judgement:
ivil Appeal No. 2992 of 1986.
From the Judgement and Order dated 22.7.1986 of the Madras High Court in W.P No 815 of 1985.
T.S. Krishnamurthy Iyer, Miss Purnima Bhat, Atul Sharma, A.V. Pillai and E.C. Agrawala for the Appellant.
P. Chidambaram, R. Ayyam Perumal, K.C. Dua, V. Krishnamurthy and R. Mohan for the Respondents.
The Judgement of the Court was delivered by S.C. AGRAWAL, J.
This appeal and the connected petitions for special leave to appeal are directed against the common judgment of the Division Bench of the Madras High Court dated July 22; 1986 whereby the judgement of the learned Single Judge has been set aside and the writ petitions filed by the appellant as well as the petitioners in the special leave petitions (referred to as 'the petitioners ' for the sake of convenience) have been dismissed.
The petitioners joined the Indian Army as Emergency Commissioned Officers (ECOs) in 1963 after the Chinese aggression.
They were discharged from the Army during the years 1967 to 1970.
After their discharge from the Army, they joined the Commercial Tax Service of the State of Tamil Nadu on being selected by the Tamil Nadu Public Service Commission through a competitive examination.
For rehabilitation of ECOs/Short Service Regular Commissioned Officers (SSRCOs) on their release from the Armed Forces, the Government of Tamil Nadu had by G.O. ms. No. 84 dated January 1, 1967, reserved 25% of the vacancies to be filled by direct recruitment during the four years 1967 1970 in respect of certain categories of posts in the State services.
By Order, G.O. Ms. No. 686 dated March 24, 1970, the Government of Tamil Nadu, in modification of the said order reserved 25% of the vacancies in non technical posts under various groups (both Gazetted and non Gazetted) to be filled by direct recruitment during five years commencing from 1969 for rehabilitation of ECOs/SSRCOs on their release from the Armed Forces.
The said order made provision for relaxation of age in case of such officers for 849 the purpose of recruitment to be reserved vacancies.
As regards seniority provision was made in paragraph 8 of the said order which prescribed as under: Inter se seniority among the candidates selected for the reserved vacancies will be determined by the Commission.
So far as the seniority in the department is concerned, the officers will take their seniority with reference to the order of preference indicated by the Commission and not with reference to the service with the "Armed Forces".
It appears that in respect of doctors who had joined the defence forces in connection with the emergency declared in 1962 and who were subsequently appointed in the cadre of Assistant Surgeons in the State of Tamil Nadu, the Government had issued an Order G.O. Ms. No. 2020 dated September 23, 1965, whereby seniority of such an incumbent was to be fixed by allotting them the year in which he would have been appointed to the post at his first possible attempt after the date of joining military service/training.
The Tamil Nadu Public Service Commission, in their letter dated February 6, 1973 addressed to the Chief Secretary to the Government of Tamil Nadu, made a reference to G.O. Ms No. 2020 Health dated September 23, 1965 with regard to fixation of seniority of candidates appointed to the post of Assistant Surgeon against vacancies reserved for ECOs/SSRCOs and expressed the view that allowing one of released persons like Doctors to enjoy the concession of their seniority being reckoned with reference to their date of appointment in the Army and at the same time denying such a concession to ECOs/SSRCOs selected to a non technical post will not be fair and such differential treatment will not also be in the interests of rehabilitating released Army personnel.
The Public Service Commission, therefore, commended that the principle followed in the matter of determining seniority in respect of released Army Doctor with reference to the date of their joining duty in the Armed Forces be extended to all services as recruitment to all the sevices are made on the basis of the competitive examinations comprising either of a written test or an oral test or a combination of both.
In the said letter, it was requested that orders in paragraph 8 of G.O.Ms. 686 may be suitably modified.
Keeping in view the aforesaid view expressed by the State Public Service Commission, the Government of Tamil Nadu passed an order G.O.Ms No. 25 dated November 16, 1976 whereby, in supersession of the earlier procedure prescribed for determining the seniority of the ECOs/SRRCOs recruited for non technical posts (both Gazetted and non Gazetted) against reserved 850 vacancies in G.O.Ms No. 686 dated March 24, 1970, the following procedure was prescribed: "(i) the seniority of the Emergency Commissioned/Short Service Regular Commissioned Officers recruited to the State Civil Services (both Ghazetted and Non Gazetted) between 24.3.1970 to 4.10.73 against reserved vacancies shall be fixed treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military service/training." After the issuance of the aforesaid order dated November 16, 1976, it was represented to the State Government that the concession granted to the ECOs/SSRCOs recruited to the Civil Services of the State instead of confirming it only to those recruited between 1970 and 1973.
The State Government decided to accede to that request and issued a fresh G.O.ms No. 734 dated June 15, 1977 whereby the orders in para 1(i) of the Order dated November 16, 1976 were thus modified: "1.
(i) The seniority of Emergency Commissioned Officers/Short Service Regular Commissioned Officers recruited to the non technical posts against reserved vacancies shall be fixed treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty.
In the case of candidates who joined Military service on or before 30th June of a year, the year of allotment would be the same; while in the case of those who joined the Military services on or after Ist July of a year, the year of allotment would be the next year.
" By the said order, it was also directed that the appointing authority should take steps to refix the seniority of the ECOs/SSRCOs recruited to the Civil Services with reference to instructions after issuing notices to all affected parties.
In accordance with the aforesaid directions, notices were issued to the other officers whose seniority was likely to be disturbed in view of the concession extended to ECOs/SRRCOs under Order dated June 15, 1977.
After taking into consideration the representations received in pursuance of the said notice 851 the State Government issued an Order G.O.Ms.
No. 233 dated March 3, 1980 whereby the orders dated November 16, 1976 and June 15, 1977 were cancelled.
In the said order, it was stated that: "The Government have carefully examined the above representations with reference to the legal position.
They consider that the vested seniority rights already accused to individuals by virtue of the rules in force cannot be divested by issuing fresh rules and giving retrospective effect to them.
