judgement:
N: Criminal Appeal No. 307 of 1983 Appeal by Special leave from the Judgment and Order dated the 8th November, 1982 of the Andhra Pradesh High Court in Criminal Miscellaneous Petition No. 1936 of 1982.
A. Subba Rao for the Appellant.
B. Kanta Rao for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The short question arising in this appeal by special leave is whether in the absence of necessary complaint by the Civil Court where a money receipt alleged to have been forged was produced, prosecution for offences punishable under sections 467 and 471 read with section 34 of the Indian Penal Code would be maintainable.
The accused are the appellants and they challenge the dismissal of their application under section 482 of the Code of Criminal Procedure ( 'Code ' for short) by the High Court of Andhra Pradesh.
The appellants are father and son respectively.
They took a printing press from the 1st respondent in terms of an agreement dated December 3, 1980, with a view to carrying on the printing business.
The agreement stipulated that the appellants would have to deposit Rs. 20,000 with the 1st respondent and pay Rs. 500 p.m. as also 50% of the net profits to 1st respondent.
Dispute arose between the parties over the compliance of the terms of the agreement whereupon the 1st respondent filed against the appellants O.S. No. 609/81 for mandatory injunction and O.S. No. 1140/81 for recovery of damages.
Appellants filed O.S. No. 358/81 for refund of Rs. 20,000 claimed to have been deposited with 1st respondent and for recovery of RS.
8638 on the footing that the same had been paid to 1st respondent by cheques and in cash.
Along with their plaint appellants produced the original contract as also the money receipt for Rs. 20,000 in support of the claim in the suit.
After production of the money receipt in Court, 1st respondent filed a complaint against the appellants alleging forgery of his signature on the money receipt and thereby commission of offences punishable under sections 467 and 471, I.P.C. On receiving summonses from the Court, the appellants objected to maintainability of the criminal action and 838 later move the High Court of Andhra Pradesh for quashing the said proceedings by contending that in the absence of complaint from the Court the prosecution was barred in view of section 195 (1) (b) (ii) of the Code.
In support of this contention reliance was placed on section 340 of the Code.
The High Court referred to the provisions of sections 463 465 467 471 and 474 of the Penal Code and observed. "From the above provisions, It is quite manifest that the offence which is mentioned in the complaint carries greater punishment, namely, 10 years imprisonment, whereas under section 463, I.P.C. the punishment is infinitely lesser than the one under section 467, namely 2 years of fine or both.
That apart, in a case reported in 1979 Crl.
L.R. at 228, it has been held by the Gujarat High Court that the offences laid down under sections 474 and 471, I.P.C. are distinct.
In that case it was contended that a complaint by A to police under section 474 that was in possession of forged documents with intention to use them in Court proceedings and thereafter producing documents in Court and thereby committing offence under section 471 did not wipe out the offence under section 474.
The High Court held under these circumstances that the Magistrate can proceed with case under section 474 against grounding the reason that section 195 (1) (b) (ii) is not attracted.
The penal provisions as it is fairly settled ought to be interpreted very strictly and therefore on the foregoing analysis I have no hesitation in holding that section 463 cannot be construed to include section 467 as well and, therefore, certainly it is competent for the Magistrate to take cognizance of and try the same as it is needless to follow the case.
Hence the contention on the basis of the provisions in section 340 of the Code of Criminal Procedure fails and the same is rejected".
There is no dispute that the alleged forged document was produced in the suit brought by the appellants.
Section 340 of the Code provides: "340.
(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry 839 should be made into any offence referred to in clause (b) of sub section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and (e) bind over any person to appear and give evidence before such Magistrate".
The relevant part of section 195 referred to in section 340 of the Code reads thus: "195.
(1) No Court shall take cognizance X X X X (b)(ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, . except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate".
(underlining is ours).
If section 195 (1) (b) (ii) is attracted to the facts of the present case, in the absence of a complaint in writing of the Civil Court where the alleged forged receipt has been produced, taking of cognizance of the offence would be bad in law and the prosecution being not maintainable, there would be absolutely no justification to harass 840 the appellants by allowing prosecution to have a full dressed trial.
Section 195 (1) (b) (ii) uses two different expressions: in regard to section 463 of the Indian Penal Code it says, "offence described", while in regard to sections 471 and 475 or 476 of the I.P.C. it says, "punishable".
The High Court has not made any reference to section 471 of I.P.C. while rejecting the submissions of the appellants apparently because section 471 in terms has been mentioned in the provision.
So far as section 463 is concerned, the High Court has taken the view as we have already indicated that "section 463 cannot be construed to include section 467".
Section 463 of the I.P.C. provides: "463.
Forgery Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person, or to support any claim or title or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery".
It is the opening section of Chapter XVIII of the Penal Code dealing with offences relating to documents and to property marks.
This opening section in a sense defines the offence of forgery.
Section 467 of the Penal Code provides: "467.
Forgery of valuable security, will, etc.
Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest, or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
The purpose of our extracting the two sections of the Penal Code is to show the offence which is made punishable under section 467 of 841 the Penal Code is in respect of an offence described in section 463.
Once it is accepted that section 463 defines forgery and section 467 punishes forgery of a particular category, the provision in section 195 (1) (b) (ii) of the Code would immediately be attracted and on the basis that the offence punishable under section 467 of the Penal Code is an offence described in section 463, in the absence of a complaint by the Court the prosecution would not be maintainable.
We have no doubt in our mind that the High Court took a wrong view of the matter.
We may briefly refer to two decisions of this Court.
In Patel Laljibhai Somabhai vs The State of Gujarat,(1) the accused had filed a suit for recovery of certain money on the basis of a forged cheque and a private complaint had been filed before the Court of the Judicial Magistrate alleging offences under sections 467 and 471 of the I.P.C.
The appellant raised an objection that in view of section 195 (1) (c) of the Code of Criminal Procedure cognizance of the offence could not be taken on a private complaint.
The High Court upheld the order of commitment by finding that though there would be a bar for prosecution for offences punishable under sections 467 and 471 of the I.P.C.
On a private complaint, in the facts of the case that question did not arise and this Court refused to interfere by holding that the alleged offences had been committed at a time when the accused was not a party to the civil proceeding.
Not the conclusion but the ratio supports our view.
In S.L. Goswami vs High Court of Madhya Pradesh at Jabalpur,(2) to which one of us was a party.
it was held that an offence under section 466, I.P.C. was covered by clause (c) of section 195 (1) of the Code and it came within the purview of the section as the offence under section 463, I.P.C. is dealt With in section 466, I.P.C. Section 466, I P.C., it was pointed out, was an aggravated form of forgery in that the forgery should relate to a document specified in that section.
Section 466, I.P.C. was, therefore, an offence as described in section 463, I.P.C. which was committed in relation to a record or proceeding of or in a Court of justice.
What was said in the aforesaid decision in regard to the offence under section 466, I.P.C. has full application to an offence under s; 467, I.P.C. Therefore, the ratio of the last cited decision has full application to the present case.
842 In view of what we have said above, the prosecution in the instant case on the basis of a private complaint and in the absence of a complaint from the appropriate civil court where the alleged fraudulent receipt has been produced, would not be sustainable.
As we are of the view that if the prosecution is allowed to continue serious prejudice would be caused to the appellants and they would be called upon to face a trial which would not be sustainable, we allow this appeal and set aside the decision of the High Court and quash the complaint case filed against the appellants.
H.S.K. Appeal allowed.

