. Orthopaedics 3.
Dr. Naresh Kanayalal Navani M.S. General Surgery 4.
Dr. Anna Koshy Joseph M.D. General Medicine 5.
Dr. Vaishali Ramnik Doshi M.D. General Medicine Before we part with these cases, we may dispose of one submission made on behalf of the appellants.
Our attention has been drawn to the fact that while striking down the impugned rule 4(A) and impugned rule 5 in part, the High Court has directed the appellants to frame rules adopting certain alternative methods for dismission in the post graduate M.D. Course for the next year, as stated in the judgment.
The said directions appear to be in the nature of suggestions by the High Court, and the appellants will be free to frame rules for admission in the post graduate M.D. Course in the said four colleges in the city of Bombay in conformity with the provision of Article 14 of the Constitution and in the light of the judgment of this Court and in 935 framing the rules, the appellants may take into considera tion the suggestions of the High Court.
In the result, Subject to the directions given above, the appeals are dismissed.
There will, however, be no order as to costs.
SPECIAL LEAVE PETITION (CML) NO.
8883 OF 1988 WRIT PETITION (CIVIL) NO.
1253 OF 1988 For the reasons aforesaid, Special Leave Petition and Writ Petition fail and are dismissed without any order as to costs.
Y.L. Ap peals dismissed.

summary/full:
There are four Medical Colleges in the City of Bombay, all affiliated to the University of Bombay.
Out of four, three colleges are run by the Municipal Corporation and one is run and conducted by the State of Maharashtra.
Rule 4A framed by the Municipal Corporation and Rule 5 framed by the State Govt.
vide Govt.
Resolution dated June 18, 1971 govern the admissions of students to post graduate degree and diploma course in the respective Medical Colleges.
Both the aforesaid Rules provide for collegeate institu tional preference for admission in the M.D. Course.
In other words, in each college, candidates who passed their M.B.B.S. exam from that college were to be preferred for purposes of admission to the Post Graduate M.D. degree, no matter wheth er the candidates had secured less marks than those who secured higher marks, having passed the M.B.B.S. Exam.
from other colleges.
On this basis some candidates who were not able to secure admission to the M.D. Course in the respec tive colleges from which they had passed their M.B.B.S. Examination were not also admitted in the other medical colleges in the City of Bombay, in view of college wise institutional preferences as provided by Rule 4A and Rule 5 referred to above.
Those students/candidates challenged the validity of the afore said Rule 4A and Rule 5 framed by the Municipal Corpn.
and the State Govt.
in the High Court, as being violative of article 14 of the Constitution.
The High Court allowed the Writ Petition and struck 920 down the impugned Rule 4A in whole and Rule 5 in so far as it applies to the Govt.
Medical College, as discriminatory and violative of article 14 of the Constitution and thus in valid.
Hence these appeals by Special Leave.
Dismissing the appeals with some directions, the Court, HELD: When the University is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post graduate degree course of the same University except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions.
In such circumstances, college wise institutional prefer ence cannot be supported and, this Court has not approved of such preference at all.
[931F G] So far as educational institutions are concerned unless there are strong reasons for exclusion of meritorious candi dates, any preference other than in order of merit, will not stand the test of article 14 of the Constitution.
[932C D] The Rules are discriminatory and do not satisfy the test of reasonable classification and as such, cannot be sus tained.
The Court accordingly dismissed the appeals and directed that the students who have been admitted to post graduate M.D. Course pursuant to the impugned Rules, their admission shall not be interfered with or disturbed.
[933E] The High Court has directed to the appellants to frame rules adopting certain alternative methods for admission in the Post graduate M.D. Course for the next year.
The said directions appear to be in the nature of suggestions by the High Court and the appellants will be free to frame the rules for admission in the Post graduate M.D. Course in the said four colleges in the City of Bombay in conformity with the provision of article 14 of the Constitution and in the light of the Judgment of this Court and in framing the Rules, the appellants may take into consideration the sug gestions of the High Court.
[934G H; 935A] Dr Pradeep Jain vs Union of India & Ors., ; , distinguished.
Nidamarti Mahesh Kumar vs State of Maharashtra & Ors.
, ; , not applicable.
921 Jagdish Saran & Ors.
vs Union of India & Ors.
, ; , not applicable.
State of Rajasthan & Anr.
vs Dr. Ashok Kumar Gupta & Ors., ; , not applicable.


judgement:
ivil Appeal No. 3297 of 1981.
From the Judgment and Order dated 17.8.1981 of the Orissa High Court in Misc.
Appeal No. 145 of 1981.
R.K. Mehta for the Appellant.
A.K. Sen, Arun Madan, R.K. Sahoo and J.D.B. Raju for the Respondent.
The Judgment of the Court was delivered by VERMA, J.