The Government have therefore decided not to implement those orders by amending the special Rules governing these non technical posts.
" The petitioners as well as some other ECOs/SSRCOs filed writ petitions in the Madras High Court challenging the validity of the said order dated March 3, 1980.
The writ petitions were heard by a learned Single Judge of the High Court who allowed the same by his judgement dated December 4, 1984.
The learned Single Judge was of the view that under orders dated November 16, 1976 and June 15, 1977, which were passed on the recommendations of the Tamil Nadu public Service Commission, the petitioners had acquired certain rights in the matter of seniority and promotion and since the impugned Government order takes away the said rights of the petitioners, the petitioners should have been afforded an opportunity of a hearing before passing the impugned order which had not been done in this case.
Appeals were filed by the State Government as well as by private respondents against the said decision of the learned Single Judge.
The said appeals were decided by a Division Bench of the High Court by its judgment dated July 22, 1976, whereby it was held that the provision with regard to fixation of seniority in the cadre of Commercial Tax Officer (CTOs) in which the petitioners were appointed in governed by Rule 35 of the General Rules which are contained in Part II of the Tamil Nadu State and Subordinate Service Rules made under proviso to Article 309 of the Constitution and under the said rule, seniority is to be fixed on the basis of date of appointment to the service.
the learned Judges found that the said Rules had not been amended and in the absence of an amendment in rule 35, the orders with regard to fixation of seniority of ECOs/SSRCOs contained in Orders dated November 16, 1976 and June 15, 1977 were invalid and no rights could accure to the petitioners on the basis of the said orders which may require affording an opportunity to them.
With regard to Doctors and Engineers, the learned Judges have pointed out that suitable amendments had been made in the relevant statutory rules relating to both 852 the services.
The learned Judges, therefore, while setting aside the order of the learned Single Judge, dismissed the Writ Petitions of the petitioners but observed that the judgment would not prevent the State Government from amending the Rules made under Article 309 of the Constitution and if and when rules are made and if any persons are affected, they are entitled to challenge the said Rules.
Feeling aggrieved by the said decision of the division Bench of the High Court, the petitioners have approached this Court.
The first contention that has been urged by the learned counsel for the petitioners is that the concessions contained in the orders dated November 16, 1976 and June 15, 1977 were not invalid inasmuch as it was permissible for the State Government to issue administrative instructions with regard to determination of the seniority of the ECOs/SSRCOs and by the said orders which were issued on the recommendations of the State Public Service Commission the lacuna which was found in the existing rules was sought to be removed and that it w as permissible for the State Government to issue administrative instructions to remove such a lacuna.
In support of the said submission, reliance has been placed on the decisions of this Court in Sant Ram Sharma vs State of Rajasthan & Anr., ; ; Union of India vs H.R. Patankar 7 Ors., [[1985] 1 SCR 400 and State of Gujarat vs Akhilesh C. Bhargav & Ors. ; In the above mentioned decisions, it has been laid down that although the Government cannot amend the statutory rules by administrative instructions, but if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
in the instant case, it cannot be said that on the date of issue of orders dated November 16, 1976 and June 15, 1977, the rules were silent on the matter of fixation of seniority of persons recruited to the Tamil Nadu Commercial Tax Service.
Appointment to the said service was governed by General Rules contained in Part Ii of the Tamil Nadu State and Subordinate Rules.
Clauses (a) and (aa) of rule 35 of the said General Rules provide as under "(a) The seniority of a person in a service, class or category or grade shall unless he has been reduced to lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority, as the case may be, subject to the rule of reservation 853 where it applies.
The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.
(aa) The seniority of a person in a service, class or category or grade shall, where the normal method or recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the service, class, category or grade".
This shows that thee was an express provision in the statutory rules providing that seniority shall be fixed on the basis of the date of appointment.
By orders dated November 16, 1976 and June 15, 1977, the said principle for fixation of seniority contained in rule 35 was sought to be altered in respect of ECOs/SSRCOs and the seniority was sought to be fixed on the basis of a different criterion, namely, by treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty.
This was inconsistent with the principle for fixing the seniority contained in rule 35 of the General Rules and this could onlybe done by suitably amending the said rules and it could not be done by issuing administrative instructions.
The High Court has, in our opinion, rightly held that the directions contained in orders dated November 16, 1976 and June 15,1977 were invalid being contrary to the provisions contained in rule 35 of the General Rules.
Since the said orders were invalid, the petioners could not claim any right on the basis of the said orders and there was, therefore, no question of affording them an opportunity of a hearing before passing the order dated March 3, 1980.
In so far as appointments to medical and engineering services are concerned, the High Court has pointed out that suitable amendments were made in the relevant Services Rules relating to those services whereby the benefit of the Army Service was given in the matter of fixation of seniority of ECOs/SSRCOs.
who had joined the medical and engineering services.
No similar amendment has been made in the rules governing the non technical services, e.g., Commercial Tax Service to which the petitioners were appointed.
The learned counsel for the petitioners have next contended that the petitioners have been subjected to arbitrary discrimination i n the matter of fixation of their seniority inasmuch as ECOs/SSRCOs who have joined the medical and engineering service of the Government of 854 Tamil Nadu have been given the benefit of their service in the Army in the matter of fixation of seniority whereas similar benefit has been denied to the petitioners even though the petitioners as well as other ECOs/SSRCOs who have joined medical and engineering service were all similarly situate.
In this connection, reliance has been placed on the decision of this Court in Union of India & Ors.
vs Dr. section Krishna Murthy & Ors. etc., [1989] Supp.
(1) SR 275.
This contention, in our view, is misconceived.
ECOs/SSRCOs who have joined medical and engineering services of the State of Tamil Nadu were technically qualified in their fields and they had worked in the Army in the same field in which they are now employed in the State service.
The benefit of the experience gained by them during the period of their service in the Army on the posts viz. medical/engineering held by them was available to the State they joined the medical/engineering services of the State of Tamil Nadu.
