judgement:
N: Criminal Appeals Nos.
224 and 268 of 1977.
606 Appeals by Special Leave from the Judgment and Order dated 19 3 77 of the Judicial Commissioner 's Court.
Goa, Daman and Diu at Panaji in Criminal Appeal Nos. 19 and 21 of 1973.
T. Godiwala, P. C. Ghokhale and B. R. Agarwala for the Appellant in Crl.
A. No. 224/77.
section Bhandare for the Appellant in Crl.
A. No. 268/77.
H. R. Khanna and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
By this judgment we shall dispose of Criminal Appeals Nos. 224 and 268 of 1977 in both of which a judgment dated 19th of March, 1977 of the Judicial Commissioner, Goa, upholding the conviction of the appellants and the sentences imposed upon them by the trial court is challenged.
The appellants were tried jointly by the Special Judge, Panaji, who found them guilty and awarded them punishments as specified in the table below: Serial Name of the Section of the law under Sentence number accused which conviction recorded of the accu sed (1) (2) (3) (4) 1.
Abdulla (a) Section 120B(1) Rigorous imprison Mohammed read with sect ment for two years Pagarkar ions 420, 468 and a fine of Rs and 471 of the 500/ ,the sentence Indian Penal in default of Code as also payment of fine Section 5(1)d being rigorous of prevention of imprisonment for Corruption Act.
for one month.
(b) Sections 420 Rigorous imprison and 468 and ment for two years Section 109 read and a fine of with sections Rs. 500/ , the 468 and 471 of sentence in defa the Indian Panel ult of payment of Code.
fine being Rigo rous imprisonment for one month.
(c) Section 5(2) Rigorous imprison section 5(1)(d) ment for two years of the Preven and a fine of tion of Corrup rupees two lakhs, tion Act.
sentence in defa ult of payment of fine being rigorous imprison ment for eighteen months.
607 (1) (2) (3) (4) 2.
Moreshwar (a) Section 120B(1) Rigorous impriso Hari read with nment for two Mahatme sections 420, years and a fine 468, 471 and 109 of Rs. 500/ , the of the Indian sentence in defa Panel Code ult of payment of as well as sec fine being rigor tion 5(1)(d) of ous imprisonment the prevention for one month.
of corruption Act.
(b) Section 5(1)(d) of the Prevention of Corruption Act read with section 109 of the Indian Penal Code.
(c) Sections 420, 468 Rigorous impriso and 471 read with nment for two sections 109 of years and a fine the Indian Panel of Rs. 500/ , Code.
the sentence in default of payment of fine being rigorous imprisonment for one month.
(d) Section 5(2) read Rigorous impriso with section nment for two 5(1)d of the years and a fine Prevention of of rupees two Corruption Act lakhs, the and section 109 sentence in default of of the Indian payment of fine Penal Code.
being rigorous imprisonment for eighteen months.
All the substantive sentences of imprisonment in the case of each of the accused were directed to run concurrently.
It may be stated here that the charges framed against them under sections 467 and 477A of the Indian Penal Code were not found proved and they were acquitted of the same.
The prosecution case has to be set out at some length and may be stated thus.
In the year 1965 the appellant Abdulla Mohammed Pagarkar (hereinafter referred to as A 1) was holding the post of Surveyor in Charge, Mercantile Marine Department, Marmagoa as also of the Captain of Ports, Panaji.
In his capacity last mentioned, the work of deepening and widening the Kumbarjua canal which connects river Zuari with river Mandovi required his urgent attention as the canal had to be made navigable at low tide for the use of mine barges during monsoon season when the sea becomes rough and it is hazardous to navigate across the mouth of the river Mandovi at Aguda.
A survey of the canal had been carried out by the Marmagoa Port Trust and its report had been 608 submitted to the concerned authorities.
Tenders were invited by A 1 through an advertisement in the press and appellant Moreshwar Hari Mahatme (hereinafter described as A 2) was the only person to present one, which he did on the 5th of January, 1966.
As the cost of the work exceeded rupees one lakh and the tender was a solitary one, the Lieut.
Governor forwarded it to the Central Government for approval and did not accept a suggestion made by the Secretary to the Industries and Labour Department (to be hereinafter called I.L.D.) that the work be started immediately in anticipation of the said approval.
Nevertheless A 1 entrusted the work to A 2 who started executing it on March 15, 1966.
No approval of the tender was received from the Government of India who directed, however, that the work be carried out departmentally.
Through a letter dated 16th of May, 1966 (Exhibit P 7), the said Secretary informed A 1 that as the work was to be executed departmentally the conditions laid down in Rules 133 and 141 of the General Financial Rules (G.F.R.) had to be fulfilled and directed him to obtain the concurrence of the Public Works Department (P.W.D. for short) for the various rates mentioned in a bill which A 1 had submitted earlier for payment in connection with the work.
Such concurrence was obtained by A 1 on May 26, 1966, to payment of daily wages at the rates of Rs. 4.50 and Rs. 3.00 per head for male and female labourers respectively although the prevailing P.W.D. rates were Rs. 3.50 and Rs. 2.00 respectively (Exhibit P 9) The two appellants entered into a conspiracy to cheat the Government in relation to the execution of the work.
A 2 would submit occasionally to A 1 hand written statements of the work done each day, specifying therein the details of quantity in cubic metres of the mud and salt excavated, the number (without the names) of male and female labourers employed, the cost of labour in accordance with the approved rates, charges for the country craft employed, etc.
None of these statements bore the signature of A 2.
A 1 would get typed copies of these statements prepared in his office and would send one of such copies under his own signature to the I.L.D. for sanction which used to be accorded after the concurrence of the Finance Department had been obtained.
Thereafter a contingent bill would be prepared in the office of A 1 and in that bill A 1 would certify under his own signature that the work was carried out departmentally in compliance with Rule 141 of the G.F.R. Each of such bills accompanied by the relevant copy of the statement of work signed by A 1 would be forwarded to the Accounts Department which would issue a cheque in favour of A 1 who would realise the amount of the cheque and pay it in cash to A 2 against a regular receipt.
609 A stage was reached when the Directorate of Accounts objected to the payment of the bills and asked for muster rolls of labourers employed for execution of the work.
A 1 then had prepared register exhibit P 37 and muster roll exhibit P 36 on the basis of entries in a copy book (exhibit P 47) which had been supplied to A 1 by A 2.
The entries in the muster roll having been found to be suspicious, the case was entrusted to the Central Bureau of Investigation who found that, as against a total amount of Rs. 4,73,537.50 paid by the Government to A 1 and by him to A 2, the work done was worth no more than Rs. 76,247.43.
It was this conclusion which led to the prosecution of the appellants.
Now we shall give a resume of the defence stand taken by A 1.
He held numerous offices in addition to that of the Captain of Ports and as such he had to perform multifarious duties while the staff placed at his disposal was grossly inadequate by any standards so much so that he did not even have an Accounts Officer.
As the work of deepening and widening the Kumbarjua canal needed urgent attention, tenders for its execution were called and A 2 was found to be the only tenderer.
A 1 was assured by the Secretary, I.L.D., that the necessary order approving the tender would soon be forthcoming and that the execution of the work should be taken in hand immediately in anticipation of orders.
The Assistant Marine Surveyor, Shri D 'Souza (PW.4) was instructed to personally supervise the work which was started on the 15th of March, 1966.
By the end of April, 1966, A 1 was told that the work should be executed departmentally by engaging labour and not through A 2.
However that was not possible under the circumstances and the work proceeded as before.
