judgement:
iminal Appeal No.155 of 1965.
M. R. Barot and R. Gopalakrishnan, for the appellants.
P. K. Chatterjee, R. H. Dhebar and section P. Nayyar, for the respondent.
The Judgment of the Court was delivered by Hegde,J.
The appellants in this appeal are two police officers.
The first appellant Bhanuprasad Hariprasad Dave was the police Sub Inspector and the second appellant, Rajuji Gambhirji, was his writer constable in February 1963.
At that time both of them were attached to the Navrangpura police station, Ahmedabad.
They were tried and convicted by the Special Judge, Ahmedabad, for offences under section 161 read with section 165 A of the Indian Penal Code and section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, (No. 2 of 1947), and for those offences each of them was sentenced to suffer rigorous imprisonment for two and half years and a fine of Rs. 1,000, in default to suffer further rigorous imprisonment for year.
The judgment of the learned Special Judge was affirmed by the High Court ,of Gujarat.
It is against that judgment, this appeal has been filed, after obtaining special leave from this Court.
To state briefly, the prosecution case is as follows : Ramanlal, the complainant in this case, wrote a postcard on February 11, 1963 to one Madhukanta, a lady teacher, requesting her to ask Chandrakanta, another lady teacher working with her, to meet him in connection with certain work.
Therein he also wrote that he would be glad if Madhukanta could accompany Chandrakanta.
The headmaster of the school where Madhukanta and Chandrakanta were working, happened to read that postcard.
She took Madhukanta to task for allowing strangers to write to her in that manner.
Piqued by the conduct of Ramanlal, Madhukanta made over the postcard in question to the first appellant, probably with a request that Ramanlal might be pulled up for his conduct.
On February 16, 1963, the first appellant sent the second appellant to fetch Ramanlal to the police station.
On his arrival at the police station, Ramanlal was abused and slapped by the first appellant.
With a view to got out of the situation.
Ramanlal agreed to pay the sum demanded.
He therefore asked the first appellant time for payment till the 18th.
The first appellant agreed to the same.
On the morning of 18th, Ramanlal met the Deputy Superintendent of Police, AntiCorruption Department, and complained to him about the incident in question.
He was asked to give a written complaint in that regard which he did.
Thereafter he produced before the Dy.
S.P. ten currency notes of Rs. 10 each.
The numbers of those notes were noted and then those notes were treated with anthracene powder.
Ramanlal was asked to give those notes to the first appellant if he made any further demand for bribe.
Thereafter he was sent to the police station with the panch witness, Dahyabhai.
But when they went to the police station they found that the first appellant was not there.
They were told that he had gone to attend court.
Hence Raman lal and Dahyabhai returned to the office of the Anti Corruption Department and reported to the Dy.
S.P. about the same.
Under instructions from the Dy.
S.P. he again went to the office of the Anti Corruption Department on the evening of that day with currency notes.
Those notes were again treated with anthracene powder and their numbers noted.
Ramanlal was again sent to the Police station with Dahyabhai on that evening at about 5 3o p.m.
When they went there, the first appellant was not there, but the second appellant was there.
He told them that the first appellant was expected in the station at any moment.
Thereafter the second appellant, Ramanlal and Dahyabhai went to a nearby tea shop and took tea.
By the time they returned to the police ,station the first appellant was there.
Ramanlal told the first appellant that he had brought the money.
Then he asked him to pay the same to the second appellant who was in one of the rooms of the police station.
When Ramanlal went to pay the money to the second appellant, the first appellant took out the postcard written by Ramanlal to Madhukanta, showed it to Dahyabhai and thereafter tore it to pieces and burnt it.
Meanwhile Ramanlal went and paid the currency notes in question to the second appellant.
While Ramanlal and Dahyabhai were in the police station, police Sub Inspector Erulker and constable Santramji, both belonging to the Anti Corruption Department, were observing from a nearby compound the happenings in the police station.
The second appellant immediately on receiving the notes in question left the police station.
But he was followed by constable Santramji.
From the police station the second appellant first went to the shop of one Sanghvi and changed one of the currencynotes.
From there he went to the pan shop of Sendhalal and there changed three more currency notes.
Thereafter constable Santramji was not able to keep track of him.
Meanwhile when things did not go according to plan, Ramanlal was somewhat confused.
He after paying the amount to the second appellant L1OSup.
Cl/68 3 26 straight rused back to the Dy.
S.P. and told him what had happened at the police station.
Immediately, the Dy.
He seized the burnt pieces of the postcard.
Some of the unburnt pieces were recognised by Ramanlal as portions of the postcard written by him to Madhukanta.
From there the Dy.
S.P. proceeded to the shop of Sanghvi and Sendhalal and seized the currency notes changed in their shops by the second appellant.
Their numbers tallied with the numbers of the notes earlier handed over to Ramanlal after being treated with anthracene powder.
Those notes were full of anthracene powder.
The same night the second appellant was arrested and at that time it was found there ,was considerable anthracene powder on his person.
After in vestigation the appellants were prosecuted for the offences mentioned earlier.
Both the trial court and the High Court have accepted the prosecution case.
This Court being a court of special jurisdiction does not examine the evidence afresh except under exceptional circumstances.
No good reasons were shown to us for departing from the ordinary rule.
Hence we proceed on the basis that the findings of fact reached by the High Court are ,.correct.
Before proceeding to examine the various contentions ad vanced on behalf of the appellants it is necessary to mention that in this case there were two investigations.
As seen earlier the trap in this case was laid by the Dy.
S.P., Anti Corruption Department.
But when the case came up for trial before the learned Special Judge objection was taken to the trial of the case on the ground that in view of the provisions of the Bombay State Commissioner of Police Act, 1959, the investigation in this case should have been made by a Superintendent of Police as there was a Police Commissioner for the city of Ahmedabad.
The learned Special Judge accepted that contention and directed a fresh investigation to the extent possible by one of the Superintendents of Police.
Because of the fresh investigation, in respect of most of the prosecution witnesses, the police diary contained, two statements one recorded by the Dy.S.P. and the other by the S.P. in the course of the trial of the case, several prosecution witnesses were alleged to have gone back on the statements given by them during investigation.
While deposing in court 27 Madhukanta asserted that she had destroyed the postcard written by Ramanlal as soon as she read the same whereas both Ramanlal as well as the panch witness Dahyabhai had deposed that the first appellant had shown them the postcard in question.
S.P. wherein she appears to have stated that she had given the postcard in question to the first appellant.
Mr. Barot, learned counsel for the appellants, strenuously contended that in view of the order of the Special Judge, directing re investigation, in law, the record of the investigation made by the Dy.S.P. stood wiped out, and therefore Madhukanta should not have been cross examined with reference to the statement alleged to have been made by her during the first investigation.
We are unable to accept this contention as correct.
It is true that the first investigation was not in accordance with law, but it is no sense non est.
Investigation, as held by this Court in section N. Bose vs State of Bihar(1), includes the laying of trap.
That part of the investigation was, admittedly done by the Dy.
The statements recorded by the Dy.
S.P. in the course of his investigation ' though the investigation in question was illegal, (see, H .
N. Rishbud vs the State of Delhi(2), are still statements recorded by a police officer in the course of investigation under Chapter XIV of the Code of Criminal Procedure and consequently they fall within the scope of sections 161 and 162 of the said Code.
Neither in Rishbud 's case(2) nor in section N. Bose 's case(), where investigations had been carried on in contravention of section 5 A of the Prevention Corruption Act, this Court considered those investigations as non est.
Both the trial court and the High Court have accepted the evidence of Ramanlal and Dahyabhai in preference to that of Madhukanta that the first appellant was in possession of the postcard in question on February 18, 1963.