The same cannot be said for the petitioners because the nature of the duties discharged by them in the Army were different from the duties they are now required to perform at CTOs in the State service.
It cannot, therefore, be said that the ECOs/SSRCOs who have joined the medical and engineering services of the State of Tamil Nadu and the petitioners who have joined the Commercial Tax Department of the State are persons similarly situate in the matter of determination of seniority and for counting the earlier Army service for that purpose.
In Union of India vs Dr. section Krishna Murthy, case (supra), the ECOs/SSRCOs on discharge from the Army had joined the Indian Forest Service and the Indian Police Service and provision was made in the Regulation of Seniority Rules governing these Services whereby it w as provided that year of allotment of an officer appointed to the said Service shall be deemed to be the year in which he would have been so appointed at his first or second attempt after the date of joining pre commission training or the date of their commission where there was only post commission training.
The validity of the said rules was challenged by other direct recruits to those Services on the ground that the ECOs/SSRCOs could not be classified into a separate category.
The said contention was rejected by this Court and it was held that ECOs/SSRCOs formed a definite class, distinct from other officers of the Indian Forest Service and Indian Police Service, and that the said classification was founded on an intelligible differentia which distinguishes them from other officers and that the classification has rational relation to the objects sought to be achieved by the Rules inasmuch as it has been made for the purpose of compensating the ECOs/SSRCOs for the lost opportunity because of their joining the Army service.
855 The said decision may have a bearing in the event of rules being framed making provision for giving the benefit of Army service in the matter of fixation of seniority of the petitioners and other persons who have joined the Commercial Tax Service of the State of Tamil Nadu.
Since there is no such rule, the petitioners cannot derive any assistance from this decision.
In the circumstances, we find no ground to interfere with the decision of the High Court.
The appeal as well as the special leave petitions are, therefore, dismissed but with no orders as to costs.

summary/full:
The appellant/petitioners joined the Army as Emergency Commissioned Officers in 1963 and were discharged during the year 1967 to 1970.
After their discharge they joined the Commercial Tax Service under the Respondent State on selection by the State Public Service Commission.
It was provided under R.35 of the Tamil Nadu State and Subordinate Service Rules that their seniority in the department would be fixed in the order of preference indicated by the Service Commission and not with reference to the service in the Armed Forces.
However, in respect of similar candidates who were appointed as Assistant Surgeons, the government order provided that their seniority would be fixed by allotting them the year in which they would have been appointed to the post at the first possible attempt after the date of joining military service/training.
Thus, the concession of seniority reckoned with reference to date of appointment in the Army, which has been extended to Asstt.
Surgeons was denied to similar candidates selected to other services categorised as non technical.
On a suggestion made by the Public Service Commission, the 846 Respondent State passed orders extending the benefit to the other services also.
The Respondent State further extended the benefit of fixation of seniority to all such candidates irrespective of their year of recruitment.
The appointing authorities were directed to take steps to refix the seniority of such officials after issuing notice to all the affected parties.
Accordingly notices were issued, and in response thereof representations were received by the Respondent State, which, after due to consideration decided not to implement the orders extending the benefits to other candidates in the non technical category.
Aggrieved by the said order issued on 3.8.1980 the affected persons filed Writ Petitions before the High Court.
A Single Judge allowed the Writ Petitions holding that under orders dated November 16, 1976 and June 15, 1977, which were passed on the recommendations of the Public Service Commission,, the petitioners had acquired certain rights in the matter of seniority and promotion and since the Government order dated 3.31980 took away the said right of the petitioners, they should have been afforded an opportunity of hearing before passing the said order.
On appeal, the Division Bench set aside the judgement of the Single Judge.
In the appeal and special leave petitions preferred against the said judgment it was contended that it was permissible for the State Government to issue administrative instructions with regard to determination of the seniority and to remove the lacuna which was found in the existing rules, viz. discrimination between the Medical/Engineering service and other services.
Dismissing the matters, this Court, HELD: 1.
Although the Government cannot amend the statutory rules by Administrative instructions, if the rules are silent on any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.
In the instant case, it cannot be said that on the date of issue of orders dated November 16, 1976 and June 15, 1977, the rules were silent on the matter of fixation of seniority of persons recruited to the Tamil Nadu Commercial Tax Service.
[852E F] (Sant Ram Sharma) vs (State of Rajasthan & Anr.,) ; of India) vs (H.R. Patankar & Ors.,) [1985] 1 SCR 400 and (State of Gujarat) vs (Akhilesh C. Bhargav & Ors.) ; referred to.
847 2.
There was an express provision in the statutory rules viz. Rule 35 of the Tamil Nadu state and Subordinate Service Rules providing that seniority shall be fixed on the basis of the date of appointment.
By orders dated November 16, 1976 and June 15, 1977, the said principle for fixation of seniority contained in rule 35 was sought to be altered in respect of Emergency Commissioned Officers/Short Service Regular Commissioned Officers and the seniority was sought to be fixed on the basis of a different criterion, namely, by treating them as belonging to the year in which they would have been appointed to the posts in their first possible attempt after the date of joining military duty.
This was inconsistent with the principle for fixing the seniority contained in rule 35 and this could only be done by suitably amending the said rules not by issuing administrative instructions.
The directions contained in orders dated November 16, 1976 and June 15, 1977 were invalid being contrary to the provisions contained in Rule 35.
Since the said orders were invalid the appellant petitioners could not claim any right on the basis of the said orders and there was, therefore, no question of affording them an opportunity of a hearing before passing the order dated March 3, 1980.
In so far as appointments to Medical and Engineering Services are concerned suitable amendments were made in the relevant Service Rules relating to those services whereby the benefit of the Army service was given in the matter of fixation of seniority.
No similar amendment has been made in the rules governing the non technical services e.g., Commercial Tax Service to which the appellant petitioners were appointed.
[853C G] 3.
Emergency Commissioned Officers/Short Service Regular Commissioned Officers who have joined Medical and Engineering Services of the Respondent State were technically qualified in their fields and they had worked in the Army in the same field in which they are now employed in the State service.