summary/full:
The appellants filed a civil suit against the respondents for recovery of certain amount of money and produced some original documents with the plaint.
The first respondent filed a complaint against the appellants alleging forgery of his signature on one such document and thereby commission or offences punishable under sections 467 and 471 I.P.C.
The appellants objected to maintainability of the criminal action and later moved the High Court for quashing the said proceedings.
The appellants contended that in the absence of complaint from the civil court the prosecution was barred in view of section 195 (1)(b)(ii) of the Code of Criminal Procedure.
The High Court dismissed tho application and observed that section 463 I.P.C. cannot be construed to include section 467.
Allowing the appeal, ^ HELD: The prosecution would not be sustainable.
[842 B] Section 195(1)(b)(ii) of the Code of Criminal Procedure provides that no Court shall take cognizance of any offence described in section 463.
Of the Penal Code, when such offence is alleged to have been committed in respect of a document produced . in a proceeding in any Court . except on the complaint in writing of that Court.
Section 463 of the Penal Code in a sense defines the offence of forgery and the offence which is made punishable under section 467 is in respect of an offence described in section 463.
Once it is accepted that section 463 defines forgery and section 467 punishes forgery of a particular category, the provision in section 195(l)(b)(ii) of the Code of Criminal Procedure would immediately be attracted and on the basis that the offence punishable under section 467 of the Penal Code is an offence described in section 463, in the absence of a complaint by the Court the prosecution would not be maintainable.
[839 E G, 840 D, E, H, 841 A B] Patel Laljibhal Somabhai vs The State of Gujarat, ; and section L. Goswami vs High Court of Madhya Pradesh ar Jabalpur; , referred to. 837


judgement:
Civil Appeal No. 2896 of 1977.
Appeal by Special leave from the Judgment and order dated the 4th November, 1977 of the Bombay High Court in Special Civil Appln.
No. 107 of 1977.
Y. M. Tarkunde, P. N. Parekh and Mrs. Manik Karanajuwala for the Appellants.
U. R. Lalit, V. N. Ganpule, Mrs. V. D. Khanna and Altaf Ahmad for the Respondents. ; The Judgment of the Court was delivered by DESAI, J.
Two decades have elapsed since the commencement of the proceedings involving a simple issue whether the first respondent designated as certificated landlord is entitled to recover possession of land bearing Survey No. 14/A/2 admeasuring.
7 acres and 13 gunthas situated at Village Manjari Badruk Taluka Haveli Distt.
Poona in Maharashtra State from the appellants 1 to 3 who are heirs of excluded tenant Shri Ghule and appellant No. 4 who is also an excluded tenant.
A brief resume of the various proceedings leading to the present appeal may shed some light on a simple issue involved in this appeal.
One Ramchandra Gopal Raykar, father of the first respondent landlord leased land included in Survey No. 14/A/2 to two different persons.
Land admeasuring 4 acres out of total area of 7 acres and 13 gunthas; was leased to Shri Anaji Maruti Ghule.
Appellants No. 1 to 3 a,re the heirs and legal representatives of Sh.
Ghule.
The 825 remaining 3 acres and 13 gunthas of land was leased to Vishnu Maruti Tilekar Appellant No. 4 in this appeal.
After a partition in the family of the landlord, the Land involved in this appeal fell to the share of the first respondent landlord.
He moved an application under sec.
88 C of the Bombay Tenancy and Agricultural Lands Act, 1948 ( 'Tenancy Act, for short) praying for a certificate therein envisaged on the allegation that his holding does not exceed the economic holding and total annual income of the landlord including the rent of such land does not exceed Rs. 1,500.
After an enquiry made by the Mamlatdar as contemplated by sec.
88 C (iii) and (iv) an exemption certificate was granted to the landlord.
The order of the Mamlatdar was challenged by the tenants upto the High Court of Judicature at Bombay, but the order of the Mamlatdar granting exemption certificate withstood the challenge.
And that order has become final.
The effect of the granting of an exemption certificate is that, amongst others, provisions contained in secs.
32 to 32R shall not apply to the land leased by such certificated landlord.
In other words, the excluded tenants of such certificated landlord shall not become the owners of the land on tho Tillers ' day i.e.
Ist April, 1957.
33 B confers a right on the certificated landlord to terminate the tenancy of the land in respect of which exemption certificate is granted, and to make an application to the Mamlatdar for obtaining possession if such certificated landlord bonafide requires such Land for cultivating it personally.
Accordingly the respondent landlord made an application on March 29, 1962 to the Mamlatdar having jurisdiction in the area praying for an order for possession of the land in respect of which certificate was granted.
This application was resisted by both the tenants raising various contentions, one such worth noticing being that appellants No. 1 to 3 were not served with the statutory notice as required by Sec. 33 B.
In the meantime it, appears that the land bearing Survey No. 14/A/2 was put to auction to recover arrears of irrigation dues and the same was purchased for a consideration of Re. 1 by the Government.
Taking note of this fact, the Mamlatdar rejected the application of the landlord observing that he had no title to the land.
In an appeal by the landlord, the order of the Mamlatdar was set aside and the matter was remanded to the Mamlatdar for disposal according to law.
A revision petition by the appellants was dismissed by the Maharashtra Revenue Tribunal.
Mamlatdar designated as Tehsildar, 826 on remand held an enquiry, recorded a finding that notice terminating the tenancy was served on present appellant No. 4, but it was not served on Appellants No. 1 to 3, the heirs of Anaji Ghule.
He accordingly allowed the application of the landlord for possession against Appellant No. 4 Tilekar but dismissed the same against Appellants No. 1 to 3, the heirs of Ghule.
For separate appeals came to be filed against the decision of the Tehsildar, two by two sons of Anaji, Appellants No. 2 and 3 herein, one by the landlord against the dismissal of his application against the heirs of Shri Ghule and one by Shri Tilekar against that part of the order by which he was directed to hand over possession of the land to the landlord.
All the four appeals were disposed of by the Sub Divisional officer with appellate powers by a common judgment.
He held that there was effective service of notice on the heirs of Shri Anaji Ghule.
All other contentions of tenants were rejected with the result that appeal by the respondent landlord was allowed and appeal by tenant Tilekar was dismissed.
As a result, an order was made directing both the tenants to hand over possession of land comprised in Survey No, 14/A/2.
Four separate revision applications were filed against the order of the Sub Divisional officer before the Maharashtra Revenue Tribunal.
By a common judgment, a learned member of the Tribunal held that the Sub Divisional officer, while disposing of the appeals wrongly declined to admit an important piece of evidence which was sought to be produced before him by the tenants and that piece of evidence has a direct bearing on the bona fides of the landlord and therefore, the appellate court was not justified in shutting out the evidence.
In accordance with this finding, the Maharashtra Revenue Tribunal allowed the two revision applications filed by the tenants and set aside the order of the Sub Divisional officer as well as of the Tehsildar and remanded the matter to the Tehsildar for decision afresh.
The judgment of the Maharashtra Revenue Tribunal was challenged by the landlord in a petition under article 227 of the Constitution being Special Civil Application No. 1794 of 1975.
A learned Single Judge of the Bombay High Court, who heard the petition was of the opinion that the partition in the joint family of the landlord had taken place before 30th March, 1960 and the bonafides of the partition having been agitated inter partes in the 827 proceedings under sec.
88 C initiated by the landlord for obtaining the exemption certificate upto the High Court and decided in favour A of the landlord, the same cannot be re opened and re considered in a subsequent proceeding under Sec.