This appeal by special leave under Article 136 of the Constitution challenges the judgment dated 17.8.1981 of the High Court of Orissa dismissing Misc.
Appeal No. 145 of 1981 against the judgment dated February 28, 1981 passed by the Subordinate Judge, Baripada, District Mayurbhanj in Title Suit No. 106 of 1980 by which the arbitrator 's award for a sum of Rs.21,11,835.00 in favour of the plaintiff respondent, Niranjan Swain, was made a rule of the court and a decree was passed for that amount together with interest at the rate of six per cent per annum from the date of the decree.
The main ground taken in this appeal was that the arbi trator 's award was per se invalid since it gave no reasons.
Some other points were raised to which we shall advert later.
The question of invalidity of an arbitrator 's award merely on the ground that it gave no reasons was involved for decision in a large number of matters pending in this Court and in view of the importance of this common question the bunch of cases was heard and decided by the Constitution Bench in Raipur Development Authority and others vs M/s Chokhamal Contractors and others, 1.
The Constitution Bench has held that the absence of reasons in the award does not by itself result in its invalidity except where the giving of reasons by the arbitrator for the award is the requirement of the arbitration agreement or the deed of submission or an order made by the Court or statute governing the arbitration.
Accordingly, this contention raised in the present appeal 824 and all other similar matters was rejected by the Constitu tion Bench with a direction that all such cases should go back to the Division Bench for disposal in accordance with law on the remaining points surviving therein for decision.
This is how the present appeal has come before us.
The conclusion reached by the Constitution Bench in the above case and the direction given therein is as under: "Having given our careful and anxious consid eration to the contentions urged by the par ties we feel that law should be allowed to remain as it is until the competent legisla ture amends the law.
In the result we hold that an award passed under the is not liable to be remitted or set aside merely on the ground that no reasons have been given in its support except where the arbitra tion agreement or the deed of submission or an order made by the court such as the one under Section 20 or Section 21 or Section 34 of the Act or the statute governing the arbitration requires that the arbitrator or the umpire should give reasons for the award.
These cases will now go back to the Division Bench for disposal in accordance with law and the view expressed by us in this decision.
" The only points now urged by Shri G.L. Sanghi, learned counsel for the appellant, are two, namely, (1) no interest could be awarded by the arbitrator in the present case upto the date of the award but the same is obviously included in the lumpsum award of Rs.21, 11,835.00; and the invalid part of the award not being severable from the rest, the entire award must be set aside; and (2) the High Court in its cryptic order has wrongly assumed as correct the trial court 's refusal to call the arbitrator for being examined in the court.
The learned counsel contended that any one of these defects was sufficient to set aside the entire award.
In reply Shri Arun Madan, learned counsel for the re spondent, primarily contended that the arbitrator was empow ered to award interest upto the date of award.
In the alter native, learned counsel for the respondent contended that the invalid part of the award relating to grant of interest upto the date of the award was severable and, therefore, only that part should be set aside instead of setting aside the whole award.
He also contended that the High Court did not make any wrong assumption and refusal to call the arbi trator for examination 825 was justified.
It was also urged that in the present case there was nothing to indicate that calling the arbitrator for examination in the court was at all necessary.
Before proceeding to consider the surviving points now urged on behalf of the appellant we may refer briefly to the few facts which alone are relevant at this stage.
The con tract for the work "Construction of Earth Dam (balance work) of Sansiali Nai M.I. Project" in Division Mayurbhanj, Bari pada, was given by the appellant, State of Orissa, to re spondent, Niranjan Swain and the agreement between the parties contained an arbitration clause for adjudication of disputes arising out of the contract.
Consequently, the dispute relating to the remaining claim for payment made by the respondent was referred for adjudication to the arbitra tor in terms of the arbitration clause contained in the agreement.
The respondent 's claim before the arbitrator was for the amount of Rs. 19,04,689.00 as the balance amount due to him and for return of the security deposit of Rs.28,000.00 or in all the total of Rs. 19,32,689.00 as the principal amount.
The respondent also claimed interest on the sum of Rs. 19,04,689.00 at the rate of 18 per cent per annum from 15.4.1977 to 15.5.1978, namely, the date of submission of the statement of claim before the arbitrator amounting to Rs. 3,71,4 14.00 and interest on the security deposit of Rs. 28,000.00 at the same rate from 15.9.1977 to 15.5.1978 amounting to Rs.3,360.00.
The respondent further claimed interest at the rate of 18% per annum from 16.5.
1978 till payment of the amount to the respondent by the appellant.
In the statement of claim the total amount claimed was mentioned at Rs.23,07,463.00 together with interest @ 18% per annum on Rs. 19,32,689.00 from 16.5.1978 to the date of the award.
The appellant denied the respond ent 's claim including the claim for payment of interest.
