judgement:
ION: Criminal Appeal No. 52 of 1955.
Appeal from the judgment and order dated the 15th February, 1955, of the Calcutta High Court in Criminal Appeal No. 40 of 1955 arising out of the 751 judgment and order dated the 22nd January, 1955, of the Additional Sessions Judge, 24 Parganas, Alipore, in Trial No. 1 of January Sessions for 1955.
A. C. Roy Choudhari, K. R. Choudhari and Sukumar Ghosh, for the appellant.
A. C. Mitra, K. B. Bagchi and P. K. Bose, for the respondent.
October 24.
The following Judgment of the Court was delivered by SINHA J.
This appeal on a certificate granted by the High Court at Calcutta, under article 134(1)(c) of the Constitution, is directed against the order of a Division Bench of that Court, dated February 15, 1955, summarily dismissing an appeal from the judgment and order dated January 22, 1955, passed by the learned Second Additional Sessions Judge of Alipore, accepting the unanimous verdict of guilty returned by the jury holding the appellant guilty under section 376 of the Indian Penal Code, for having committed rape on a young girl, named Sudharani Roy, said to be about 14 15 years of age.
The learned trial judge, accepting the unanimous verdict of the jury and agreeing with it, imposed a " deterrent punishment " of rigorous imprisonment for 5 years, in view of the fact that he was in loco parentis to the large number of girls who were the inmates of the Nari Kalyan Ashram of which the appellant had been the secretary for a pretty long time.
The learned counsel for the State of West Bengal raised a preliminary objection that the certificate granted by the Bench of the Calcutta High Court presided over by the learned Chief Justice, was bad on the face of the judgment given by him while granting the certificate.
We have, therefore, first to examine whether the preliminary objection is sound.
As already stated, the Division Bench before which the appeal came up for admission, summarily dismissed it without giving any reasons.
Apparently, the Bench was not satisfied that there was any error of law or mis direction in the learned Sessions Judge 's charge to the jury which had returned a unanimous verdict of 752 guilty against the appellant.
On March 7, 1955, the Bench consisting of Chakravarty C. J. and section C. Lahiri J. passed the order to the effect that having heard the argument on behalf of the applicant for the certificate of fitness for the proposed appeal to this Court on March 4, they had the opportunity of reading through the charge delivered by the learned trial judge, and that they had " come to feel that before the application is disposed of, we should see the depositions in full.
" Accordingly, they directed the records of the original trial to be called for and placed before them.
The case, therefore, stood adjourned till the arrival of the records.
The matter was heard again on March 17, and on March 18, the learned Chief Justice delivered a judgment which appears at pages 220 to 231 of the record.
It is a full judgment giving the facts and history of the case and the evidence adduced on behalf of the prosecution.
The learned Chief Justice, in the course of his very elaborate judgment, observed that the " learned Judge delivered an exhaustive charge to the jury from which he does not appear to have omitted any part of the evidence which was of any materiality whatsoever.
The jury appear to have applied their minds critically. .
Having examined the grounds taken in the appeal as presented to the High Court, he made the following observations: " I have gone through the grounds taken in the petition of appeal to this Court and I have no hesitation in saying that if those were the grounds urged before the learned Judges, no one need be surprised that their Lordships saw nothing arguable or worth attention in the case.
Except one, not one of the grounds urged by Mr. Roy Choudhury before us is to be found in the petition of appeal. . ." On an examination, in great detail, of the grounds urged before the Bench hearing the application for certificate, the learned Chief Justice observed: " Mr. Roy Choudhury, however, urged before us six several points.
Except one, in respect of which there is something to be said, none of them impresses me.
" 753 It was not clearly indicated in the judgment what that single ground was.
The penultimate paragraph of the order passed by the learned Chief Justice, contains the following: " We are oppressed by the feeling that there were arguable points, although they might not bear examination and the accused has not had the satisfaction of feeling that he has been fully heard by the Court of appeal.
I would therefore grant him the leave he asks for, not because we take any view in his favour of the evidence in the case, but because justice should also appear to have been done and therefore the evidence ought to have received a full consideration by the appellate Court, although the result might be to confirm the conviction.
" We have set out the findings of the learned Chief Justice while granting "leave to appeal" to this Court, in his own words, to appreciate the reasons for granting " leave to appeal ".
It appears that the learned Chief Justice and his brother judge, contrary to the legal position that one Bench of the High Court has no jurisdiction to sit in judgment on the decision of another Division Bench, have, in fact, done so.
But in the instant case, the learned Chief Justice has gone further and observed that the summary dismissal of the appeal by the Criminal Bench, has not given satisfaction to the appellant that he had been fully heard, and that it did not appear to him that justice had been done.
Such observations are not conducive to the maintenance of a healthy atmosphere for the administration of justice in the highest Court in the State.
Furthermore, the observation almost amounts to a condemnation of the practice of summary dismissal of appeals, especially against orders passed in a case tried by a jury where the appellant has to make out clear grounds of law.
Such a practice prevails, so far as we know, in almost all the High Courts in India and has the sanction of the statute law as contained in the Code of Criminal Procedure.
This Court has repeatedly called the attention of the High Courts to the legal position that under 754 article 134(1)(c) of the Constitution, it Is not a case of granting leave" but of "certifying that the case is a fit one for appeal to this Court.
" Certifying " is a strong word and, therefore, it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact, and that the High Court is not justified in passing on an appeal for determination by this Court when there are no complexities of law involved in the case, requiring an authoritative interpretation by this Court.
On the face of the judgment of the learned Chief Justice, the leave granted cannot be sustained vide the case of Haripada Dey vs The State of West Bengal (1), and a number of decisions of this Court referred to therein.
In view of those authorities of this Court, it is clear that the certificate granted by the High Court is not a proper one.
The preliminary objection is, therefore, upheld.
But the appeal having been placed before this Court, we have to satisfy ourselves whether there are any grounds on which this Court would have granted special leave to appeal under article 136 of the Constitution.