33 B under which a certificated landlord may sue for obtaining possession from the excluded tenant, the land in respect of which certificate is granted.
Having reached this conclusion and after examining other contentions, it was held that the Maharashtra Revenue Tribunal was in error in holding that the Sub Divisional officer hearing the appeal committed error in not allowing fresh evidence to be led at the appellate stage because a party has no right to adduce additional evidence in an appeal and there was no discretion in the appellate authority either to accept or reject the additional evidence.
The learned judge also observed that the Sub Divisional officer has given reason for rejecting the evidence.
Approaching the matter from this angle, the learned judge held that the Maharashtra Revenue Tribunal had no justification to remand the matter for a further fresh enquiry when the parties had already taken opportunity to make out their respective cases.
Accordingly, the High Court set aside the decision of the Maharashtra Revenue Tribunal remanding the matter to the Tehsildar and directed the Tribunal to decide the revision applications filed by the tenants in accordance with law.
Pursuant to this direction, the matter went back to the Maharashtra Revenue Tribunal.
It was heard by a learned member of the Revenue Tribunal.
The learned member formulated the point for decision as to whether the certificated landlord has been able to establish that he bonafide requires the land for personal cultivation.
While examining this contention, the Tribunal observed that bonafide requirement for personal cultivation as contemplated by Sec.
33 B envisages both the compelling need to cultivate personally as well as genuine intention to do so.
The learned member took note of the fact that the certificated landlord had told the land under sugarcane crop admeasuring 20 gunthas on August 11, 1960 to Bhiru Bahu Ghule and that the sale was effected 1 1/2 years before the certificated landlord approached the Tehsildar for obtaining possession of the land from the excluded tenant.
This sale, according to the learned member, raised considerable doubt about the bonafides of the landlord because if he had a compelling necessity or need to cultivate the land personally, he atleast would not have sold the land which was in his actual possession.
The learned member took note of the fact that landlord owns a house property in Poona City and that 828 once upon a time, the family was the owner of extensive land holding.
For these reasons, the learned member held that he was not satisfied that the certificated landlord bonafide required the land involved in the dispute for personal cultivation.
He accordingly allowed the revision applications of the tenants and dismissed the application of the landlord for obtaining possession of the land.
The certificated landlord moved Special Civil Application No. 107 of 1977 in the Bombay High Court under article 227 of the Constitution questioning the correctness of the decision of the Maharashtra Revene Tribunal.
A learned single judge of the High Court, who heard the petition held that there was an error apparent on the face of the record when the learned member of the Tribunal held that in order to obtain possession of land by a certificated landlord from an excluded tenant under Sec.
33 B it is obligatory upon such landlord to prove the compelling necessity to cultivate the land.
It was observed that that element may be relevant and valid in an application under Sec. 31 of the Tenancy Act, wherein the landlord has to prove that the land of which he seeks possession is the principal source of income for his maintenance.
The learned judge was of the view that the sale of the land admeasuring 20 gunthas prior to the commencement of the present proceedings was for a small price and cannot have an adverse impact on the bonafides of the landlord.
Accordingly the learned judge allowed the application of the landlord and set aside the decision of the Maharashtra Revenue Tribunal and restored the decision of the Sub Divisional officer directing handing over of possession of the land to the landlord.
It is this decision of the High Court which is questioned in this appeal.
32 of the Tenancy Act ushered in an era of revolutionary change in the life of the tiller of the soil.
It provided that every tenant of agricultural land shall be deemed to have purchased from his landlord on the Tiller 's day, the land held by him as tenant free from all encumbrances subsisting on the said day subject to the various conditions therein provided which we consider unnecessary to refer here.
The far reaching change introduced by Sec.
32 was noticed by a Constitution Bench of this Court in Sri Ram Ram Narain Medhi vs State of Bombay(1) wherein it was held that the 829 title of the landlord to the land passes immediately to the tenant on the Tiller 's day and there is a complete purchase or sale thereby as between the landlord and the tenant.
But the Legislature was aware that there was a class of landlords who if, by the operation of law, were deprived of the ownership of land would be worse of than the tillers for whose benefit the provision was made.
With a view to saving such petty landlords Part II A was introduced in Chapter III of the Tenancy Act in 1961.
Simultaneously, Sec. 88 C was amended by introducing a non obstante clause which would have the effect of excluding the land of such petty landlords who would be covered by Part II A from the operation of Sec. 32 providing for compulsory purchase of land by the tenant.
Sec. 88 C provides that save as provided by Sec.
33 A. 33 B and 33 C nothing in Sec.
32 to 32R (both inclusive) shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such land does not exceed Rs. 1,500.
In other words, petty or small landlords wose holding does not exceed an economic holding as specified in Sec.
6 and whose total annual income does not exceed Rs. 1,500 where sought to be exempted from the operation of Sec. 32.
Such petty or small landlords in order to save their land from becoming subject matter of compulsory sale by the operation of law were required to obtain a certificate from the Mamlatdar as envisaged in Sec.
In order to obtain the exemption certificate the landlord had to make an application to the Mamlatdar and the Mamlatdar after holding an enquiry after giving notice to the tenant had to decide whether (1) the holding of such landlord did not exceed economic holding; and (2) his total annual income including the rent of such land did not exceed Rs. 1,500.
If both the conditions were cumulatively satisfied, the Mamlatdar had to give a certificate in the prescribed form showing that the land of such landlord is exempt from the operation of Sec. 32.
The effect would be that a tenant of such landlord would not become a deemed purchaser on the Tiller 's day.
33 B provides that such landlord is to be designated as certificated landlord and the tenant of such land exempted from the operation of Sec.
32 was to be designated as excluded tenant.
33 B conferred a special right on the certificated landlord to terminate the tenancy of the excluded tenant in respect of the exempted land and obtain possession if landlord bonafide required the possession of such land for cultivating it personally.
830 Respondent landlord is a certificated landlord.
The tenants appellants had challenged the proceedings initiated by the respondent landlord for obtaining exemption certificate under Sec. 88 C inter alia contending that the partition in the family of the landlord was not bonafide and that it was so contrieved that the landlord may obtain advantage of sec.
This contention was negatived by the Mamlatdar hearing the application u/s 88 C and the appeal against the decision by the tenants to the Collector and a revision petition to the Maharashtra Revenue Tribunal and a petition under article 227 of the Constitution to the Bombay High Court at the instance of tenants successively filed, all failed.
The net outcome is that the partition was held to be bonafide and genuine.
The proceedings between the landlord and the tenant for exemption certificate under Sec. 88 C came to an end with the decision of the High Court and the grant of the certificate became final and not questionable in the present proceedings which could have been commenced only by a landlord who has obtained a certificate of exemption.
The first contention raised on behalf of the appellants tenants was that the partition in the family of the landlord was neither honest nor bonafide nor genuine but it was contrived with a view to obtaining an unfair advantage by the respondent landlord by so allocating the share that h can get benefit of the provision of Sec. 88 C.
The High Court declined to entertain this contention presumably on the ground that this very contention has been negatived by all courts in the earlier round of proceedings u/s 88 C and it cannot be the subject matter of a collateral attack in the present proceedings which can only be commenced after proceedings under Sec. 88 C are finally concluded between the parties.
No serious exception can be taken to this view of the High Court.
But it was urged that even if the Court may not re examine the validity or bonafides of the partition, the question can still be gone into to ascertain the bonafides of the landlord when he moves an application under Sec.