The arbitrator gave the award dated 2.12.1980 as under: "AWARD After perusal of the claim statements and counter statements, the counter claim of the respondent, the rejoinder of the claimant, the documentary and oral evidence and on a careful consideration of the submissions and arguments of the parties and the IR advocate, I have come to the conclusion that the claimant is entitled to get a sum of Rs.21,11,835.00 (Rupees twenty one lakhs eleven thousand eight hundred thirty five only) in full and final satisfac 826 tion of his claims till the date of the award from the respondent.
The respondent is not entitled to get any amount towards his counter claim from the claimant.
sd/ B.S. Patnaik Arb itrator 2/1 2/1980" (emphasis supplied) It is on the basis of the contents of this award that the above contentions have to be considered and decided.
We may dispose of the second point urged by learned counsel for the appellant straightaway since it does not merit any elaborate consideration.
The argument of the learned counsel for the appellant relating to calling the arbitrator for examination as a witness in the court was based on the decision of the Orissa High Court in State of Orissa vs D.C. Routray, AIR 1983 Orissa 163.
That decision itself says that even though an arbitrator is a competent witness, the court must exercise the power of calling him as a witness cautiously and sparingly and not in a routine manner.
It is obvious that when the court is requested to call the arbitrator for examination as a witness it must be shown that there is some cogent ground for his examination within the permissible limits.
Nothing has been shown in the present case to indicate that it was at all necessary to call the arbitrator as a witness to depose on any matter which could legitimately be examined by the court in the proceedings.
This alone is sufficient to justify the view taken by the High Court.
This contention of learned counsel for the appellant is, therefore, rejected.
The only point surviving for consideration now relates to the grant of interest by the arbitrator and its effect on the validity of the award.
It is obvious from the contents of the award and the details of the respondent 's claim before the arbitrator that a lumpsum amount of Rs.21,11,835.00 awarded in the respondent 's favour by the arbitrator was in full and final satisfaction of all the respondent 's claims before the arbitrator till the date of the award.
As mentioned earlier, the respondent 's claim before the arbitrator mentioned the sum of Rs.19,04,689.00 plus the security deposit of Rs.28,000.00 or in all Rs. 19,32,689.00 only as the total principal amount of the claim and the sum claimed in excess thereof was on account of interest.
The grant of a lumpsum amount of Rs.21,11,835.00 in the award in full and final 827 satisfaction of all the claims till the date of the award must, therefore, obviously include interest also.
It is equally plain that the claim for the entire principal amount was not accepted by the arbitrator.
The effect on the ques tion of validity of the award has to be decided on this basis.
It is settled by the decision of this Court in Executive Engineer (Irrigation), Balimela and others vs Abhaduta Jena and others, 18 that in cases wherein the reference to arbitration was made prior to the commencement of the , on August 19, 1981, the arbitra tor is not empowered to grant interest for the period either before the commencement of the proceedings or during the pendency of the arbitration.
This is clear from the position summarized in Abhaduta Jena 's case (supra), as under: "In the remaining cases which arose before the commencement of the , the respondents are not entitled to claim interest either before the commencement of the proceed ings or during the pendency of the arbitra tion.
They are not entitled to claim interest for the period prior to the commencement of the arbitration proceedings for the reason that the Interest Act, 1939, does not apply to their cases and there is no agreement to pay interest or any usage or trade having the force of law or any other provision of law under which the claimants were entitled to recover interest.
They are not entitled to claim pendente lite interest as the arbitrator is not a court nor were the reference to arbitration made in suits.
" The learned counsel for the respondent placed reliance on the decision of this Court in Gujarat Water Supply and Severage Board vs Unique Erectors (Gujarat) (P) Ltd. and another; , in support of his primary conten tion that the arbitrator was empowered to grant interest upto the date of award.
We are unable to construe this judgment in the manner suggested by learned counsel for the respondent.
The decision clearly refers to Abhaduta Jena 's case (supra) and also follows it.
The primary contention of the learned counsel for the respondent that the award does not suffer from any infirmity by grant of interest therein upto the date of award is, therefore, rejected.
It cannot, therefore, be disputed that in the present case wherein the reference to arbitration was made and even the award was given prior to the commencement of the Inter est Act, 1978, on August 19, 1981, the arbitrator had no jurisdiction to grant any amount as interest 828 for any period either upto the date of submission of the claim before him or pendente lite upto the date of the award.
From the above, it follows that inclusion of the amount of interest in the lumpsum award of Rs.21,11,835.00 by the arbitrator does render that part of the award invalid.
The question now is of the consequence of this invalidi ty on the entire award.
The learned counsel for the appel lant contended that the invalid part of the award not being severable from the rest the entire award must be set aside.