The benefit of the experience gained by them during the period of their service in the Army on the post viz. Medical/Engineering held by them was a vailable to the State when they joined the Medical/Engineering Services of the Respondent State.
The nature of the duties discharged by the appellant/petitioners in the Army were different from the duties they are now required to perform as Commercial Tax Officers in the State service.
It cannot, therefore, be said that the Emergency Commissioned officers/Short Service Regular Commissioned Officers who have joined the medical and Engineering Service of the State and the appellant/petitioners who have joined the Commercial Tax Department of the State are persons similarly situated in the matter of determination of seniority and for counting their earlier Army Service for that purpose.
[854B D] 848 Union of India & Ors. etc.
vs Dr. section Krishna Murthy & Ors. etc., [1989] Supp. 1 SCR 275, distinguished.


judgement:
ON:Criminal Appeal No. 680 of 1987.
From the Judgement and Order dated 16.8.1984 of the Andhra Pradesh High Court in Crl.
A. No. 604 of 1982.
N. Santosh Hegde, A.D.N. Rao and A, Subha Rao for the Appellants.
G. Prabhakar for the Respondent.
The Judgement of the Court was delivered by 877 V.RAMASWAMI, J.
The appellants along 11 others were tried for causing the murder of on Appikatla Tataiah, and for causing injuries on Jarugu Rama Koteshwararao (PW2) on 24th June, 1981 near `Manchineeti Cheruyu '(fresh water tank) at or about 8.00 P.M. in Machavaram Village.
The learned Sessions Judge, Krishna Division Machilipatnam by his Judgment dated 16.7.1982 acquitted A 3, A 4, A 6 to A 10, A 12 and A 15 of all the charges.
He convicted Kurakula Nagamelleswarao (A 1), Jarugu Kotaiah (A 2), Appikatla Krishnamurthy (A 5) and Appikatla Nagulu (A 11) under section 148, Indian Penal Code and sentenced each of them to undergo two years rigorous imprisonment.
A 1 was further convicted under section 302, IPC and sentenced to imprisonment for life.
A 2 was convicted under section 302 read with section 34, IPC and sentenced to imprisonment for life.
A 5 and A 11 were convicted under section 302 read with section 149, IPC and each of them were sentenced to undergo imprisonment of life.
Regarding the attack on PW 2 jarugu Rama Koteshwararao the learned Sessions Judge convicted A 1 and A 2 under section 326, IPC read with section 149 and sentenced each of them to undergo rigorous imprisonment for four years.
The learned Judge further convicted A 5 and A 11 under section 324, IPC for causing simple hurt to PW 2 and sentenced each one of them to undergo rigorous imprisonment for two years.
A 1 and A 2 were also convicted under section 324 read with section 149, IPC and each of them were sentenced to two years rigorous imprisonment.
The sentences awarded against each accused under various ground were ordered to run concurrently.
The convicted accused preferred Criminal Appeal No. 604 of 1982 and the State appealed against the acquittal of the rest of the accused in Criminal Appeal No. 630 of 1983.
At the time of admission of appeal, however, the State appeal was dismissed as against A 9, A 10, A 12, A 13, A 14, and A 15 and it was admitted only as against acquittal of A 3, A 4 and A 6 to A 8.
The High Court confirmed the conviction and sentence of A 1, A 2, A 5 and A 11 under section 148, IPC.
However, it alterted the conviction of A 1 and A 2 under section 302, IPC and Section 302 read with section 34 respectively into one under section 148 and section 302 read with section 149 and the sentence awarded thereunder were also confirmed.
The High Court also confirmed the conviction and sentences on the accused under sections 326 and 324 read with section 149 and sections 324 read with 878 section 149, IPC.
The sentences were directed to run concurrently.
the lerned Judges of the High Court dismissed the appeal preferred by the State in respect of acquittal of the other accused.
In this appeal Sh.
Santosh Hedge, Senior Advocate appearing for the accused appellants did not canvass the conviction of the four appellants, namely, A 1, A 2, A 5 and A 11 under section 324 and 326, IPC and section 324 read with section 149, IPC and section 326 read with section 149, IPC in relation to the attack on PW 2 but without prejudice to his contention that on the facts section 149, IPC could not have been invoked in relation to the offence under section 302,IPC.
This stand was taken on the basis that the appellants had already served or had almost finished serving the four year terms which was awarded for those offences.
The conviction and sentence under section 148 was also not canvassed for the same reason without prejudice the above said contention.
He confined his arguments against the convictions and sentences of A 1, A 2, A 5 and A 11 under section 302 read with section 149, IPC.
The argument of the learned counsel for the appellant was that in the absence of specific finding to the effect and apart from the four appellants the prosecution has proved the involvement of other persons, section 149 IPC cannot be used for convicting for four appellants under section 302.
In this connection, he also relied on the decisions of this Court in Amar Singh V. State of Punjab, [1987] 1SCC 679 and Maina Singh V. State of Punjab, [1976]3SCR651.
So far this part of the case is concerned in the present case the High Court observed: "The lower court has convicted A 1 under section 302 of the Indian Panal Code for attacking the deceased.
A 2, was convicted under sections 149, 302 r.w. section 34, 324 r.w. section 149 and 326 I.P.C. for attacking the deceased.
A 5 and A 11 were convicted under sections 148, 302 r.w. section 149, 324 and 326 r.w. section 149 IPC.
As already observed the facts and circumstances undoubtedly show that there was an unlawful assembly consisting of more than five persons and the common object of the unlawful assembly was to attack and kill the deceased and attack PW 2.
As already observed only such of accused whose presence and participation is established can safely be held to be the members of the unlawful assembly.
To arrive at such a conclusion we have indicated that the evidence of PW 2 to extent consisting with the earlier versions of exhibit P 2 can 879 safely be accepted to be the basis and if corroboration is necessary the same can be found in the evidence of PWs 1, 3 and 4P. Ws. 2 's evidence is subjected to scrutiny in the light of the contents in exhibit P 2.