33 B seeking eviction for personal cultivation.
It is undoubtedly true that a certificated landlord is not entitled to recover possession from the excluded tenant merely for asking.
He can only obtained the direction for possession if he bonafide requires such land meaning thereby the land exempted from the operation of Sec. 32 for cultivating it personally.
When it is said that the landlord bonafide requires possession of the land, it would be necessary for him to prove that 831 he is acting honestly and that the application for possession is not a device to dispossess the tenant and that he requires in the sense needs possession of the land for personal cultivation.
In other words, personal cultivation is necessary to obtain the yield of the land for himself.
Some element of requirement would inhere the requirement for maintenance by undertaking the avocation of personal cultivation.
It is not for a moment suggested that the landlord even if he has sufficient source, of maintenance, he can seek possession merely because he wants to pursue the avocation of cultivating the land personally but this aspect hardly ever arises in an application under Sec.
33 B because such an application can only be made by a certificated landlord and none else and the certificated landlord is one whose holding does not exceed an economic holding and whose income from all sources including the rent of the land does not exceed Rs. 1, 500 per annum.
It is such a small or petty landlord whose requirement for personal cultivation has to be examined under Sec. 33 B. It may be that while examining the bonafides of the requirement of the certificated landlord, the Court may take into account how the landlord became the owner of the land and if it is by partition, the bonafide of the partition may be examined.
The view taken by the Bombay High Court in Arvindlal Bhukanda vs Khandu(1) that if a partition is made in an unusual manner it may ave a bearing on the question of bonafides commends to us with this specific reservation that the proceedings in that case arose under Sec.
32 and not under Sec.
33 B as in the present case.
Having said this, let it be remembered that the appellants tenants contested the proceedings initiated by the landlord for certificate of exemption under Sec. 88 C at all levels and on all available contentions the principal being the nature and character of the partition.
That having been concurrently negatived, we are not disposed to re open that question which even the High Court declined to examine.
Till the certificate of exemption under Sec.
88 C subsists, two inferences now therefrom, that the landlord is a petty or small land holder and his annual income from all sources including rent of land does not exceed Rs. 1, 500.
It is the bonafide requirement for personal cultivation of such landlord that the Court is called upon to examine.
After the remand, the Tehsildar on the question of bonafide requirement recorded a finding as under: 832 "In my opinion the deposition of the applicant in regard to his requirement and income is substantially correct and the opponents have not led sufficient and satisfactory evidence to displace the conclusions arising from the reading of his deposition as a whole . . . .
Having given anxious thoughts to the evidence on record, I am satisfied that the applicant requires the land bonafide for personal cultivation".
This finding was confirmed by the first appellate court which is the last fact finding court.
The Maharashtra Revenue Tribunal interfered with this finding and remanded the case to the Tehsildar on the ground that some important piece of evidence was overlooked.
This order of remand has been set aside by the High Court on an earlier occasion.
In this background, it would be too late in the day to re open this finding, at this stage on the short submission that the Court declined to examine the genuineness or validity or bonafides of the partition, and we are not disposed to re open this question more particularly for the reason that this very question in the earlier round of proceedings upto the High Court was concurrently held in favour of the landlord and by authorities in the present round of proceedings.
It was next contended that the High Court was in error in interfering with the order of remand made by the Maharashtra Revenue Tribunal.
The Tribunal set aside the concurrent findings on the question of bonafide requirement of the landlord by observing that the appellate court erroneously rejected a piece of evidence which the tenants sought to produce at the appellate stage.
The Tribunal observed that the delay in producing this evidence having been satisfactorily explained, the tenants ought to have been allowed to produce the evidence which has some bearing in the issues arising in the matter.
The piece of evidence sought to be produced at the appellate stage by the tenants was bearing on the question of bonafide of the partition.
It is the same contention differently clothed.
In this connection, the Tribunal observed that despite the proceedings under Sec. 88 C having finally concluded between the parties: "It was still open to the tenants to show that the manner in which the partition was effected and the time chosen therefore and particularly the fact that the entire tenanted land was allotted to the share of one copar 833 cener to the exclusion of others has an important bearing on the question of bonafides." This view was sought to be supported by relying upon Arvindlal Bhukhanda vs Khandu.
The High Court in a petition under article 227 while setting aside the order of remand observed that the delay in producing additional evidence was unexplained looking to the protracted proceedings commencing from 1962 and the bonafide of the partition was not questioned, except at the revisional stage.
Mr. Tarkunde, learned counsel for respondents took serious exception to the second observation and pointed out that it is contrary to record.
In this connection, he drew our attention to Point No. 5 framed by the Tehsildar while holding the enquiry after the remand which was as under: "5.
Whether the partition made by the landlord is valid.
And whether it can be challenged in these proceedings?" He recorded a finding that there was a partition in the landlord 's family in 1959 and the same cannot be challenged in the present proceedings, In the appeal by the tenants, the Appellate Court disposed of the contention on the bonafide of the partition by observing that he was in agreement with the reasoning of the Tehsildar.
The Maharashtra Revenue Tribunal in the revision petition by the tenants held that once a certificate is granted to a landlord under Sec. 88 C on the basis that he is the exclusive owner of the land it is not open to the tenant in an enquiry under Sec.
33 B to challenge the partition under it.
In support of this view, the Tribunal relied upon two un reported decisions of the Bombay High Court and finally observed that it is futile to challenge the validity of the partition.
It thus appears that High Court committed an error apparent on record while observing that the validity of partition was questioned for the first time at the revisional stage.
But having said this it must also be pointed out that the contention raised by the tenant about the bonafides of partition in the proceedings under Sec.
33 B has been rightly negatived on the short ground that the bona fides, genuineness and validity of the partition was directly and substantially in issue in the proceedings under Sec. 88 C and concurrently held in favour of the landlord upto the High Court and the same must be held to be concluded between the parties and on 834 this short ground, the decision of the High Court setting aside the order of remand can be confirmed.
In the view that we take in the circumstances herein discussed, the bonafides of the partition cannot be put in issue, the contention raised by Mr. Tarkunde becomes a non issue and it will also dispose of his supplementary contention that the Sub Divisional officer hearing the appeal was in error in declining to give an opportunity to the tenants to produce additional evidence which was primarily for the purpose of showing that the partition was neither genuine nor bonafide.
And in our opinion in the facts of this case it is no more relevant.
Incidentally it was urged that the landlord is staying at Poona and that he is florist and the land involved in dispute is at Village Manjari and therefore it is not possible to believe that the landlord would be able to personally cultivate the land or that he can undertake the avocation of cultivation of land by investing funds when the area available is less than an economic holding.
These are pure questions of facts concurrently held in favour of the landlord and we are not disposed to re examine them at this stage and at this distance of time.
One aspect which, frankly has dominated out thinking is the relative economic position of tenants and landlord in this case.
Anaji Ghule was a tenant of 4 acres out of 7 acres and 13 gunthas of land comprising in Survey No. 14/A/2.
Tilekar was a tenant of the remaining 3 acres and 13 gunthas.
Anaji Ghule died leaving behind him two sons and a widow, who are appellants No. 1 to 3.
Appellant " Krishnabai the widow holds excluding the leased land 16 acres and 17 gunthas of land; first son Shivaji 8 acres and 9 gunthas, and Bala the second son 8 acres and 10 gunthas of land.
Presumably all the three inherited the land from Shri Ghule and therefore the total holding would be 32 acres and 36 gunthas of land.
And it is interesting to note some features of the partition effected by tenants ' heirs amongst themselves.
The widow is allotted double the share of each son.