On the other hand, the learned counsel for the respondent urged that there is no difficulty in separating the invalid part from the rest and this could easily be done by deduct ing from the total sum of Rs.21,11,835.00 granted in the award, the maximum interest calculated at the rate of 18% per annum which was claimed by the respondent before the arbitrator upto the date of the award (2.12.1980).
He urged that such a view cannot, in any manner, prejudice the appel lant and if at all it can work only to the detriment of the respondent who make this suggestion.
In our opinion it is possible in the present case to sever the invalid part relating to interest in order to sustain the valid part of award.
Accordingly, we requested both sides to calculate the total amount of interest and give to us the agreed figure.
The agreed figure of Rs. 12,65,87 1.97 has been given by them as the maximum amount of interest which could be included in the award of Rs.21, 11,835.00, in accordance with the respondent 's claim before the arbitrator.
It is common ground that the invalid part of the award on the basis of grant of interest by the arbi trator cannot exceed the amount of Rs. 12,65,87 1.97 out of the total Sum of Rs.21, 11,835.00.
It is also not disputed that the balance amount remaining after deduction of Rs. 12,65,871.97 cannot be tainted with any invalidity.
The learned counsel for the respondent has confined the respond ent 's claim in the alternative to upholding of the award only in respect of this balance amount and no more.
We do not see any reason why the award should not be modified and sustained to this extent only.
We are conscious of the fact that the interest amount of Rs. 12,65,871.97 so calculated for deduction from the total amount of Rs.21, 11,835.00 granted in the award is in excess of the interest calculated on the remaining balance treated as principal amount at this stage on the above suggestion.
However, in the peculiar circumstances of this case and in view of the alternative contention on 829 behalf of the respondent, we see no reason for rejecting, in the present case, this alternative contention also.
Viewed in this manner, the balance amount of the award would not be tainted with any invalidity and, therefore, it would also be just and proper to sustain the award to this extent only.
We, therefore, reject the contention of learned counsel for the appellant that the entire award should be set aside and instead accept the alternative contention of learned counsel for the respondent.
In view of the above, the agreed amount of interest upto the date of the award (2.12.1980), that is, Rs. 12,65,871.97 is deducted from the amount of Rs.21,11,835.00 leaving the balance amount of Rs.8,45,963.03 say Rs.8,45,963.00.
This amount of Rs.8,45,963.00 survives as the valid part of the award and, therefore, the decree of the courts below is modified to this extent so that the decree in favour of the respondent now remains for the sum of Rs.8,45,963.00 only together with interest thereon at the rate of 6% per annum from the date of the decree passed by the trial court until payment.
In view of the partial success of both sides, the parties shall bear their own costs throughout.
The appeal is partly allowed in this manner.
We are informed that the respondent has withdrawn a certain amount against the decree during the pendency of this appeal.
We direct that the amount due to the respondent shall be calculated on the basis of this modified decree.
In case, the amount obtained by the respondent is less than the amount to which the respondent is found entitled as a result of this modified decree, the remaining amount shall be paid to the respondent with interest @ 12% per annum from 8.12.
1981 in terms of the interim order of that date passed in this appeal; and in case, the amount obtained by the re spondent is in excess of that to which he is found entitled, the excess amount shall be refunded by the respondent to the appellant similarly with interest at the same rate of 12% per annum from 8.12.
1981 upto the date of its refund.
T.N.A. Appeal allowed partly.

dataset_name: IN-Abs

summary/full:
The respondent was awarded a contract for construction of Earth Dam by the appellant State of Orissa.
His dispute relating to the remaining Claim for payment was referred to an arbitrator for adjudication.
Before the arbitrator the respondent claimed (i) the balance amount due to him; (ii) his security deposit with the appellant; and (iii) interest, on the balance amount due and security deposit, upto the date of award.
On 2.12.1980 the arbitrator gave a lump sum award in favour of the respondent inclusive of interest upto the date of award.
The Trial Court made the award a rule of the Court and accordingly passed a decree in favour of the respondent for the amount awarded together with interest at the rate of six per cent from the date of decree.
The appeal filed by the State was dismissed by the High Court.
In this appeal it was contended on behalf of the State that the award was invalid because; (i) the arbitrator gave no reasons; (ii) no interest could be awarded by the arbi trator upto the date of award, and the award being inclusive of interest was not severable.
it was also contended that the High Court was wrong in assuming that the Trial Court was correct in refusing to call the arbitrator for being examined.
Allowing the appeal partly, HELD: 1.
The absence of reasons in the award does not by itself result in its invalidity except where the giving of reasons by the 822 arbitrator for the award is the requirement of the arbitra tion agreement or the deed of submission or an order made by the Court or statute governing the arbitration.
[823G H] Raipur Development Authority & Ors.
vs M/s Chokhamal Contractors and Ors., [1989] 2 S.C.C. 721, applied.
Even though an arbitrator is a competent witness, the Court must exercise the power of calling him as a witness cautiously and sparingly and not in a routine manner.