The consistent version regarding the presence and participation by A 1,A 2, A 5 and A 11 can safely be accepted and they can be held to be the members of the unlawful assembly along with some others unidentified persons.
The common object of the unlawful assembly along with some others unidentified persons.
The common object of the unlawful assembly was to commit murder of the deceased.
All of them can be conviction under section 302 read with section 149 IPC in as much as there can be no doubt whatsoever that the object of such an unlawful assembly of which A 1, A 2, A 5 and A 11 are members is to attack the deceased and PW 2.
In this context it must also be remembered that PW 2 who received the serious injuries, would be the last person to leave out the real assailants and implicate the innocent persons.".
(Emphasis supplied) We are of the view that there is some confusion in the statement of the High Court.
The charges under section 324 and section 326 read with section 149 and section 326 and section 324 read with section 149 are in relation to the injuries inflicted on PW 2.
So far as injuries inflicted on PW 2 is concerned as already stated the conviction and sentence in regard to the same are not canvassed in this appeal.
So far as the attack on the deceased is concerned P 1 the statement of PW 1 given to the village Munsif on 24.6.1981 immediately after the occurence stated that: ". surrounded my husband and my elder brother armed with axes, curved knives, and spears.
Then Kurakula Nagamalleswararao hacked my elder brother with curved knife (Yerukala Kathi) on the left shoulder.
Jargugu Kotiah hacked my elder brother with an axe on the left shoulder.
Appikatla Nagulu beat my elder brother on the head with stick portion of the spear.
I raised hue and cry loudly that they are killing my husband and my elder brother.
On hearing my cries Ummadisetti Pooraniah and my sister in law Srikrishna came there.
the above fifteen persons caused injuries to my husband by beating and hacking with axes, spears and curved knives (Yerukala Kathi)which were in their hand.
My husband succumbed to the knife injuries.
" 880 It may be seen from this report that there is a bald statement that fifteen persons caused injuries to her husband (deceased) by beating and hacking with axes, spears and curved knives (Yerukala Kathi) which were in their hands and her husband succumbed to the knife injuries.
It did not attribute any overt act to A 1, A 2, A 5 and A 11, who are the appellants in this case.
The PW2 gave the statement exhibit P 2 dated 25.6.1981 recorded by the Munsiff Magistrate, Avamigadda as a dying declaration which was later taken as a statement under section 157 Code of Criminal Procedure.
In this so far as the injuries inflicted on the deceased are concerned he had merely stated: "The aforesaid four persons and the other eleven persons, beat and hacked my younger sisters ' husband Appikatla Tataiah and felled him down." The charges framed against the accused appellants also stated: "That you, accused Np.
1 to 15, on the night of 24th day of June, 1981, at about 8.P.M. near the Manchineeti Cheruvu ' in Machavaram Village, Divi taluk, were members of an unlawful assembly and did, in prosecution of the common object of which viz. in killing Appikatla Tataiah, S/o Chittonna alias Chinna Ammanna an d Jarugu Rama Koteswara Rao, S/o Mangaiah of Machavaram village. " Thus the specific prosecution case was that accused 1 to 15 attacked the deceased and no specific overt act was attributed to any of the accused.
It is true that PW 1 in her evidence stated that A 1 hacked the deceased on the left side of neck with Yerukala Kathi and the evidence of doctor PW 8 showed that this is injury No. 2 which proves fatal by itself.
But in the light of the first information report P 1 and the dying declaration exhibit P 2 dated 25.6.1981 of P.W. 2 recorded by the Munsiff Magistrate which was later on treated as statement under section 57 of the Criminal Procedure Code which did not attribute any specific overt act to any of the appellant accused in this case, this case was not accepted by the High Court.
It is because of this reason the High Court did not accept the conviction of the appellants 1 and 2, namely, accused 1 and 2 under section 302 and section 302 and section 302 read with section 34, accused 1 and 2 under section 302 and section 302 read with section 34, IPC and altered the conviction into one under section 302 read with the section 149, IPC.
The learned counsel for the appellant also contended that the evidence of PW 1 apart from the fact it was not accepted by the High 881 Court in so far as it related to the specific overt acts of A 1, 2, 5 and 11 are concerned are also not acceptable as they are full of infirmities and improbabilities and also by reason of the possibility of improving the case.
He had pointed out that though PW 2 and deceased were said to have gone to the Manchineeti Cheruyu (fresh water tank) to verify whether the paddy bags kept by them for soaking were in tact, paddy bags were not found the investigating officer or anybody and they were not recovered.
the learned counsel also pointed out, the story that PWs 1 and 3 and had gone that side for calls of nature are also not believable as the place were ladies ease was on the opposite direction and not in the direction of the fresh water.
The houses of the deceased and PW 2 and that of Pw 4 were about 150 yards away from the scene of occurence and the occurrence is stated to have taken place at 8.00 P.M.
These ladies ran to the scene of occurrence on hearing the cries of the deceased and PW 2.
It was also pointed out that though they stated that when they (ladies) went to answer the calls of nature they had taken along with them chambus or lotas with water, and those chambus or lotas were not recovered.
In her evidence PW 1 stated that when she found her husband lying dead with number of injuries and blood everywhere she fell over her husband and wept but none of her blood stained clothes were recovered.
Though they had stated that when she found her husband PW 2 injured she carried him but her blood stained clothes were also not recovered.
Though they had stated before going to the village Munsiff for giving the complaint and after taking PW2 to the house they have changed the clothing their evidence clearly throw a doubt as to the presence at the time of occurrence.
It should be kept in mind that PW1 is the wife of the deceased PW3.
And thus they are all closely related and the possibility of an exaggeration or of improving in their evidence cannot be ruled out.
It may also be pointed out that these witnesses stated that there was electric lamp post and there was no question of any electric light being on.
There is ample evidence of rivalry between the parties also.
In these circumstances their presence at the time of occurrence is doubtful and it is also not possible to believe the evidence of PWs 1,2,3 and 4 in respect overt acts attributed to the four appellants herein.
