judgement:
ivil Appeal No. 4284 of 1988.
From the Judgment and Order dated 30.3.88 of the Central Admn.
Tribunal Hyderabad in O.A. No. 575 of 1987.
A.D. Singh, A. Subba Rao, C.V.S. Rao and P. Parmeshwaran for the Appellants.
K.T. Shastri Respondent in person.
The Judgment of the Court was delivered by SAWANT, J.
The appellants, Union of India and the Direc tor, Technical Development and Production (Air), Ministry of Defence, have preferred this appeal against the decision of the Central Administrative Tribunal, Hyderabad Bench, hold ing that respondent K.T. Shastry was entitled to remain in service upto the superannuation age of 60 years and was not liable to be retired at the alleged superannuation age of 58 years.
The relevant admitted facts are that the respondent was recruited as a Senior Scientific Officer on October 12, 1966 in the Defence Science Service.
He was posted in the Directorate of Technical Development and Production (Air), briefly called DTD & P. at the relevant time, the Defence Science Service had three units under it, namely, 1) Defence Research and Development Organisation (DRDO), 2) Director ate General of Inspection (DGI) and 3) Directorate of Tech nical Development and Production (Air) (DTD & P).
The recruitment when made was always to the Defence Science Service, and after the recruitment, the recruits were posted according to the exigency of the service, in any of the said three units.
Their 22 services were inter changeable and inter transferable be tween the three units.
All, the service conditions of the persons working in the three units including scales of pay, superannuation age, etc.
were the same and were regulated by the same set of Rules, viz. Defence Science Service Rules.
In the year 1979, the Defence Science Service was trifurcated and reconstituted as follows.
(1) Defence Research and Development Organisation (DRDO) was reconstituted as Defence Research and Development Serv ice (DRDS).
(2) Directorate of Technical Development and Production (Air) (DTD & P) was reconstituted as Defence Aeronautical Quality Assurance Service (DAQAS), and (3) Directorate General of Inspection (DGI) was reconstituted as Defence Quality Assurance Service (DQAS).
The appellant who was working in DTD & P became a member of DAQAS.
When the trifurcation was made, the Service Rules governing the three units had a common Rule which was Rule 12 in DAQAS and DQAS, and Rule 13 in DRDS which reads as follows: "Other conditions of service: (1) The conditions of service of the members of the service in respect of matters not expressly provided for in these Rules, shall mutatis mutandis and subject to any special orders issued by the Government in respect of the service, be the same as those applicable to officers (Civil ians) of corresponding status in similar scientific institu tions/organisations under the Government of India.
At the time the present controversy arose and the respondent approached the Administrative Tribunal, he was holding the post of Deputy Chief Scientific Officer.
By an Office Memorandum No. 7(3)/ 85 D(R & D) of the Government of India, Ministry of Defence, Department of Defence Research & Development dated 24.12.1985, the decision of the President was conveyed whereby Scientific and Technical personnel (gazetted) of D.R. and D.S. in the grade of Scientist 'E ' and above, would retire at the age of 60 years and those in the lower grade for which flexible complementing scheme was applicable would also retire at the age of 60 years provided they had been promoted to the grades they were holding at the time of attaining the age of 58 years within the preced ing five years.
Subsequently by OM No. 7(3)/85 D (R & D) dated 10.2.86, the said decision was extended to all 23 Scientific and technical personnel of the DRDO i.e. DRDS as listed in the Appendix 'A ' of that Memo.
By virtue of Rule 12 quoted above, this benefit given to the members of DRDS was also available to the members of DAQAS, since the said condition of service was not expressly provided for in the Service Rules.
The Tribunal, therefore, held that the re spondent was not liable to be retired at the age of 58 years his superannuation age being deemed to have been increased to 60 years in view of the OM dated 24.12.85 read with OM dated 10.2.86 referred to above.
It is this decision which is challenged before us by the appellants.
Mr. Subba Rao, learned counsel appearing for the appellants contended that the Government had a right to prescribe different conditions of service for the members belonging to the different units, and merely because the superannuation age of the members of the DRDS was increased, it could not be held that the respondent who belonged to another unit, viz. DAQAS, was entitled to the said benefit.
There is no dispute that the Government has power to vary the service conditions of the members of the services from time to time.
The question involved in the present appeal is, however, not whether the Government had such power.
The question is whether the respondent was also entitled to the benefit of the power so exercised in the facts and circum stances of the case.
The admitted facts are that in 1966 when the respondent was recruited to the Defence Science Service, the three units belonged to the said Service and the employees were recruited initially to that service and then sent to different units.
The service conditions of the employees belonging to the three units were the same and their services were inter changeable between the three units.
The Service Rules which applied to all the three units were also common, viz. Defence Science Service Rules.
The three units, therefore, belonged to and constituted one single service.
It is later in the year 1979, that the Defence Research Service was reconstituted into three dif ferent services as stated above.
However, at that time, admittedly no option was given to the employees working in the different units to opt for one or the other of the units.
It appears that those who were already working in either of the three units were deemed to belong to the respective newly constituted service.
This being so, their service conditions will have to run parallel and no discrim ination can be made between them by an unilateral action.
The classification made between them further has no rational basis and no nexus of such classification to the object sought to be achieved has been shown to us by Mr. Subba Rao appearing for the appellants.
In the circumstances, the denial of the benefit of the enhanced superannuation age to the members of one 24 unit while the same is granted to the members of the other unit amounts to discrimination, violative of Article 16 of the Constitution.
We are, therefore, satisfied that the decision of the Tribunal is both proper and valid, and there is no substance in the present appeal.
The appeal is, there fore, dismissed.
We are informed that in spite of the decision of the Tribunal and even pending this appeal when no stay was granted, the Appellant Union of India retired the respondent at the age of 58 years.
We have been unable to understand this indefensible action on the part of the Appellant nor could the learned counsel for the Appellants explain it to us.
We, therefore, direct the Appellants to reinstate the respondent in service within one week of this Order and to pay to him all his emoluments from the date of his arbitrary retirement till the date of his re instatement in service as if he had not been retired.
We further direct that he would continue in service till he attains the age of 60 years, unless of course for some other legal reasons, it becomes necessary to discontinue his services before that date.
We also understand that in the meanwhile the respond ent was paid all his retirement benefits.
The Appellant will not recover any amount so paid to the respondent.
The appeal is accordingly dismissed with aforesaid directions and with costs.
T.N.A. Appeal dis missed.

summary/full:
Respondent was recruited as a Senior Scientific Officer in the Defence Science Service which was subsequently tri furcated and reconstituted.
The Government of India enhanced the superannuation age of Scientific and Technical personnel of one of the newly constituted units upto 60 years by an order dated 24.12.1985.
The respondent who was working in one of the other units of the reconstituted service, filed an application in the Central Administrative Tribunal seeking a direction that he was entitled to the benefit of enhanced age of superannua tion upto 60 years as made applicable to the other unit which allowed the application.