When the Court is requested to call the arbitrator for examina tion as a witness it must be shown that there is some cogent ground for his examination within the permissible limits.
[826D] In the instant case, nothing has been shown to indicate that it was at all necessary to call the arbitrator as a witness to depose on any matter which could legitimately be examined by the Court in the proceedings.
The High Court was, therefore, justified in refusing to call the arbitrator for examination.
[826E] State of Orissa vs D.C. Routray, A.I.R. 1983 Orissa 163, approved.
In cases wherein the reference to arbitrator was made prior to the commencement of the , on August 19, 1981 the arbitrator is not empowered to grant interest for the period either before the commencement of the proceedings or during the pendency of the arbitration.
In the instant case, the reference to arbitrator was made and even the award was given prior to the commencement of the .
Therefore, the arbitrator had no jurisdiction to grant any amount as interest for any period either upto the date of submission of the claim before him or pendente lite upto the date of the award.
[827F G] Executive Engineer (Irrigation), Balimela & Ors.
vs Abhaduta Jena & Ors., [1988] 1 SCC 418, applied.
Gujarat Water Supply and Sewerage Board vs Unique Erec tors (Gujarat) (P) Ltd. & Anr.
, ; , held inapplicable.
In the instant case, the inclusion of the amount of interest in the lumpsam award by the arbitrator does not render the whole award 823 invalid since it is possible to sever the invalid part relating to interest.
The balance amount of award remaining after deduction of interest would not be tainted with any invalidity, and it would be just and proper to sustain the award to this extent only.
The decree is, therefore, modi fied to this extent.
[828E F; 829C]


judgement:
iminal Appeal No. 82 of 1953.
Appeal under article 134(1)(c) of the Constitution of India from the Judgment and Order dated the 16th August, 1953, of the High Court of Judicature at Hyderabad in Criminal Appeal No. 1557/6 of 1950, arising out of the Judgment and Order dated the 16th October, 1950, of the Court of Special Judge, Warangal, in Case No. 28/2 of 1950.
A. A. Peerbhoy, J. B. Dadachanji and Rajinder Narain for the appellant.
Porus A. Mehta and P. G. Gokhale for the respondent.
590 1954.
May 6.
The Judgment of the Court was delivered by GHULAM HASAN J.
The appellant was tried and convicted by the Special Judge, Warangal, for various offences under the Hyderabad Penal Code.
These correspond to sections 302, 307, 347 and 384 of the Indian Penal Code, the sentences awarded under the first two sections respectively being death and life imprisonment, and separate sentences 'of two years ' rigorous imprisonment under the latter two.
two learned Judges of the High Court, who heard the appeal, differed, Manohar Pershad J. upholding the convictions, and the sentences and M. section Ali Khan J. acquitting the appellant.
The third learned Judge, A. Srinivasachari J., on reference which was Occasioned by the difference of opinion agreed with Manohar Pershad J. Leave to appeal to this Court was granted by the two agreeing Judges.
The occurrence which led to the prosecution of the appellant took place on September 13,1948, which was the beginning of the first day of Police action in Hyderabad.
The appellant, who was Reserve Inspector of Police stationed at Mahbubabad at the material time, according to the prosecution story, visited two villages Rajole and Korivi accompanied by a number of Razakars and the Police.
He arrested Janaki Ramiah (P.W. 5) and Nerella Ramulu (P.W. 9) at Rajole and took them to Korivi.
Outside this village in the waste land he spotted four men going to their fields and shot at them with his gun.
The deceased Mura Muthiah and Somanaboyanna Muthandu (P.W. 2) were injured in the knee, while the other two Kotta Ramiah (P.W. 3) and Kancham Latchiah (P.W. 4) were uninjured.
The latter two hid themselves behind the babul trees.
P.W. 2 also ran away and hid himself in the bajra fields a few yards away but the deceased remained where he fell.
The appellant searched for the three persons who had run away.
He caught P.W. 3 and P.W. 4 and brought them to the spot where the deceased was lying but he could not trace P.W. 2.
The appellant seeing that Mora Muthiah was not dead, shot him in the chest and killed him.
The whole party 591 consisting of P.W. 3, P.W. 4, P.W. 5 and P.W. 9 then went to Korivi village.
The appellant stayed at the house of one Maikaldari in the village and spent the night there.
Maikaldari and one Berda Agiah (P.W. 8) both asked the appellant why he had arrested P.W. 3 and P.W. 4, for they were not Congress men.
Upon this the appellant released them.
The prosecution story proceeds that the father (P.W. 1) of the deceased saw the appellant in the night of the 13th September and asked him why he had killed his son.
The appellant without saying more advised him to cremate the dead body.
P.W. I borrowed wood from the people and cremated the body.