In fact, as already stated the High Court was not willing to accept their evidence in this regard and that is why the conviction was made under section 302 read with section 149, IPC.
882 However, the learned Judges over looked that since the accused who are are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences, section 149 cannot be invoked for convicting the four appellants herein.
The learned Judges were not correct in stating that A1, A2, A5 and A11 "can be held to be the members of the unlawful assembly along with some others unidentified persons ' on the facts and circumstances of this case.
The charge was not that accused 1, 2, 5 and 11 "and others ' or "and other unidentified persons" formed into an unlawful assembly but it is that "you accused 1 to 15" who formed into an unlawful assembly.
It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime.
When the 11 other accused were acquitted it means that their involvement in the offence had not been proved.
It would not also be permisible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object.
In Maina Singh 's case (supra) the appellant in that case and four others were charged with offences under sections 302/149, IPC, the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp edged weapon.
The Trail Court acquitted the four accused and convicted the appellant under section 302 read with section 34.
The High Court dismissed the appeal for the State against the acquittal as also the appellants appeal against the conviction.
In the appeal before the Supreme Court it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of other co accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence which he might have committed in his individual capacity.
The head note in the report brings the ratio of the judgement correctly and that may be quoted: "In a given case even if the charge disclosed only the named persons as co accused and the prosecution witness confined their testimony to them, it would be permissible to conclude that others, named or unnamed, acted cojointly with one of the charged accused if there was other 883 evidence to lead to that conclusion, but not otherwise.
The charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co accused, and with no other person.
The trial in fact went on the basis throughout.
There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person.
So when the other four co accused had been given the benefit of doubt and acquitted, it would not be permissible to take the view that there must have been some other person alongwith with the appellant in causing injuries to the deceased.
the appellant would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.".
The facts in the Amar Singh 's case (supra) in short were that seven accused were charged for murder under section 302 read with section 149 IPC.
Two out of the seven accused were acquitted by the Trial Court and on appeal the High Court acquitted one more accused.
However, the High Court convicted four of the accused under section 302 read with section 149 IPC and sentenced them for life imprisonment.
The four convicted accused appealed to this Court and it was contended on their behalf that after the acquittal for three accused persons out of seven, the appellants who were remaining four cannot be held to have formed an unlawful assembly within the meaning of Section 141, IPC and accordingly the charge under section 149 was not maintainable.
Accepting this contention this Court observed: "As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141 IPC.
It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime.
Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under section 148 or section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an `unlawful assembly ' is that such assembly must be of five or more persons, as required under section 141 IPC.
In our opinion, the convictions of the appellants under sections 148 and 149 IPC cannot be sustained.
" 884 The ratio of these judgements are also applicable to the facts and circumstnces of this case.
In the result the appeal of the appellants against the conviction and sentence under section 302 read with section 149, IPC is allowed and the same is set aside.
We, however, confirm the conviction and sentence of the appellants under the other charges.
R.N.J. Appeal allowed.
885 GURMUKH SINGH V AMAR SINGH MARCH 15, 1991 [N.M.KASLIWAL AND K. RAMASWAMY, JJ.] : Section 23 Contract opposed to public policy What is Agreement to purchase property in public auction and thereafter convey half the property Specific performance of Whether enforceable.
The respondent field a suit for specific performance of an agreement of sale of land or refund of the money paid to him contending that he and the appellant had contracted that the appellant would participate, on their behalf in public aution to purchase the evacuee property and the appellant would convey half the property purchased thereat and in furtherance of that he had contributed his share, but the appellant who became the highest bidder and got a sale certificate issued by the custodian of the evacuee property had not performed his part of the contract.
The appellant resisted the suit, and denied the execution of the agreement.
He also pleaded that the contract was illegal and void, being opposed to public policy, and that the relief of specific performance being discretionary could not be granted in favour of the respondent.
The trial court decreed the suit.
On appeal by the appellant, both the first appellate court and the High Court confirmed the decree.
Hence the appeal, by special leave.
On behalf of the appellant it was contended that the agreement was opposed to public policy since it was to knock out the public property on a minimum price and, therefore, void under section 23 of the contract Act, 1872.
Dismissing the appeal, this Court.
, HELD: 1.1 Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provision of any law; or is fraudulent; or involved or implied injury to 886 the persons or property of another; or the court regards it as immoral or opposed to public policy.
In each of these cases, the consideration or object of an agreement is unlawful.
Thus, every agreement of the consideration or object of which is unlawful is void.
[888F G] 1.2 The word "object" would mean the purpose and design which is the object of the contracts; it is opposed to public policy if it tends to defeat any provision of law or purpose of law, and it becomes unlawful and void under section 23 of the Contract Act.
Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it.
Public policy imposes certain limitation upon freedom of contract.
Certain objects of contract are forbidden or discouraged by law; though all other requisites for the formation of a contract are complied with, yet if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it.
Most cases of illegality are of this sort; the illegality lie in the purpose which one or both parties have in mind.
But in some instances the law strikes at the agreement itself, and the contract is then by its very nature illegal.
[888G H,889A B] 1.3 The public policy is not static.
It is variable with the changing times and the needs for the society.
The march of law must match with the fact situation.
A contract tending to injure public interest or public welfare or fraudulent to defeat the right of the third parties is void under section 23 of the Contract Act.
[892F] 1.4 The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose.
If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out a low price it would defeat the above economic interest of the debtor or public welfare.
Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23.
[ 890E F] In the instant case, the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the evacuee property.
There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price.
Thus, the object of the agreement is not opposed to public policy, and therefore, it is not void under section 23 of the Contract Act.
Therefore the agreement between the appellant and the 887 respondent is lawful contract.
The courts below committed no error of law warranting interference.[892H,893A B] Rattan Chand Hira Chand vs Askar Nawaj Jung, J.T. 1991 1SC 433 and Cheerulal Prakash vs Mabadeodas Maiyua & Ors., [1959] (Suppl.) 2 SCR 406, referred to.
Scott vs Brown.