Shri D 'Souza (PW. 4) used to check the volume and the kind of material excavated daily and to make entries in his notebook accordingly.
When objection was taken by the Directorate of Accounts at the end of the financial year to the passing of the bills on the ground that muster rolls were not being maintained, A 1 made enquiries from Shri D 'Souza (PW 4) and learnt that A 2 had maintained a gang wise muster roll on the basis of which documents were prepared by Shri D 'Souza (PW 4) under the orders of A 1 and were submitted to the I.L.D.
The work was executed in conformity with the bills submitted by A 1 to the Government.
In any case, A 1 acted in good faith and if any of the bills did not conform to facts the reason must be that he had been cheated by A 2. 4.
The stand taken by A 2 in defence was more or less the same.
He averred however that the bills were prepared not on the basis of labour engaged but on the volume of work done, that he never sup 610 plied any labour to A 1, that the total material excavated amounted to 35,516.70 cubic metres, that there was no question of keeping any muster or acquittance roll as the work was executed by the labourers on piece rate basis and that the average number of labourers working per day for execution of the work was about 700.
From the documentary evidence placed on the record at the trial the learned Special Judge found the following facts proved: (a) Under directions of A 1 the execution of the work was started by A 2 before the tender submitted by the latter, which had been forwarded by the Lieut.
Governor for approval to the Government of India, had been accepted.
(b) Through a letter dated the 16th May, 1967 (exhibit P 7) the Secretary, I.L.D., directed A 1 to have the work executed departmentally in accordance with the conditions laid down in Rules 141 and 133 of the G.F.R. and to obtain concurrence of the P.W.D. to various rates applicable to the work.
Such concurrence was actually obtained by A 1 (Letters exhibits P 8 and P 9).
(c) The work was being carried out by A 2 with his own labour and no labour on muster roll was employed by A 1.
(d) A 2 prepared statements of work or summaries which he submitted to A 1 who would then sign typed copies thereof and forward the same for sanction to the I.L.D. On receipt of such sanction A 1 would prepare contingent bills and sign each of them along with a certificate that the work was being carried out departmentally in accordance with Rule 141 of the G.F.R. as per the attached summary.
Each bill would then be submitted along with the summary to the Accounts Department which issued the corresponding cheque to A 1.
The amount of the cheque was then realised by A 1 and paid over to A 2 under a receipt.
(e) Muster roll exhibit P 36 for the period from 15 3 1966 to 6 4 1967 was prepared in the office of A 1 and under his directions at a stretch after the completion of the work and on the basis of exhibit P 47 which A 2 had maintained.
Register exhibit P 37 was similarly prepared on the basis of 611 written statements containing details of labour employed and submitted by A 2. 6.
The learned Special Judge further arrived at the findings given below from the oral evidence produced before him: (i) A 2 was fully aware that his tender had not been accepted by the Government and that A 1 had been directed to carry out the work departmentally.
(ii) The amount really spent by A 2 in execution of the work was no more than Rs. 32,287.75 against which he manoeuvred, with the assistance of A 1, to receive a sum of Rs. 4,73,537.50 from the Government.
(iii) None of the bills could have been sanctioned for payment by the Accounts Department but for the certificate appended by A 1 to each of them that the work was being carried out departmentally under Rule 141 of the G.F.R. 7.
From the above findings the learned Special Judge concluded that the two accused had entered into a conspiracy to cheat the Government in the matter of the execution of the work by presenting inflated bills and receiving against them far greater amounts than had actually been spent, that muster rolls ultimately produced to support the bills contained false averments and were forged documents, and that A 1 was fully aware that the certificate regarding the work being carried out departmentally in accordance with Rule 141 of the G.F.R. and appended to each of the bills was false.
It was also proved to his satisfaction that muster roll exhibit P 36 and register exhibit P 37 were dishonestly or fraudulently prepared by A 1 to support false bills and that this was done with the assistance of A 2.
The amount really spent on the work done having been found by the learned Special Judge to be only Rs. 32,287.75, he held that the Government had been cheated into an excess payment of Rs. 4,41,249.75.
It was in these premises that the learned Special Judge convicted and sentenced the two accused as stated earlier.
The learned Judicial Commissioner upheld the findings of fact arrived at by the learned Special Judge except the one relating to the amount actually spent in execution of the work which, in his opinion, was Rs. 76,247.43 as made out by the entries in books exhibits P 79 to P 82 which were recovered as a result of a search of the house of A 2.
The conviction recorded against and the sentences imposed upon 612 the appellants by the learned Special Judge were therefore confirmed by the learned Judicial Commissioner.
On behalf of the appellants it was vehemently contended before us by their learned counsel that the tender submitted by A 2 was actually accepted by the Government and that it was on that basis that the entire work was executed.
In support of this argument there is not a shred of evidence on the record and we have therefore no hesitation in rejecting it straightway.
In exhibit P 7 there is a clear intimation to A 1 that the work was to be carried out departmentally and that therefore he should obtain concurrence of the P.W.D. to the rates applicable to various items of work.
Faced with this situation learned counsel for A 1 submitted that even under Rule 141 of the G.F.R. any work to be carried out departmentally could be entrusted to a contractor and in that submission he is right.
However, it carries his case no further inasmuch as no bills were drawn nor was any sanction accorded to any payment on the basis of any part of the work having been executed through A 2 working as a contractor.
On the other hand those bills contained the number of labourers engaged for the work and the amounts claimed pertained to their wages at the sanctioned rates.
In fact no bill contains even a mention of the fact that any contractor was executing the work or that A 2 was anywhere in the picture.
Add to it the fact that A 2 did not submit any signed bills or statements either to A 1 or to the I.L.D. or, for that matter, to the Directorate of Accounts.
In so far as correspondence between A 1 on the one hand and Government departments on the other is concerned, the name of A 2 and his connection with the execution of the work remained conspicuous by its absence except insofar as the tender submitted by him was concerned and that tender, as already stated, never became effective by its acceptance by any department or office of the Government.
The position which the two appellants therefore took in no uncertain terms throughout the period during which the work was executed was that it was being handled directly by the Department and not through any contractor.
Any plea based on its execution through A 2 as a contractor must therefore be repelled.
A more serious argument put forward in support of the appeals was that the work actually executed had not really been shown to be worth anything less than the amount paid for it to A 2, i.e., Rs. 4,73,537.50.
The attack on the findings to the contrary arrived at by the two courts below consists of the submission that they are based really on mere conjectures rather than on evidence.
And this attack appears to us, on a consideration of the material on the record, to be well founded, as we shall presently show.
613 11.
The amount of Rs. 4,73,537.50 was received by A 1 against 4 bills the details of which appear below: Serial Exhibit mark on the bill Amount of the bill number Rs. 1.
P 13 .
98,294.50 2.
P 18 .
. 82,811.00 3.
P 24 .
84,847.00 4.
P 28 . .
2,07,585.00 Total .
4,73,537.50 As already stated, each of the bills above mentioned was accompanied by a document detailing the number of labourers employed.
Other particulars such as sex of and rate of wages payable to each labourer also appeared in the document which has been described as a "summary".
It is admitted on all hands that each bill conformed to the corresponding "summary" but was not accompanied, when submitted or passed, by any vouchers.
The case propounded on behalf of the State is that the summaries contained false entries so that the number of labourers actually employed for the execution of the work was grossly inflated and that it was on that account that the appellants were able to draw moneys from the State Treasury far in excess of those actually paid by them for the execution of the work.
On the other hand, the claim on behalf of the appellants is that no evidence at all is available to indicate that any of the entries made in the summaries as also in the bills did not conform to facts.