Hence this appeal by the Union of India.
Dismissing the appeal, this Court, HELD: 1.
In view of Rule 12 of the Defence Aeronautical Quality Assurance Service Rules, 1979 the benefit of en hanced age of superannuation given to the members of one unit was also available to the members of the other unit since the said condition of service was not expressly pro vided for in the Service Rules.
At the time of reconstitu tion of the service no option was given to the employees working in the different units to opt for one or the other of the units.
Those who were already working in either of the three units were deemed to belong to the respective newly constituted service.
Therefore their service condi tions will have to run parallel and no discrimination can be made between them by an unilateral action.
The classifica tion made between them further has no rational basis and no nexus of such classification to 21 the object sought to be achieved has been shown.
In the circumstances, the denial of the benefit of the enhanced superannuation age to the members of one unit while the same is granted to the members of the other units amounts to discrimination, violative of Article 16 of the Constitution.
[23A, F, G, H, 24A] 2.
The decision of the Tribunal is both proper and valid.
The appellants are directed to reinstate the respond ent in service, who would continue in service till he at tains the age of 60 years.
[24A, C D]


judgement:
Criminal Appeal No. 111 and 477 of 1979.
From the Judgment and Order dated 19.4.1978 of the Allahabad High Court in Criminal Appeal No. 661 of 1975.
N.P. Midha and B.D. Sharma for the Appellant in Crl.
A. No. 111 of 1979.
Prithvi Raj, Prashant Choudhary and D. Bhandari for the Respondent in Crl.
A. No. 111 of 1979 and Appellant in Crl.
A. No. 477 of 1979.
M. Qamaruddin and Mrs. M. Qamaruddin for the Respondent in Crl.
A. No. 477 of 1979.
The Judgment of the Court was delivered by AHMADI, J.
In Criminal Case No. 3 of 1975, three persons were put up for trial before the learned Special Judge, Sultanpur (U.P.).
The case arose out of the death of one Ram Dhiraj Tiwari in police custody.
Accused No. 1 Rafiuddin Khan (Respondent in Criminal Appeal No. 477 of 1979) was the Sub Inspector of Police Station Kure Bhar in District Sul tanpur at all material times during the commission of the crime.
Accused No. 2 Shamsher Ali (since acquitted) was posted at the said police station as Beat Constable No. 3.
His companion Accused No. 3 (Appellant in Criminal Appeal No. 111 of 1979) was the Head Moharrir of the said police station.
Crime No. 71 of 1971 under Section 395, IPC was registered at the said police station on 25.5.
1971 concern ing a dacoity committed at Village Khara within 32 the jurisdiction of the said police station.
In that connec tion one Jagdamba was arrested on 20.9.1971.
During interro gation by AI the said suspect is alleged to have made.a confessional statement involving Ram Dhiraj Tiwari.
On the basis of this information A 1 directed A2 and Ram Jas (PW 6) and Harakh, both police chowkidars, to apprehend Ram Dhiraj and produce him before him.
Pursuant thereto A2 and his companions apprehended Ram Dhiraj from his residence in village Khajapur on 19.10.1971 at about 11.00 a.m. in the presence of his mother Kamaraji (PW 7), sister 's husband Ram Niranjan Misra (PW 8) and labourer Jiyalal (PW 9).
After his arrest Ram Dhiraj was brought to police station Kure Bhar at about 4.00 p.m. on the same day and handed over to A1.
PW 8 and Ram Baran Dubey (PW 10) are stated to have followed him to the police station.
It is alleged that soon charge of A1, he was given a severe beating with lathi and dandas by A1 and two constables, whose identity is not established, with a view to extracting a confessional statement from him.
When PW 8 and PW 10 tried to intervene.
, A1 demanded a sum of Rs.2000 from them to refrain from ill treating Ram Dhiraj.
Thereupon PW 8 went to Village Pure Neelkanth three miles away to fetch Bindeshwari Prasad Shukla (PW 5) the husband of Ram Dhiraj 's eider sister.
On the arrival of PW 5 at the police station, A1 is alleged to have repeated his demand of Rs.2000.
Since the bribe was not paid A1 and his two compan ions renewed the torture with vengeance which lasted till about 9 or 10 p.m.
As a result of the merciless beating Ram Dhiraj was badly injured.
It is alleged that the fact that he was apprehended from his village and was brought to the police station on 19.10.1971 was not entered in the general diary register but a false entry was posted in the said general diary register regarding his arrest on the next day i.e. 20.10.1971, at about 6.00 a.m. from near a culvert in village Hanna Harora by A2 and his two chowkidars.
The defence version was that as he tried to resist arrest A2 and his two companions beat him up as a result of which he sustained the injuries in question.
Another entry was made in the same general diary on the same day purporting to transfer Ram Dhiraj to police station Sadar for admission to the District Jail.
General Diary Entry No. 14 was made to show that Ram Dhiraj was sent from Sardar police station at about 12.15 noon for admission to the District Jail as he had sustained injuries.
It, however, transpired later that Ram Dhiraj died at about 4.00 p.m. on the same day while he was being taken to the residence of one of the Magistrates at Sultanput for remand.
On his demise his dead body was taken to Kotwali Sultanpur where an entry No. 30 regarding his death was made in the general diary at about 4.20 p.m.
On 21.10.1971 an inquest 33 was made on the dead body and thereafter the dead body was sent for post mortem examination.
PW 1 Dr. Mitra performed the autopsy and found as many as 28 ante mortem injuries on the body of the deceased.
The prosecution case against A1 was that he was respon sible for having beaten the suspect Ram Dhiraj in the compa ny of two others which resulted in as many as 28 injuries to which he ultimately succumbed.
It was also alleged that he had demanded a bribe of Rs.2000 to desist from meting out third degree punishment to the suspect.
He was, therefore, charged under Section 304, 330, 201, 218/ 34, I.P.C., while his companion A3 was charged under Section 201 and 218, I.P.C.
All the three accused persons denied the charges levelled against them and claimed to be tried.
They however did not deny the fact that Ram Dhiraj died in police custo dy.
The case set up by A 1 was that he was away from the police station between 5.00 p.m. and 7.30 p.m., on 19.10.1971 and, therefore, the allegation that he had tor tured Ram Dhiraj is fabricated and wholly false.
A2 admitted the fact that Ram Dhiraj was arrested outside his village house at Khajapur on 19.10.1971 and was brought to the police station Kure Bhar on the same day at about 4.00 p.m.
He, however, denied having caused any injury to him during arrest.
A3 denied the prosecution allegation that he had deliberately and wilfully posted false entries in the Gener al Diary to help A 1.
The learned Special Judge before whom the accused were tried came to the conclusion that the deceased was arrested from his residence on 19.10.1971 as alleged by the prosecu tion and not from near the culvert of village Hanna Harora on 20.10.1971; that no beating was given to him at the time of his arrest and that he was beaten in police station Kure Bhar where he was taken on 19.10.1971 itself after his arrest by A1 and two other constables who could not be identified.