Four months later the appellant went and ,stayed at the Government bungalow Korivi, sent for P.W. I and offered him Rs. 200/ as hush money for not disclosing the offence.
The offer was refused.
P.W. 3 and P.W. 4 who had been released told the father of P.W. 2 next morning that his son was lying injured in the bajra field.
He went and had P.W. 2 removed to the hospital where his injuries were attended to.
On the same morning the appellant, who had detained P.W. 5 and P.W. 9 in custody, asked them to pay Rs. 200/ when they would be released.
P.W. 5 went with a constable to the house of P.W. 6 and P.W. 7 and borrowed Rs. 100/ from each of them.
On this being paid he was released.
P.W. 9 was unable to pay any money and he was let off.
The defence was a denial of the offence.
The appellant denied having zone to the village in question or having committed any of the offences attributed to him.
He stated that he was posted at Mahbubabad in order to stop the subversive activities of the communists and that the witnesses being communists had falsely implicated him.
He produced witnesses in defence.
The First Information Report was lodged on April 14,1949.
This delay was due to the disturbed conditions prevailing at the time and does not affect the truth of the story.
The appellant was prosecuted and the charge sheet submitted against him on October 30, 1949.
The charge was framed by a Munsiff Magistrate who committed the appellant to the Sessions.
As already ,stated, the learned Special Judge convicted and 592 sentenced the appellant and his convictions and sentences were upheld by a majority of two Judges.
It has been argued by Mr. Peerbhoy, learned counsel on behalf of the appellant, that his client had no fair trial and has detailed a number of circumstances as supporting his contention.
We think it unnecessary to deal with each and every one of these circumstances as in our opinion they do not affect the substance of the matter and are too trifling to justify the conclusion that the appellant suffered any prejudice or that any miscarriage of justice had resulted.
We shall confine ourselves only to a few of them which need examination.
It was complained that the appellant was not furnished with copies of the statements of prosecution Witnesses recorded by the Police and this hampered the appellant in cross examining the witnesses with reference to their previous statements.
It appears that the appellant filed an application through counsel on August 28, 1950, asking for copies of such statements under section 162 of the Code of Criminal Procedure.
The corresponding section of the Hyderabad Penal Code is 166 which is not the same as section 162.
While under section 162 it is the duty of the Court to direct a copy of the statement of a witness recorded by the Police in the course of investigation to be furnished to the accused with a view to enable him to cross examine such a witness with reference to his previous statement, no such duty is imposed by section 166 and the matter is left entirely to the discretion of the Court.
This application was made for re cross examination of witnesses which obviously refers to the last stage of the prosecution evidence.
The order passed on the application as translated is unintelligible and does not convey the real intention of the Court.
The original which was shown to us, however, leaves no doubt whatever that the Court ordered that the case diaries and the statements were in Court and the appellant 's counsel could look into them with a view to help him in the re cross examination of the witnesses but if the Court later felt the necessity of furnishing copies, the matter would be considered.
No complaint was made before the Special Judge about any prejudice having been caused to the 593 appellant by this order, nor was this point taken before the High Court.
Had the appellant any legitimate ground for grievance on this score, he would no doubt have raised it before the High Court.
We think, therefore, that there is no substance in this point.
It was also contended that the prosecution should have produced the duty register of the appellant who was a Government servant in order to put the matter beyond doubt whether,the accused had left the Headquarters on the crucial date.
We do .lot think that it was any part of the duty of the prosecution to produce such evidence, particularly in view of the fact that direct evidence of the offence was produced in the case.
It appears, however, that the appellant himself summoned the Sub Inspector of Police with the attendance register for 1358 Fasli, corresponding to October, 1948.
The Deputy Superintendent of Police in his letter had stated that the entries for October were made in the register for 1357 Fasli and that register was destroyed during the Police action.
The appellant 's counsel inspected the register and on noticing that the entry for October did not find a place therein and had been made in the previous register for 1357 Fasli, which was destroyed during the Police action, he withdrew the witness.
The appellant satisfied himself from the inspection of this register that the desired entries were not to be found.
Since the register containing the material entries was destroyed, it was impossible for the prosecution to discharge the alleged burden of proving the entries in the duty register on the material date.
It was also faintly contended that there was no evidence to show that Mura Muthiah had actually died.
The father of the deceased gave evidence that the dead body of his son was cremated by him and in this he was supported by other witnesses.
There is no force in this point.
Upon the whole we are satisfied that the appellant has not been able to substantiate his contention that he did not have a fair trial.
The next contention advanced by the appellant 's learned counsel is that there was a misjoinder of 76 594 charges, that though the charges of murder and attempt to murder could be joined and tried together, the charges of extortion and wrongful confinement were distinct offences for which the appellant should have been charged and tried separately as required by the mandatory provisions of section 233 of the Code.