In order to appreciate the grounds raised in support of the appeal by the learned counsel for the appellant, it is necessary to state the following facts: The appellant was the honorary secretary of a large institution for receiving and looking after young girls and women who had no homes of their own or had gone astray.
It is called the ' Nari Kalyan Ashram ' and is located in one of the quarters of the city of Calcutta.
The appellant in his capacity as the secretary, used to come to the Ashram daily in the evening at about 7 p.m., and stay there till mid night or past mid night.
In his office room, there was a bed stead with a bedding spread thereon.
He used to occupy the bed and requisition the services of girls to massage his body.
Between January and April, 1954, the accused who was in the 'habit of calling the girls named Sudharani, Narmaya, Kalyani and others, for that purpose, is said to have committed rape on those girls.
The subject matter of the charge in this case is the offence of rape said to have been 755 committed on the two girls Narmaya and Sudharani, one after the other, on the night of April 20, 1954.
On April 29, 1954, at about 10 p.m., the officer in charge of the Maniktala police station, accompanied by Sub Inspector Nirmal Chandra Kar, went to the Ashram in connection with collecting information regarding the escape of some girls from the Ashram.
Narmaya and Sudharani are said to have given information to the said officer in charge of the police station, alleging rape on them.
They also pointed out a steel locker in the room of the secretary, where, it was alleged, he used to keep rubber sheaths used by him before he had sexual intercourse with each of them.
The police officers aforesaid obtained the key from the appellant, with which the steel locker was opened and a leather bag inside the locker was pointed out by the girls.
The bag was found to have contained a rubber sheath along with other articles.
After recording the information, the police officer in charge of the Maniktala police station, investigated the case and submitted a charge sbeet against the appellant.
After the preliminary inquiry by a magistrate, the appellant was committed for trial to the Court of Session on a charge of rape upon the two girls, under section 376, Indian Penal Code.
The defence of the appellant was that the case against him was completely false and had been concocted by the police with the help of the inmates of the Ashram and the Assistant Secretary, Tarun Kumar Sarkar who was one of the prosecution witnesses.
At the trial, the prosecution examined 23 witnesses, in support of the case against the accused.
The two victims of the alleged outrage by the appellant, were examined, namely, Sudharani Roy, P.W. 2 and Narmaya, P.W. 5, who both deposed that the appellant used to come to the Ashram in the evening at about 7 p.m., and used to stay there till after mid night in his special room which contained a bedstead and a bedding and a steel almirah and other pieces of furniture.
On the &ate of the occurrence in question, first Narmaya was called in by the appellant and then Sudharani, and the appellant is said to have committed rape first on 96 756 Narmaya and then on Sudharani, in the presence of both of them, against their will and without their consent.
They further deposed that the appellant had intercourse with them after putting on the sheath.
In between the two acts, he had a cup of tea with which he swallowed " a black pill " which is suggested to have been an aphrodisiac.
The accused paid them each eight annas and warned them not to divulge those acts on pain of being severely dealt with, if they disclosed the same.
Kalyani, P.W. 19, is another young girl who was an inmate of the Ashram on the material dates.
She is a girl who was both deaf and dumb, and her intelligence was below normal.
As she was feeble minded, she was not allowed to continue her studies at the school.
She has given evidence by signs which were interpreted by the principal of the Deaf and Dumb School, who had taught her at that school.
Her evidence, if accepted, would be a corroboration of the testimony of the victims aforesaid of the outrageous act of the appellant.
Besides this direct oral testimony, there was also evidence tending to show that the appellant was in the habit 'of having himself massaged at night by the girls of the Ashram, and that the police found a rubber sheath in his bag kept in the steel locker inside his special room.
There was also the evidence of a woman employee of the Ashram that she had been asked by the ' appellant to keep a number of rubber sheaths which she had buried underground, and which on her pointing out, had been discovered by the police.
There was also the evidence of a complaint made the next day by the victim girls to the assistant secretary when be came to the Ashram in connection with his work there.
The prosecution also led evidence to show the age of the girl Sudharani to be below 16.
It produced the register of the girls in the Ashram which has a column for mentioning the age of the inmates.
The estimate of her age by medical evidence, was given after X ray examination and the stage of ossification and other indicia for determining the age of a person.
The medical estimate of her age was that she was between 13 and 757 14 years on the date of the X ray examination, that is May 19, 1954.
That, in barest outline, is the prosecution case and the evidence adduced in support of it.
Beyond cross examining the prosecution witnesses and pointing out contradictions and omissions in their evidence, the accused did not adduce any positive evidence in support of his defence.
The appellant was tried by a jury assisted by the learned Additional Sessions Judge at Alipore.
The jury returned a unanimous verdict of guilty against the accused in respect of the charge of committing rape on Sudharani and a unanimous verdict of riot guilty in respect of the charge of rape on Narmaya.
The jury answered the judge 's question as regards the charge with respect to Narmaya in these words: "Not guilty as we found with consent and she is above 16 years of age." As the jury did not give any such clue in respect of their verdict of guilty so far as rape on Sudharani was concerned, it is difficult to say whether they found consent in her case also, and returned a verdict of guilty because they were of the opinion that she was under 16 years of age.
In this Court, the learned counsel for the appellant raised a large number of contentions, but as most of them concerned the appreciation of evidence with reference to omissions and contradictions, it is not necessary to deal with those arguments.
It is only necessary to notice the following points raised, namely, (1) that the learned judge refused permission to counsel for the appellant to read out the written statement filed on behalf of the appellant at the Sessions stage, (2) that there was a serious misdirection in respect of corroboration of the testimony of the alleged victims of rape, and (3) that the direction as to the age of the girl Sudharani was not complete.
In our opinion, there is no substance in any one of these contentions.
Firstly, as regards the refusal to permit the written statement of the accused being placed before the jury, it has to be observed that there is no provision in the 758 Code of Criminal Procedure for such a written statement being filed at the Sessions stage.
Section 256(2) which occurs in Chapter XXI, headed " Of the trial of Warrant Cases by Magistrates ", does contain the specific provision that if the accused person puts in a written statement, the magistrate shall file it with the record.