There is nothing to show that the mother and two sons have separated.
And their total holding is 32 acres and 36 gunthas.
As against the holding of first set of tenants of 32 acres and 36 gunthas, the landlord seeks possession of 4 acres of land.
In the case of Tilekar he holds 8 acres and 4 gunthas and the landlords 3 acres and 13 gundhas.
Would it be fair to deny this very reasonable request in 835 appeal under article 136 when all authorities including High Court have held in favour of this petty small landlord.
We decline to interfere.
Accordingly this appeal fails and is dismissed with no order as to costs.
H.L.C. Appeals dismissed.

dataset_name: IN-Abs

summary/full:
Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 provides that every tenant of agricultural land shall be deemed to have purchased from his landlord as on April 1, 1957 (Tiller 's Day) the land held by him as tenant free from all encumbrances.
However to protect petty or small landlords against statutory compulsory purchase, provision was made in Part lI A of Chapter lII read with section 88 C of the Act enabling them to obtain exemption certificate under section 88 C. While section 33 A designates such petty land lords as 'certificated landlords ' and tho tenants of such exempted lands as `excluded tenants ', section 33 B confers a special right on a certificated landlord to terminate the tenancy of the excluded tenant in respect of the exempted land and obtain possession of such land if he bona fide requires the same for cultivating it personally.
The land in question in this appeal had fallen to the share of the respondent in a family partition.
The bona fides of the partition was the main issue in the proceedings held under section 88 C for grant of an exemption certificate in favour of the respondent.
However, the order granting the certificate withstood all challenge from the tenants and became final.
In the subsequent proceedings instituted by the respondent under section 33 B for possession of the land the Tehsildar arrived at the finding that the respondent required the land bonafide for his personal cultivation and this finding was confirmed by the Sub Divisional officer in appeal and the tenants were directed to hand over possession of the land to the respondent.
The tenants filed revision applications before the Revenue Tribunal which allowed them on the ground that the Sub Divisional officer had wrongly declined to admit an important piece of evidence having a direct bearing on the question of bona fides of the partition.
The respondent moved the High Court under article 227 and the High Court set aside the Tribunal 's judgment holding that the bona fides of the partition which had already been agitated inter partes in proceedings under section 88 C could not be reconsidered in a subsequent proceedings under section 33 B and directed the Tribunal to decide the revision in accordance with law.
The Tribunal, taking note of the fact that the respondent had sold a piece of land 1 112 years before filing the present application for possession and also that he owned house property in Poona City, came to the conclusion that the respondent did not bona fide require the land in question for personal cultivation and 823 dismissed the application for possession of land.
The respondent once again moved the High Court under article 227.
The High Court restored the decision of the Sub Divisional officer, holding that the Tribunal was in error in holding that in order to obtain possession of land from an excluded tenant under section 33 B, it was obligatory upon a certificated landlord to prove the compelling necessity to cultivate the land, and that the sale of land by the respondent prior to the commencement of the present proceedings which was for a small price did not have an adverse impact on his bona fides.
Counsel for appellant tenants submitted that even assuming that the High Court was right in holding that the bona fides of the partition could not be the subject matter of a collateral attack in the present proceedings as the same had been considered and decided in proceedings held under section 88 C, still the question could be gone into to ascertain the bona fides of the landlord when he moved an application under section 33 B seeking eviction for personal cultivation.
Dismissing the appeal, ^ HELD: It is true that a certificated landlord is not entitled to recover possession from the excluded tenant merely for asking.
He can only obtain the direction for possession if he bona fide requires the exempted land for cultivating it personally.
When it is said that the landlord bonafide requires possession of the land, it would be necessary for him to prove that he is acting honestly and that the application for possession is not a device to dispossess the tenant and that he requires, in the sense needs possession of, the land for personal cultivation.
In other words, personal cultivation is necessary to obtain the yield of the land for himself.
Some element of requirement could inhere the requirement for maintenance by undertaking the avocation of personal cultivation.
lt is not that the landlord even if he has sufficient source of maintenance, can seek possession merely because he wants to pursue the avocation of cultivating the land personally but this aspect hardly ever arises in an application under section 33 B because such an application can only be made by a certificated landlord and none else and the certificated landlord is one whose holding does not exceed an economic holding.
As long as the certificate of exemption under section 88 C subsists, two inferences flow therefrom: that the landlord is a petty or small land holder and that his annual income from all sources including rent of land does not exceed Rs. 1,500.
lt is the bonafide requirement of such a small and petty landlord for personal cultivation that has to be examined under section 33 B.
It may be that while examining the bona fides of the requirement of the certificated landlord, the court may take into account how the landlord became the owner of the land and, if it is by partition, the bona fides of the partition may be examined.
[830 G H; 831 A D] Arvind Lal Bhukanda vs Khandu, 63 B.L.R. 929 approved and distinguished.
In the instant case, the appellant tenants contested the proceedings initiated by the landlord for certificate of exemption under section 88 C at all levels and on all available contentions, the principal one being the nature and 824 character of the partition.
That contention having been concurrently negatived cannot be re opened.
The Tehsildar arrived at the finding that the respondent required the land bonafide for his personal cultivation and it was confirmed by the first appellate court which was the last fact finding court.
The Tribunal interfered with this finding on the ground that some important piece of evidence had been over looked.
The finding cannot be reopened this state on the short submission that the Court declined to examine the genuineness or validity or bona fides of the partition particularly when this very question was considered in an earlier round of proceedings and decided in favour of the landlord.
[832 E F; 833 E H]


judgement:
ition Nos.
8816 and 8817 of 1982.
G (Under Article 32 of the Constitution of India) Hardev Singh and Bishambhar Lal Khanna for the Petitioner.
K.G. Bhagat Addl.
Sol Gen., R.N. Poddar and Mrs. section Dikshit for Respondents 3 and 4. 842 The order of the Court was delivered by CHANDRACHUD, C.J. BY these writ petitions, the petitioners, some of whom are practising lawyers and some Members of the Parliament, ask for an appropriate writ directing the State of Haryana and the State of Uttar Pradesh to remove all obstructions on the highways and to allow unhindered and unintercepted the use of highways railways and airways without making any discrimination against the Akali Sikhs on the ground of religion.
Stated briefly, the case of the petitioners is that in the recent past, a movement was set afoot in the State of Punjab consequent upon certain demands made by the members of the Akali Party and as a result of that movement, large scale arrests of Sikhs were effected, bordering on harassment and persecution.
It would appear that a declaration was made by certain Akali leaders that a Morcha would be taken to Delhi on November 19, 1982 which coincides with the inauguration of the Asiad games.
Apprehending that the Morcha will interfere with the holding of the games, the border States, particularly Haryana and Uttar Pradesh, appear to have taken certain measures to intercept the movement of Akalis across the border on to Delhi with a view to ensuring that the proposed Morcha is not staged in the manner feared and the Asiad not disrupted.
Mr. Hardev Singh who appears on behalf of the petitioners argues that highways are dedicated to the public and are meant for their use for passing and repassing.
Therefore, he argues, no obstruction can be placed thereon which will impede the free flow of traffic, any such obstruction being per se unlawful.
Having given our anxious consideration to the submissions made by Mr. Hardev .
Singh, we agree that no one is entitled to barricade a highway so as to prevent members of the public from using it while they are on their lawful business in the pursuit of normal avocations of life.