The learned Special Judge analysed the oral evidence of PWs.
1, 4, 7, 8, 13, 14, 17, 19 and 20 and observed that the number of labourers including the crew of the country craft working at all the sites where dredging was in progress during the period in question varied, according to those witnesses, from 80 to 200.
He further noted the fact that in the statement recorded under section 342 of the Code of Criminal Procedure even A 1 had taken the stand that the number of labourers found by him working at the canal, whenever he visited the site, varied between 200 and 250.
He then proceeded to quantify the amount of money paid to the labourers at Rs. 32,287.75 with the following observations: "From the receipts produced by the prosecution witnesses Nos. 7, 8, 9, 10, 14, 15, 16, 17, 18, 19, 20 and 21 it is seen that the amount paid by A.2 to the labourers and country craft owners is to the tune 614 of Rs. 32,287.75.
There was no suggestion of the Advocate of A.2 to the Investigation Officer that besides the documents produced by A.2, there were other receipts which were not attached by the Investigating Officer and produced by the prosecution.
The only contention of A.2 appears to be that, besides the amounts proved by the receipts above, there were other amounts paid to the labourers for which receipts were not collected.
All the prosecution witnesses above had denied the suggestion of A.2 that, besides the amounts for which they have passed receipts, there were other amounts received by them for which they have not passed the receipts.
Only P.W. 14 and P.W. 16 in their cross examination, had admitted that besides the amounts for which they had issued receipts, they were also paid for some work on salary basis for which they were not issued receipts.
These amounts, however, could not, according to me, go to thousands of rupees.
Any how, it was for A.2 to prove that he had spent amounts besides those proved by the prosecution which A.2 had failed to do.
" Now this is hardly a proper approach to the requirements of proof in relation to a criminal charge.
The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts.
It was incumbent therefore on the State to bring out, beyond all reasonable doubt, that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government.
It is true that the total number of labourers working on a single day has been put by the prosecution witnesses mentioned above at 200 or less, while according to the summaries appended to the bills it varied on an average from 370 to 756.
But then is it safe to rely on the mere impression of the prosecution witnesses, testified to long after the work had been executed, about the actual number of labourers employed from time to time? The answer must obviously be in the negative and the justification for this answer is furnished by the variation in the number of labour employed from witness to witness.
The mind of the learned Special Judge in coming to the finding about the value of the work done being no more than Rs. 32,287.75 appears to have been influenced by the gross irregularities committed by the appellants in the execution of the work, specially their failure to prepare vouchers relating to all the payments as also a proper muster roll.
These irregularities no doubt furnish a circumstance giving rise to a strong suspicion in regard to the bona fides of the appellants in the matter of the execution of the work but suspicion, however strong, cannot be a substitute for proof.
And it is certainly not permissible to place the burden of proof of innocence on the person accus 615 ed of a criminal charge.
However, that is precisely what the Special Judge appears to have done while observing that "it was for A.2 to prove that he had spent amounts besides those proved by the prosecution which A.2 had failed to do." 13.
The finding of the learned Judicial Commissioner on the point suffers from a similar defect.
After examining the oral evidence in relation to it he observed: "The evidence of these witnesses clearly indicated that the average total number of labourers working in the Canal per day were 100 to 160.
Taking an average of 123 labourers per day, out of which, on the basis of the statements furnished by A.2, less than 12000 would be males at the rate of Rs. 4.50 and a little more than 13000 females at the rate of Rs. 3.50, we have roughly a total sum of Rs. 80,000/ spent on labour.
This more or less tallies with the amount mentioned in the vouchers.
Shri section V. Naik has on behalf of A.2 suggested in cross examination of these witnesses that the average number of workers working in the canal per day was 350 to 400.
Even if we accept this figure the total amount payable on account of the labourers employed would be Rs. 3,00,000.00, but the accused have collected a sum of Rs. 4,73,537.50." He differed with the learned Special Judge on the point of the value of the work actually done and in that behalf he has reasoned thus in another part of the judgment: "No account books or receipts were produced by A.1 or A.2 to the Government in support of the contingent bills and of the claims for the amounts which they received.
No account books were produced or shown by any one of them.
It is not the case of A.2 that he did not receive receipts for the payments made to the labourers, nor is it his case that he did not have any account books regarding the work.
In fact, it would be unbelievable that a businessman or a labour supply contractor should not keep account books or should not receive receipts for payments made.
It is not the case of A.2 or A.1 that they had lost the account books or the receipts.
When a search was effected of the residence of A.2, receipt books Exh.
P. 79 and P. 82 and some books relating to the work were seized.
When a question was put to A. 2 under section 313 of the Code of Criminal Procedure, 1973, regarding this evidence, 616 his answer was that neither the receipt books nor the books were account books.
The receipts in the books are in serial numbers from 101 to 700.
In the first search taken receipts bearing serial Nos.
151 to 200 for the period from 14 4 66 to 25 1 68 were missing.
These receipts were all in one book, namely, Exh.
exhibit P.82 was seized on a subsequent search.
Another book exhibit P.82 was also found in subsequent search.
This book bears no serial numbers.
All these three books constitute exhibit
P.79, 80 and P.82 containing receipts relating to the work.
The total amount mentioned in the receipts relating to the work was Rs. 76,248.43.
A.2 has not stated that he had vouchers for any other money paid by him nor has he produced any such vouchers.
P.Ws No. 7 to 10 and 14 to 21, twelve in all, who did the work of excavation in the canal have stated that they passed receipts for all moneys received by them.
When suggestions were made to some of them that some payments were made to them without receipts, they denied the fact.
The other books seized, namely, exhibit P. 81 collectively, were, according to A.2, cash books.
However, serial No. 23/II item No. 35, which was part of exhibit P. 81 is definitely an account book and not a cash book.
In any event, A.2 does not rely on any of these books nor has he said anything to show that any payments were recorded therein, which are other than the payments shown in exhibit P.79, 80 and 82.
A.2 did not examine any workers who worked in the canal and who, according to him, had received any payments which were not receipted for.
It is evidence from exhibit
P.79 to P.82 that some moneys spent in the work were receipted and accounted for.
Considering all these facts, the question that A.2 might have paid any amounts without receiving receipts can be ruled out.
exhibit P.79 to P.82 together with the other evidence on record support the version of the prosecution that the total amount of work done by the accused did not exceed Rs. 76,248.43.
" We may at once state that there is no evidence on the record to indicate that the books seized from the premises of A.2 contained entries about all the payments made by him to the labour employed for the execution of the work and that is a fact the correctness of which we see no reason to presume.
The danger of assumptions of the type made by the two courts below is highlighted by the disparity in the figures which they reached in relation to the amount of the value above mentioned.
Each had his own way of looking at 617 it; but then the grievous error into which they fell was that they thought that it was for the accused to show that the number, of labourers employed conformed to that shown for each day in the summaries attached to the bills.
And that is an approach not sanctioned by law.
In coming to the finding under consideration the learned Judicial Commissioner also took into consideration the deposition of Lasli Rupert Donaud (PW 6) who surveyed the canal in September, 1965 and again in May, 1969, i.e., both before and after the work had been executed and in that connection prepared two documents, viz., exhibits P 55 and P 66, detailing his observations on the two occasions respectively.
According to the witness the volume of solids to be dredged "to a depth of 10 feet below datum equals 5858 cubic metres".
This figure is roughly one fifth of 28,324.70 cubic metres which is the volume of total material alleged by the appellants to have been actually removed during the execution of the work and paid for.