He also found that the fact that he was brought to the police station on 19.10.1971 was deliberately sup pressed and A3 omitted to perform his duty by not posting an entry in that behalf in the General Diary and instead post ing a false entry No. 10 (Exh.
Ka 13) on the next day, 20.10.1971.
He also found that a false entry was posted in the diary to show that he was sent to Sadar police station where he died before admission to jail.
Lastly he found that A2 had counter signed the general diary entry No. 10 without knowing the contents thereof.
On facts found proved, the trial court convicted A1 under Section 304 (Part II) and sentenced him to suffer Rigorous Imprisonment for 7 years, under Section 330 and sentenced him to suffer Rigorous Imprisonment for 3 years, under Section 201 and 218/34 and 161 I.P.C. and 34 under Section 5(1)(d) read with Section 5(2) of the Preven tion of Corruption Act, 1947 and sentenced him to Rigorous Imprisonment for 2 years on each count all substantive sentences to run concurrently.
A2 was acquitted of all the charges levelled against him.
A3 was, however, convicted under Sections 201 and 218 I.P.C. and was ordered to suffer Rigorous Imprisonment for 2 years on each count.
The sub stantive sentences were ordered to run concurrently.
Both the convicted accused preferred Criminal Appeal No. 661 of 1975 in the High Court.
The State did not question the acquittal of A2.
The High Court accepted the defence version that A1 was not at the police station on 19.10.1971 till 7.30 p.m. as proved through DWI and DW2 and, therefore, the prosecution version was unacceptable.
It also found that the three prosecution witnesses PW5, PW8 and PW 10 were not eye witnesses to the incident and hence their story about beat ing in the police station and the demand of bribe cannot be accepted.
It lastly held that A 1 could not be held respon sible for the omission to post an entry in the general diary about the arrival of the deceased to the police station at 4.00 p.m. as he himself had returned to the police station at 7.30 p.m.
On this line of reasoning the High Court al lowed A1 's appeal and set aside the conviction on all counts.
The High Court, however, maintained the conviction of A3 but reduced the sentence to Rigorous Imprisonment for 6 months.
Criminal Appeal No. 111 of 1979 is preferred by A3 questioning his conviction while Criminal Appeal No. 477 of 1979 is preferred by the State questioning the acquittal of A1.
As both these appeals arise out of the same judgment.
We think it would be convenient to dispose them of by this common judgment.
The fact that Ram Dhiraj died of injuries received by him after his arrest and while he was in police custody is not seriously disputed.
The prosecution version is that he was beaten in the police station on 19.10.1971 by A1 and his two companions after he was arrested from his residence and brought to the police station.
The defence version on the other hand is that the deceased was arrested on 20.10.1971 by A2 and his two companions from near a culvert in village Hanna Harora and he was beaten up by them as he resisted arrest.
Of course A2 has denied this in his statement re corded under Section 313 of the Criminal Procedure Code.
Be that as it may, both the prosecution as well as the defence version suggest that the deceased had received a beating at the hands of the police after his arrest.
The evidence of PW1, Dr. Misra shows that the deceased had received as many as 28 injuries.
by some blunt weapon or weapons which re sulted in his death due to 35 shock and haemorrhage on the afternoon of 20.10.197 1.
The trial court has come to a firm conclusion that these in juries were caused to the deceased in the police station after his arrest.
The High Court also opines that the "number of injuries speaks that most probably he had not received those injuries only during arrest and that he was subjected to severe assault sometime after his arrest".
Even this halting. finding recorded by the High Court shows that both the courts felt that the deceased was seriously beaten while in police custody.
The fact that Ram Dhiraj died a homicidal death is, therefore, rightly not contested before us.
Having regard to the rival versions, the crucial ques tion which must be answered is regarding the date, time and place of arrest.
It is not in dispute that an offence of dacoity at village Khera was registered at Police Station Kure Bhar on 25.5.1971.
One Jagdamba was arrested in that connection on 20.9.1971.
A1 was investigating that crime.
In the course of interrogation by A1, Jagdamba is stated to have revealed the name of Ram Dhiraj as his accomplice.
The evidence of PW 6 Chowkidar Ram Jas is that A1 had directed A2 to arrest Ram Dhiraj and produce him before him.
A2, PW 6 and Chowkidar Harakh then went to fetch Ram Dhiraj.
In the absence of any specific information, the first place to visit to locate the wanted man would be his residence.
PW 6 also deposed that the police party went in search of the deceased to his village and apprehended him from near his residence.
However, the evidence of PW 6 was challenged on the ground that he had in his statement before M.M. Swarup, Executive Magistrate, affirmed the defence of AI that the deceased was apprehended from near a culvert in village Harma Harora on 20.10.1971.
The learned trial Judge nega tived this contention as the certified copy of the statement said to have been made to M.M. Swarup in an enquiry under Section 176 of the Code of Criminal Procedure was inadmissi ble in evidence since the said enquiry could not be equated to a judicial proceedings and was, therefore, inadmissible in evidence.
He was of the view that the same could not be admitted in evidence under Section 90 of the Evidence Act.
In this view the proper course was to call for the original statement, confront the witness with the contradictory part and on proof use it as evidence to discredit the witness.
We agree with the learned trial judge that the contents of a certified copy of the statement recorded under Section 176 of the Code would not be admissible in evidence unless the contradiction is proved by putting it to the witness in cross examination and the maker has had an opportunity to admit or deny it.
In our view it has to be proved like any other previous state.meat.
The trial judge also opined that even if the statement was admis 36 sible under Section 90, Evidence Act that statement per se cannot efface his substantive evidence in court for the simple reason that at the time of recording of that state ment he was under the direct influence of A1 his superior, and was, therefore, not a free agent.
The learned trial judge was, therefore, of the opinion that the contradiction even if proved cannot militate against the truth of his statement.
The High Court has endorsed the finding of the trial court that as PW 6 was a chowkidar under the adminis trative control of A1 he could be prevailed upon to support the defence theory in t, he inquiry under Section 176.
The High Court also held that the short signature of PW 7 as 'Jassi ' in the General Diary Entry No. 10 must have been obtained by A3 to add sanctity to the defence version.
The High Court finally stated that even if absolute reliance is not placed on the evidence of PW 6 in this behalf, his evidence is duly corroborated by the evidence of other witnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra and PW 9 Jai Lal, the mother, brother in law and labourer of the deceased.
These three witnesses have also deposed that the deceased was arrested from his village Khajapur at about 11.00 a.m. on 19.10.1971.
The High Court has rightly ob served that barring minor discripancies in their evidence as to dress of members of the police party, presence of others, etc., there is nothing brought out in their cross examina tion to discredit their evidence in this behalf.
The prose cution also examined PW 3 Baij Nath and PW 4 Mewa Lal, who have their shops near the culvert of village Hanna Harora to negative the defence version regarding the arrest of the deceased from there.