But the police, whose duty it is to enforce law and order in the wake of threatened mass agitations which are reasonably likely to lead to breach of public peace, are entitled in the discharge of that duty to impose reasonable restraints on the physical movement of members of the public in order to the protection of public property and the avoidance of needless inconvenience to other citizens in their lawful pursuits.
But all such restraints on personal liberty, if at all, have to be commensurate with the object which furnishes their justification.
They must be minimal and cannot exceed the Constraints of the particular situation, either in nature or in duration.
Above all they cannot be used as engines of oppression, 843 persecution, harassment or the like.
The sanctity of person and of privacy has to be maintained at all costs and that cannot ever be violated under the guise of maintenance of law and order.
We feel uneasy and concerned to hear that policemen of certain States have violated the norms of decency in their dealing with the situation arising out of the Akali Asiad tangle.
We assume for lack of better evidence that the grievance made by the petitioners before us is more the offspring of a natural feeling of resentment at being stopped and searched than of any substantial invasion of their personal freedom.
If and when there is proof of latter, Courts may have to step in and stop the excesses.
But the rule of law a requires that no person shall be subjected to harsh, uncivilised or discriminatory treatment even when the objective is the securing of the paramount exigencies of law and order.
Therefore, no Sikh can be allowed to be so treated if our Constitution has to have any meaning and effect.
We believe it not to be true that any Chief Minister has made a public declaration that police officers who will treat the Akali Sikhs harshly will be dealt with lightly.
It is incredible that any highly placed person in his senses can possibly make such a Statement, with the kind of pressure of public opinion and the press which, fortunately, we have in our country to day.
E There does not appear to be any executive order in existence, in writing at any rate, authorising the police to barricade any highway or to subject every Sikh in motion to physical restraint.
But in an appropriate case, a presumption may well be drawn as to the existence of such an order if it is found that the police are generally p acting systematically according to a set and uniform pattern or are otherwise engaged in a large scale operation of any similar or mister kind.
For want of acceptable evidence, we hesitate to draw that presumption in this case and will leave the matter where it lies for the time being.
Redress may, if so advised, be sought in individual cases by those aggrieved by the alleged acts Of excesses.
This order will dispose of these writ petitions.

summary/full:
In the wake of a threatened Morcha by Akalis which was to coincide with the inauguration of the Asian Games at Delhi, some States apprehended that the Morcha might interfere with the holding of the games and took measures to intercept The movement of Akalis to Delhi.
On the question raised by the petitioners that placing of obstructions on highways so as to impede free flow of traffic was per se unlawful, ^ HELD: No one is entitled to barricade a highway so as to prevent members of the public from using it while they are OD their lawful business in the pursuit of normal avocations of life.
But the police, whose duty it is to enforce law and order in the wake of threatened mass agitations which are reasonably likely to lead to breach of public peace, are entitled in the discharge of that duty to impose reasonable restraints on the physical movement of members of the public to protect public property and to avoid needless inconvenience to other citizens in their lawful pursuits.
But all such restraints on personal liberty, if at all, have to be commensurate with the object which furnishes their justification.
They must be minimal and cannot exceed constraints of the particular situation, either in nature or in duration.
above all, they cannot he used as engines of oppression, persecution, harassment or the like.
The sanctity of person and of privacy has to be maintained at all costs and that cannot ever be violated under the guise of maintenance of law and 1 order.
The rule of law requires that no person shall be subjected to harsh, uncivilized or discriminatory treatment even when the objective is the securing of the paramount exigencies of law and order.
[842 F H; 843 A G]


judgement:
Civil Appeal No. 2546 2547 of 1983.
731 From the judgment and order dated the 13th February, 1981 of the Andhra Pradesh High Court in Writ Petitions Nos.
5458 and 5459 of 1980.
WITH Writ Petition Nos.
6051 64, 8226 28, 8284 97, 8321 37, 3952, 7569, 7572, 7574 and 7577 of 1983.
(Under Article 32 of the Constitution of India) T. V. section N. Chari for the Appellant.
D. R. Gupta, B. R. Kapoor, section R. Srivastava and N. N. Sharma for the Petitioners.
K G. Bhagat, Additional Solicitor General, Shanti Bhushan, P. R. Mridul, Dr. Y. section Chitale, K N. Bhatt, P. K Pillai, R. N. Poddar, R. B. Datar, A. Subba Rao, N. Nettar, V. G. Mehta and Mrs. H. Wahi, for the appearing Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The Andhra Pradesh High Court has declared sec.
129 A of the unconstitutional and void as offending article 19 (1) (g) of the Constitution of India.
We may straight away say that the judgment of the High Court suffers from serious infirmities, not the least of which is the total failure to notice and consider the applicability of the provisions of the Code of Criminal Procedure to the situation.
On an oral application by the Advocate General, the High Court granted leave to appeal to the Supreme Court.
Presumably, by 'leave ' the High Court meant a certificate as provided under the Constitution.
The order of the High Court regarding the grant of 'leave ' to appeal to this Court is in the following terms: "An oral application for leave to appeal to the Supreme Court has been made by the Learned Advocate General.
The question whether 129 A of the is ultra vires the Constitution on the ground that it infringes article 19 (1) (g) of the Constitution relates to the interpretation of the Constitution and is also a substantial question of law of general importance, which requires to be decided by the Supreme Court.
Therefore, we grant leave to appeal to the Supreme Court".
732 The order of the High Court states, (i) that the question relates to the interpretation of the Constitution; and (ii) the question is also a substantial question of law of general importance which requires to be decided by the Supreme Court.
The order of the High Court while saying that the question relates to the interpretation of the Constitution refrained from certifying that the case involved a substantial question of law as to the interpretation of the Constitution.
We cannot therefore, treat the certificate as one under article 132 of the Constitution.
On the other hand the High Court has certified that the case involves a substantial question of law of general importance and it requires to be decided by the Supreme Court, employing the precise language used in clauses (a) and (b) respectively of article 133 (1) of the Constitution.
The certificate, therefore, was clearly one under article 133 of the Constitution.
We are mentioning these circumstances because at the very commencement, our attention was invited to article 145 (3) of the Constitution which provides that the minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing any reference under article 143 shall be five.
The High Court had not certified that the cases involved a substantial question of law as to the interpretation of the Constitution and we are also satisfied that the cases do not involve a substantial question of law as to the interpretation of the Constitution.
We proceeded to hear the appeals and writ petitions after the position was clarified when the cases were opened by the learned counsel.
Section 129 A of the may be extracted here.
It is as follows: "129 A Power to detain vehicles used without certificate of registration or permit.
Any police officer authorized in this behalf or other person authorized in this behalf by the State Government may, if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of Sec. 22 or without the permit required by sub section (1) of Sec.
42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe 733 custody of the vehicle.
Provided that where any such officer or person has reason to believe that a motor vehicle has been or is being used without the permit required by subsection (1) of Section.
42, he may, instead of seizing the vehicle, seize the certificate of registration of the vehicle and shall issue an acknowledgement in respect thereof.
Provided further that where a motor vehicle has been seized and detained under this section for contravention of the provisions of Section 22, such vehicle shall not be released to the owner unless and until he produces a valid certificate of registration under this Act in respect of that vehicle.
" It is seen that Section 129 A contemplates three situations where the police officer or authorized person may seize and detain the vehicle.
The three situations are, (i) where he has reason to believe that the motor vehicle has been or is being used in contravention of the provisions of Sec. 22, (ii) where he has reason to believe that the motor vehicle has been or is being used without the permit required by sec.
42 (1), and (iii) where he has reason to believe that the motor vehicle has been or is being used in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used.