The first two offences took place on September 13, 1948, in the night, while the act of extortion took place next morning on the 14th and the latter charge had nothing whatever to do with the offences committed on the previous night.
Learned counsel contends that where, as here, there is disobedience to an express provision as to the mode of trial contained in section 233, the trial is wholly vitiated and the accused is not bound to show that the misjoinder has caused any prejudice to him.
The contention is based on the case of Subramania Ayyar vs King Emperor(1) showing that the misjoinder of distinct offences being prohibited by the express provision of the Code renders the trial illegal and does not amount to a mere irregularity curable by section 537.
This was a case in which the accused was charged with 41 acts extending over a period of two years which was plainly against the provisions of section 234 which permitted trial only for three offences of the same kind if committed within a period of twelve months.
The decision of Lord Halsbury, Lord Chancellor, in this case was distinguished in the case of Abdul Rahman vs The King Emperor (1) by the Privy Council.
That was a case of conviction on a charge of abetment of forgery in which the depositions of some witnesses were not read over to the witnesses but were handed over to them to read themselves.
It was held that though the course pursued was in violation of the provisions of section 360, it was a mere irregularity within section 537 and that as no failure of justice had been occasioned, the trial was not vitiated.
Both the above cases were referred to by the Privy Council in Babulal Chaukani vs King Emperor(1).
The question in that case arose as to the true effect of section 239(d), which provides that persons who are (1) 28 I.A. 257.
(2) 541.A. 96, (3) A.I.R. 1938 P.C. 130, 595 accused of different offences committed in the course of the same transaction may be charged and tried together.
The question was whether the correctness of the joinder which depends on the sameness of the transaction is to be determined by looking at the accusation or by looking at the result of the trial.
It was held that the relevant point of time is the time of accusation and not that of the eventual result.
The charges in this case were conspiracy to steal electricity and theft of electricity both under the Electricity Act and under the Penal Code.
The Privy Council referred to the fact that the parties had treated an infringement of section 239(d) as an illegality vitiating the trial under the rule stated in Subramania Ayyar vs King Emperor(1) as contrasted with the result of irregularity as held in Abdul Rahman vs The King,, Emperor (2) .
The Privy Council merely assumed it to be so without thinking it necessary to discuss the precise scope of the decision in Subramania 's case, because in their view the question did not arise.
Again in Pulukuri Kottaya and Others vs Emperor (3) the Privy Council treated a breach of the provisions of section 162 of the Code as a mere irregularity curable under section 537 and as no prejudice was caused in the particular circumstances of that case, the trial was held valid.
Reference was made to Subramania Ayyar vs King Emperor(1) as one dealing with the mode of trial in which no question of curing any irregularity arises but if there is some error or irregularity in the conduct of the trial, even though it may amount to a breach of one or more of the provisions of the Code, it was a mere irregularity and in support of this reference was made to Abdul Rahman vs The King Emperor(1).
Several decisions of the High Courts were referred to in course of the arguments with a view to showing what is the true state of the law in view of the Privy Council decisions referred to above but we do not think that that question arises in the present case.
We are of opinion that the present is not a case under section 233 of the Code and it is, therefore, unnecessary to consider whether the violation of its provisions amounts to an illegality vitiating the trial altogether (1) 28 I.A. 257.
(2) 54 I.A. 96.
(3) A.I.R. 1947 P.C. 67.
596 or it is a mere irregularity which can be condoned under section 537.
Section 233 embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should be a separate charge and every: such charge should be tried separately.
There is no doubt that the object of section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in sections 234, 235, 236 and 239.
Having regard to the facts and the circumstances of this case, we are of opinion that the present case falls under section 235.
It provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.
The prosecution story as disclosed in the evidence clearly shows that the offence of extortion committed on the 14th September was one of a series of acts connected with the offence of murder and attempt to murder committed on the previous day in such a way as to form the same transaction.
The prosecution case was that when the appellant accompanied by his party came, he caught hold of two persons (P.W. 5 and P.W. 9) at Rajole and proceeded to Korivi.
He took them into custody without any rhyme or reason.
Then outside the village seeing the deceased, P.W. 2, P.W. 3 and P. W. 4 he shot at them.
The deceased fell down while the others ran away.
He pursued them and brought two of them back to the spot where the deceased was lying but was yet alive.
He shot him in the chest and killed him.
Then he proceeded to the village itself where he stayed for the night.
He released P. W. 3 and P. W. 4 on the intercession of certain persons but kept P. W. 5 and P. W. 9 in wrongful confinement and released them only next morning after extorting Rs. 200 from P. W. 5.
These incidents related in the evidence leave no manner of doubt that from the moment the appellant started from the Police Station, he committed a series of acts involving killing, injuring people, unlawfully confining others and 597 extorting money from one of them.
We are satisfied that the series of acts attributed to the appellant constitute one transaction in which the two offences which are alleged to be distinct were committed.