The argument advanced on behalf of the State that the disparity in the two figures itself shows that the claim of the appellants is false, although attractive on the face of it is not acceptable to us on a deeper consideration.
According to PW 6, the soundings taken on the two occasions were almost identical from which it was sought to be deduced that practically no work at all was done, which is not the case of either party.
This shows that either the contents of the two documents represented observations which did not conform to facts or which, in any case, could not be taken as a safe guide for calculating the actual number of labourers employed during the execution of the work which was carried out between the two surveys.
Besides, our attention has not been drawn by learned counsel for the State to any evidence from which it may be inferred that the portions of the canal where soundings were taken by PW 6 represented the entire length of the canal in relation to its breadth and depth.
Again, the silting process which is a continuous one, cannot be lost sight of.
In between the point of time when the first survey was undertaken by PW 6 in 1965 and the end of the period during which the work was executed, a lot of silt must have settled at the bed of the canal and dredged out which would surely mean a considerable increase in the work actually done over the figure of 5858 cubic metres resulting from his estimate.
Also siltation may have occurred and, for aught one knows, to a considerable extent, between the completion of the work and the point of time when PW 6 took the soundings in 1969.
Allowance has also to be made for the state of the tide when the surveys were undertaken.
As pointed out by the witness himself, the 618 soundings of 1969 were not taken at the lowest tide.
As it is, the witness had to make the following admission when he was asked if he could say on the basis of his two surveys whether any dredging was done in between: "If some dredging is done during the year 66 and 67 in the Canal and the soundings are taken in 1969 if it is almost identical to the soundings of 1965 I would not be able to say whether dredging was done in the Canal or not. " We consider it very unsafe, in this state of the evidence to agree with the learned Judicial Commissioner that the disparity between the estimate arrived at by PW 6 and the volume of material claimed to have been dredged proved "that the documents on which moneys were collected by the accused are false".
It appears to us that in coming to this conclusion, he was also influenced by the factors which raised a strong suspicion against the appellants.
Learned counsel for the State to buttress the evidence which we have just above discussed with the findings recorded by the learned Special Judge and detailed as items (a) to (e) in paragraph 5 and items (i) and (iii) in paragraph 6 of this judgment.
Those findings were armed by the learned Judicial Commissioner and we are clearly of the opinion, for reasons which need not be re stated here, that they were correctly arrived at.
But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant Rules of the G.F.R. and even of ordinary norms of procedural behaviour of Government officials and contractors in the matter of execution of works undertaken by the Government.
Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted.
The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out.
Apart from the findings and evidence referred to earlier in this paragraph, no material has been brought to our notice on behalf of the State such as would indicate that the bills or the summaries in question were false in any material particular.
Although it does appear that quite a few of the documents admittedly prepared by or at the instance of the appellants in connection with the execution of the work came into existence not while the work was in progress but only later when a demand for them was made by the Accounts Department, the charge cannot be sustained in relation to any of its heads, there being no proof of the falsity of any 619 of the entries made in those documents.
In the result, therefore, we accept both the appeals, set aside the conviction recorded against and the sentences imposed upon each of the appellants and acquit them of the charge in its entirety.
N.V.K. Appeals allowed.

summary/full:
A survey carried out by the Port Trust suggested that the canal connecting two rivers required urgent deepening and widening to make it navigable for barges during the monsoon season when the sea turned rough and navigation became hazardous across the mouth of the river.
The appellant (A 1) who at that time was the Captain of Ports invited tenders through press advertisement and the appellant in the Second Appeal (A 2) was the only person who submitted a tender.
Since the tender was the only one received, the Lt. Governor forwarded it to the Central Government for approval.
He did not accept the suggestion that in view of the urgency, the work might be taken up immediately in anticipation of approval.
Even so A 1 entrusted the work to A 2 who started the work.
In the meantime the Government of India directed that the work should be carried out departmentally.
A 1 obtained concurrence of the public works department for payment of daily wages to workers.
According to the prosecution, the modus operandi adopted by the appellants was that A 2 actually submitted hand written statements without his signature on the work done each day specifying the quantity of cubic meters of mud and salt excavated, the number (without names) of male and female labourers employed, the wages paid to labour at the approved rates and so on.
A 1 got the required statements typed in his office and sent them for the concurrence of the Finance Department through the concerned department.
Thereafter A 1 drew the amounts and paid cash to A 2 against a regular receipt.
In course of time the Directorate of Accounts asked for muster rolls of labourers employed in the work.
A 1 prepared a register and muster rolls.
On a suspicion regarding the genuineness of the muster rolls, the case was entrusted to the Central Bureau of Investigation which reported that against a total sum of Rs. 4.73 odd lacs paid by the Government to A 1 the work done was not worth more than Rs. 76,247/43.
The Special Judge convicted and sentenced both the appellants on the ground that they had entered into a conspiracy to cheat the Government in the matter of execution of the work by presenting inflated bills and receiving against them far greater amounts than had actually been spent and that the muster rolls produced were false documents.
The Judicial Commissioner up held the findings of the Special Judge.
Allowing the appeals, ^ HELD: 1.
There is no evidence on record that the tender submitted by A 2 was actually accepted by the Government and that it was on that basis that the entire work was executed.
[612 B] 605 2.
Although it may be correct to say that even a work which is required to be carried out departmentally can be entrusted to a contractor, in the instant case no bills were drawn nor was sanction accorded to any payment on the basis of any part of the work having been executed through A 2 working as a contractor.
The bills contained the number of labourers engaged and the amount pertaining to their wages at the sanctioned rates.
No mention was made in the bills that the work was being carried out through a contractor.
A 2 did not sign any of the bills and his name as well as his connection with the execution of the work remained conspicuous by its absence therefrom.
[612 C E] 3.
The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts.
It was incumbent on the State to bring out beyond all reasonable doubt that the number of labourers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government.
[614 D E] 4.
Although there was a difference between the number of labourers engaged on each day as deposed to by the prosecution witnesses and that shown in the bills it is not safe to rely on mere impression of the prosecution witnesses long after the work had been executed.
[614 F] 5.
The irregularities committed by the appellant in the execution of the work do furnish a circumstance giving rise to a strong suspicion in regard to the bonafides of the appellants in relation to execution of the work, but mere suspicion, however strong, cannot be a substitute for proof.
It is not possible to place the burden of proof of innocence on the person accused of a criminal charge [614 H] 6.
In regard to the value of work actually done there was sharp disparity in the figures arrived at by the courts below.
The view of the Courts below that it was for the accused to show that the number of labourers employed conformed to that shown each day in the summaries attached to bills, is an approach not sanctioned by law.
[616 H 617 A] 7.
The prosecution has not established that the bills or the summaries were false in material particulars.
Although the appellants proceeded to execute the work in flagrant disregard of the relevant rules and ordinary norms of procedural behaviour of Government officials and contractors in the matter of execution of works undertaken by the Government, such disregard has not been shown to amount to any of the offences of which the appellants have been convicted.
The findings of the lower courts no doubt make the suspicion still stronger but it cannot be said that any of the ingredients of the charge had been made out.
[618 C, E F] 8.
Although some of the documents were prepared at the instance of the appellants when a demand for them was made by the Accounts Department, the charge cannot be sustained in relation to any of its heads, their being no proof of falsity of any of the entries made in those documents.
[618 H]


judgement:
Civil Appeal Nos.
1394/74, 543/75 and 242/79.
Appeals from the Judgment and Order dated 22 5 1973 of the Allahabad High Court in Special Appeals Nos. 26/73, 682/72 and 502/72.