But there is no corresponding provision in the Code, requiring a Sessions Court to accept a written statement at that stage on behalf of the accused.
But the accused has the right to make a statement under section 342 of the Code, which has to be considered by the Court for what it is worth.
In a jury trial, the Court has got to be circumspect to see that nothing is allowed to be placed before the jury which is not evidence.
It is not necessary to decide whether in the case of a Sessions trial without a jury, such a statement is receivable.
But if such a written statement is allowed to be used at a Sessions trial by a jury, it may throw the door open to irrelevant and inadmissible matter and, thus, throw an additional burden on the presiding judge to extricate matter which was admissible from a mass of inadmissible statements which may have been introduced in the written statement.
In view of these considerations, in our opinion, the learned Sessions Judge rightly refused to allow the written statement put in by the appellant, to be read out before the jury.
On the question of corroboration, the learned judge in his charge to the jury, has, at more than one place, pointed out the necessity of corroboration of the evidence of the victims of the alleged crime.
Referring to the evidence of Kalyani, P.W. 19, aforesaid, the learned judge has charged the jury in these terms: ". whether her evidence is a corroboration with respect to the committing of rape by accused on Sudharani Roy on 20th April, 1954.
If the evidence of Kalyani appears unreliable to you or the evidence of Tarun, there remain the uncorroborated testimonies of Sudharani and Narmaya.
The rule of prudence demands that it is unsafe to convict an accused on the uncorroborated testimony of an accomplice or accomplices.
But I must tell you, gentlemen, that it 759 is within your legal province to convict upon such unconfirmed evidence, provided you can come to the conclusion in the particular circumstances of this case that corroboration can be dispensed with.
" It will be noticed that if the learned judge has made any mistake, the mistake is in favour of the accused and.
not against him in so far as the learned judge refers to the evidence of the two girl victims as that of accomplices.
A girl who is a victim of an outrageous act is, generally speaking, not an accomplice though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it.
Hence, the girl Sudharani was not exactly in the position of an accomplice though the judge may, as a rule of prudence, warn the jury that such a rule of prudence required corroboration of the testimony of the prosecutrix, but that it was open to the jury to convict even on the uncorroborated testimony of the prosecutrix if the jury, in the particular circumstances of the case before it, came to the conclusion that corroboration was not essential to conviction.
Hence, the learned Sessions Judge was fully justified in telling the jury that there was no rule of law or practice that there must be corroboration in every case, before a conviction for rape.
If the jury had been apprised of the necessity, ordinarily speaking, of corroboration of the evidence of the prosecutrix, it is for the jury to decide whether or not it will convict on the uncorroborated testimony of a prosecutrix in the particular circumstances of the case before it.
In other words, insistence on corroboration is advisable but is not compulsory in the eye of law.
In the instant case, apart from the evidence of the two victims aforesaid, there was the evidence of the deaf and dumb girl, Kalyani, and the other circumstantial evidence in support of the prosecution case.
It is well established that the nature and extent of corroboration, necessary, vary with the circumstances of each case.
The nature of the corroborative evidence should be such as to lend assurance that the evidence of the prosecutrix can be safely acted upon.
See, in this connection, the observations of this Court in the case 760 of Rameshwar vs The State of Rajasthan (1) to the following effect: "The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.
" Lastly, we do not find anything basically wrong with the direction in the charge to the jury as regards the age of the girl Sudharani and as to the nature of the evidence to prove her age.
The learned judge pointed out the several items of evidence which had been adduced by the prosecution bearing on the question of the girl 's age.
The only conclusive piece of evidence may be the birth certificate, but, unfortunately, in this country such a document is not ordinarily available.
The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available.
The girl 's father was dead.
Her mother apparently has left her to her own fate, and according to the evidence of the police, the mother 's whereabouts were not traceable.
It was sought to be argued that the police officer who himself made the inquiry, should have been examined, otherwise, the result of the inquiry is a mere hearsay.
An inquiry whether made by one or the other police officer, would, almost in every case, be the result of hearsay.
The girl is said to be a displaced person.
The difficulty of tracing evidence of the parents of such a person is all the greater.
Hence, in all the circumstances of the case, the learned Sessions Judge has not committed any error in this part of his charge to the jury.
On this part of the case, the learned judge gave the following concluding directions: " In criminal trial the accused must get the benefit of doubt and there should not be any conviction unless it can be clearly and unequivocally said that (1) 761 the age of the girl was below 16.
But, gentlemen, in this case you have seen the girls, you have heard the evidence of the experts and you should also take into consideration the various factors found out in cross examination and in considering all these facts you can arrive at the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence on 20th April, 1954, taking into consideration the facts that ossification test is not a sure guide, even in spite of this, you can come to the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence, i.e., on 20th April, 1954.
1 would tell you, gentlemen, that the question of consent would be immaterial." In our opinion, the learned Sessions Judge placed the evidence pro and con very fairly and fully, and left it to the jury to come to their own conclusion.
According to the medical evidence, Sudharani was between 13 to 14 years of age on the relevant date, whereas the other girl in respect of whom, the accused was acquitted, was found by the medical test to be between 15 and 16 years.
The jury, therefore, took the commonsense point of view and appeared to have come to the conclusion that Narmaya may well have been above 16, and that, therefore, the accused could not be convicted for rape on her.
In respect of the girl Sudharani, they may have come to the conclusion that she was not above 16, and that, therefore, the prosecution had succeeded in bringing the charge home to the accused.
We have read the charge of the learned judge to the jury more than once, and, in our opinion, it is a very fair and full charge, erring more on the side of verbosity than of brevity.
In our opinion, there is no merit in the appeal.
It is accordingly dismissed.
Appeal dismissed.

summary/full:
Appellant was tried by the Sessions judge and a jury on the charge of committing rape.
On the question of the age of the girl expert medical evidence was produced but no birth certificate was available.
The father of the girl could not be examined as he was dead.