Deorning Mc Nab & Co., [1892] 2 K.B. 724 and Mohamed Meerta vs S.V. Raghunadha Gopalar, 27 Indian Appeals 17, referred to.
Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd. & Ors.,[1974] 3 SRC 678; Central Inland Water Transport Corpn.
Ltd. & Anr vs Brojo Nath Ganguli & Anr., {1986] 2 SCR 278 and Delhi Transport Corporation vs D.T.C. Mazdoor Congress & Ors., A.I.R. 1991 SC 190, inapplicable.
Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohana Rao and Anr., ; Ram Lal Misra vs Rajendra Nath Sanyal, A.I.R. (1933) Oudh P. 124 at 127; Nand Singh @ Ghuddha vs Emperor, A.I.R. (30) 1943 Lahore 101; Hutchegowda vs H.M. Basaviah, A.I.R. ; Ratanchand Hirachand vs Askar Nawaz Jung & Ors., A.I.R. 1976 A.P. 112; Mo. Issac V. Sreeramula, A.I.R. Mad.
289= [1946] 1 Madras Law journal, 187; Ramalingiah vs Subbarami Reddi A.I.R. 1951 Mad.
390; Mohafazul Rahim vs Babulal, A.I.R. 1949 Nagpur 113 and Lachhman Das & Ors v Hakim Sita Ram & Ors.
A.I.R. 1975 Delhi 159, referred to.
Chitty 's contract, 26th Edn., Vol.
I Paragraph 1134, P. 686 and Halsbury 's Laws of England.
Fourth Edition, Vol.
9 Paragraph 392 at p. 266 and paragraph 746 at 383, referred to.
& CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1335 of 1977.
From the Judgement and Order dated 7.3.1977 of the Punjab & Haryana High Court in R.S.A. No. 1162 of 1966.
J.M. Khanna and Mr. I.B. Gaur for the Appellant.
Dhruv Mehta, Aman Vachhar, S.K. Mehta, Arvind Verma and Romesh Chand for the Respondent.
888 The Judgement of the Court was delivered by K. RAMASWAMY, J.
The unsuccessful defendant/appellant resisted the suit of the respondent for specific performance of the agreement of sale of 27 Bhigas and 2 Biswas of the land situated in Chakkar Karman Village.
According to the respondent he and the appellant contracted that the appellant would participate on their behalf in a public auction to purchase the evacuee property.
he contributed his share.
The appellant agreed to convey half the property purchased at the auction.
The appellant became the highest bidder for a sum of Rs. 5,000 and he contributed his share and the sale was confirmed on March 11, 1964 and a sale certificate was issued by the custodian of he evacuee property but the appellant had not performed his part of the contract.
Accordingly he laid the suit for specific performance or refund the amount advanced by him.
The suit was resisted by the appellant denying the execution of the agreement and also pleaded that the contract is illegal and void being opposed to public policy.
The relief of specific performance being discretionary cannot be granted in favour of the respondent.
The Trial Court decreed the suit; on appeal and on further second appeal the District Court and the High Court confirmed the same.
Thus this appeal on social leave under article 136 of the Constitution.
The contention neatly argued by Shri Khanna, the learned counsel for the appellant, is that the agreement is opposed to public policy and, therefore, it is void under section 23 of the Contract Act, 1872.
According to him the agreement was to knock out the public property on a minimum price and that, therefore, the object of the agreement is opposed to public policy and is hit by section 23.
We found no force in the contention .
Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law; or is of such of nature that, if permitted, it would defeat the provision of any law; or is fraudulent; or involved or implied injury to the persons or property of another; or the court regard it as immoral or opposed to public policy.
In each of these cases, the consideration or object of an agreement is a said to be unlawful.
Every agreement of which the object or consideration is unlawful is void.
The word object would mean the purpose and design which is the object of the contract, if is opposed to public policy which tends to defeat any provision of law or purpose of law, it becomes unlawful and thereby it is void under section 23 of the Contract Act.
Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it.
Public policy imposes certain limitations upon free 889 dom of contract.
Certain objects of contract are forbidden or discouraged by law; though all other requisites for the formation of a contract are complied with, year if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it.
Most cases of illegality are of this sort: the illegality lies in the purpose which one or both parties have in mind.
But in some instances the law strikes at the agreement itself, and the contract is then by its very nature illegal.
Whenever a plea of illegality or against public policy is raised as a defence to a contractual claim, the test to be applied is: Does public policy require that this claimant, in the circumstances which have occurred, should be refused relief of which he would otherwise have been entitled with respect to all or part of his claim .
In addition, once the court finds that the contract is illegal and unenfocreable, a second question should be posed which would also lead to greater clarity: do the facts justify the granting of some consequential relief (other than enforcement of the contract) to either of the parties to the contract.
In Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohan Rao and Anr., , Subba Rao J., as he then was, while considering the word "object" in section 23 of the Contract Act in the context of enforceability of the debt secured to celebrate the marriage of the minor which was prohibited by the Child Marriage Restraint Act, held that the word "object" in section 23 meant "purpose" or "design" of the contract.
The purpose of borrowing was unlawful as it was opposed to the public policy of celebrating the marriage of a minor in violation of the statutory provisions, and therefore, the promissory note was held to be unenforcable.
An agreement between A & B to purchase property at an auction sale jointly and not to bid against each other at the auction is perfectly lawful, though the object may be to avoid competition between the two.
But if there is an agreement between all the competing bidders at the auction sale, be it of the court sale or revenue sale, or sale by the government of its property or privilege and formed a ring to peg down the price and to purchase the property at knock out price, the purpose or design of the agreement is to defraud the third party, namely , the debtor or Govt.
whose property is sold out at the court auction or revenue sale, or public welfare.
The object or consideration of the contract, oral or written, to share such property is unlawful.
There is also implied "injury to the debtor" within the meaning of section 23.
Thereby the contract was fraudulent.
The contract thus is also opposed to public policy and is void.
Take for instance four persons participated at an aution sale; pursuant to their previous agreement, they made pretext of partici 890 pation in the auction; bid upto an agreed price though the real value of the property is much more than what they had offered for.