Therefore, both the courts have record ed a concurrent finding of fact that the deceased was ar rested on 19.10.1971 at about 11.00 a.m. from his village Khajapur.
That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false.
The need to make a false entry speaks for itself.
The next question is where, when and by whom were the injuries inflicted on the deceased.
The High Court observes that the medical evidence on record shows that the injuries found on the person of the deceased were caused on the evening of 19.10.1971.
In fact according to the High Court the medical evidence lends credence to the prosecution case that the deceased was arrested on 19.10.1971.
The High Court holds as under: "After considering the injuries of the deceased I have not the least doubt in my mind that those injuries were not caused to him during arrest, and that he was beaten some 37 times after his arrest and before he was sent to jail from police station Kure Bhar".
There is, therefore, no doubt that the High Court reached a firm finding that the arrest was made on 19.10.1971 at about 11.00 a.m. from village Khajapur and the injuries noticed by the medical officer on the person of the deceased at the time of the autopsy were inflicted after his arrest and not during the course of arrest.
Now it is not in dispute that A 1 was serving as the Station Officer of police station Kure Bhar on the 19/20.10.197 1.
He was in charge of the investigation of the dacoity case in which Jagdamba was arrested.
It was he who had interrogated Jagdamba and had secured a confessional statement from him.
The information divulged by Jagdamba necessitated the arrest of the deceased.
It is, therefore, reasonable to infer that AI would interrogate the deceased also.
Since the arrest was made from village Khajapur, the presence of PW 7, PW 8 and PW 9 at the time of the arrest cannot be doubted.
PW 8 and PW 10 deposed that they had followed the deceased to the police station after his ar rest.
PW 8, the brother in law of the deceased and PW 10 have deposed that after the deceased was taken to the police station he was subjected to third degree treatment by AI and two policemen whom they have not identified.
Both have stated on oath that A 1 and his two unidentified companions beat the deceased with lathi and danda to extract a confes sion from him and when they entreated A 1 not to beat the deceased, he demanded Rs.2000 from them.
PW 8 then went to village Desarwa of Pure Nilkanth to fetch PW 5, the husband of the eider sister of the deceased.
On the arrival of PW 5 at the police station he too requested A1 not to beat the deceased but Ai reiterated his demand for Rs.2000.
When the witness expressed his inability to meet the demand, AI resumed the ill treatment to the deceased.
It is true that PW 5 and PW 8 were the brother in law of the deceased and PW 10 his neighbour but that by itself, without anything more, was not sufficient to doubt their testimony which receives corroboration from medical evidence.
We are, therefore, of the opinion that unless there are sound grounds to reject their evidence it would not be proper to brush aside their evidence on the specious plea that they are interested witnesses.
Even though the High Court came to the conclusion that the deceased was beaten after his arrest, the High Court refused to place reliance on the direct testimony of these three witnesses insofar as the involvement of A1 is con cerned.
The first reason assigned is that since 38 the village of PW 5 is 11 or 12 miles from Khajapur which in turn is about 10 miles from Kure Bhar, it is not possible that he could have reached the police station by about 4.30 p.m.
In the first place the exact time of arrival of de ceased to the police station is not known.
Secondly when the witnesses spoke about the time factor they merely mentioned the approximate time and not the exact time of PW 8 's depar ture and return to the police station with PW 5.
We are, therefore, of the opinion that the evidence of the prosecu tion witnesses cannot be thrown overboard on such an infirm ground.
The High Court has also cast doubts on the evidence of PW 5 on the ground that he told a deliberate lie that there was no sentry at the police station to make his entry in the police station probable.
This too appears to us to be a weak reason for discarding his evidence.
His presence at the police station is established by the telegram that he sent to the superior police officers complaining about the beat ing given to the deceased.
We, therefore, do not think that the High Court was justified in refusing to act on his evidence on this ground.
In the application exhibit Ka 3 the name of A2 was mentioned as one of the constable who was assisting A1 in beating the deceased to extract a confession from him.
However, in the substantive evidence the witness did not name A2 but merely stated that A1 and two other constables had beaten the deceased.
The High Cort, therefore, inferred that he had wrongly named A2 as one of the assailants in exhibit Ka. 3 and was, therefore, not a reliable witness.
But both in the telegram, and application exhibit Ka. 3 the name of A1 is men tioned.
The omission to name A2 as one of the constables involved in the beating cannot absolve A1.
We are, there fore, inclined to think that the High Court was not right in refusing to act on the evidence of the witness on such consideration.
The High Court rejects the evidence of the three prose cution witnesses on the ground that the telegram was sent by PW 5 as late as 23.10.
In our opinion the High Court failed to appreciate that 19th and 20th were lost in trying to secure the release of the deceased from AI.
After the suspect died on the 20th the next day i.e., 21st was lost in post mortem examination and securing the dead body of the deceased for funeral.
His evidence discloses that the dead body was not delivered to him till 4.30 p.m.
On that day he went to village Khajapur and broke the news of death to PW 7 and other family members.
He has deposed that he sent the telegram only after he received threats from A 1.
The trial court has discussed this aspect of 39 the case in detail and has rightly pointed out that it was a difficult decision to take for PW 5 as he may not like to incur the wrath of A1.
But when A1 threatened him, he was left with no choice but to inform his superiors.
The High Court, with respect, has failed to properly appreciate and assess the situation.
After all everyone thinks twice before deciding to make so serious a complaint against a police officer.
We do not think there was so serious a delay as to throw out the evidence of the three witnesses on that ground.
PW 10 's evidence has been rejected on a very flimsy.
ground.
He is the neighbours of the deceased.
He was at the police station upto 7.00 or 8.00 p.m. and claims to have seen A1 beating the deceased.
His evidence is rejected on the ground that he was interested in getting the policemen punished because the deceased was beaten to death while in police custody.
It is further stated that all others associ ated with him are keen to see that somebody gets punished for the assault on the deceased.
We find it difficult to comprehend why this witness would falsely involve A1 if he was not responsible for the injuries caused to the deceased.
The conduct of this witness is branded as unnatural because he did not go to inform PW 7 and others about the death of the suspect.
Since PW 5 and PW 8 were aware of the death.
There was no need for PW 10 to inform the family members of the deceased as he would be justified in believing that PW 5 and PW 8 must have informed them.
We are, therefore, of the view that the High Court had rejected the evidence of PW 10 on thoroughly untenable grounds.
That brings us to the question whether the alibi set up by A1 can come to his rescue.
In this connection reliance is placed on the evidence of DW 1, Jaswant Singh, Station Officer, Machlishahr Police Station.
He claims to have come to Kure Bhar on 19.10.1971 for investigation of an offence under Section 363/366 I.P.C. of his police station.
He wants us to believe that he was at the Kure Bhar police station from 5.00 p.m. to 9.30 p.m.
According to him A1 was not at the police station till about 7.30 p.m.