This is essentially a finding of fact.
In our judgment in coming to that conclusion those courts did not ignore any legal principle.
It was next contended by the learned counsel for the appellants that the appellants were convicted solely on the basis of the testimony of Ramanlal, the Dy.S.P. Erulker and Santramji, who, according to him, are all interested witnesses and their evidence not having been corroborated by any independent evidence, the same was insufficient to base the conviction of the appellants.
Before examining this contention it may be mentioned that so far as Dahyabhai was concerned, he appeared to have turned hostile to the prosecution at the trial.
He supported the evidence of Ramanlal in some respects; but in most important respects he did not support the prosecution case.
He admitted (1) Cr.A.109/1967,decided on March26,1968.
(2) 11955] 1 S.C.R. 1150.
28 to have accompanied Ramanlal both in the morning and on the evening of the 18th.
He also admitted that he and Ramanlal met a police Sub Inspector in the police station who showed them the postcard written by Ramanlal to Madhukanta.
He also corroborated Ramanlal about the talk that Ramanlal had with that Sub Inspector, in connection with the payment of bribe.
But when it came to the question of identifying that Sub Inspector, he denied that it was the first appellant.
He also did not identify the second appellant.
It was obvious that the had been gained over.
So far as Sanghvi is concerned, he admitted that a police constable in uniform came to his shop on the evening of the 18th and changed a ten rupee corrency note.
But he stated that he was not able to say whether that constable was the second appellant.
Sendhalal deposed that a person came to him on the evening of the 18th and changed three 'ten rupee currency notes.
He also stated that he was unable to say whether it was the second appellant who changed those notes; he went a step further and stated that the person who came to his shop was not in uniform.
But the fact remains that the currency notes seized from the shops of Sanghvi and Sendhalal are the very notes whose numbers had been earlier noted by the Dy.
S.P. and further treated with anthracene.
There is the evidence of constable Santramji to establish that the notes in question were changed at the shops of Sanghvi and Sendhalal by the second appellant.
The trial court as well as the High Court accepted the evidence of Dahyabhai, Sanghvi and Sendhalal to the extent it supported the prosecution case and rejected the rest.
It was open for those courts to do so.
Now coming back to the contention that the appellants could not have been convicted solely on the basis of the evidence of Ramanlal and the police witnesses, we are of opinion that it is an untenable contention.
The utmost that can be said against Ramanlal, the Dy.S.P., Erulker and Santramji is that they are partisan witnesses as they were interested in the success of the trap laid by them.
It cannot be said and it was not said that they were accomplices.
Therefore, the law does not require that their evidence should be corroborated before being accepted as sufficient to found a conviction.
This position is placed beyond controversy by the decision of this Court in the State of Bihar vs Basawan Singh(1), wherein this Court laid down, overruling the decision in Rao Shiv Bahadur Singh vs State of Vindhya Pra desh (2) that where the witnesses are not accomplices but are merely partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as any other interested evidence is tested, and in a proper case, the court may look for independent corroboration before convict (1) ; (2) 29 ing the accused person.
We are unable to agree that any different rule was laid down in Major E. G. Barsay vs The State of Bombay(1).
It must be remembered that the decision in Basawan Singh 's case(1) was given by a Bench of Five Judges and that decision was binding on the Bench that decided Major Barasay 's case(1).
Some of the observations in Major Barasay 's case(1) no doubt support the contention of the appellants.
But those observations must be confined to the peculiar facts of that case.
It is now well settled by a series of decisions of this Court that while in the case of evidence of an accomplice, no conviction can be based on his evidence unless it is corroborated in material particulars but as regards the evidence of a partisan witness it is open to a court to convict an accused person solely on the basis of that evidence, if it is satisfied that that evidence is reliable.
But it may in appropriate case look for corroboration.
In the instant case, the trial court and the High Court have fully accepted the evidence of Ramanlal, the Dy.
S.P., Erulker and Santramji.
That being so, it was open to them to convict the appellants solely on the basis of their evidence.
That apart, their evidence is substantially corroborated by the evidence of Dahyabhai, Sanghvi and Sendhalal.
in the case of partisan witnesses, the corroboration that may be looked for is corroboration in a general way and not material corroboration as in the case of the evidence of accomplices.
It was next contended that even if we accept the prosecution case in full, no offence can be said to have been made out under section 161 of the Indian Penal Code.
We are unable to accept that contention.
To establish the offence under section 161 of the Indian Penal Code all that prosecution had to establish was that the appellants were public servants and that they had obtained illegal gratification for showing or forbearing to show, in the exercise of their official functions, favour or disfavour to Ramanlal.
If he had used his official position to extract illegal gratification the requirements of the law is satisfied.
This position is made clear by the decision of this Court in Mahesh Prasad vs The State of U.P. (3) and Dhaneshwar Narain Saxena vs The Delhi Administration (4).
Lastly we come to the question whether the prosecution was barred by section 161 (1) of the Bombay Police Act, 1951 (Bombay Act 22 of 1951), which, to the extent material for our present purpose, says that in any case of alleged offences by a police officer or of a wrong alleged to have been done by such officer by any (1) [1962] 2 S.C.R.195.
(2) ; (3) ; (4) ; 30 act done under colour or in excess of any such duty or authority as mentioned in that Act, the prosecution shall not be entertained or shall be dismissed if instituted, more than six months of the act complained of.
Admittedly, the prosecution in this case was instituted more than six months after February 18, 1963, the day on which illegal gratification was obtained.
In support of the contention that the prosecution is barred by limitation, reliance was placed on the decision of this Court in Virupaxappa Veerappa Kadampur vs The State of Mysore(1).
Therein a head constable was charged under section 218 of the Indian Penal Code.
The prosecution case was that on February 23, 1954 on receipt of some information that some persons were smuggling ganja, the headconstable arrested a person with a bundle containing 13 packets of ganja and seized them, and in the panchnama he incorrectly showed the seizure of nine packets of ganja, and that on the next day he however prepared a new report in which it was falsely recited that the person with the bundle ran away on seeing the police after throwing away the bundle containing nine packets of ganja.
The allegation against the head constable was that the prepared a false report with the dishonest intention of saving the person concerned from whom the ganja was seized and who had been actually caught with ganja, from legal punishment.
This Court held that under section 161 of the Bombay Police Act, 1951, the words "under colour of duty" have been used to include acts done under the cloak of duty, even though not by virtue of the duty; that when the head constable prepared a false report he was using the existence of his legal duty as a cloak for his corrupt action and that, therefore, the act thus done in dereliction of his duty must be held to have been done "under colour of duty".
The rule laid down in that decision is inapplicable to the facts of the present case.
He by taking advantage of_that duty pre pared a false panchnama and false report and therefore it was held that what he did was under the colour of duty.
In the present case the appellants cannot be said to have received the bribe under the colour of their duty.
There was no connection between the duties to be performed by them and the receipt of the bribe in question.
The facts of the present case bear some similarity to the facts in the State of Andhra Pradesh vs N. Venugapol(2) and the rule laid down therein bears on the question under discussion.
This cannot be said to have been done under (1) [1963] Supp. 2 S.C.R. 6.(2) ; 31 colour of duty.
The charge against the second appellant is that he aided the first appellant in his illegal activity.
For the reasons mentioned above, this appeal fails and the same is dismissed.
The appellants who are on bail shall surrender forthwith to serve the remaining portion of the sentences imposed on them.
Y.P. Appeal dismissed.

summary/full:
A postcard written by R to a lady M requesting her to ask another lady to meet him, was made over to the first appellant a Police SubInspector.
The first appellant asked the second appellant his writer constable to fetch R.
On his arrival, R was asked to pay money otherwise he would be harassed.