AND SPECIAL LEAVE PETITION (CIVIL) No. 2152 of 1974.
From the Judgment and Order dated 22 5 1973 of the Allahabad High Court in Spl.
Appeal No. 469/72.
J. P. Goyal and section K. Jain for the Appellants in CA 1394/74.
G. section Chaterjee for the Petitioners in SLP 2152/74.
A. P. section Chauhan and V. C. Prashar for the RR 3 & 4 in CA 1394/ 74.
section N. Andley, Uma Datta and Tara Chand Sharma for the Appellants in CA 543/75.
R. N. Dixit for the Appellant in CA 242/79.
E. C. Agarwala for the Respondent in CA 543/75.
1208 The Judgment of the Court was delivered by CHANDRACHUD, C.J.
In view of the Judgment of this Court in State of Bombay vs Narothamdas, Jethabhai & Anr.(1) Union of India vs Mohindra Supply Company(2) and Ram Adhar Singh vs Ramroop Singh & Ors.(3) and in view of the fact that the Special Leave Petition filed against the judgment rendered by the High Court of Allahabad, upholding the validity of the 1962 Act was dismissed by the Constitution Bench of this Court after an elaborate argument, there is no substance in the contention that either the U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 or the U.P. High Court (Abolition of Letters Patent Appeals) (Amendment) Act, Act 33 of 1972 is unconstitutional.
The challenge to these Acts on the ground of their unconstitutionality is, therefore, rejected.
Learned counsel appearing on behalf of the appellants have very fairly conceded that position.
Accordingly, the Civil Appeals and the Special Leave Petition are dismissed.
There will be no order as to costs.
However, the appellants may, if so advised, ask for special leave to appeal from the judgment of the learned single judge.
We are sure that the delay caused in filing the S.L.Ps in this Court will be condoned since the appellants were pursuing their remedy by filing these appeals in this Court.
Learned counsel for the appellant in Civil Appeal No. 543/75 says that the appellant has already filed special leave petition (Civil) No. 361 of 1976 in this Court challenging the decision of the learned single judge of the Allahabad High Court on the merits of the matter.
He has also filed an application seeking leave of this Court for urging additional grounds and an application for condonation of delay in filing the Special Leave Petition.
The petition for permission to urge additional grounds, except on Constitutional points, shall be treated as having been filed in the S.L.P.
These three petitions will be listed before the Division Bench on 4 10 1979.

dataset_name: IN-Abs

summary/full:
HELD : Neither the U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962 nor the U.P. High Court (Abolition of Letters Patent Appeals) (Amendment) Act, 1962, is unconstitutional.
[1208C] State of Bombay vs Narothamdas, ; ; Union of India vs Mohindra Supply Co. ; and Ram Adhar Singh vs Ramroop Singh & Ors., ; ; followed.
[The Court under its inherent powers condoned the delay in filing of S.L.P. challenging the decision of the High Court on merits and allowed the petitioner to urge additional grounds except on constitutional points].


judgement:
: Special Leave Petition (Crl.) No. 1383 of 1978.
From the Judgment and Order dated 3 1 1978 of the Punjab and Haryana High Court in Crl.
A. No. 1039/74.
K. L. Jogga and L. N. Gupta for the Petitioner.
Hardev Singh for the Respondent.
The Order of the Court was delivered by SHINGHAL, J. We have heard learned counsel for the parties at length.
Accused Bachan Singh, Gurnam Singh and Chanan Singh were convicted by the Sessions Judge of Gurdaspur of an offence under section 304 Part I read with section 149 I.P.C. and were sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1000/ .
They were also convicted of an offence under section 148 I.P.C. and sentenced to rigorous imprisonment for 2 years.
The remaining two accused Ravail Singh and Vir Singh were convicted of an offence under section 304 Part I read with section 149 I.P.C., but they were sentenced to rigorous imprisonment for 5 years and a fine of Rs. 500/ .
Further, they were convicted of an offence under section 147 I.P.C. and were sentenced to rigorous imprisonment for 1 year.
An appeal was filed by the accused against their conviction and sentence; and the State filed an appeal for their conviction and sentence under section 302 I.P.C. A revision petition was filed under 647 section 401 Crl.
P.C. for enhancement of the sentence of imprisonment and fine "to meet the ends of justice".
The High Court of Punjab and Haryana made an express order on December 9, 1974 that the revision petition would be heard alongwith the criminal appeal (No. 1039 of 1974) filed by the accused.
By its impugned Judgment dated January 3, 1978, the High Court dismissed the appeal which was filed by the accused, but enhanced the sentence of Bachan Singh, Gurnam Singh and Chanan Singh accused under section 304 Part I read with section 149 I.P.C. to rigorous imprisonment for life and of accused Ravail Singh and Vir Singh under the same section to rigorous imprisonment for 10 years.
While making that order, the High Court observed that the State appeal "for enhancement of punishment" was "partly accepted".
That is why all the five accused have applied to this Court for special leave under article 136 of the Constitution.
It has been argued by learned counsel for the accused that the High Court committed an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as contemplated by sub section (3) of section 377 of the Code of Criminal Procedure.
It appears to us, however, that as the State Government did not file an appeal against the sentence under sub section (1) of section 377 Cr.P.C, and as it is not disputed before us that its appeal was directed against the acquittal of the accused for the offence under section 302 I.P.C., there is no justification for the argument that the High Court committed an illegality in not complying with the requirement of sub section (3) of that section for giving the opportunity to the accused of showing cause against the enhancement of the sentence or of pleading for their acquittal or for reduction of the sentence.
As has been stated, a petition was filed under section 401 Cr.
P.C. for enhancement of the sentence, and it was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under section 377.
It will be recalled that the High Court made an express order on December 9, 1974, for the hearing of the revision petition alongwith the appeal which had been filed by the accused.
The fact therefore remains that the High Court had before it the above mentioned appeals which had been filed by the accused and the State, and the revision petition under section 401 Cr.
P.C. for enhancement of the sentence.
While that court dismissed the appeal of the 648 accused, and allowed the appeal of the State in part, it forgot to make a reference to the revision petition while drawing up the operative part of its order.
That was an inadvertent mistake for, after reading the impugned judgment of the High Court, we have no doubt that it effectively disposed of both the appeals and the revision petition even though the wordings of the judgment in that respect were not quite appropriate.
But, even otherwise, there is no merit in the grievance of the accused that they were not given the opportunity of showing cause against the enhancement of the sentence or to plead for their acquittal or for reduction of the sentence.
The opportunity for pleading for acquittal was amply furnished at the hearing of their own appeal against their conviction, and the same appeal furnished them the necessary opportunity for pleading for the reduction of the sentence.
That in fact was the subject matter of their appeal.
It is not disputed before us that the High Court heard the State appeal against the acquittal of the accused, alongwith the appeal which was filed by the accused, and that furnished further opportunity to the accused to plead for their acquittal, or reduction of sentence, or to show cause against the enhancement of the sentence.
There is thus no force in the argument to the contrary.
It has to be appreciated that in respect of the petition which was filed under section 401 Cr.P.C. for the exercise of the High Court 's powers of revision, it was permissible for it to exercise the power of a Court of Appeal under section 386 for enhancement of the sentence, and if that had been done, there is no justification for the argument that the enhancement was illegal.
There is another reason for this view.
It was permissible for the High Court under section 397 Cr.
P.C. to call for and examine the record of the proceeding before the trial court for the purpose of satisfying itself as to the correctness, legality or "propriety" of any finding, "sentence" or order, recorded or passed by that inferior court.