According to the Police evidence the whereabouts of the mother were not traceable but the Police Officer who himself made the inquiry was not produced.
As regards the commission of the rape the girl herself was examined and there was the evidence of another girl and some circumstantial evidence.
The 750 accused filed a written statement but the judge refused to read it out to the jury.
The jury returned a unanimous verdict of guilty and the judge, accepting the verdict, convicted the appellant and sentenced him to 5 years rigorous imprisonment.
An appeal to the High Court was summarily rejected.
But the High Court granted "leave to appeal" on the ground that on account of the summary dismissal of the appeal appellant did not have the satisfaction of feeling that he had been fully heard and that justice should also appear to have been done by a full consideration of the evidence by the appellate court.
Held that, the certificate granted by the High Court amounts to a condemnation of the practice of summary dismissal of appeals, especially in jury trials.
Such practice prevails in most High Courts and has the sanction of statute law.
No certificate should be granted on a mere question of fact nor in a case where there are no complexities of law involved requiring an authoritative interpretation by the Supreme Court.
Haripada Dey vs The State of West Bengal, ; , followed.
There is no provision in the Code of Criminal Procedure requiring a Session judge to accept a written statement filed by an accused.
If such a written statement is allowed to be used at a Sessions trial by jury, it may throw the door open to irrelevant and inadmissible matter and cast an additional burden on the judge of separating admissible from inadmissible statements.
The judge had rightly refused the written statement to be read to the jury.
There is no rule of law or practice that there must be cor roboration of the testimony of the prosecutrix, before conviction for rape.
If the jury had been appraised of the necessity of corroboration, it was for the jury to decide whether or not it would convict on the uncorroborated testimony of the prosecutrix in the particular circumstances of the case before it.
Rameshwar vs The State of Rajasthan, , followed.
There was no misdirection on the question of the age of the girl.
The Session judge had pointed out the several items of evidence to the jury.
The failure of the prosecution to examine the Police Officer who actually made inquiry into the whereabouts of the mother does not affect the case as in any case the inquiry would be the result of hearsay.


judgement:
ivil Appeal No. 265 of 1978.
From the Judgment and Order dated 12.9.1977 of the Allahabad High Court in C.M.W. No. 144 1 of 1976.
S.N. Kacker and B.R. Agarwala for the Appellants.
U.R. Lalit, R.B. Mehrotra and D.N. Misra for the Respond ents.
Mr. Prithvi Raj and Mrs. Shobha Dikshit for the Respondents.
500 The Judgment of the Court was delivered by NATARAJAN, J.
The only question for consideration in this appeal by special leave is whether the order of release passed by the Prescribed Authority under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act hereinafter) is a null and void order because the Prescribed Authority had no jurisdiction to pass the order as he did not possess the requisite quali fication for being appointed as such Authority.
Premises No. 58/3 Birhana Road, Kanpur is a three sto reyed building and in addition it has a mezzanine floor as well.
As early as in 1947, when the respondents who are brothers were minors, a portion of the ground floor and the entire first floor was leased out to the predecessor concern of the appellant by the father of the respondents.
While the first floor was leased out for residential purposes, a portion of the ground floor was leased out for non residen tial purposes.
The respondents sought recovery of possession from the appellant of the leased portions for their residen tial needs and business purposes.
It may be mentioned here that the respondents were already having their residence in the second floor and their business establishments in anoth er portion of the ground floor.
As the appellant refused to comply, the respondents preferred an application under Section 21 of the Act for an order of release in their favour to recover possession of the leased portions.
Various defences were raised by the appellant to oppose the applica tion but all the objections were found untenable by the Prescribed Authority and he, therefore, passed an order of release on 19.8.
1975 holding that the requirement of the leased portions by the respondents for their residential and non residential purposes was a bona fide one and furthermore the comparative hardship factor was more in their favour than in favour of the appellant.
The findings of the Pre scribed Authority were confirmed by the Appellate Authority (Additional District Judge, Kanpur) and thereafter the appellant filed a petition under Article 226 of the Consti tution before the High Court.
For the first time the appel lant raised a contention, by means of an amendment petition, that the order of the Prescribed Authority had been passed without jurisdiction and was therefore a nullity and in such circumstances its affirmation by the Appellate Authority could not also validate it.
The High Court, though it al lowed the amendment petition and permitted the additional question to be raised, did not see any merit in it on ac count of two factors.
The first was that even if the order of the Prescribed Authority was a defective one, it had become merged with the order of the Appellate Authority when it was con 501 firmed and as such there was no room for the appellant to assail the order on the question of jurisdictional incompe tence of the Prescribed Authority.
Besides, the High Court was of opinion that the question of jurisdictional compe tence of the Prescribed Authority to pass the order of release involved adjudication upon disputed questions of fact and such an exercise was beyond the scope of proceed ings under Article 226 of the Constitution.
The High Court thereafter went into the correctness of the findings concur rently rendered by the Prescribed Authority and the Appel late Authority and found the findings to be fully in accord ance with law and facts.
The High Court, therefore, dis missed the writ petition filed by the appellant and hence the present appeal by special leave.
For a proper comprehension of the attack made on the competence of the Prescribed Authority to pass the impugned order of release, it is necessary to set out the terms of Clause (e) of Section 3 which defines the 'Prescribed Au thority ' under the Act as it stood before and after the amendment in 1974, and also the qualifications of Shri Senger who was the Prescribed Authority who had passed the order of release in this case.
Clause (e) of Section 3 of the Act was originally in the following terms: "Prescribed Authority" means a Magistrate of the First Class having experience as such of not less than three years, authorised by the District Magistrate to exercise, perform and discharge all or any of the powers, functions and duties of the prescribed authority under this Act, and different Magistrates may be so authorised in respect of different areas or cases or classes of cases, and the District Magistrate may recall any case from any such Magistrate and may either dispose of it himself or transfer it for disposal to any other such Magistrate.