R approached the Deputy Superintendent of Police, Anti Corruption Department, as a result of which a trap was laid and the currency notes treated with anthracene given to R for the payment R and one D went to the first appellant, who directed R to pay it to the second appellant.
The first appellant took Out the postcard, tore it and burnt it, while R paid the money.
Another police Sub Inspector and constable both belonging to the Anti Corruption Department were keeping a watch from nearby compound.
The second appellant went to two shot)s and changed some currency notes there.
The Dy.
S.P. searched the first appellant but nothing incriminating was found.
he seized the burnt pieces of postcard, sonic of the unburnt pieces were recognised by R. The Dy.
S.P. seized the currency notes from the shops and their number tallied.
The second appellant was arrested and considerable anthracene powder was found on his person.
The appellants were tried tinder sections 161 ind 165A IPC and sections 5(1)(d) and 5(2) of the Prevention of Corruption Act by Special Judge, Ahmedabad.
An objection was taken to the trial that in view of Bombay State Commissioner of Police Act, 1959, the investigation should have been made by a Superintendent of Police is there was a Police Commissioner in that city, which was upheld and it fresh investigation ordered by a Superintendent of Police.
Because of the fresh investigation, in respect of most witnesses, the police diary contained two statements one recorded by the Dv. S.P. and the other by the S.P.
While deposing in the trial Court, M asserted that she had destroyed the postcard as soon as she read it, and she was cross examined by the prosecution in reference to her earlier statement to the Dy, S.P, to the effect that he had Liven the postcard to the first appellant.
The Trial Court accepted the prosecution case and convicted the appellants, which was upheld by the High Court.
In appeal before this Court, the appellants contended that (i) in view of the order of reinvestigation, the record of the investigation made by the Dy.
S.P.stood wiped out, and therefore M could not have been crossexamined with reference thereof; (ii) the conviction could not solely be,based on the evidence of R and Police witnesses, who were all interested witnesses; (iii) no offence.
was made out under section 161 IPC, as the prosecution had to establish that they were public servants and had obtained illegal gratification for showing or forbearing to show in exercise of their official 'functions, favour, or disfavour to R; and (iv) the Prosecution was barred 23 by limitation by section 161(1)of the Bombay Police Act, 1951 as it was instituted more than six months of the offence.
HELD : The appeal must be dismissed.
(i)Though the first investigation was not in accordance law, but yet it was in no sense non est.
Investigation includes laying of trap.
That part of the investigation was done by the Dy.
The Statements recorded by the Dy.
S.P. in the course of his investigation, though the investigation in question was illegal, were still statements recorded by a police officer in the course of investigation under Chapter XIV of the Code of Criminal Procedure and consequently they fell within the scope of sections 161 and 162 of the Code.[27C F] S.N. Bose vs State of Bihar, Cr.
A. 109 of 1967 decided on March 26, 1968;H. N. Rishbud vs The State of Delhi. ; ; and The State of Bihar vs Basawan Singh, ; , followed.
(ii) While in the case of evidence of an accomplice no conviction can be based on his evidence unless it is corroborated in material particulars but ,is regards the evidence of a partisan witness it is open to a court to convict an accused solely on that evidence, if it is satisfied that that evidence is reliable.
But it may in appropriate case look for coroboration.
In this case, R. and the police witnesses could not be said to be accomplices, and both the courts below have fully accepted their evidence.
So it was open to them to convict the appellants on the basis of their evidence.
That apart their evidence was substaintially coroborated by the evidence of D and the shopkeepers.
[29B D] The State of Bihar vs Basawan Singh, ; ; followed.
Rao Shiv Bahadur Singh vs State of Vindhya Pradesh, , overruled.
Major E.G. Barsay vs The State of Bombay; [1962] 2 S.C.R. 195, distinguished.
(iii) Offence under section 161 IPC was made out, The question whether there was any offence which the first appellant could have investigated or not was irrelevant.
If he had used his official position to extract illegal gratification, the requirement of law was satisfied.
[29F] Mahesh Prasad vs The State of U.P. ; ; Dhaneshwar Narain Saxena vs The Delhi Administration ; , followed.
(iv) Section 161(1) of the Bombay Police, Act, 1951 was inapplicable to this case.
The appellants could not be said to have received bribe under the colour of their duty.
There was no connection between the duties to he performed by them and the receipt of the bribe in question.
All that could be, said was that the first appellant a police officer, taking advantage of his position as a police officer and availing himself of the opportunity afforded by the letter M handed over to him coerced R to pay illegal gratification to him.
This could not be said 4to have been done " under colour of duty".
The charge against the second appellant was that he aided the first appellant in his illegal activity.
[30G 31A] The State of Andhra Pradesh vs N. Venugopal, [1964] 3 S.C.R. 742, referred to.
Virupaxappa Veerappa Kadampur vs The State of Mysore, [1963] Supp. 2 S.C.R. 6, held inapplicable.


judgement:
minal Appeal No. 187 of 1965.
Appeal by special leave from the judgment and order dated August 3, 1965 of the Allahabad High Court in Criminal Misc.
Contempt Case No. 7 of 1965.
U. P. Singh and D. N. Mishra, for the appellant.
Sobhagmal Jain, section P. Singh and J. P. Goyal, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The appellant is the manager of Hiralal Memo rial Intermediate College, Bhaurauli, in the District of Azamgarh.
The respondent was the principal of the College.
On December 14, 1963 the respondent drew from the Boys ' Fund of the college two sums of Rs. 189 for payment of scholarship to the two Harijan students for, the period from May to November 1963.
On withdrawal of the monies he sent to the Harijan.
Tatha Samaj Kalyan Adhikari a form called Form No. 14 to the Adhikari containing a receipt of the scholarship signed by the two students and counter signed by himself.
The Adhikari wrote to the appellant informing him of the complaint.
made by the students that in spite of the submission of Form No. 14 they had not received the scholarship.
On March 24, 1964 the District Inspector of Schools visited the College and on finding that the scholarships had not been paid called for an explanation for nonpayment.
On April 10, 1964 the appellant forwarded the Inspector 's letter of March 24 to the respondent and asked him to give an, explanation.
The respondent sent a reply stating that payments were made to the students on March 31, 1964 and that the delay in payment was due to the absence of the students from the College and the fact that the register on which receipts had to be obtained were with the Inspector from December. 8, 1963 to March 10, 1964.
A meeting of the managing committee was called on April 14, 1964 to consider the Inspector 's letter and the respondent 's explanation.
According to the appellant, on April 19, 1964 the managing committee met and resolved to take disciplinary action against the respondent.
On April 21, 1964 the appellant passed an order suspending the respondent pending the inquiry.
The order stated that it was passed in exercise of the power vested in the appellant by the rules and the resolution of the managing committee dated April 19, 1964.
A copy of the resolution was attached.
On April 24, 1964 the respondent filed a writ petition in the High Court of Allahabad praying for appropriate writs quashing the order of suspension.
He alleged that the appellant had no authority to pass the order and that the order was made in bad faith.
On the same date the respondent obtained an ex parte order from the High Court 136 staying the, operation of the suspension order.
On July 22, 1964 after hearing both the parties the High Court vacated the stay order.
On December 25, 1964 the appellant served a charge,sheet on the respondent.
Charge No. (IV) was as follows "The scholars hip amounts of Rs. 216/25 and Rs. 216/25 of Sri Karam Deo Ram and Sri Jai Raj Ram students of Class XII for the months of May 1963 to November 1963 were withdrawn by you on 14 12 1963 but the same have neither been disbursed to the students concerned nor refunded to the, Treasury.
Thus you are guilty for misappropriation of the aforesaid amount.