The case falls squarely within the purview of section 235 of the Code and we are, therefore, of opinion that such misjoinder was permitted by the exception.
No question of contravention of any express provision of the Code such as section 233 arises and in the circumstances it is not necessary for us to consider how far the violation of any express provisions of the Code relating to the mode of a trial or otherwise constitutes an illegality which vitiates the trial as distinguished.
from an irregularity which is curable under section 537.
This conclusion in our opinion disposes of the contention about misjoinder of the charges.
The fact that the offence of extortion was committed at a different place and at a different time does not any the less make the act as one committed in the course of the same transaction.
Turning to the merits of the matter, we are not satisfied that any prejudice was caused to the appellant in fact.
It is not possible to say that the Court being influenced by the evidence on the question of extortion was easily led into the error of believing the evidence on the question of murder.
The witnesses on the point of extortion are P.W. 5 and P.W. 9.
These are the two persons who were taken away from village Rajole and were wrongfully confined, P.W. 5 being released on payment of Rs. 200 and the other let off without payment.
These two witnesses are also witnesses to the fact of murder, in addition to the other three witnesses, P.W. 2, P.W. 3 and P.W. 4.
P.W. 5 was injured by the gun shot but survived.
The other two were scared on hearing the gun shot and ran away taking protection under the babul tree.
It is not possible to contend that the Sessions Judge having believed the evidence of extortion from P.W. 5 must have been persuaded into believing that the story of murder deposed to by him must be correct, for there is not only the evidence of P. W. 5, but three other inde pendent witnesses.
Lastly it was contended that the judgment of one of the agreeing Judges Manohar Pershad J. is purely 598 mechanical and does not show that he has applied his mind to the facts of the case.
No such complaint is made about the judgment of the other agreeing Judge Srinivasachari J.
It is true that the learned Judge has made copious quotations verbatim from the evidence of the witnesses and his comment upon the evidence is not as full and detailed as might be expected but this practice of writing judgments in this way seems fairly general in Hyderabad though we cannot help saying that it is not to be commended.
It is the obvious duty of the Court to give a summary of the evidence of material witnesses and to appraise the evidence with a view to arriving at the conclusion whether the testimony of the witness should be believed.
We do not think, however, that the criticism that the judgment is mechanical and does not show a proper appreciation of the evidence is well founded.
The prosecution evidence was believed by the trial Judge and the defence evidence to the effect that the deceased was killed by the Military and that the appellant was not present at the time of the occurrence was disbelieved.
This finding was accepted by both the learned agreeing Judges.
This Court cannot interfere with the finding arrived at, on an appreciation of the evidence.
We are satisfied that there is no good ground for disturbing the conviction of the appellant.
The only question which remains for consideration is whether the sentence of death is the appropriate sentence in the present case.
No doubt there are no special circumstances which justify the imposition of any other but the normal sentence for the offence of murder.
We think, however, that where the two Judges of the High Court on appeal are divided in their opinion as to the guilt of the accused and the third Judge to whom reference is made agrees with one of them who is upholding the conviction and sentence, it seems to us desirable as a matter of convention though ,not as a matter of strict law that ordinarily the extreme penalty should not be imposed.
We accordingly, while maintaining the conviction of the appellant, reduce his sentence to one of transportation for life.
In other respects the appeal stands dismissed.
All the sentences will run concurrently.

summary/full:
Section 233 of the Code of Criminal Procedure (Act V of 1898) embodies the general law as to the joinder of charges and lays down a rule that for every distinct offence there should.
be a 589 separate charge and every such charge should be tried separately.
No doubt the object of section 233 is to save the accused from being embarrassed in his defence if distinct offences are lumped together in one charge or in separate charges and are tried together but the Legislature has engrafted certain exceptions upon this rule contained in sections 234, 235, 236 and 239.
Section 235 of the Code of Criminal Procedure provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence.
The prosecution story showed that the offence of extortion committed on a particular day was one of a series of acts connected with the offence of murder and attempt to murder committed on their previous day in such a way as to form one transaction.
The incidents related in the evidence left no doubt that from the moment the accused (a Reserve Inspector of Police) started from the Police State, he committed a series of acts involving killing, injuring people, unlawfully confining others and extorting money from one of them and therefore the series of acts attributed to him constituted one transaction in the course of which two offences which were alleged to be distinct were committed.
Held, that under the circumstances the case fell within the purview of section 235 of the Code of Criminal Procedure and such joinder was permitted by the exception enacted in that section.
Where the two Judges of the High Court on appeal are divided in their opinion as to the guilt of the accused and the third Judge to whom reference is made agrees with one of them who is upholding the conviction and sentence, it is desirable as a matter of convention though not as a matter of strict law that ordinarily the extreme penalty should not be imposed.