" The definition of a Prescribed Authority had, however, to be changed with the coming into effect of the Code of Criminal Procedure 1973 with effect from 1.4.1974 because the Executive Magistrates ceased to be Magistrates of the First Class under the Code.
Hence by means of an Amendment Act viz. U.P. Act No. 19 of 1974, Section 3(e) came to be amended as under: "(e) 'Prescribed Authority ' means an officer having not less 502 than 3 years experience as Munsif or as Magistrate of the First Class or as Executive Magistrate authorised by general or special order of the State Government to exercise, perform and discharge all or any of the powers.
functions and duties of the Prescribed Authority under this Act, and different officers may be so authorised in respect of different areas or cases, or classes of cases." Thus by reason of the amendment the State Government became the authority to authorise a person to act as a Prescribed Authority and three classes of officers viz. Munsifs, Magis trates of the First Class and Executive Magistrates, each having not less than three years experience as such were designated the officers on whom the powers of a Prescribed Authority under the Act could be conferred.
Coming now to the qualifications of Shri Senger, the Prescribed Authority, he had served as Tehsildar from 29.9.2962 to 6.11.1964 and again from November 1965 to 15.2.1974 and he was promoted as Deputy Collector with effect from 16.2.
1974 and posted as Additional City Magis trate II, Kanpur.
He worked as Additional City Magistrate II, Kanpur from 16.2.1974 to 14.8.1974 and again from May 1975 to 26.8.1975.
It was during this period i.e. on 19.8.1975 he had passed the impugned order of release.
While Shri Senger was serving as a Tehsildar the Government in exercise of its powers under Sections 12 and 39(1) of the Code of Criminal Procedure 1898, issued a general Notifica tion dated 6.2.1968 conferring on all Tehsildars the powers of a First Class Magistrate and on all Naib Tehsildars the powers of a Second Class Magistrate.
The Notification of the Government was duly published in the Gazette on 17.2.
By means of a Notification dated 9.9.1974 the Government had designated the Additional City Magistrate II, Kanpur, to be the Prescribed Authority under the Act for certain areas including the limits of Collector Ganj Police Station where the leased property is situate.
By reason of this notifica tion when Shri Senger succeeded one Shri Jagdish Sharma as the Additional City Magistrate II, Kanpur, on May 19, 1975, he became the Prescribed Authority for those areas including the Collector Ganj area.
It was in such circumstances Shri Senger dealt with the application filed under Section 21 of the Act by the respondents before his predecessor and passed the order of release on 19.8.1975.
Having set out these factual matters we will now refer to the grounds on which the competence of Shri Senger to have passed the order of release are questioned.
They are as follows: 503 1.
There is no proof that the General Notification of the Government dated 6.2.68 was given effect to in the case of Shri Senger, and in the absence of such proof he cannot be deemed to have been conferred 'the powers of a First Class Magistrate because Clause (2) of Section 39 of the Criminal Procedure Code 1898 lays down that any conferment of magis terial powers on an officer under Section 39(1) "shall take effect from the date on which it is communicated to the person so empowered.
Even if there had been a communication to Shri Senger as envisaged under Section 39(2) of the Code, the conferment of powers was only for ensuring the maintenance of law and order and not for the trial of cases.
This position has been set out by the Deputy Secretary, Government of U.P. in his note while forwarding a copy of the General Notification of the Government to all District Magistrates (vide page 260 of the Printed Paper Book).
Therefore, Shri Senger cannot be treated as a Tehsildar on whom the powers of a First Class Magistrate had been conferred upon for trial of cases.
For an Executive Magistrate to be lawfully empowered to act as a Prescribed Authority under Section 3(e), he must have had not less than three years experience in the trial of cases as a First Class Magistrate.
The terms of Section 3(e) are clear on this aspect and they have been reiterated by the Government through a communication sent by the Com missioner and Secretary, Government of Uttar Pradesh to all District Magistrates on 9.9.
1974 (vide page 228 of Printed Paper Book).
It has been stated therein that "in the case of Executive Magistrates, it shall be deemed sufficient if they have gained three years ' experience of working as Magis trates of First Class before the 1st April, 1974".
These grounds were controverted by Mr. Lalit appearing for the respondents and he contended that Shri Senger had been conferred the powers of a First Class Magistrate in terms of the Government Notification and the Gazette publi cation is proof thereof.
that this position has been con firmed by the District Magistrate in his reply to the Sixth Additional Judge, Kanpur (vide pages 224/225 of the Printed Paper Book), that Shri Senget was empowered to exercise all the powers of a First Class Magistrate and that the note issued by the Deputy Secretary that the conferment of powers was confined to the maintenance of law and order and would not extend to the trial of cases is an 504 administrative note which cannot override the Gazette Noti fication and it must therefore be held that Shri Senger had been an Executive Magistrate exercising the powers of a First Class Magistrate from February 1968 itself and as such he fully satisfied the terms of Section 3(e) for being conferred the,powers of a Prescribed Authority under the Act.
We will now examine the contentions of the counsel in greater detail.
It is not in dispute that the Government issued a Gener al Notification on 6.2.
1968 conferring the powers of a First Class Magistrate on all Tehsildars and the powers of a Second Class Magistrate on all Naib Tehsildars and this Notification was duly published in the Official Gazette on 17.2.68.
The argument of Mr. Kacker that in spite of the Government Notification there is no proof that Shri Senger had been individually communicated an order conferring upon him the powers of a First Class Magistrate cannot be accept ed because the Additional District Magistrate has categori cally stated in his reply to the letter of the Sixth Addi tional Judge dated 3.5.76 that by virtue of the General Notification of the Government and the Gazette Notification, "all the Tehsildars had been appointed Magistrates, First Class" and by way of enclosure he had sent the relevant Gazette Notification as well.
In the face of such materials, it must be taken that the Government Notification should have been fully acted upon and all Tehsildars including Shri Senger must have been conferred the powers of a First Class Magistrate in the year 1968 itself.