Evidence which is proposed to be considered in support of the charge : 1.
Letter of D.J.O., dated 24 3 1964.
Letter of H.W.O., dated 31 3 1964.
Statement of students.
Thus it is evidently clear that you being entrusted with the aforesaid money have dishonestly misappropriated the amount for your own use and the poor students have been put to loss by your misconduct.
As such you have committed criminal breach of trust dis honestly punishable under sec.
406 I.P.C." The respondent was required to submit his explanation by January 24, 1965.
Instead of submitting his explanation the respondent filed a petition in the High Court asking for committal of the appellant for contempt of court.
His contention was that the aforesaid charge was the subject matter of inquiry in the pending writ petition, and that as the respondent had launched a parallel inquiry in the matter he had committed contempt of court.
The 'High Court accepted the contention and held that the respondent 'was guilty of contempt of court and directed him to pay a fine .,of
Rs. 500 and costs.
The respondent has filed this appeal after , obtaining special leave from this Court.
The conditions of service of the teachers in the College are governed by sec.
16 G of the Intermediate Education Act, 1921.
(U.P. Act 11 of 1921) and the Regulations framed thereunder. 'Regulations 31 to 45 provide for punishment, inquiry and suspension.
The Committee of Management is the, punishing ,authority.
The punishments of dismissal, removal, discharge and reduction in rank and dimunition in emoluments require prior approval of the Inspector.
If it is decided to take disciplinary action against an employee, the inquiry is made by an authority :appointed by the committee.
The ground on which it is proposed 137 to take action is reduced in the form of definite charges.
The charges are communicated to the employee, who is required to submit a written statement of his defence.
If the employee or the inquiring authority so desires, an oral inquiry takes place.
The inquiring authority then makes a report.
On receipt of the report the punishing authority takes its decision on the case.
On receipt of the decision of the committee the Inspector gives his decision.
The Committee then implements the decision of the Inspector.
The Regulations indicate definite time limits for the communica tion of the charge, submission of the written statement of defence,completion of the inquiry, the making of the report by the inquiring authority, the taking of decisions by the punishing authority and the Inspector and the implementation of the decision.
Pending the inquiry and final orders, the employee may be suspended by the committee.
The power of suspension may be exercised by the manager if it is delegated to him under the rules of the institution.
The employee under suspension is paid a subsistence allowance of an amount equal to half his pay.
The issue in the disciplinary proceedings is whether the em ployee is guilty of the charges on which it is proposed to take action against him.
The same issue may arise for decision in a civil or criminal proceeding pending in a court.
But the pendency of the court proceeding does not bar the taking of disciplinary action.
The power of taking such action is vested in the disciplinary authority.
The civil or criminal court has no such power.
The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding.
The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings.
If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court.
In the absence of a stay order the disciplinary authority is free to exercise its lawful powers.
An authority holding an inquiry in good faith in exercise of the powers vested in it by statutory regulations is not guilty of contempt of court, merely because a parallel inquiry is imminent or pending before a court.
In Tukaram Gaokar vs section AT.Shukla(1) this Court held that the initiation and continuance of proceedings for imposition of penalty on the appellant for his alleged complicity in the smuggling of gold under sec.
112(b) of the Sea did not amount to a contempt of court though his trial in a criminal court for offences under sec.
135(b) of that Act and other similar offences was imminent and identical issues would arise in the proceedings before the customs authorities and in the trial before the criminal court.
This Court observed (1) ; 138 "To constitute contempt of court, there must be involved some 'act done or writing published calculated to bring a court or a judge of the court into contempt or to lower his authority ' or 'something calculated to obstruct or interfere with the due course of justice or the lawful process of the court. ' Reg.
vs Gray(1) Arthur Reginald Perors vs The King(2).
The customs officers did nothing of this kind.
They are acting bona fide discharging their statutory duties under sections 111 and 112.
The power of adjudicating penalty and confiscation under those sections is vested in them alone.
The criminal court cannot make this adjudication.
The issue of the show cause notice and proceedings there under are authorised by the Act and are not calculated to obstruct the course of justice in any Court.
We see no justification for holding that the proceedings amount to contempt of court.
" In Re: Shr Mehra(3) the High Court of Madhya Pradesh held that the bona fide holding of a departmental inquiry on a charge of misappropriation against a government servant did not amount to contempt of court merely because a criminal prosecution on the same charge was pending against him.
A fortiori the inquiry cannot amount to contempt court if it is not a parallel investigation on a matter pending before a court, see Saibal Kumar Gupta V. B. K. Sen(4).
In Delhi Cloth and General Mills Ltd. vs Kaushal Bhan(5) and Tata Oil Mills Co., Ltd., vs The Workmen(6) the Court held that a domestic inquiry by the employer into the charges against a workman was not vitiated because it was held during the pendency of a criminal trial into the same or similar charges.
It may be desirable to stay the domestic inquiry pending the final disposal of the criminal case but the inquiry could not be characterised as mala fide merely because it was held during the pendencY of the criminal proceedings.
In The King vs Parmanand(7) a Full Bench of the Patna High Court held that the giving or withholding of consent to the withdrawal of the prosecution under sec.
494 of the Code of Criminal Procedure was a judicial act and it was improper for the court to permit withdrawal of the prosecution on orders of the Government without making any attempt to exercise its discretion, that the power to grant adjournments of pending proceedings under section 344 of the Code and the power to call for records in A pending or completed case under secs.
423, 435 of the (1) [1900] 2Q.B.36.
(2) (1951] A.C.482.488.
(3) A.I.R, 1962 M.P.72.
(4) ; (5) [1960] 3S.C.R.227.
(6) ; (7) A.I.R. 1949 Pat 282.
139 Code and the general rules and circular orders were vested in the court and not in executive officers.
Those questions do not arise for decision in this case.
Narayan, J. in a separate judgment observed that in an inquiry with regard to a matter which is sub judice was bound to interfere with the even and ordinary course of justice and a parallel inquiry of this kind would amount to opening the door for contempt.
In that case the executive officers were issuing orders to the criminal court calling for its records and asking it to adjourn the proceedings and to consent to the withdrawal of the prosecution and on those facts it might be possible to hold that the officers were guilty of contempt.
But we cannot agree with the broad observation that a parallel inquiry on a matter pending before a court necessarily amounts to a contempt of court.
We think that an inquiry by a domestic tribunal in good faith into the charges against an employee does not amount to contempt of court merely because an inquiry into the same charges is pending before a civil or criminal court.
In D. J. Shield vs
Ramesam (1) the Andhra Pradesh High Court agreed with the observations of Narayan, J. but the decision is distinguishable because the court found that the inquiry by the Collector into the charges against a sub magistrate was not a parallel inquiry and did not amount to contempt of court.
After the High Court vacated the stay order the appellant bona fide believed that the disciplinary proceedings could be continued.
The service of the charge sheet on the respondent was made in good faith and was not intended or calculated to interfere with the court proceedings.
We are inclined to think that the respondent instituted the contempt proceeding with ulterior motives.
He was under suspension and was drawing half pay for doing nothing.
His intention was to delay the inquiry into the charges against him.
Having failed to obtain the stay order he launched the contempt proceeding so that the inquiry might be indefinitely held up.
In view of the order under appeal he has successfully delayed the inquiry so far.
In the result, we allow the appeal, set aside the judgment and order of the High Court dated August 3, 1965 and dismiss the petition filed under the Contempt of Courts Act.
Y.P. Appeal allowed (1) A. 1.

dataset_name: IN-Abs

summary/full:
Pending an inquiry into the conduct of the respondent Principal of a college in respect of certain allegations, the respondent was suspended.