The High Court 's power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge, has been stated in section 401 Cr.
P.C. to which reference has been made above.
That includes the power conferred on a Court of Appeal under section 386 to enhance or reduce the sentence.
So when the record of the case was before the High Court in connection with the two appeals and the revision petition referred to above, there was nothing to prevent the High Court from invoking its powers under section 397 read with section 401 Cr.
P.C. and to make an order for the enhancement of the sentence.
649 There is thus no force in the argument to the contrary.
All the same, we gave an opportunity to the learned counsel for the accused to advance his arguments on question of sentence and all that he was able to argue was that as the accused had undergone a portion of the sentence and, as the offence was committed in 1972, the High Court was not justified in enhancing the sentence.
As is obvious, both these arguments are untenable and inconsequential because of the concurrent findings of the trial court and the High Court that the accused emerged from the house of accused Bachan Singh as soon as Sarup Singh (deceased) reached the place of occurrence, shouted that he should be taught a lesson for getting liquor recovered from them and beat him with their respective weapons.
It has been found further that while accused Vir Singh caught hold of the hair of the deceased and Ravail Singh caught hold of his legs and felled him on the ground, Gurnam Singh, who was armed with a datar, dealt belows on his right knee while Chanan Singh gave a kirpan blow on his left hand, and then accused Gurnam Singh gave a blow on his right knee while Chanan Singh gave a kirpan blow on his left hand and he, Gurnam Singh and Bachan Singh dealt further blows on his left leg near the knee, as a result of which the left leg was completely severed from the body.
It has also been concurrently found that the accused took away the chopped off leg of the deceased after wrapping it in his turban, and that he succumbed to the injuries soon after.
The facts and the circumstances which have thus been established by the evidence of Pal Singh P.W.4, and Nishan Singh P.W.5, on which reliance has been placed by both the courts, justify the view taken by the High Court that the accused deserved the sentence awarded to them by it.
Learned counsel for the accused tried to argue that the conviction of the accused was not justified on the merits, and took us through the finding in regard to the motive for the offence, the nature of the medical evidence, the plea of self defence taken by accused Bachan Singh and the relationship of eye witnesses Pal Singh P.W.4 and Nishan Singh P.W.5 with the deceased.
Apart from the fact that there was no occasion for us to consider those arguments, we have no hesitation in saying that they are without merit.
In the view we have taken, the petition for special leave is dismissed.
V.D.K. Petition dismissed.

summary/full:
Against their conviction and sentence passed by the Sessions Judge, Gurdaspur, the appellants preferred an appeal to the High Court.
The State filed an appeal for their conviction and sentence under section 302 I.P.C. A revision petition was also filed under Section 401 Crl.
P.C. for enhancement of the sentence of imprisonment and fine "to meet the ends of justice".
Though the High Court made an express order on December 9, 1974 that the revision petition would be heard along with the criminal appeal, the High Court by its impugned judgment dated January 3, 1978, dismissed the appeal filed by the accused, but enhanced the sentence of Bachan Singh, Gurnam Singh and Chanan Singh accused under Section 304 Part I read with Section 149 I.P.C. to rigorous imprisonment for life and of accused Ravail Singh and Vir Singh under the same section to rigorous imprisonment for 10 years.
While making that order, the High Court observed that the State appeal "for enhancement of punishment" was partly accepted, without reference to the revision petition.
Hence the petition for special leave under Article 136 of the Constitution on the ground that the High Court committed an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as contemplated by sub section (3) of section 377 of the Code of Criminal Procedure.
Dismissing the petition the Court, ^ HELD: 1.
The revision petition under section 401 Crl.
P.C. for enhancement of the sentence was maintainable as it was not permissible for the revision petitioner to file an appeal under section 377.
The High Court effectively disposed of both the appeals and the revision petition even though there was an inadvertent mistake in not making a reference to the revision petition in the judgment.
[647 F G, 648 B] 2.
The opportunity for pleading for acquittal was amply furnished to the accused at the hearing of their own appeal against their conviction, and the same appeal furnished them the necessary opportunity for pleading for their acquittal or the reduction of the sentence.
That, in fact, was the subject matter of their appeal.
The fact that the appeal filed by the State 5 625SCI/79 646 against the acquittal of the accused under section 302 I.P.C. was heard along with their appeal against conviction and sentence, itself furnished an opportunity to show cause against the enhancement of the sentence.
[648 C D] 3.
(a) In the petition filed under section 401 Crl.
P.C. for the exercise of the High Court 's power of revision, it was permissible for it to exercise the power of a Court of appeal under section 386 for enhancement of the sentence.
[648 E F] (b) It was also permissible for the High Court under Section 397 Crl.
P.C., to call for and examine the record of the proceedings before the trial court for purpose of satisfying itself as to the correctness, legality or "propriety" of any finding, "sentence" or order recorded or passed by that inferior Court.
The High Court 's power of revision under section 401 Crl.
P.C. in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge includes the power conferred on a court of appeal under section 386 to enhance or reduce the sentence.
So when the record of the case was before the High Court in connection with the two appeals and the revision petition there was nothing to prevent the High Court from invoking its power under section 397 read with 401 Crl.
P.C. and to make an order for the enhancement of the sentence.
[648 F H]


judgement:
: Criminal Appeal No. 10 of 1979.
Appeal by Special Leave from the Judgment and Order dated 12 10 1978 of the Madhya Pradesh High Court in Criminal Revision No. 336 of 1978.
622 D. N. Mukherjee and N. R. Choudhary for the Appellant.
Dalveer Bhandari for Respondent No. 1.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On the report of the Station House Officer, Manak Chowk, Ratlam, that there was a dispute between Mathuralal and Bhanwarlal concerning a house situated in Kambalpatti, Ghas Bazar, Ratlam, which was likely to cause a breach of the peace, the Sub Divisional Magistrate, Ratlam, passed a preliminary order under Section 145(1) of the Code of Criminal Procedure 1973, on Ist March, 1978.
On 2nd March, 1978, the learned Magistrate attached the subject of dispute under Section 146(1) Criminal Procedure Code considering the case to be one of emergency.
Thereafter, when the learned Magistrate wanted to proceed with the enquiry under Section 145 Criminal Procedure Code, an objection was raised by Mathuralal that such an enquiry was incompetent once the subject of the dispute had been attached under Section 146 Criminal Procedure Code.
The objection was overruled by the learned Magistrate.
Successive Revisions taken before the Sessions Judge and the High Court having borne no fruit, Mathuralal has filed the present appeal by special leave of this Court.
The High Court, we may mention here, thought that the matter was concluded against the appellant by the decision of this Court in Chandu Naik & Ors.
vs Sitaram B. Naik & Anr.(1) Shri Mukherji, learned counsel for the appellant urged that under Section 146 of the Criminal Procedure Code of 1973, an attachment of the subject of dispute could be effected in three situations: (i) if the Magistrate at any time after making the order under Section 145(1) considered the case to be one of emergency, or (ii) if he decided that none of the parties was then in such possession as was referred to in Section 145, or (iii) if he was unable to satisfy himself as to which of them was then in such possession of the subject of dispute.
The attachment so effected, regardless of the situation consequent upon which it was effected, was to subsist until a competent Court determined the rights of the parties with regard to the person entitled to possession.
This, he urged, clearly indicated that after an attachment was effected it was the Civil Court and not the Magistrate that was to have further jurisdiction in the matter.