Reliance is placed on the general diary entry dated 19.10.1971 to show that A 1 had left the police station at about 10.30 a.m. for Tikar and had returned to the police station at 7.30 a.m.
This entry is proved through DW 2.
Now according to DW 1 even though he had come to Kure Bhar for investigation, he him self remained at the police station throughout and sent his men with A.S.I. (II) of Kure Bhar to Dilawar Ka Purwa for investigation.
He wants us to believe that he came from his police station to investigate a crime but kept sitting at Kure Bhar police station throughout from 5.00 p.m. to 9.30 p.m.
Is this natural conduct? The obvious reason for so stating 40 is to discredit PW 5, PW 8 and PW 10 who have in unmistaka ble terms stated that A1 was at the police station and had beaten the deceased.
DW 1 stand belied by the general diary entry made at his police station on 20.10.1971 to the effect that on reaching Kure Bhar he took A.S.I. (II) of that police station and went to village Dilawar ka Purwa for investigation and returned to his police station at 4.00 p.m.
According to the said entry from Dilawar ka Purwa he went to Sultanpur where he passed the night, left for Ram nager next morning and returned to his police station via Durgaganj.
The learned trial judge dealt with this part of the defence evidence thus: "It is also improbable of belief that once station officer Jaswant Singh had taken care to come to Kurebhar in order to make the investigation of the crime of his police station, he had leisurely lingered on at PS Kurebhar and not person ally proceeded to make the investigation of the said case".
The learned trial judge observed that he appears to have come forward to help a member of his own fraternity.
The learned trial judge, therefore, came to the conclusion: "If general diary entries Nos. 15 and 21 may have been falsely incorporated, where is the guarantee that the gener al diary entry No. 17 which falls in between these, may not have been falsely incorporated".
The learned trial judge also felt that it was not possible to believe that an important police officer like A 1 would spend the whole day from 10.30 a.m. to 7.30 p.m. inquiring about an application at Village Tiker.
The learned judge in the High Court considers the ap proach of the learned trial judge unacceptable because: "Sub Inspector Juswant Singh has stated that he himself had stayed at Police Station Kurebhar and had sent other members of his party and an A.S.I. of Police Station Kurebhar to Dilawar Ka Purwa.
The mere fact that S.I. Jaswant Singh happens to be a Sub Inspector of Police is no ground to reject his testimony.
After all there should be some reason for a police officer posted at police station Machlishahr at Jaunpur to falsely depose for defending Rafi 41 Uddin Khan appellant.
If S.I. Jaswant Singh 's evidence is disbelieved in the present case, he himself incurs the risk of losing his job" This line of reasoning does not commend to us.
We fail to understand how the learned judge could persuade himself to accept the evidence of DW 1 on the specious plea that if he did not tell the truth he ran the risk of losing his job.
The leaned trial judge gave sound reasons for disbelieving the evidence of DW 1 that he did not stir out of Kure Bhar police station from 5.00 p.m. to 9.30 p.m.
The High Court failed to appreciate that on realising that the condition of the deceased had deteriorated, a false entry was made by A3 at the behest of A1 to show that (i) the deceased was not arrested on 19.10.1971 nor was he brought to the police station Kure Bhar by about 4.00 p.m. and (ii) that he was actually arrested by A2 from near the culvert of village Hanna Harora on 20.10.71 and was given a beating before actual arrest, a fact which is denied by A2 in his statement under Section 313 of the Code.
Thus the foundation for absolving himself from the responsibility of having ill treated the deceased was laid.
The trail court rightly holds that there is no guarantee that entry 17 is accurate when entries 15 and 21 are found to be false.
The entry in the case diary regarding crime No. 28 of Machlishahr recorded by A.S.I. Bankey Bihari who had accompanied DW 1 clearly men tions that when they reached Kure Bhar they met the Thana Adhiyakshakh (i.e. A 1) at about 5.00 p.m. which negatives the theory that A1 had left the police station at 10.30 a.m. and had not returned till 7.30 p.m. of 19.10.
Without coming to grips with the circumstances pointed out by the trial court for disbelieving DW 1, the High Court surpris ingly accepted his evidence as gospel truth only because he ran the risk of losing his job.
The High Court should have realised that cases are not unknown where police officer have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation.
The High Court should also have realised that it is general ly difficult in cases of deaths in police custody to secure evidence against the policemen responsible for resorting to third degree methods since they are in charge of police station records which they do not find difficult to manipu late as in this case.
It is only in a few cases, such as the present one, that some direct evidence is available.
In our view the reasons assigned by the High Court are too weak to stand judicial scrutiny.
We are aware that so far as A 1 is concerned, we are called upon to interfere in an acquittal appeal.
Since it is said that an acquittal 42 reinforces the presumption of innocence we have carefully considered the reasons given by the High Court for setting aside the conviction of A 1.
We are satisfied beyond any manner of doubt that the High Court completely misdirected itself.
We have dealt with the facts at some length to justify our interference under Article 136 of the Constitu tion.
Had we not been fully satisfied that gross injustice was done because the High Court misdirected itself we would not have interfered in exercise of our powers under Article 136 of the Constitution.
For the above reasons we dismiss Appeal No. 111 of 1979 preferred by A3 as we are satisfied that his conviction is correctly recorded.
We allow the State 's appeal No. 477 of 1979 and restore the conviction of A1 recorded by the trial court by setting aside his acquittal by the High Court.
On the question of sentence a fervent appeal was made by his counsel that having regard to the passage of time and the changed circumstances A1 should not be sent to jail and the sentence of fine should suffice.
We are unable to accede to this request.
The offence is of a serious nature aggravated by the fact that it was committed by a person who is sup posed to protect the citizens and not misuse his uniform and authority to brutally assault them while in his custody.
Death in police custody must be seriously viewed for other wise we will help take a stride in the direction of police raj.
It must be curbed with a heavy hand.
The punishment should be such as would deter others from indulging in such behaviour.
There can be no room for leniency.
We, therefore, do not think we would be justified in reducing the punish ment imposed by the trial court.
A1 is on bail.
Since the trial court 's order of his conviction and sentence is restored he will surrender to his bail within a week 's time to serve his sentence.

dataset_name: IN-Abs

summary/full:
Three police personnel were charged with offences aris ing out of the death of one Ram Dhiraj Tiwari in police custody.
Rafiuddin Khan (accused No. 1) was the Sub Inspec tor of Police Station Kure Bhar, Shamsher Ali (accused No. 2) was a Beat Constable, and Gauri Shankar Sharma (accused No. 3) was the Head Moharrir.
The prosecution version was that AI directed A2 and two police chowkidars, to apprehend Ram Dhiraj, deceased, who was a suspect in a dacoity case.
Pursuant thereto, Ram Dhiraj was arrested from his residence on 19.10.1971 at about 11.00 a.m. and brought to the police station.
The prosecution case against A1 was that he was responsible for having beaten the suspect Ram Dhiraj in the presence of two other constables, whose identity was not established, which resulted in as many as 28 injuries to which he ultimately succumbed.