The respondent filed a writ petition in the High Court to quash the order of suspension and also obtained ex parte stay against the continuation of the inquiry.
The ex parte stay was vacated.
Thereafter the appellant manager of the college, served a charge sheet on the respondent and called upon him to explain the allegations.
The respondent moved the High Court for holding the appellant guilty of contempt of Court.
The High Court held the appellant guilty of contempt of Court.
In appeal, this Court.
HELD:The appeal must be allowed.
An authority holding an inquiry in good faith in exercise of the powers vested in it by statutory eegulations is not guilty of contempt of Court, merely because a parallel inquiry is imminent or pending before a Court.
The issue in the disciplinary proceedings is whether the employee is guilty of the charges on which it is proposed to take action against him.
The same issue may arise for decision in a civil or criminal proceeding pending in a Court.
But the pendency of the court proceeding does not bar the taking of disciplinary action.
The power of taking such action is vested in the disciplinary authority.
The civil or criminal court has no such power.
The initiation and continuation of disciplinary proceedings in good faith is not calculated to obstruct or interfere with the course of justice in the pending court proceeding.
The employee is free to move the court for an order restraining the continuance of the disciplinary proceedings.
If he obtains a stay order, a wilful violation of the order would of course amount to contempt of court.
In the absence of a stay order the dirciplinary authority is free to exercise its lawful powers.
[137D G] In this case, after the stay order was vacated by the High Court, the appellant bona fide believed that the disciplinary proceedings could be continued, and the charge sheet was served in good faith and was not intended or calculated to, interfere with the court proceedings.
Rather the respondent instituted the contempt proceedings with ulterior motives to indefinitely hold up the inquiry after having failed to obtain the stay order.
[139 E F] Tukaram Gaokar vs section N. Shukla, ; , Reg, vs Gray, , Arthur Reginald Perors vs The King , 488, Re : Shri Mehra A.I.R. 1962 M.P. 72; Saibal Kumar Gupta vs B. K. Sen ; ; Delhi Cloth and General Mills Ltd., vs Kaushal Bhan, ; ; Tata Oil Mills Co., Ltd. vs The Workmen, A.I.R. 1965 S.C. 155; The King vs Parmanand, A.I.R. 1949 Pat. 282; D. J. Shield vs Ramesam, A.T.R. 1955 Andhra Pradesh, 156 referred to. 135


judgement:
iminal Appeal No. 47 of 1966.
Appeal by special leave from the judgment and order dated September 6, 1965 of the Patna High Court in Government Appeal No. 23 of 1962.
B. P. Singh and D. N. Misra, for the appellant.
D. P. Singh and K. M. K. Nair, for the respondent.
173 The Judgment of the Court was delivered by Vaidialingam, J.
On behalf of the sixth accused, the appel lant herein, in this appeal, by special leave, Mr. B. P. Singh, learned counsel, challenges the order of the Patna High Court, dated September 6, 1965, setting aside the order of acquittal, passed by the Second Additional Sessions Judge, Muzaffarpur and convicting him for an offence, under section 467, read with section 109, IPC., and passing a sentence of three months ' rigorous imprisonment.
For the relief and rehabilitation, of people who had suffer ed, in 1954, by the heavy floods in Sitamarhi Sub Division, the Government of Bihar was granting loans to needy and suitable persons, under the Agriculturist 's Loan Act, 1884.
The appellant was a Mukhtear, practising at Sitamarhi.
There are certain formalities, to be gone through, in the matter of obtaining the loans, under that Act.
One of the requirements was that an applicant had to put his signature, on an agreement form and, that he should be identified, by a lawyer, who should also attest his signature.
Several officers, connected with this Loan Department, including the Mukhtears practising at Sitamarhi, one of whom was the appellant, were alleged to have entered into a conspiracy, between November 19, 1955 and December 22, 1955, to cheat the Government, by inducing it to grant loans, in the names of fictitious persons, and, in pursuance of that conspiracy, two applications, for loans in the names of two fictitious persons, Durga Singh and Hari Shankar Singh, were filed before the Sub Divisional Officer, Sitamarhi.
According to the prosecution, the appellant and another Mukhtear.
Devendra Prasad, had certified, in the loan applications of Durga Singh and Hari Shankar Singh, that they knew those parties and that they had signed, in their presence.
The amounts were drawn, in the usual course, from the treasury, by the said two persons; and, ultimately, it came to light that the two persons were fictitious persons, got up by the several accused.
The appellant admitted having attested, in the loan applications of the two individuals concerned, but he stated that he did so, on the assurance of one Sheojee Prasad Karpardaj.
It may be stated that this Sheojee Prasad Karpardaj was also charge sheeted, but he has been discharged, even by the committal Court.
The learned Sessions Judge found, on the evidence,, that Durga Singh and Hari Shankar Singh were fictitious persons and a fraud was committed, on the Sub Divisional Officer, Sitamarhi, and the Sub treasury, as a result of which the Government sustained a loss of Rs. 1,000/ .
The learned Sessions Judge accepted the appellant 's plea that he had made the endorsement on the 174 assurance of Sheojee Prasad Karpardaj and, in view of the fact that other Mukhtiar, Devendra Prasad, had also attested the loan applications, and acquitted him.
This Devendra Prasad had also charged, for the same offence.
While admitting, having attested the signatures of the applicants for the loan, Devendra Prasad had set up a plea that he did so, on the assurance, given by one Rudradeo Singh.
This explanation has been accepted, by the trial Court and Devendra Prasad was acquitted.
But, when the State appeal, against acquittal, was pending in the High Court, Devendra Prasad died.
But, we have to refer to certain observations, made by the High Court, regarding this Devendra Prasad, which have, more or less, formed the grounds, for setting aside the order of acquittal of the appellant also.
The High Court, on appeal, by the State Government, has set aside the order of acquittal of the appellant.
Two reasons so far as we could see, have been given, by the High Court, for interfering with the order of acquittal, viz. : (i) that though the appellant raised a defence that he attested the loan applications, on the representation and assurance of Sheojee Prasad Karpardaj, no evidence has been let in, by the appellant, to support this defence: and (ii) Devendra Prasad, with whose case the appellant 's also was closely connected, had raised a plea that he attested the loan applications, on the assurance and representation of Rudradeo Singh and that Devendra Prasad has not examined himself as a witness, under section 342A, Cr.P.C., nor did he adduce any other evidence, in support of his claim.
It is really, on these grounds, that the appellant has been convicted, for the offence under section 467 read with section 109, IPC., and sentenced to undergo rigorous imprisonment, for a period of three months.
We are satisfied that the order of the High Court cannot be sustained.
Regarding the first point, mentioned above, the High Court has really thrown the burden of proof on the appellant, instead of finding out whether the prosecution has proved its case and whether the order of acquittal is erroneous.
Regarding the second point the High Court has really committed a breach of the proviso to section 342A, when it has commented upon the nonexamination of Devendra Prasad, that he has not examined himself, as a defence witness.
Under cl.
(b), of the proviso to section 342A, Cr.
P.C., it is specifically provided that the failure of an accused to give evidence, shall not be made the subject of any comment, by any of the parties, or the Court, or give rise to any presumption against himself, or any person charged, together with him, at the same time.
The High Court has stated that the case of the appellant is closely connected with that of Devendra Prasad.
In fact, the appellant had pleaded that he had attested the signatures of the applicants, for the loans, because Devendra Prasad, another Mukhtear, had attested the same 175 and also on the assurance of one Sheojee Prasad Karpardaj.
Devendra Prasad had taken a plea that he had attested the signatures of the applicants, on the assurance of one Rudradeo Singh, a class mate of his.