In so far as the second criticism is concerned, there is nothing in the Government Notification dated 6.2.68 or in the Gazette publication dated 17.2.68 to indicate that the powers of a First Class Magistrate and a Second Class Magistrate conferred on Teh sildars and Naib Tehsildars respectively was only for the limited purpose of ensuring the maintenance of law and order and not for exercise of those powers in the trial of crimi nal cases.
The note of the Deputy Secretary (page 260 of the Printed Paper Book) relied on by Mr. Kacker appears to be only an administrative instruction and not an order passed by the Government itself in exercise of its powers under Sections 12 and 39 of the Criminal Procedure Code 1898.
In such circumstances, the instruction cannot whitle down the Government Notification conferring higher magisterial powers on Tehsildars and Naib Tehsildars.
Incidentally, we may point out that the copy of the Government Notification dated 6.2.68 together with the administrative instruction of the Deputy Secretary had been communicated to all the Tehsildars of the District by the District Magistrate.
The endorsement made by the Collector will, therefore, disprove the conten tion of Mr. Kacker that there had been no individual commu nica 505 tion of the Government 's Order to all the Tehsildars and hence the requirement of Section 39(2) of the Criminal Procedure Code 1898 had not been complied with.
Even assuming for argument 's sake that the conferment of the powers of a First Class Magistrate on all Tehsildars was for the limited purpose of enforcement of law and order and not for the trial of cases, the question will be whether the experience gained by Shri Senger as a Second Class Magis trate while concurrently having the powers of a First Class Magistrate would not satisfy the requirements of Section 3(e) of the Act.
All that the Section says is that for being conferred the powers of a Prescribed Authority an Executive Magistrate should have had experience as such Magistrate for a period of not less than three years.
Having regard to the terms of the stipulation, it would suffice if Shri Senger had acquired experience in the trial of criminal cases, albeit cases triable by a Second Class Magistrate, for more than three years, while at the same time having the right to exercise the powers of a First Class Magistrate.
This is because of the fact that as per Schedule III of the Code of Criminal Procedure 1898 a Magistrate of the First Class is also entitled to exercise all the powers of a Magistrate of the Second Class.
It would, therefore follow that a First Class Magistrate can also gain experience by the trial of cases triable by a Second Class Magistrate.
What is of relevance is the gaining of experience in trial of criminal cases for a period of three years and more and at the same time having the powers of a First Class Magistrate and not necessarily the experience of trying cases triable by a First Class Magistrate alone.
In the light of the aforesaid reasons we do not see any merit in the contention of the appellant that Shri Senger did not have the requisite qualification to be appointed a Prescribed Authority under Clause (e) of Section 3 of the Act and hence the release order passed by him is a nullity.
There is also another angle from which the matter needs to be considered.
Shri Senget was not ' appointed a Pre scribed Authority as persona designata.
On the other hand he exercised the powers of a Prescribed Authority by reason of his posting as Additional City Magistrate II, Kanpur, in the place of one Shri S.D. Sharma and by virtue of an earlier Notification of the Government dated 9.9.1974 constituting the Additional City Magistrate II, Kanpur, as the Prescribed Authority for certain areas in Kanpur city including the area falling within the limits of the Collector Ganj Police Station.
The 506 abovesaid Notification of the Government was a General Notification and, therefore, whoever came to be posted as Additional City Magistrate II, Kanpur, automatically became a Prescribed Authority for the areas indicated in the Gov ernment Notification.
Such being the case, as long as the Government Notification dated 9.9.1974 is not challenged, the exercise of powers by Shri Senger as a Prescribed Au thority cannot also be challenged.
This position would then call for the application of the 'de facto doctrine ' to the facts of the case.
The principle of the 'de facto doctrine ' has been considered in several cases.
This Court had occa sion in G. Rangarajan v Andhra Pradesh, [1981] 3 S.C.R.474, to which one of us (Sen, J.) was a party to refer to those decisions and enunciate the law relating to the 'de facto doctrine '.
In that case a criminal appeal filed by one Gokaraju Rangaraju under Section 6(c) of the Essential Commodities Act was dismissed by Shri G. Anjappa, Additional Sessions Judge and a revision was preferred to the High Court.
One Shri Raman Raj Saxena, another Additional Ses sions Judge, had tried a Sessions case and awarded convic tion to two of the accused persons and they had filed ap peals to the High Court against their conviction and sen tence.
By the time the Criminal Revision and the Criminal Appeal filed by the accused came to be heard by the High Court, this Court had quashed the appointments of the above said two Additional Sessions Judges and two others as Dis trict Judges Grade II on the ground that their appointment was in violation of Article 233 of the Constitution.
There fore, the accused who had preferred the Criminal Revision and the Criminal Appeals respectively raised a contention before the High Court that the judgments rendered against them by the concerned Additional Sessions Judges were void and should therefore, be set aside.
The High Court rejected the contention on the ground that the Additional Sessions Judges had held their offices under lawful authority and not as usurpers and therefore, the judgments rendered by them were valid and could not be questioned in collateral pro ceedings.
Against the judgments of the High Court the ac cused preferred appeals by special Leave to this Court and those appeals were dismissed by this Court on the ground the 'de facto doctrine ' was clearly attracted.
After referring to severaL decisions rendered by the Courts in India and England, Chinnappa Reddy, J. speaking for the Bench enunci ated the law relating to the 'de facto doctrine ' as under: "A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office under colour of lawful authority, though his appointment is defective and may later be found to be defective.
Whatever be the 507 defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a Judge de jure.
Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief.
There is yet another rule also based on public policy.
The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge.
Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office.
Otherwise as soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge.
A judge 's title to his office cannot be brought into jeopardy in that fashion.
Hence the rule against collateral attack on validity of judicial appointments.
To question a judge 's appointment in an appeal against the judgment is, of course, such a collateral attack.
" The ensuing position therefore is that even if we are to countenance the argument of the appellant 's counsel that Shri Senger had not gained experience as an Executive Magis trate exercising First Class powers for a period of not less than three years and could not therefore be appointed as a Prescribed Authority under the Act, the validity and legali ty of the order of release passed by him cannot be impugned because Shri Senger had not held the office as an usurper but only under colour of lawful authority.