It was also alleged that A1 had demanded a bribe of Rs.2000 to desist from meeting out third degree punish ment to the suspect.
The case against A3 was that he delib erately and wilfully posted false entries in the General Diary to help A1.
The defence version on the other hand was that the deceased was arrested on 20.10.1971 by A2 and his companions from near a culvert in the village and he was beaten up by them as he resisted arrest.
The Trial Court accepted the prosecution version and convicted A1 under section 304 (Part II) section 330, sec tions 201 and 218/34 and 161, IPC, and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947.
Accused No. 2 was acquitted of all charges.
Accused No. 3 was convicted under sections 201 and 218, IPC.
The High Court, however, accepted the defence version that A1 was not at the police station on 19.10.1971 till 7.30 p.m.
The High Court found that the three prosecution witnesses were not eye witnesses 29 30 to the incident and hence their story about beating in the police station and the demand of bribe could not be accept ed.
The High Court accepted the evidence of DW 1, Jaswant Singh, Station Officer, Machilishahr Police Station, who claimed to have come to Kure Bhar Police Station on 19.10.1971 for investigation of another offence.
According to DW 1, AI was not at the police station till about 7.30 p.m.
While dismissing the appeal filed by accused No. 3, and allowing the State appeal against the acquittal of accused No. 1, and restoring his conviction recorded by the trial court by setting aside his acquittal by the High Court, this Court, HELD: (1) Both the courts have recorded a concurrent finding of fact that the deceased was arrested on 19.10.1971 at about 11.00 a.m. from his village Khajapur.
That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false.
The need to make a false entry speaks for itself.
[36E F] (2) It is true that PW 5 and PW 8 were the brother in law of the deceased and PW 10 his neighbour, but that by itself, without anything more, was not sufficient to doubt their tastimony which receives corroboration from medical evidence.
Unless there are sound grounds to reject their evidence it would not be proper to brush aside their evi dence on the specious plea that they are interested witness es.
[37F G] (3) It is difficult to understand how the learned Judge could persuade himself to accept the evidence of DW 1 on the specious plea that if he did not tell the truth he ran the risk of losing his job.
The High Court should have realised that cases are not unknown where police officers have given inaccurate accounts to secure a conviction or to help out a colleague from a tight situation of his creation.
[41B] (4) The High Court should have realised that it is generally difficult in cases of deaths in police custody to secure evidence against the policemen responsible for re sorting to third degree methods since they are in charge of police station records which they do not find difficult to manipulate as in this case.
It is only in a few cases, such as the present one, that some direct evidence is available.
[41F G] (5) After carefully considering the reasons given by the High Court for setting aside the conviction of AI, this Court is satisfied beyond any manner of doubt that the High Court had completely misdi 31 rected itself and hence interference by this Court under Article 136 of the Constitution, was justified.
[42A B] (6) The offence is of a serious nature aggravated by the fact that it was committed by a person who is supposed to protect the citizens and not misuse his uniform and authori ty to brutally assault persons in his custody.
Death in police custody must be seriously viewed for otherwise we will help take a stride in the direction of police raj.
It must be curbed with a heavy hand.
The punishment should be such as would deter others from indulging in such behaviour.
There can be no room for leniency.
This Court does not think it would be justified in reducing the punishment imposed by the trial court.
[42D E]


judgement:
Appeal No. 81 of 1990.
From the Judgment and Order dated 7.3.1989 of the Rajas than High Court in S.B. Civil (Misc.) Second Appeal No. 2 of 1976.
Guman Mal Lodha, Sushil K. Jain, B.P. Aggarwal and Sudhanshu Atreya for the Appellant.
C.M. Lodha and Surya Kant for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
1.
Heard learned counsel for both sides and special leave is granted.
This appeal by the auction purchaser is against the judgment of the High Court of Rajasthan, Jaipur Bench, dated March 7, 1989 made in S.B. Civil (Misc.) Second Appeal No. 2/76.
The facts, though many, relevant to dispose of the appeal are stated as under: 3.
S/Shri Gokulchand and Rekhchand, Respondents Nos.
5 and 6 herein, defendants 2 and 3 in O.S. No. 37/59 on the file of the Court of the Civil Judge, Jhalawar, obtained in another suit, an ex parte 27 money decree to recover Rs.5,557.10 against Bal Mukund and brought to sale the joint family house which is the disputed property in the present litigation.
Mohanlal, his minor son and his widow filed objections under Order 21 Rule 58 CPC which were rejected.
The sale was confirmed on October 24, 1958, and sale certificate was issued on November 28, 1958.
The respondents filed O.S. No. 37/59 under Order 21 Rule 63 CPC to set aside the sale.
The Trial Court by its judgment dated December 5, 1961 dismissed the suit, but on appeal, the District Judge at Kotah allowed the appeal and decreed the suit for resti tution of the plaint schedule property since possession had in the meantime, been taken.
Second Appeal No. 91/65 filed in the High Court was abated as a whole since Mohanlal died on May 1, 1968 and his legal representatives being Respond ents Nos.
2 to 4 were not brought on record by substitution.
When execution was levied for restitution, though the appel lant raised several objections to its executability but challenge was confined to two grounds, namely, the decree passed by the District Judge is a nullity as he lacked pecuniary jurisdiction to entertain the appeal against the decree in the suit admittedly valued at Rs.15,000 under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950, and it was entertainable by the High Court, and sec ondly, the decree being a declaratory one was incapable of execution, notwithstanding the direction for restitution of the plaint scheduled property.
The Executing Court dismissed the objection petition, but on appeal the order of the Executing Court was reversed.
On further appeal the High Court allowed the same, set aside the appellate order and directed the appellate court to transfer it to the appropri ate Civil Court for execution as per law.
As against it the present appeal has been filed.
The contention that the decree passed by the District Judge, Kotah, on appeal is a nullity is devoid of substance.
It is true that under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950, the District Court is empowered to entertain an appeal against the decree of a Trial Court of the value only upto Rs.10,000 and by operation of sub section (b) of section 21(1) the appeal would lie only to the High Court as the value of the suit was admittedly Rs.15,000.
But this is a suit laid under Order 21 Rule 63 CPC to set aside the sale by declaring the decree of Rs.5,557.10 to be invalid and does not bind them.
In Radha Kunwar vs Reoti Singh, AIR 19 and Phul Kumar vs Ghanshyam Mishra, 35 IA 22 PC it was held that the value of the amount of decree is the value for the purpose of the suit under Order 21 Rule 63 CPC.
Therefore, merely because the valuation of the pro 28 perty sold in execution had been put at Rs.15,000, the valuation of the suit under Order 21 Rule 63 CPC cannot be treated to be that valuation.
Accordingly, we hold that Section 21(1)(a) of the Ordinance is attracted.
Therefore, the decree of the Appellate Court in C.A. No. 157/61 on the file of the Court of the District Judge, Kotah, is not a nullity.