It is in considering this plea that the High Court has commented upon the failure of Devendra Prasad to give evidence under section 342A, and the High Court has also taken the view that the same reasons will apply to the appellant 's defence also.
That is, the failure of the appellant, to give evidence, has been commented upon, by the High Court, and it has also drawn a presumption, against him.
, both of which are illegal, under clause (b) of the proviso to section 342A, Cr.
In view of this serious infirmity, in the judgment of the High Court, the order, under attack, is set aside, and the order of the Second Additional Sessions Judge, Muzaffarpur, acquitting the appellant,, will stand restored.
In the result, the appeal is allowed.
G.C. Appeal allowed.

summary/full:
The appellant was a Mukhtear practising in Bihar.
He along with ,some others attested the identity of certain persons on applications for loans under the Agriculturists Loan Act, 1884.
It was found that the applications had been made under false names and the appellant along with other accused was tried for an offence under section 467 read with section 109 I.P.C.
The appellant 's plea was that he had made the endorsements on the assurance of a co accused and in view of the fact that another Mukhtear, D had also attested the loan applications.
D 's plea as an accused was that he had made the attestation on the assurance of one R.
The Sessions Judge acquitted all the accused.
The State of Bihar appealed to the High Court.
During the pendency of the appeal D died.
The High Court set aside the acquittal of the appellant and convicted him on two grounds namely, (i) that though he had raised a defence that he had attested the applications on the assurance of S, no evidence had been produced to support this defence,, (ii) that D with whose case the appellant 's case was closely connected had not examined himself under section 342A of the Criminal Procedure Code in support of his plea, and the same consideration applied to the appellant also.
On appeal to this Court by special leave.
HELD : The order of the High Court could not be sustained.
(i) In requiring evidence in support of the plea raised by the appellant the High Court really threw the burden of proof on him instead of finding out whether the prosecution had proved its case and whether the order of acquittal was erroneous.
[174 F] (ii) In commenting on the failure of the accused to examine them,selves on oath under section 342A Cr.
P.C. the High Court committed a breach of the proviso to that section which specifically states that the failure of an accused to give evidence shall not be made the subject of comment by any of the parties, or the court, or give rise to any presumption against himself or any other person charged together with him at the same time.
[175 B]


judgement:
iminal Appeal No. 25 of 1968.
Appeal by special leave from the judgment and order, dated July 20, 1967 of the Allahabad High Court in Cr. A. No. 469 of 1967 and Ref.
No. 21 of 1967.
K. K. Luthra, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Bhargava, J.
The appellant Bashira was convicted by the Court of Session for having committed the murder of his own wife Saira alias Mahobawali with an axe inside his house at about 11 a.m. on 22nd August, 1966.
The First Information Report of this incident was lodged on the same day at 5 15 p.m. by Naziran, the mother of the appellant, who went to the Police Station accompanied by the Chaukidar.
The investigation of the case began on 23rd August, 1966.
The appellant surrendered himself in Court on 24th August, 1966.
On 15th September, 1966, the Challan was presented in the Court of the Magistrate who recorded some evidence, proceeded in accordance with section 207A of the Code of Criminal Procedure, and then, on 28th November, 1966, committed the appellant for trial to the Court of Session for the offence of committing the murder of his wife punishable under section 302 of the Indian Penal Code.
The Temporary Civil & Sessions Judge of Hamirpur fixed 28th February, 1967 as the date for starting the actual trial of the case.
On that day, before beginning the trial, he appointed one Sri Sirish Chandra, Advocate, as amicus curiae counsel to represent the appellant.
He amended the charge which was read out to the appellant who pleaded not guilty.
Thereafter, on that very day, evidence of two principal prosecution witnesses was recorded.
The first witness was Smt.
Naziran, the mother of the appellant, who had lodged the F.I.R., and the second witness was Khan Bahadur, son of the appellant, who was the sole eye witness of the incident of murder.
The remaining evidence was recorded on 1st March, 1967, on which date the appellant was also examined under section 342, Cr.
The appellant stated that be would not produce any defence.
A joint application of coun sel for parties was presented on that day requesting the court to make a local inspection and 12th March, 1967 was fixed for local inspection.
The Temporary Sessions Judge in that order 34 directed that a suitable conveyance should be arranged for him as he had no conveyance of his own.
On 8th March, 1967, the Public Prosecutor gave it in writing that no conveyance could be arranged and, therefore, prayed that the local inspection may be cancelled.
The Judge cancelled the direction for local inspection and then fixed 10th March, 1967 for arguments.
On that day, Sri Shukla, counsel representing the appellant presented an application praying for the recall of P. W. 2 Khan Bahadur for further cross examination on the ground that there had been an omission in drawing his attention to a contradiction with his statement recorded in the Court of the Committing Magistrate.
He added that there were many other things to be seen and made this request in the interest of justice.
The Judge held that the ground for recall that the witness could not be cross examined effectively would hardly justify the recall of the witness for further crossexamination.
He further expressed his opinion that, even if the statement attributed to the witness as having been made by him in the Court of the Committing Magistrate is brought on the record, it would not help the appellant to any appreciable degree in his defence.
On these grounds, the application was rejected.
Arguments were then heard on the same day and judgment was delivered on 13th March, 1967, convicting the appellant for the offence of murder under section 302, I.P.c and sentencing him to death.
The appellant appealed in the High Court of Allahabad and the Tempy.
Sessions Judge also made a reference for confirmation of the sentence of death.
The High Court dismissed the appeal, accepted the reference and confirmed the sentence of death.
The appellant has now come up to this Court against that judgment of the High Court in appeal by special leave.
In this case, the principal ground urged on behalf of the appellant raises an important question of law.
Learned counsel appearing for the appellant emphasised the circumstance that the amicus curiae counsel to represent the appellant was appointed by the Sessions Judge on the 28th February, 1967, just when the trial was about to begin nd this belated appointment of the counsel deprived the appellant of adequate legal aid, so that he was unable to defend himself properly.
It was urged that the procedure adopted by the Court was not in accordance with law, so that, if the sentence of death is carried out, the appellant will be deprived of his life in breach of his fundamental right under Article 21 of the Constitution which lays down that no person shall be deprived of his life or personal liberty, except according to procedure established by law.
The main procedure for trial of a criminal case is laid down in the Code of Criminal Procedure and, in this case, there is no grievance that the procedure laid down therein was not followed by the Court of Session.
The grievance, however, is that there 35 are provisions supplementing the procedure laid down by the Criminal Procedure Code and the course adopted by the Court of Session was in breach of these supplementary rules.
Reference was made to Rule 37 in Chapter V of the General Rules (Criminals), 1957 (hereinafter referred to as "the Rules") promulgated by the High Court of Allahabad in exercise of its powers under Article 227 of the Constitution and section 554 of the Code of Criminal Procedure.
These Rules were published under Notification No. 241/A/Vlll a 1, dated September 4, 1956 in the Supplement to the Government Gazette of Uttar Pradesh, dated 3rd November, 1956.
The notification clearly mentions the powers under which the High Court promulgated the Rules and also contains a clear recitation that the Rules were being published with the previous approval of the Government of Uttar Pradesh.
We have mentioned these details, because at one stage it was urged by learned counsel appearing for the respondent State Government that R. 37 of the Rules had no statutory force at all.
The notification in the Gazette makes it perfectly clear that these Rules were all framed by the High Court in exercise of the powers conferred on it by the Constitution or by the Code of Criminal Procedure.
The Rules are, therefore, clearly statutory Rules and,as such,they form a part of the procedure for trial of criminate cases by courts subordinate to the High Court of Allahabad, in addition to the procedure laid down by the Code of Criminal Procedure.