There is, there fore, no escape for the appellant from being governed by the 'de facto doctrine ' and thereby being disentitled to impugn the validity of the release order on the ground of want of jurisdictional competence for Shri Senger to pass the order.
Furthermore, the appellant is also not entitled to question the validity of the appointment of Shri Senger as a Pre scribed Authority in a collateral proceeding.
These addi tional factors also militate against the contentions of the appellant.
In view of our conclusion that Shri Senger 's experience as an Executive Magistrate satisfied the requirements of Section 3(e) of the Act and as such he was not incompetent to act as a Prescribed Authority and pass the impugned order of release, that secondly even if he 508 was not fully qualified to act as a Prescribed Authority and pass the order of release the validity of the order cannot be impugned because of the 'de facto doctrine ' and thirdly, the appellant is not entitled to question the competence of Shri Senger to act as a Prescribed Authority in a collateral proceeding, it is really not necessary for us to examine the correctness of the view taken by the High Court that by reason of the merger of the order of Shri Senger with the order of the Appellate Authority, there is no room for the appellant to contend that the release order is a nullity because Shri Senger did not have jurisdiction to pass the order.
Even so we may make a brief reference to the argu ments of the counsel on that aspect of the matter and the case law cited by them to be fair to the counsel and to their arduous preparation of the case.
Mr. Kacker 's argument was that the High Court was not right in its view because the rule of merger would not be attracted where there is a total lack of jurisdiction in the Tribunal or Court of first instance to pass an order.
Mr. Kacker submitted that there is a clear distinction between the manner of exercise of jurisdiction and the existence of jurisdiction and whenever an order was passed without jurisdiction by a Tribunal or Court, the rule of merger will have no application.
In support of his contention the learned counsel referred us to the following decisions.
Hriday Nath Roy vs Ram Chandra Barna Sarma, (ILR 48 Calcutta 138); Collector of Customs vs A.H.A. Rahima, AIR 1957 Madras 496; The State of Uttar Pradesh vs Mohammad Noon, ; ; Kumaran vs Kothan daraman, AIR 1963 Gujarat Page 6; Toronto Railway vs Toronto Corporation, [1904] Appeal Cases 809 and Barnard vs National Dock Labour Board, ; Refuting the contentions of Mr. Kacker, Mr. Lalit argued that in several later judgments the view taken in Mohammad Noon 's case (supra) has been explained as being confined to the peculiar facts of that case and that the rule of merger has not undergone any change and the consistent view that has been taken is that even an order passed by a Tribunal or Court without jurisdiction can be challenged before the Appellate Authority or Court, that in such an appeal the question of the initial Court 's jurisdiction can also be gone into and that once the Appellate Authority or Court found jurisdic tional competence in the Tribunal or Court of first instance and confirmed the order in appeal, then the rule of merger of the order of the original authority with the order of the Appellate Authority would be clearly attracted and thence forth the order of the original authority cannot be assailed on the ground of jurisdictional error or incompetence.
The learned counsel further submitted that besides the rule of merger the rule of finality of judgments would also be attracted and on that score too the order of the original authority will attain immunity 509 from attack.
Mr. Lalit cited several decisions in support of his arguments but we need refer only to the decisions of this Court.
The decisions cited are: U.J.S. Chopra vs State of Bombay, ; ; Madan Gopal Rungta vs Secretary to the Govt.
of Orissa, [1962] Suppl.
3 SCR 906 and Collector of Customs, Calcutta vs East India Commercial Co. Ltd., As we have already indicated we do not find any necessi ty to go into the merits of the contentions of the counsel regarding the applicability of the rule of merger and the rule of finality for rendering our decision in this appeal.
We, therefore, leave the rival contentions to rest there.
We have only to consider the grievance of the appellant that the respondents had committed a breach of their under taking to the court and illegally dispossessed them from the leased portions in their occupation and, therefore, the respondents should be directed to restore possession to them in the interests of justice.
It appears to us that the recovery of possession of the leased portions had taken place due to a misunderstanding about the period of force of the undertaking given by the respondents.
From the records we see that the High Court preferred to act on the undertak ing given by the respondents counsel not to disturb the possession of the appellant rather than pass an order of stay of the release order as the High Court was of the view that the appeal itself can be heard and disposed of expedi tiously on merits.
However, for one reason or other, the appeal could not be heard expeditiously.
In the meanwhile since the undertaking had been given only for a limited period i.e. 25.10.76, the respondents seem to have been under the impression that the undertaking had come to an end and hence they were entitled to recover possession.
It is of relevance to note that the respondents had not taken posses sion immediately after 25.10.76 but only on 23.12.76, i.e. nearly two months later.
In such circumstances it is diffi cult to sustain the charge levelled by the appellant that the respondents had committed a breach of their undertaking to the Court and had recovered possession illegally and should therefore be called upon to restore possession.
In the light of our conclusion the appeal fails and will accordingly stand dismissed.
We, however, direct the parties to bear their respective costs.
P.S.S. Appeal dis missed.

dataset_name: IN-Abs

summary/full:
Clause (e) of section 3 of the U.P. Urban Buildings (Regula tion of Letting, Rent & Eviction) Act, 1972 defined 'Pre scribed Authority ' to mean a Magistrate of the First Class having experience as such of not less than three years, authorised by the District Magistrate to exercise the powers of such authority.
When the Code of Criminal Procedure, 1973 came into effect in 1974 this definition was amended to mean an officer having not less than three years experience as Munsif or as Magistrate of the First Class or as Executive Magistrate authorised by the State Government to exercise the power of the Prescribed Authority.
The respondents having their residence in the second floor of the premises and their business establishments in a portion of the ground floor, sought recovery of possession under section 21 of the Act of the first floor and another por tion of the ground floor leased out by their father to the predecessor concern of the appellant for residential and nonresidential purposes respectively.