The only other question is whether the plaintiff is entitled to restitution of the property.
Once the decree which was the subject matter of execution was declared to be not binding on the plaintiffs, Mohanlal and his mother Bhuli Bai, the execution sale would not bind them and as a result they became entitled to restitution.
The decree does admit tedly contain a direction for restitution.
Therefore, it is not a mere declaratory decree but coupled with a decree for restitution of the plaint scheduled house.
Accordingly, the decree is executable.
To a question put by the Court whether in view of the long pendency of the proceedings it could not be equitable that the appellant should pay the proper value of the house or deliver possession thereof, the learned counsel for the appellant fairly stated that whatever amount be fixed by this Court, the appellant is prepared to pay the same.
The learned counsel for the respondents on the other hand rely ing upon the statement made in the objections dated April 28, 1973, filed by the appellant maintained that he had then claimed only a sum of Rs.11,900 in all, and the appellant would be entitled only for that amount.
On the other hand, the appellant having been in possession and enjoyment of the property, the respondents are entitled to the mesene prof its.
On the facts and in the circumstances and in considera tion of the fact that the litigation is pending for a long period, we are of the view that justice and equity would be met if we direct the District Court, Kotah, to assess the prevailing market value of the plaint scheduled house and the site as on date and direct the appellant to pay the value thereof within a time to be fixed by him.
If the respondents have not drawn the balance of the sale amount in the original suit filed by S/Shri Gokulchand and Rekhchand and after full satisfaction was recorded, the appellant is entitled to withdraw the said balance amount.
In case the amount was already withdrawn, the appellant is entitled to deduct the same from the amount fixed by the District Court.
In case the appellant fails to pay the value of the property assessed by the District Court as directed above, there shall be a direction for restitution of the plaint scheduled property as per the decree of the Appellate Court in C.A. No. 157/61.
The appeal is accordingly allowed, but, in the circumstances, without costs.
P.S. S Appeal allowed.

summary/full:
Under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance, 1950 the District Court is empowered to entertain an appeal from a decree of the value of only upto Rs.10,000.
Appeals in other cases lie only to the High Court.
In the instant case, a joint family house was brought to auction in satisfaction of an ex parte money decree to recover Rs.5,557.10.
The respondent coparceners filed objec tions under Order 21 Rule 58 CPC, which were rejected.
The sale was confirmed in 1958 and the sale certificate issued.
They, thereupon, filed a suit under Order 21 Rule 63 CPC to set aside the sale, in which the valuation of the property sold in execution was put at Rs.15,000.
The trial court dismissed the suit.
The District Court, however, allowed the appeal and decreed the suit for resti tution of the property since possession had in the meantime been taken.
The appellant auctionpurchaser raised objections to the execution on the ground that the said decree was a nullity as the District Court lacked pecuniary jurisdiction to entertain the appeal against the decree in the suit valued at Rs.15,000 under Section 21(1)(a) of the Ordinance, and that the decree being a declaratory one was incapable of execution.
The executing court dismissed the objection petition but on appeal the order was reversed.
On further appeal, the High Court set aside the appellate order.
Allowing the appeal in part, the Court, HELD: The value of the amount of decree would be the value for the purpose of the suit under Order 21 Rule 63 CPC.
In the instant case, the suit was laid to set aside the sale by declaring the decree of 26 Rs.5,557.10 to be invalid.
Merely because the valuation of the property sold in execution had been put at Rs.15,000 the valuation of the suit under Order 21 Rule 63 CPC could not be treated to be that valuation.
Accordingly, Section 21(1)(a) of the Ordinance was attracted.
It could not, therefore, be said that the decree passed by the District Court for restitution of the property was a nullity.
Since, it was not a mere declaratory decree but coupled with a decree for restitution of the property, the plaintiff was entitled to execution.
[27G 28A, 28C] Radha Kunwar vs Reoti Singh, AIR 1916 PC 18 and Phul Kumar vs Ghanshyam Mishra, 35 IA 22 PC, referred to.
However, in view of the fact that litigation was pending for a long period, it would be equitable if the appellant is permitted to pay the proper value of the house.
The District Court is directed to assess the prevailing market value of the house and the site as on date.
The appellant to pay the value thereof within a time fixed by the District Court.
[28D, F]


judgement:
Special Leave Petition (Civil) No. 8094 of 1988.
From the Judgment and Order dated 16.3.88 of the Andhra Pradesh High Court in (A.A.O.) No. 1152/86 & C.R.P. No. 2728 of 1986.
C. Sitaramiah and G. Prabhakar for the Petitioners.
R.F. Nariman, K. Prabhakar and R.N. Kishwani for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
The respondent R.V. Rayanim was, at all material times, a Class I contractor who had entered into an agreement with the Government of Andhra Pradesh for formation of earth dam in gorge portion from chainage 3360 to 3380 M of Raiwada Reservoir Project near Devarapalli village, Chodavaram Taluk, Distt.
Visakhapatnam, Andhra Pradesh.
Disputes and differences arose between the parties in respect of the aforesaid agreement.
A reference was made to the arbitrator as per the arbitrator clause in the agreement between the parties.
The respondent made eleven claims claiming various amounts, particulars whereof have been set out by the arbitrator as follows.
56 "I.Payment for forming cross (Rs. in lakhs) 15.89 bund and refund of the (subsequently reduced amount recovered.
to Rs.14.89 lakhs) II.Refund of Seigniorage 2.071 (withdrawn) Charges III.Escalation and damages 14.00 IV.Extra load for sand 1.075 (subsequently reduced to Rs.0.575 lakhs).
V.Payment for excavation 1.030 under water for probing diaphram wall VI.
Compensation for loss 1.500 suffered due to partial prevention by the department.
Compensation for loss 2.015 suffered due to non payment for the work done.
VIII.Refund of excess hire 0.730 charges recovered.
Overheads 0,960 X. Costs O. 100 XI.
(a) Interest on II and VIII at 24% from the date of recovery.
(b) On Rs.8.30 lakhs at 24% p.a. from 30.11.81 to 12.5.
(c) Interest at 24% on the award amount except II and VIII from the date of petition.
" The arbitrator gave a non speaking award dated 27th July, 1985 in favour of the respondent, amounting to Rs.19.39 lakhs, wherein he stated as follows: "Claim II has been withdrawn by the petitioner himself on the ground it was subsequently refunded by the respondents.
On the balance claims (I and III to X) according to my assessment, I award a consolidated amount of Rs.19.39 lakhs to the extent of the claims judged admissible.
The respond ents shall pay Rs.
Nineteen lakhs and thirty nine thousand to the petitioner.
" It is, therefore, apparent the claim No. II as mentioned above, 57 had been withdrawn.
On the balance claims I and III the arbitrator had awarded a consolidated amount of Rs.19.39 lakhs 'to the extent of the claims judged admissible '.
The respondent filed a proceeding before the Court to make the award rule of the Court.