Rule 37 of the Rules is as follows "In any.
case which comes before a Court of Session, the court may engage counsel to defend the ac cused person if (a) the charge against him is such that a capital sentence is possible, and (b) it appears that he has not engaged counsel and is not possessed of sufficient means to do so.
To enable the Sessions Court to arrive at a decision as regards the second condition in the preceding paragraph, the committing Magistrate shall in such cases make enquiries from the accused at the time of commitment and after making such other enquiries as may be necessary, report within a month of the commitment order to the, court to which the commitment is made whether the accused is possessed of sufficient means to engage counsel.
Each case must be decided on its merits and no hard and fast rule as to sufficiency of means should be applied.
The Sessions Court in making its decision shall not be bound by the report of the committing magistrate.
36 .lm15 Counsel appointed under this rule shall be furnished with the necessary papers free of cost and allowed sufficient time to prepare for the defence.
" On the basis of the language used in this Rule, learned counsel for the State urged that this Rule should not be held to be mandatory, but only a Rule enabling a Court to engage a counsel to defend a person accused of an offence punishable with capital sentence.
It is true that the word used is "may" in this Rule, but, in our opinion, the purpose of the Rule will be completely defeated if we were to accept this submission.
It appears that the word "may" was used only because there are certain conditions laid down, on the existence of which depends the appointment of the amicus curiae counsel to represent the accused.
The principal pre condition is that the accused has himself not engaged a counsel and is not possessed of sufficient means to do so.
The Rule adds that no hard and fast rule as to the sufficiency of means should be applied when the court has to decide whether an amicus curiae counsel should be provided at the cost of the Government, and each case must be decided on its merits.
It was because of these conditions that the word "may" was used in the Rule; but the intention of the Rule is perfectly clear that no accused person should remain totally unrepresented by a lawyer, if he is being tried on a charge for which a capital sentence can be awarded.
Considering the purpose of this Rule, we hold that the word "may" in this Rule must be interpreted as laying down a mandatory direction to the Court to engage a counsel, if the conditions laid down in the Rule are otherwise satisfied.
In this connection, learned counsel for the State drew our attention to two decisions of this Court reported in Janardan Reddy and Others vs The State of Hyderabad and Others and connected Appeals(1), and Tara Singh vs The State(2).
In the first of these two cases, this Court was considering the effect of section 271 of the Hyderabad Criminal Procedure Code read along with the Rules and Circular Orders issued by the Hyderabad High Court and, in that connection, held that, though section 271 of the Hyderabad Criminal Procedure Code corresponds to section 340 of the Indian Criminal Procedure Code, these provisions did not Jay down as a rule of law that in every capital sentence case, where the accused is unrepresented, the trial should be held to be vitiated.
In the second case, this Court examined the scope of the right conferred on an accused by section 340(1) of the Code of Criminal Procedure and held that it does not extend to a right in an accused person to be provided with a lawyer by the State or by the Police or by the Magistrate.
The Privilege conferred by this provision only gave a right to an accused to be represented by a counsel if he wanted to engage one himself or to (1) ; (2) ; 37 get his relations to engage one for him.
The only duty cast on the Magistrate is to afford him the necessary opportunity for this purpose.
It appears to us that neither of these two cases is applicable to the case before us, because, in those cases, no question arose of taking into account a provision laying down procedure for trial of cases such as is contained in r. 37 of the Rules.
These cases, no doubt, show that section 340, Cr.
P.C. by itself, does not cast any duty on a court to provide a counsel at State expense even when the offence triable is punishable with death; but that is imaterial, because the right, on which the appellant is basing his claim, is sought to be justified under r. 37 of the Rules.
Learned counsel for the State, in view of these two decisions, urged before us that we should hold that r. 37 of the Rules was void as contravening the principle laid down by section 340, Cr. P.C., explained in the two cases referred to above.
We are unable to appreciate this argument.
Section 340, Cr.
P.C., does not prohibit the appointment of a counsel by the Court at State expense, though it does not prescribe such an appointment as a mandatory direction to be carried out by the Court.
Rule 37 of the Rules only supplements the provision contained in section 340, Cr. P.C., and is, therefore, in no way in conflict with section 340, Cr. P.C., and it cannot be held that it is void on any such ground.
We have already quoted above r. 37 of the Rules in full.
The grievance on behalf of the appellant is not that no counsel at all was engaged to represent him in the Court of Session; but non compliance with the Rule is urged on the ground than there was breach of the last clause of that Rule, That clause requires that the counsel appointed under the Rules shall be furnished with necessary papers free of cost and allowed sufficient time to prepare for the defence.
In this case, the facts mentioned by us earlier clearly show that Sri Shukla was appointed counsel for the appellant on 28th February, 1967, which was the date fixed for starting the trial, and the trial was, in fact, started after his appointment on that very day.
Thus, sufficient time was not allowed to him to prepare for the defence of the appellant.
At one stage, information was attempted to be given to this Court on behalf of the State Government on the basis of entries in the register maintained for appointment of amicus curiae counsel that, in fact, Sri Shukla had been appointed to represent the appellant on 18th February 1967.
That register was sent for by us and it appears that this position was taken on behalf of the State Government, because, at one place in that register, the date showing appointment of Sri Shukla as counsel for the appellant was so entered that it could be read as 18th February 1967 as well as 28th February 1967.
There were, however, other entries in the register which clarified the position and indicated that even that date must be read as 28th February 1967 and learned coun 38 sel for the State conceded that the appointment of the amicus curiae counsel was, in fact, made on 28th February, 1967.
There is nothing on the record to show that, after his appointment as counsel for the appellant, Sri Shukla was given sufficient time to prepare the defence.
The order sheet maintained by the .,Judge seems to indicate that, as soon as the counsel was appointed, the charge was read out to the accused and, after his plea had been recorded, examination of witnesses began.
The counsel, of course, did his best to cross examine the witnesses to the extent it was possible for him to do in the very short time available to him.
It is true that the record, also does not contain any note that the counsel asked for more time to prepare the defence, but that, in ;our opinion, is immaterial.
The Rule casts a duty on the court itself to grant sufficient time to the counsel for this purpose and the record should show that the Rule was complied with by granting him time which the court considered sufficient in the particular circumstances of the case.
In this case, the record seems to show that the trial was proceeded with immediately after appointing the amicus curiae counsel and that, in fact, if any time at all was granted, it was nominal.
In these circumstances, it must be held that there was no compliance with the ,requirements of this Rule.
In this connection, we may refer to the decisions of two of ,the High Courts where a similar situation arose.
In Re: Alla Nageswara Rao, Petitioner(1) reference was made to Rule 228 of the Madras Criminal Rules of Practice which.
provided for engaging a pleader at the cost of the State to defend an accused person in a case where a sentence of death could be passed.
It was held by Subba Rao, Chief Justice as he then was, speaking for the Bench, that : " a mere formal compliance with this Rule will not carry out the object underlying the rule.
A sufficient time should be given to the advocate engaged on behalf of the accused to prepare his case and conduct it on behalf of his client.
We are satisfied that the time given was insufficient and, in the circumstances, no real opportunity was given to the accused to defend himself.
" This view was expressed on the basis of the fact found that the advocate had been engaged for the accused two hours prior to the trial.
In Mathai Thommen vs State(2), the Kerala High Court was dealing with a Sessions trial in which the counsel was engaged to defend the accused on 2nd August, 1958, when the trig was posted to begin on 4th August, 1958, showing that (1) A.I.R. 1957 A.P. 505.
(2) A.I.R. 1959 Kerala 241.
39 barely more than a day was allowed to the counsel to get prepared and obtain instructions from the accused.