These are precisely the three situations contemplated by Sec. 123 (1) of the and made punishable under that provision.
Section 123 (1), which may also be extracted, is as follows: "S 123.
Using vehicle without registration or permit.
(1) Whoever drives a motor vehicle or causes or allows a motor vehicle to be used in contravention of the provisions of Section 22 or without the permit required by sub section (1) of Section 42 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used or to the maximum number of passengers and maximum weight of luggage that may be carried on the vehicle shall be punishable for a first offence with fine which may extent to two thousand rupees and for any second or subsequent offence with imprisonment.
It is, therefore, clear that the power given to seize and detain the vehicle under sec.
129 (A) is to be exercised by the police officer or 734 the authorised person when he has reason to believe that an offence punishable under sec.
123 (1) has been or is being committed.
Now, after detecting the commission of an offence punishable under sec.
123 (1) of the , the next appropriate step for the police officer or the authorised person would be to consider the question whether the offence should be compounded as provided by Section 127 (B) of the and any notification issued by the Government in that behalf.
Section 127 B may also be extracted here and it is as follows . "127 B (1) Any offence (whether committed before or after the commencement of section 26 of the Motor vehicles (Amendment Act, 1982) punishable under section 112, section 113, section 113A, section 113B, section 114, sub section (1) and (2) or section 115, section 116, section 118, section 120 section 122, Section 123, section 124, section 125 or section 127 may, either before or after the institution of the prosecution, be compounded by such officers or authorities and for such amount as the State.
Government may, by notification in the official Gazette, specify in this behalf.
(2) Where an offence has been compounded under sub section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence.
" Thereafter the next logical and appropriate step for the police officer or the authorised person would be to lay a complaint before the Court competent to take congnizance of the offence, subject to the over riding provision of Section 132 of the which provides that no Court inferior to that of a Metropolitan Magistrate or a Magistrate of the second class shall try any offence punishable under the or any rule made thereunder.
Section 4 (2) of the Code of Criminal Procedure provides that all offences under any law other than the Penal Code shall also be investigated, inquired into, tried, and otherwise dealt with according to the same provisions that is, the provisions of the Criminal Procedure Code, subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Chapter XIII of the Code of Criminal Procedure deals with "Jurisdiction of the Criminal Courts in inquiries and trials".
So, subject to section 132 of the , 735 the Court before which the complaint may be laid has to be determined in accordance with the provisions of chapter XIII of the Code of Criminal Procedure.
After the complaint is laid the case has to be tried in accordance with the provisions of the Code of Criminal Procedure.
This again is subject to one special provision of the , namely Section is in the following terms: "The court taking cognizance of an offence under this Act, (i) may, if the offence is an offence punishable with imprisonment under this Act and (ii) shall, in any other case, state upon the summons to be served on the accused person that he (a) may appear by pleader and not in person, or (b) may by a specified date prior to the hearing of the charge plead guilty to the charge by registered letter and remit to the court such sum (not exceeding the maximum fine that may be imposed for the offence) as the court may specify: Provided that nothing in this sub section shall apply to any offence specified in Part A of the Fifth Schedule.
Where the offence dealt with in accordance with sub section (1) is an offence specified in Part of the Fifth Schedule, the accused person shall, if he pleads guilty to the charge, forward his licence to the Court with the letter containing his plea in order that the conviction may be endorsed on the licence.
Where an accused person pleads guilty and remits 1 the sum specified and has complied with the provisions of sub section (2), no further proceedings in respect of the offence shall be taken against him, nor shall he be liable to be disqualified for holding or obtaining a licence by reason of his having pleaded guilty.
" That is how the offender is dealt with.
But, what happens to the vehicle seized under the provisions of section 129 A ? To begin with, we notice that a pre condition to the seizure and detention of the vehicle is that the police officer or authorised person must have reason to believe that one or the other of the offences specified, punishable as we have seen under section 123, 736 has been or is being committed.
Whenever property involved in the commission of an offence is seized, the seizure is generally expected to serve a manifold purpose such as to prevent repetition of the offence, to use the thing seized as material evidence in the prosecution, to preserve the property so as to enable the court to pass appropriate orders for its disposal by way of destruction, confiscation, or delivery to any person claiming to be entitled to possession thereof or otherwise.
There ii no reason to assume that the seizure under section 129 A is any different and is not to serve any of these purposes or any purpose at all.
We then notice that the police officer or the authorised person may "Seize and detain the vehicle , and for this purpose take or cause to be taken any steps he may consider proper for the temporary safe custody of the vehicle".
Clearly, therefore, the detention by the authorised officer or person is to be temporary.
For how long then ? obviously until appropriate orders regarding its disposal are made.
Quite obviously the vehicle may be released if the owner of the vehicle satisfies the authorised officer or person, that no offence such as that mentioned in section 129 A had been or was being committed.
This is subject to tho second proviso to section 129 A which bars the release of a vehicle seized for a contravention of the provisions of section 22 unless the owner of the vehicle produces a valid certificate of registration under the Act in respect of the vehicle.
Conversely, in the contest, it implies 15 that a vehicle seized for a contravention of section 22 is to be released if the certificate of registration is produced.
Again, since the detention is for 'temporary safe custody, until appropriate orders are made, the police officer or authorised person seizing the vehicle may arrange for the 'temporary safe custody ' of the vehicle with the owner of the vehicle by releasing the vehicle to him subject to suitable security J and so undertaking to produce the vehicle when called upon to do so.
We have indicated that the next step in the process of dealing with tho offender is to consider whether the offence may not be compounded.
If the offence is compounded, the vehicle has naturally to be returned to the owner.
If it is not compounded, a complaint has to be laid before the Court empowered to take cognizance of the case and the case proceeded with.
As soon as the complaint is laid, the Court acquires jurisdiction to pass appropriate orders regarding 'the custody ' and the 'the disposal ' of the vehicle.
We have already noticed how Section 4 (2) of the Code of the Criminal Procedure stipulates that offences under laws other than the Penal Code also are to be investigated, inquired into, tried and otherwise dealt with in accordance with the provisions of the Code of Criminal Procedure 737 The provisions of Chapter XXXIV of the Code relating to 'Disposal of Property ' are also therefore attracted in dealing with offences under the .
Section 452 of the Code enables the Court, at the conclusion of an inquiry or trial to "make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence".
The Court thus has the power at the conclusion of the case to make appropriate orders regarding the disposal of the motor vehicle regarding which an offence appears to have been committed.
So far as the custody of the vehicle pending the conclusion of the case is concerned, the Court may either treat the arrangement made by the officer or person acting under section 129 A as sufficient or may itself make further or other orders.
Section 451 of the Code of Criminal Procedure empowers the Court, when any property is produced before it during any inquiry or trial, to make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial.
We think that a motor vehicle regarding whose temporary custody arrangements have been made under sec.
129 A of the by the police officer or the authorised person seizing the vehicle must be considered to have been produced before the Criminal Court as soon as a complaint is filed before the Court alleging the commission of an offence under sec.
123 regarding the vehicle.
In any case, the Court has ample power under Chapter VII of the Code, Section 91 in particular, to compel the production of the vehicle before the Court.
Thus if the provisions of the are read in conjunction with the provisions of the Code of Criminal Procedure and there is no getting away from the provisions of both the laws it is seen that there is no lacuna whatsoever in regard to the proper custody and disposal of the motor vehicle seized under sec.