He contrasted the provisions of Section 146(1) of the present code with the provisions of Section 146(1) and the third proviso to Section 145(4) of the Criminal Procedure Code of 1898 as amended by Act 26 of 1955.
He drew our 623 attention to the circumstance that the third proviso to Section 145(4) of the old Code empowered the Magistrate, if he considered the case one of emergency, to attach the subject of dispute pending his decision under that Section, while Section 146(1) of the previous Code empowered the Magistrate to attach the subject of dispute if the Magistrate was of the opinion that none of the parties was then in possession or if the Magistrate was unable to decide as to which of them was in such possession and thereafter to refer to the Civil Court for decision the question whether any and which of the parties was in possession of the subject of dispute.
Therefore, he said, under the previous Code, in the case of attachment because of emergency the Magistrate was himself competent to decide the question of possession and in the other two cases he was to refer the dispute to the Civil Court, whereas, under the present Code, in all the three situations the Magistrate was to leave the matter for adjudication by the Civil Court.
Thus, the submission of Shri Mukherji was that while under the previous Code it was permissible to attach the subject of dispute pending enquiry by the Magistrate as contemplated by Section 145, such attachment pending decision by the Magistrate was not permissible under the provisions of the present Code.
According to him so soon as the Magistrate effected an attachment he had nothing further to do except await the decision or the directions of the Civil Court.
Though at first blush there appeared to be force in the submissions of Shri Mukherji, a closer scrutiny of the provisions of Sections 145 and 146 exposes their unsoundness.
It may perhaps be desirable, at this stage to extract the provisions of Sections 145 and 146, to the extent that they are relevant, in the Code of 1898 before it was amended in 1955, in the Code of 1898 after it was amended in 1955 and in the Code of 1973: 624 (a) 145 (1) Whenever a District Magistrate, Sub divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2). . (3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be (b) 145 (1) Whenever a District Magistrate, Sub divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend Court in person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.
(2). . (3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be (c) 145 (1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2). . (3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be 625 published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that. .
Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements, documents and affidavits, if any, so put in, hear the parties and conclude the inquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him and, if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: Provided that. .
Provided further that. .
Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub section (1), in possession of the subject of dispute: Provided that. . (5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists 626 (a) or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub section (1) shall be final.
(6) If the Magistrate decides that one of the parties was or should under the first proviso to sub section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7). . (8). . (9). . (10). . (146) (1) If the Magistrate descides that none of the parties was then in such possession, or is unable to satisfy himself (b) or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub section (1) shall be final.
(6) If the Magistrate decides that one of the parties was or should under the 2nd proviso to sub section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until elected therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the second proviso to sub section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(7). . (8). . (9). . (10). . (146) (1) If the Magistrate is of opinion that none of the parties was then in such possession, of the subject of dispute, he (c) or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub section (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was or should under the proviso to sub section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction and when he proceeds under the first proviso to sub section (4), may restore to possession the party forcibly and wrongfully dispossessed.
(b). . (7). . (8). . (9). . (10). . (146) (1) If the Magistrate at any time after making the order under sub section (1) of Section 145 considers the case to be 627 as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof: Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court appoint a receiver thereof, may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in sub section (4) of section 145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him: Provided that the District Magistrate or the Magistrate who has attached the subject of dispute may withdraw the attachment at any time, if he is satisfied that there is no longer any likelihood of a breach of the peace in regard to the subject of dispute.
(1A). . (1B). . (1C). . (1D). . (1E). . (2) When the Magistrate attaches the subject of dispute, he may, if he thinks fit and if no receiver of the property, the subject of dispute, has been appointed by any Civil Court appoint a receiver thereof, one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof : Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute he may, if no receiver in relation to such subject of dispute, has been appointed by any Civil Court, make such arrangements as he considers proper for 628 (a) who subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure.
Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharge.
(b) who subject to the control of the Magistrate, shall have all the powers of a receiver appointed under the Code of Civil Procedure.
Provided that, in the event of a receiver of the property, the subject of dispute, being subsequently appointed by any Civil Court, possession shall be made over to him by the receiver appointed by the Magistrate, who shall thereupon be discharge.
(c) looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908): Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate (a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him; (b) may make such other incidental or consequential orders as may be just.
629 Quite obviously, Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries.
If Section 146 is torn out of its setting and read independently of Section 145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment.
But Section 146 cannot be so separated from Section 145.
It can only be read in the context of Section 145.
Contextual construction must surely prevail over isolationist construction.
Otherwise, it may mislead.
That is one of the first principles of construction.
Let us therefore look at Section 145 and consider Section 146 in that context.
Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the Criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute.
A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings.
It is by making a preliminary order that the Magistrate assumes jurisdiction to proceed under Sections 145 and 146.
In fact, the first of the situations in which an attachment may be effected under Section 146 of the 1973 Code has to be "at any time after making the order under sub section (1) of Section 145" while the other two situations have, necessarily, to be at the final stage of the proceeding initiated by the preliminary order.
Now, the preliminary order is required to enjoin the parties not only to appear before the Magistrate on a specified date but also to put in their written statements.
Sub section (3) of Section 145 prescribes the mode of service of the preliminary order on the parties.
Sub section (4) casts a duty on the Magistrate to peruse the written statements of the parties, to receive the evidence adduced by them, to take further evidence if necessary and, if possible, to decide which of the parties was in possession on the date of the preliminary order.
If the Magistrate decides that one of the parties was in possession he is to make a final order in the manner provided by sub section (6).
Provision for the two situations where the Magistrate is unable to decide which of the parties was in possession or where he is of the view that neither of them was in possession is made in Section 146 630 under which he may attach the subject of dispute until the determination of the rights of parties by a competent Court.
The scheme of Sections 145 and 146 is that the Magistrate, on being satisfied about the existence of a dispute likely to cause a breach of the peace, issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements.
Then he proceeds to peruse the statements, to receive and to take evidence and to decide which of the parties was in possession on the date of the preliminary order.
On the other hand if he is unable to decide who was in such possession or if he is of the view that none of the parties was in such possession he may say so.
If he decides that one of the parties was in possession, he declares the possession of such party.
In the other two situations he attaches the property.
Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders.
There is no half way house, there is no question of stopping in the middle and leaving the parties to go to the Civil Court.
Proceeding may however be stopped at any time if one or other of the parties satisfies the magistrate that there has never been or there is no longer any dispute likely to cause a breach of the peace.
If there is no dispute likely to cause a breach of the peace, the foundation for the jurisdiction of the magistrate disappears.
The magistrate then cancels the preliminary order.
This is provided by Section 145 sub section (5).
Except for the reason that there is no dispute likely to cause a breach of the peace and as provided by Section 145(5), a proceeding initiated by a preliminary order under Section 145(1) must run its full course.
Now, in a case of emergency, a magistrate may attach the property, at any time after making the preliminary order.
This is the first of the situations provided in Section 146(1) in which an attachment may be effected.
There is no express stipulation in Section 146 that the jurisdiction of the magistrate ends with the attachment.
Nor is it implied.
Far from it.
The obligation to proceed with the enquiry as prescribed by Section 145 sub section 4 is against any such implication.
Suppose a magistrate draws up a preliminary order under section 145(1) and immediately follows it up with an attachment under Section 146(1), the whole exercise of stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statements becomes futile if he is to have no further jurisdiction in the matter.
And yet he cannot make an order of attachment under Section 146(1) on the ground of emergency without first making a preliminary order in the manner prescribed by Section 145(1).
There is no reason why we should adopt a construction which will lead to 631 such inevitable contradictions.