The Prescribed Author ity passed an order of release holding that the requirement of the leased portions by the respondents for their residen tial and non residential purposes was a bona fide one and that the comparative hardship factor was more in their favour than in favour of the appellant.
These findings were confirmed by the Appellate Authority.
497 In the writ petition filed before the High Court it was contended for the first time that the order of the Pre scribed Authority had been passed without jurisdiction and was, therefore, a nullity and its affirmation by the Appel late Authority could not validate it.
That contention was repelled by the High Court holding that even if the order of the Prescribed Authority was a defective one, it had got merged with the order of the Appellate Authority when it was confirmed and that the question of jurisdictional competence of the Prescribed Authority to pass the order of release involved adjudication upon disputed questions of fact and such an enquiry was beyond the scope of proceedings under Article 226 of the Constitution.
The Government had in exercise of its powers under sections 12 and 39(1), Cr. P.C., 1898 by a general notification dated 6.2.1968 conferred on all Tehsildars the powers of a First Class Magistrate, and on all Naib Tehsildars the powers of a Second Class Magistrate.
The Deputy Secretary, Government of U.P. had, however, in his note forwarding the General Noti fication to all the District Magistrates stated that the conferment of powers was confined to the maintenance of law and order.
By means of a notification dated 9.9.1974 the Government had designated the Additional City Magistrate II, Kanpur to be the Prescribed Authority under the Act for certain areas.
The Prescribed Authority, whose order is impugned had served as Tehsildar from 29.9.1962 to 6.11.1964 and again from November, 1965 to 15.2.1974, when he was promoted to Deputy Collector and posted as Additional City Magistrate, Kanpur, which post he held when he dealt with the applica tion in the instant case.
In the special leave petition it was contended that the powers of a First Class Magistrate under section 39(1) Cr.
P.C. 1898 cannot be deemed to have been conferred on the incum bent in the instant case in the absence of requisite proof under section 39(2) of the Code, that even if the general notifi cation dated 6.2.1968 empowered him to act as such, the conferment of power was only for ensuring the maintenance of law and order and not for trial of cases, and that section 3(e) requires that an Executive Magistrate to be lawfully empow ered to act as Prescribed Authority must have had not less than three years experience in the trial of cases as a First Class Magistrate.
Dismissing the appeal, HELD: 1.
The Prescribed Authority 's experience as an Execu 498 tive Magistrate in the instant case satisfied the require ments of section 3(e) of the U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972.
He was not, therefore, incompetent 10 act as such and pass the impugned order of release.
[507] 2.
The General Notification dated February 6, 1968, conferring the powers of a First Class Magistrate on all Tehsildars and the powers of a Second Class Magistrate on all Naib Tehsildars, which was published in the Official Gazette on February 17, 1968, had been communicated to all the Tehsildars of the District by the District Magistrate.
It must, therefore, be taken that the Government Notifica tion should have been fully acted upon and all Tehsildars, including the official whose order is impugned, must have been conferred powers of a First Class Magistrate in the year 1968 when he was serving as Tehsildar.
The requirement of section 39(2) of the Code of Criminal Procedure, 1898 had thus been complied with.[504B D,G; 505A] 3.
There is nothing in the Government Notification dated February 6, 1968 or in the Gazette publication dated Febru ary 17, 1968 to indicate that the powers of a First Class Magistrate and a Second Class Magistrate conferred on Teh sildars and Naib Tehsildars respectively was only for the limited purpose of ensuring the maintenance of law and order and not for exercise of those powers in the trial of crimi nal cases.
The note of the Deputy Secretary appears to be only an administrative instruction and not an order passed by the Government itself in exercise of its powers under sections 12 and 39 of the Criminal Procedure Code, 1898.
The adminis trative instruction cannot whitle down the Government Noti fication conferring higher magisterial powers on Tehsildars and Naib Tehsildars.
[504E F] 4.
All that section 3(e) of the Act says is that for being conferred the powers of a Prescribed Authority an Executive Magistrate should have had experience as such magistrate for a period of not less than three years.
Having regard to the terms of the stipulation, it would suffice if he had ac quired experience in the trial of criminal cases, albeit cases triable by a Second Class Magistrate, for more than three years, while at the same time having the right to exercise the powers of a First Class Magistrate.
This is because of the fact that as per Schedule III of the Code of Criminal Procedure, 1898 a Magistrate Of the First Class is also entitled to exercise all the powers of a Magistrate of the Second Class.
A First Class Magistrate, therefore, can also gain experience by the trial of cases triable by a Second Class Magistrate.
What is of relevance is the gaining of experience in trial of criminal cases for a period of three 499 years and more and at the same time.having the powers of a First Class Magistrate and not necessarily the experience of trying cases triable by a First Class Magistrate alone.
It cannot, therefore, be said that the Prescribed Authority did not have requisite qualification in the instant case to be so appointed under el.
(e) of section 3 of the Act and hence the release order passed by him was a nullity.
[505C F] 5.
The appointment of Prescribed Authority in the in stant case was not made as persona designata.
He exercised the powers of a Prescribed Authority by reason of his post ing as Additional City Magistrate II, Kanpur, by virtue of an earlier Notification of the Government dated September 9, 1974 constituting the Additional City Magistrate II, Kanpur, as the Prescribed Authority, for certain specific areas in the city.
The said Notification of the Government was a General Notification and therefore whoever came to be posted as Additional City Magistrate II, automatically became a Prescribed Authority for the areas indicated in the Govern ment Notification.
Therefore, as long as the Government Notification dated September 9, 1974 was not challenged, the exercise of powers by him as a Prescribed Authority could not also be challenged.
The appellant was also not entitled to question the validity of the appointment of Prescribed Authority in a collateral proceedings.
[505G 506A; 507G] 6.
Even if the person appointed as Prescribed Authority was not fully qualified to act as such and pass the order of release, the validity and legality of the order of release passed by him cannot be impugned because of the de facto doctrine in as much as he did not hold the office as an usurper but only under colour of lawful authority.
[507E F] G. Rangarajan vs Andhra Pradesh, ; , referred to.