129 A of the .
The custody of the vehicle in the hands the police officer or the authorised person is but temporary and he is therefore, obliged to act and take all further steps in the matter with all expedition.
If he releases the vehicle on being satisfied that no offence has been committed or if he releases the vehicle on the offence being compounded, no further question arises.
If, instead, he lays a complaint before the Court, the court acquires instant jurisdiction over the vehicle to pass suitable orders.
In the remote event of the police officer or the authorised person not taking any further action after 738 seizing and detaining the vehicle, the owner of the vehicle is not without remedy.
article 226 is always available but one does not have to presume that the police officer or the authorised person may not act according to law.
The Andhra Pradesh High Court appeared to think that sec.
129 A of the was an unreasonable restriction on the fundamental right guaranteed by article 19 (1) (g) of the Constitution because (i) there was no provision in the Act providing for confiscation of the vehicle, (ii) there was no provision in the Act indicating what should be done after seizing and detaining the vehicle, (iii) the seizure by the police officer or the authorised person was based on his subjective satisfaction, (iv) there was no discernible purpose behind the seizure, (v) there was no obligation on the seizing authority to produce the vehicle in court, (vi) Nor was there any purpose to be served by producing the vehicle before the court as the court did not possess the power to confiscate the vehicle or to pass any orders regarding its temporary custody,(vii) no appeal was provided against the seizure, and (viii) no maximum period was prescribed for the detention of the vehicle.
None of these reasons bears any scrutiny, if properly examined in the light of the provisions of both the and the Code of Criminal Procedure, as we are bound to.
Indeed, whenever an offence under a law other than the Penal Code is committed and that law does not itself regulate the procedure to be followed, there is no option but to look to the provisions of the Criminal Procedure Code for further action and to weave into a single texture the provisions of the code and the special law.
The High Court has totally ignored the provisions of the Criminal Procedure Code and the judgment stands vitiated on that account.
It has therefore, to be set aside.
We have explained the context of Sec.
129 A in the scheme emerging from the inter lacing of the provisions of the and the Criminal Procedure Code.
We do not have the slightest hesitation in rejecting the contention that there is any infringement of the fundamental right guaranteed by article 19 (1) (g) of the Constitution and in upholding the vires of Sec.
129 A of the .
One of the Learned Counsel submitted that when a tourist motor vehicle was seized under Sec.
129 A, there should be some safeguard in regard to the several removable items which are usually 739 found in tourist vehicles such as spare tyres, spare parts, radio, video etc.
It was suggested that in the absence of a provision similar to that found in the Criminal Procedure Code, Sec. 129 A Should be held to be unreasonable.
There is no substance in this contention.
100 of the Criminal Procedure Code to which reference was made by the Counsel deals with searches and not seizures.
In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of Sub Sections (4) and (5) of Sec.
100 of the Criminal Procedure Code.
In the case of a seizure under the , there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.
But it is in the interests of the very officer or person seizing the vehicle, so that they may not be open to any charge being laid against them later, that such officer or person takes care to prepare a list of detachable things which are ordinarily not part of the vehicle and give a copy of the list to the person in charge of the vehicle at the time of the seizure.
In view of the discussion, the appeals are allowed with cost and the writ petitions filed in High Court are dismissed.
Some of the operators have directly approached this Court under article 32 of the Constitution.
Their writ petitions have been heard along with the civil appeals and for the same reasons they are dismissed with costs.
H.L.C. Appeals allowed.

summary/full:
Section 129 A of the authorises the seizure and detention of a motor vehicle by a police officer or any other person authorised by the State Government in that behalf if such officer or person has reason to believe that the vehicle has been or is being used without a certificate of registration as required under section 22 or without a permit as required under sub section
(1) of section 42 or in contravention of any condition of such permit.
The appeals in this group of matters were directed against a judgment of the Andhra Pradesh High Court striking down section 129 A as an unreasonable restriction on the fundamental right guaranteed by article 19(1) (g) of the Constitution for the reason that there was no discernible purpose behind the seizure authorised by the section, that the seizure was based on the subjective satisfaction of the police officer or the person authorised, that there was neither any obligation on him to produce the vehicle in the court nor was any power conferred on the court either to confiscate the vehicle or to pass any orders regarding its temporary custody, that there was no provision in the Act indicating as to what should be done after seizing and detaining the vehicle and that there was also no provision prescribing any maximum period for the detention of the vehicle or providing for an appeal against seizure.
Upholding the validity of section 129 A and allowing the appeals, ^ HELD: There is no lacuna in regard to the proper custody and disposal of the motor vehicle seized under section 129 A of the .
The provisions of the Act have to be read in conjunction with the provisions of the Code of Criminal Procedure.
[739 A B] (i) Section 129 A contemplates three situations where the police officer or the person authorised may seize and detain the vehicle and these are precisely the three situations made punishable under section 123(1).
The power given to seize and detain the vehicle under section 129 A has to be exercised by the police officer or the person authorised when he has reason to believe that an offence punishable under section 123(1) has been or is being committed.
After detecting the commission of an offence punishable under section 123(1) the next step for him would be to consider whether the offence should be compounded as provided 730 under section 127 B and thereafter to lay a complaint before the Court competent to take cognizance of the offence.
Section 4(2) of the Code of Criminal Procedure provides that all offences under any law other than the Penal Code shall also be investigated, inquired into, tried and otherwise dealt with in accordance with the provisions of the Code subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
Chapter XIII of the Code deals with "Jurisdiction of the Criminal Courts in inquiries and trials".
So, subject to section 132 of the Act, the Court before which the complaint may be laid has to be determined in accordance with Chapter XIII of the Code and after the complaint is laid before the appropriate court it has to be tried in accordance with the provisions of the Code subject to section 130 of the Act.
This is how the offender has to be dealt with.
[733 D; H; 734 A B; G H; 735 A B] (ii) A pre condition to the seizure of a vehicle under section 129 A is that the police officer or the person authorised must have reason to believe that one or the other of the offences specified in section 123 has been or is being committed.
The seizure is expected to serve a manifold purpose such as to prevent repetition of the offence, to use the thing seized as material evidence in the prosecution and so on.
Section 129 A itself provides that the detention of the vehicle by the authorised officer or person is to be temporary, and obviously, until appropriate orders regarding its disposal are made.
The vehicle may be released if the owner satisfies the authorised officer or person that no offence such as that mentioned in section 129 A had been or was being committed.
Again, since the detention is for temporary safe custody, the vehicle may be released to the owner subject to suitable security and an undertaking to produce it when called upon to do so.
If the offence is compounded under section 127 B, the vehicle has naturally to be returned to the owner.
If a complaint is laid before the appropriate court, the court acquires jurisdiction to pass appropriate orders regarding the custody and the disposal of the vehicle under Chapter XXXIV and sections 451 and 452 of the Code of Criminal Procedure.
[735 H; 736 C H; 737 A] 2.
The contention that section 129 A should be held unreasonable as it does not provide any safeguard in regard to the several removable items which are usually found in tourist vehicles such as spare tyres, spare parts, radio, video, etc., has no substance.
Section 100 of the Code of Criminal Procedure which was referred to in this context deals with searches and not seizures.
In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub sections
(4) and (5) of section 100, Cr.
In the case of a seizure under the , there is no provision for preparing a list of the things seized in the course of seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.
But it is in the interests of the very officer or person seizing the vehicle to prepare a list of detachable things which are ordinarily not part of the vehicle and give a copy of the list to the person in charge of the vehicle at the time of the seizure.
[739 A D]