Commenting on the procedure adopted by the Sessions Court, the High Court finally expressed its opinion by saying : "Practices like this would reduce to a farce the engagement of counsel under rule 21 of the, Criminal Rules of Practice which has been made fOr the purpose of effectively carrying out the duty cast on courts of law to see that no one is deprived of life and liberty without a fair and reasonable opportunity being afforded to hm to prove his innocence.
We consider that in cases like this counsel should be engaged at least some 10 to 15 days before the trial and should also be furnished with copies of the records.
" In our opinion, no hard and fast rule can be laid down as to the time which must elapse between the appointment of the counsel and the beginning of the trial; but, on tile circumstances of each case, the Court of Session must ensure that the time granted to the counsel is sufficient to prepare for the defence.
In the present case, when the counsel was appointed just before the trial started, it is clear that there was failure to comply with the requirements of the rule of procedure in this behalf.
Learned counsel for the State urged before us that we should not hold that the award of, the sentence of death to the appellant in this case is in breach of the fundamental right conferred by article 21 of the Constitution, because, he submitted, r. 37 of the Rules was not enacted by any legislature and, consequently, it should not be held to be a part of the procedure established by law.
In this connection, he relied on the view expressed by Kania, C.J., in A. K. Gopalan vs The State of Madras(1), where lie held "No extrinsic aid is needed to interpret the words of article 21, which in my opinion, are not ambiguous.
Normally read, and without thinking of other Constitutions,the expression 'procedure prescribed by law 'must mean procedure prescribed by the law of the State.
" This Interpretation was given in order to exclude from the scope of article 21 rules of natural justice which are not incorporated in any law.
Proceeding further, he dealt with the language of Art.31 where the expression used is "by authority of law" and held "It is obvious that in that clause 'law ' must mean enacted law".
(1) ; ,111 12.
40 We do not think that, in expressing these views, the learned Chief Justice intended to explain the full scope of the word "law" as used in article 21.
What he was concerned with was to examine whether rules of natural justice could also be covered by that word in this article and he held that this will not be justified.
In later cases, the Court has clarified the position and has held that the word "law" in article 21 includes subordinate legislation not enacted by the legislature, but promulgated by the delegated authority in exercise of its statutory powers.
Thus, in Maqbool Hussain vs The State of Bombay & Connected Cases(1), the Punjab Communist Detenus Rules, 1950 framed by the Government of Punjab under section 4(a) of the were held to be covered by the word "law".
In Pandit M. section M. Sharma vs Shri Sri Krishna Sinha and Others,(2) Rules made by the Legislature under articles 118(1) and 208(1) and the privileges of each House under articles 105(3) and 194(3) were held to be law justifying deprivation of personal liberty guaranteed by article 21.
In the case of Makhan Singh vs State of Punjab & Connected Appeals(3), the Defence of India Rules made by the Central Government under section 3 of the Defence of India Ordinance, 1962 were held to be "law" for purposes of Article 21.
Thus, this Court has clearly laid it down that Rules made by a subordinate legislative authority in exercise of its delegated power of legislation granted by the Constitution or a Statute enacted by the legislature are "law" for purposes of article 21, though, of course, it is always open to the person affected to challenge the validity of those Rules.
In the present case.
we have already held that r. 37 of the Rules has been framed in exercise of the powers of the High Court under article 227 of the Constitution and section 554 of the Code of Criminal Procedure, and is a valid Rule.
In these circumstances, the conviction of the appellant in a trial held in violation of that Rule and the award of sentence of death will result in the deprivation of his life in breach of the procedure established by law.
Learned counsel also urged that we should not hold the con viction and sentence to be void when it is not shown that there was any prejudice to the appellant by the failure of the court to observe the procedure laid down by the Rule.
In our opinion, in such a case, the question of prejudice does not arise when a citizen is deprived of his life without complying with the procedure prescribed by law.
We may, however, add that, in this case, the facts indicate that there was, in fact, prejudice to the accused caused by the non compliance with the requirement of r. 37 of the Rules.
The two principal witnesses, Naziran and Khan Bahadur, were examined immediately after the appointment of (1) ; (2) [1959] Supp. 1 S.C.R. 806.
(3) [1964] 4 S.C.R. 797.
41 amicus curiae counsel and the application presented on behalf of the accused on 10th March, 1967, to which we have referred above clearly shows that the counsel felt that he had not been able to cross examine at least the sole eye witness Khan Bahadur properly.
That is why he presented an application for recall of that witness.
It is obvious that, in rejecting that application, the Sessions Judge failed to notice that the counsel had been appointed on the very day when that witness was examined and sufficient time had not been granted to him to prepare the defence.
In fact, we feel that, in such cases, if sufficient time is not granted to the counsel to prepare defence, prejudice must necessarily be inferred and the trial will be vitiated.
As a consequence, we set aside the conviction and sentence of the appellant.
Since we are holding that the conviction is void because of an error in the.
procedure adopted at the trial, we direct that the appellant shall be tried afresh for this charge after complying with the requirements of law, so that the case is remanded to the Court of Session for this purpose.
V.P.S. Appeal allowed and retrial order.

summary/full:
The appellant was charged with the offence of murder under section 302 IPC.
Just before the beginning of the trial, the Sessions Court appointed, an advocate as amicus curiae to represent the appellant.
After the examination of witnesses, on the day on which the case was posted for argument, appellant 's counsel prayed for the recall of the sole eyewitness for further cross examination as the witness could not be cross examined effectively.
The application was rejected, and after hearing arguments, the court con victed the appellant and sentenced him to death.
The conviction and sentence were confirmed by the High Court.
in appeal to this Court, it was contended that the belated appointment of counsel deprived the appellant of adequate legal aid and that be would be deprived of his life in breach of his fundamental right under article 21.
HELD:The right on which the accused based his claim is based on r.37 of the General Rules (Criminal) 1957, promulgated by the High Court in exercise of its powers under article 227 of the Constitution and section 554 of the Criminal Procedure Code.
Therefore, the rule is a statutory rule and forms part of the procedure for trial of criminal cases.
Its intention is that no accused person should remain unrepresented by a lawyer if he is being tried on a charge for which a capital sentence can be awarded.
Notwithstanding the use of the word 'may '.
considering the purpose of the rule, it must be interpreted as laying down a mandatory direction to the Court to engage a counsel if the conditions laid down therein are satisfied.
As the rule supplements the provision contained in section 304 Cr.
P.C. under which such appointment of counsel is not mandatory, it is not in conflict with the section.
The last clause of the rule requires that the counsel appointed under the Rules shall be furnished with necessary papers free of cost and allowed sufficient time to prepare for the defence.
[35D E; 36 E; 3B, D, E F] In the present case, when the counsel was appointed just before the trial started, there was a failure to comply with the requirements of the rule.
Even though counsel did not ask for time it was the duty of the court, under the rule, to grant sufficient time to counsel, and, when sufficient time was not granted to counsel to prepare the defence, prejudice must necessarily be inferred and the trial held vitiated.
Further, as the word 'law ' in article 21 includes subordinate legislation promulgated by delegated authority there is a breach of article 21, and therefore the question of prejudice does not arise.
[38C; 40B, G H; 41B] Maqbool Hussain vs State of Bombay, ; , Pandir M. section M. Sharma vs Shri Sri Krishna Sinha, [1950] Supp. 1 S.C.R. 806 and Makhan Singh vs State of Punjab, [1964] 4 S.C.R. 797, followed.
33 A. K. Gopalan vs State of Madras, ; , 111 112; Janardan Reddy vs State of Hyderabad, ; and Tara Singh vs The State, ; , explained.
Re:Alla Nageswara Rao, A.I.R. 1957 A.P. 505 and Mathai Thommen vs State A.I.R. 1959 Kerala 241, referred to.