We mentioned a little earlier that the only provision for stopping the proceeding and cancelling the preliminary order is to be found in Section 145(5) and it can only be on the ground that there is no longer any dispute likely to cause a breach of the peace.
An emergency is the basis of attachment under the first limb of Section 146(1) and if there is an emergency, no one can say that there is no dispute likely to cause a breach of the peace.
Let us examine if a comparative study of the provisions as they stood, before 1955 and after 1955 under the old Code and as they now stand under the 1973 Code lead us to a conclusion other than that indicated in the preceding paragraph.
From the comparative table of the provisions, it is seen that there were two principal changes made by the 1955 amendment.
The first was that the preliminary order was also to require the parties to put in documents and the affidavits of such persons as they intended to rely upon in support of their claims.
The magistrate was to decide the case on a consideration of the written statements the documents and the affidavits put in by the parties and after hearing them.
The position earlier was that the parties had the right to adduce evidence and the magistrate could take further evidence if he so desired.
The second change was that in the two situations where he was unable to satisfy himself as to which of the parties was in possession or where he decided that none of the parties was in possession, after attaching the property, the magistrate was himself to refer the dispute to the Civil Court instead of leaving it to the parties to go to the Civil Court.
He was to obtain the finding of the Civil Court and thereafter conclude the proceeding under Section 145 Criminal Procedure Code in conformity with the decision of the Civil Court.
The revised procedure introduced by the 1955 amendment was not found to work satisfactorily and, therefore, it was, apparently, thought desirable to revert to the old procedure.
The provisions of Sections 145 and 146 of the 1973 Code are substantially the same as the corresponding provisions before the 1955 amendment.
The only noticeable change is that the second proviso to Section 145(4) (as it stood before the 1955 amendment) has now been transposed to Section 146 but without the words "pending his decision under this Section" and with the words "at any time after making the order under Section 145(1)" super added.
The change, clearly, is in the interests of convenient draftsmanship.
All situations in which an attachment may be made are now mentioned together in Section 146.
The words "pending his decision under this section" have apparently been omitted as unnecessary since Section 145 provides how the proceeding initiated by a preliminary order must pro 632 ceed and end and therefore an attachment made 'at any time after making under Section 145(1) ' can only continue until the termination of the proceeding.
At the termination of the proceeding, if he finds one of the parties was in possession as stipulated, the magistrate must make an order as provided in Section 145(6) and withdraw the attachment as provided in Section 146(1) since there can be no dispute likely to cause a breach of the peace once an order in terms of Section 145(6) is made.
In our view, it is wrong to hold that the magistrate 's Jurisdiction ends as soon as an attachment is made on the ground of emergency.
A large number of cases decided by several High Courts some taking one view and the other a different view were read to us.
We do not consider it necessary to refer to them except to acknowledge that we derived considerable assistance from the judgment of Lahiri, J., in Kshetra Mohan Sarkar vs Paran Chandra Mandal(1), in arriving at our conclusion.
We may also add that the question now at issue did not arise for consideration in Chandu Naik & Ors.
vs Sitaram B. Naik & Anr.
(supra).
What was decided there was that a proceeding under Section 145 Criminal Procedure Code did not abate because of Section 8 of the Maharashtra Vacant Land (Prohibition of unauthorised Occupation and Summary Eviction) Act, 1975.
In the result the appeal is dismissed.
P.B.R. Appeal dismissed.

summary/full:
Apprehending breach of peace on account of a dispute over a house between the appellant and the respondent the Sub Divisional Magistrate passed a preliminary order under section 145(1), Cr.P.C., 1973 and later attached the subject matter of dispute under section 146(1) on the ground that it was a case of emergency.
The appellant 's objection that once the subject of the dispute had been attached under section 146, he was not competent to proceed with the enquiry under section 145 was overruled by the Magistrate.
Having failed in his revision petitions before the Sessions Judge and the High Court the appellant preferred an appeal to this Court.
It was contended on behalf of the appellant that while under the previous Code it was permissible to attach the subject of dispute pending enquiry by the Magistrate as contemplated by section 145 such attachment pending decision by the Magistrate was not permissible under the present Code and that once the Magistrate effected an attachment he had nothing further to do except await the decision or the direction of the civil court.
Dismissing the appeal, ^ HELD: It is wrong to say that the Magistrate 's jurisdiction ends as soon as an attachment is made on the ground of emergency.
[632 C] 1.
(a) Sections 145 and 146 of the Criminal Procedure Code together constitute a scheme for the resolution of a situation where there is a likelihood of a breach of the peace because of a dispute concerning any land or water or their boundaries.
If section 146 is torn out of its setting and read independently of section 145, it is capable of being construed to mean that once an attachment is effected in any of the three situations mentioned therein, the dispute can only be resolved by a competent Court and not by the Magistrate effecting the attachment.
But section 146 cannot be so separated from section 145.
It can only be read in the context of section 145.
Contextual construction must prevail over isolationist construction.
That is one of the first principles of construction.
[629 A C] (b) On being satisfied about the existence of a dispute likely to cause a breach of peace, the Magistrate issues a preliminary order stating the grounds of his satisfaction and calling upon the parties to appear before him and submit their written statement.
On perusal of the written statements he would proceed to record evidence to decide which of the parties was in possession on the date of the preliminary order.
If he decides that one of the parties was in possession he declares possession of such party.
If on the other 621 hand he is unable to decide who was in possession or if he is of opinion that none of the parties was in such possession, he may say so.
If he decides that one of the parties was in possession he declares the possession of such property.
In the other two situations he attaches the property.
Thus a proceeding begun with a preliminary order must be followed up by an enquiry and end with the Magistrate deciding in one of three ways and making consequential orders.
[630 A D] (c) The Magistrate may, however, stop the proceedings at any time if one or the other of the parties satisfies him that there has never been or that there is no longer any dispute likely to cause a breach of the peace.
The Magistrate then cancels the preliminary order vide section 145(5) except in this event a proceeding initiated by a preliminary order under section 145(1) must run its full course.
[630 E] (d) One of the situations provided under section 146(1) is that in a case of emergency a Magistrate may attach the property at any time after making the preliminary order.
There is no express stipulation in section 146 that the jurisdiction of the Magistrate ends with the attachment.
Nor is it implied.
The obligation to proceed with the enquiry as prescribed by section 145(4) is against any such implication.
[630 G] 2.
The position under the section before its amendment in 1955 was that the parties that the right to adduce evidence and the Magistrate could take further evidence if he so desired.
There were two principal changes in the section as a result of the amendment in 1955: (1) the preliminary order was also to require the parties to put in documents and affidavits of such persons as they intended to rely upon in support of their claims.
The Magistrate was to decide the case on a consideration of the written statements, the documents and affidavits put in by the parties and after hearing them come to a conclusion.
(2) Where he was unable to satisfy himself as to which of the parties was in possession or where he decided that none of the parties was in possession after attaching the property, the Magistrate was himself to refer the dispute to the civil court instead of leaving it to the parties to go to the civil court.
He was to obtain a finding of the civil court and thereafter conclude the proceeding under section 145 in conformity with the decision of the civil court.
The revised procedure having been found to be unsatisfactory sections 145 and 146 were again amended so as to revert to the position obtaining before the 1955 amendment.
In the present section 146 all situations in which an attachment may be made are now mentioned together.
[631 D F] Chandu Naik & Ors.
vs Sitaram B. Naik & Anr. ; Crl.
L. J. 356 distinguished.
Kshetra Mohan Sarkar vs Puran Chandra Mandal, 1978 Crl.
L.J. 936, approved.