The petitioner preferred an appli cation for setting aside the award.
By a common judgment dated 21st April, 1985, the Second Additional Judge, City Civil Court, Hyderabad, dismissed the petition of the peti tioner for setting aside the award and allowed the judgment in terms of the award.
The petitioner preferred an appeal and a civil review petition before the High Court of Hydera bad.
By a judgment dated 16th March, 1988 the division bench of the High Court dismissed the appeal and the revision of the petitioner.
It held that the non speaking award of the arbitrator was not liable to be set aside by the Court.
The petitioner has preferred this special leave petition challenging the said decision of the High Court.
The main contention which was sought to be urged on this case was that the award was a nonspeaking award and, as such, was bad.
On this ground, on or about 9th December, 1988 this Court directed that the matter should be taken up along with civil appeal No. 5645 and 5645A of 1986 pending before a larger bench.
At that time, the question was pending consid eration by the Constitution Bench of this Court.
This Court further directed on 9th December, 1988 that the entire amount of award, if not deposited in the trial court, should be deposited in the trial court within two months from that date, and upon the deposit being made the respondent will be at liberty to withdraw 50% of the amount which has not been withdrawn on furnishing security to the satisfaction of the trial court.
It was further recorded that 50% had already been withdrawn.
As mentioned hereinbefore, the main contention sought to be urged was that the award being a non speaking award, was bad in law.
In view of the decision of this Court in Raipur Development Authority etc.
vs M/s Chokhamal Contractors etc.
, Jmt.
Today 2 SC 285, this contention is no longer sustainable.
It was then contended that the award has pur ported to grant damages on the basis of escalation of cost and prices; and such escalation was not a matter within the doman of the bargain between the parties and having taken that factor into consideration the award was bad.
We have set out the relevant portion of the award.
From reading the award, as set out hereinbefore, it is clear that the arbi trator has considered the claim made on the basis of 'esca lation and damages ' but he has awarded a total sum of Rs.19.39 lakhs insofar as he finds admissible in respect of the claims which the arbitrator has adjudged.
It speaks no further.
In such a situation it is 58 not possible to contend that there was any exercise of jurisdiction by the arbitrator beyond his competence.
It is well settled that in matter of challenging the award, there are often two distinct and different grounds.
One is an error apparent on the face of the record and the other is that the arbitrator has exceeded his jurisdiction.
In the latter 's case the Court can look into the arbitration agree ment but under the former it cannot, unless the agreement was incorporated or recited in the award.
An award may be remitted or set aside on the ground that the arbitrator, in making it, had exceeded his jurisdiction and evidence of matters not appearing on the face of it, will be admitted in order to establish whether the jurisdiction had been exceed ed or not, because the nature of the dispute is something which has to be determined outside the award whatever might be said about it in the award or by the arbitrator.
See the observations of this Court in M/s Sudarshan Trading Co. vs Government of Kerala & Anr., ; Only in a speaking award the court can look into the reasoning of the award.
It is not open to the court to probe the mental process of the arbitrator and speculate, where no reasons are given by the arbitrator; as to what impelled the arbitrator to arrive at his conclusion.
In the instant case the arbitrator has not awarded any amount on account of escalation of costs and expenses.
At last the arbitrator has not expressly awarded any amount on the ground of such escalation and if so, what amount, is not apparent on the face of the record.
In these circumstances, in our opinion, on the basis of well settled principles of law such an award, especially in view of the fact that excluding item No. III the remaining items would also be well over Rs.19.33 lakhs, it is not discernible on the face of the record that arbitrator has exceeded his jurisdiction in awarding damages on account of escalation of charges and expenses which were beyond the arbitration ambit.
The fact that the arbitrator has considered the claim made by the respondent on account of escalation, does not make per se the award to be bad.
Mr. C. Sitaramiah, learned counsel appearing for the appellant contended that the fact that the arbitrator has taken into consideration the question of escalation would make the award bad because it is not discernible whether he has awarded any amount on account of escalation.
We are of the opinion that this argument is not open.
In case of an error apparent on the face of the record, it has to be established that an item or an amount which the arbitrator had no jurisdiction to 59 take into consideration, has been awarded or granted.
That is not apparent on the face of the award in this case.
All that the award states is that he has considered the claim on the basis of escalation.
Such a consideration does not make the award on the face of it, bad on the ground of error apparent on the face of the record.
Indeed, the arbitrator, when a claim is made, has to take that into consideration either for acceptance or rejection of the claim made.
The award states that he has taken the claim made, into consid eration.
The award does not state that he has awarded any amount on that account.
There is neither any error apparent on the face of the record, nor any material to satisfy that the arbitrator has exceeded his jurisdiction in awarding the amount as he did.
In that view of the matter the special leave petition has no merit made must, therefore, fail, and is accordingly dismissed.
The petitioners were allowed to withdraw the awarded sum on furnishing security but in view of the deci sion now rendered, they will be entitled to take back the security.
We order accordingly.
The application is dismissed with aforesaid directions.
R.S.S. Petition dismissed.

summary/full:
The respondent contractor had entered into an agreement with the petitioner for formation of an earth dam.
Disputes and difference arose between the parties.
A reference was made to the arbitrator wherein the respondent made eleven claims out of which one claim was later withdrawn.
The arbitrator gave a non speaking award in favour of the re spondent amounting to a consolidated sum of Rs.19.39 lakhs.
The respondent flied a proceeding before the Court to make the award rule of the Court.
The petitioner preferred an application for setting aside the award which was dis missed.
The High Court dismissed the appeal and the revision of the petitioner.
Before this Court it was contended inter alia that the award purported to grant damages on the basis of escalation of cost and prices, and such escalation was not a matter within the domain of the bargain between the parties.
It was also contended that the fact that the arbitrator had taken into consideration the question of escalation would make the award bad because it was not discernible whether he had awarded any amount on account of excalation.
Dismissing the special leave petition, this Court, HELD: (1) In matters of challenging an award, there are often two distinct and different grounds.
One is an error apparent on the face of the record and the other is that the arbitrator has exceeded his jurisdiction.
In the latter case the Court can look into the arbitration agreement but under the former It cannot, unless the agreement was incorporated or recited In the award.
[58A B] M/s Sudarshan Trading Co. vs Government of Kerala & Anr., ; , referred to.
11 55 (2) Only in a speaking award the court can look into the reasoning of the award.
It is not open to the court to probe the mental process of the arbitrator and speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion.
[58D] (3) It is not discernible on the face of the record that the arbitrator has exceeded his jurisdiction in awarding damages on account of escalation.
All that the award states is that he has considered the claim on the basis of escala tion.
Such a consideration does not make the award, on the race of it, bad on the ground of error apparent on the face of the record. ' [58G H; 59A B] (4) The Arbitrator does not state that he has awarded any amount on that account.
There is neither any error apparent on the face of the record, nor any material to satisfy that the arbitrator has exceeded his jurisdiction in awarding the amount as he did.
[59B C]