Here the design or object of their forming a ring is to knock out the property for a song to defraud the debtor or public.
What is the object of the public policy in this regard ? The scope of public policy was classified into five groups in paragraph 1134 at p. 686 of Chitty 's on Contract , 26th Edn., Vol.
I, thus: "Objects which on ground of public policy invalidate contracts may, for convenience, be generally classified into five groups; first, objects which are illegal by common law or by legislation; secondly, objects injurious to good government either in the field of domestic or foreign affairs; thirdly objects which interfere with the proper working of the machinery of justice; fourthly, objects injurious to marriage and morality and fifthly, objects economically against the public interest.
" In Halsbury 's Laws of England , Fourth Edition, Vol. 9, in paragraph 392 at p. 266 it is stated that an agreement which tends to be injurious to the public or against the public good is invalidated on the ground of public policy.
"The question whether a particular agreement is contrary to public policy is a question of law, to be determined like any other by the proper application of prior decisions" The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose.
If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out at a low price would defeat the above economic interest of the debtor or public welfare.
Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23 .
In Ram Lal Misra vs Rajendra Nath Sanyal, A.I.R. (1933) Oudh p. 124 at 127 the finding was that the agreement was not merely of an honest combination between two bidders to purchase the property at an advantageous price but goes further by resorting to secret artifice for the purpose of defrauding a third person, namely, the rival decreeholder.
Accordingly, it was held that the agreement was fraudulent and that, therefore, void under section 23 of the contract Act; Same is the view expressed by the Lahore High Court in Nand Singh @ Ghudda vs Emperor, A.I.R. 30 1943 Lahore 101 and in Hutchegowda vs H.M. Basaviah, A.I.R. (1954)Mysore 29.
In Rattan Chand Hira Chand vs Askar Nawaj Jung,J.T. this Court held that an agreement to influence authorities to obtain favourable verdict was held to 891 be opposed to public policy and void under section 23 and approved the decision of the A.P. High Court in Ratanchand Hirachand vs Askar Nawaz Jung & Ors.
A.I.R. 1976 A.P. 112.
An agreement to rig the market for share has been held to be fraudulent and unenforceable in Scott vs Drown, Deorning McNab & Co. [1872]2K.B. 724.
In Halsbury 's Laws of England Fourth Edition, Vol. 2, paragraph 746 at p. 383, it was stated that where good were purchased at an auction by a person who had entered into an agreement with another or others that the other or the others, or some of them, shall abstain from bidding for the goods, and he or the other party, or one of the other parties, to the agreement is a dealer, the seller may avoid the contract under which the goods are purchased.
Where a contract is avoided by virtue of this provision, then if the purchaser has obtained possession of the goods and restitution thereof is not made, the persons who were parties to the agreement are jointly or severally liable to make good to the vendor any loss he sustained by reason of the operation of the agreement.
In Md. Issac vs Sreeramulu, A.I.R.1946 Mad.
289=(1946) 1 Madras Lw Journal, 187 the Madras High court held that an agreement between two bidders not to bid against each other at an auction is not illegal and is not opposed to public policy.
The same was followed in Ramalingiah vs Subbartami Reddi, A.I.R. 1951 Mad 390.
In Mohafazul Robim vs Babulal, A.I.R. 1949 Nagpur 113 the Nagpur High Court also held that persons agreeing not to bid against each other is not opposed to public policy.
The Division Bench of Delhi High Court in Lachman Das & Ors.
vs Hakim Sita Ram & Ors.
A.I.R. 1975 Delhi 159 had to consider that an agreement entered into by the parties not to bid at the auction against each other is not opposed to public policy, and therefore, it is not avoid.
While upholding the agreement it was also held that where agreements are likely to prevent the property put up for sale in not realising its fair value and to dump the sale would certainly be against public good and, therefore, is void being opposed to public policy.
In Cheerulal Prakash v Madadeodas maiyua & Ors., [1959] (suppl.) 2 SCR 406 this court held that though a wagering contract was void and unenforceable under section 30 of the ContractAct, it was not forbidden by law and agreement collateral to such a contract was not unlawful within the meaning of section 23 of the Contract Act.
A partnership with the object of carrying on wagering transaction was not therefore, hit by section 23.
In Mohomed Meerta vs S.V. Raghunadha Gopalar, 27 Indian Appeals, 17 the sale was impugned, on one of the grounds that the agreement was made for the benefit of the Papanand Zamidar and 892 the appellant, intended to sell the property back to the former when he should be in a position to repurchase it and both of them had combined to dissuade persons from bidding, and did in fact dissuade them.
Thereby they purchased the property for lesser price than the real value.
The execution was set aside.
On appeal, the High Court did not agree with the finding that the appellant and the Jainilabdin and the Papanand Zamindar did combine to dissuade the persons from bidding but fount that the appellant played fraud on the court by suppressing the contract as being a decree holder obtained leave of the count and bid in the auction.
Therefore, the sale was void on that ground.
On further appeal the judicial committee found that the ground on which the High Court set aside the sale was not pleaded, nor an opportunity given to the appellant.
Therefore, for the first time that ground cannot be taken before the High Court and having disagree with the executing court that there was an agreement to dissuade third party to participate in the bid, the sale cannot be set aside on the new ground.
The Privy Council confirmed the sale.
On those facts the ratio is of no assistance to the appellant since there is no agreement between the appellant and the respondent to dissuade third party to participate in the bid.
The ratio in Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd. & Ors. ; is of no assistance to the appellant.
Therein the executing court, on the previous occasion, with a view to secure better price did not confirm the sale, the conduct of the second sale, therefore, was held not to be vitiated by any material irregularity.
The general principles of public policy discussed by this Court in Central Inland Water Transport Corpn.
Ltd. & Anr.
vs Brojo Nath Ganguli & Anr., [1986] 2SCR 278 and one of us (K.R.S., J.) in Delhi Transport Corporation vs D.T.C. Mazdoor Congerss & Ors.
A.I.R. 1991 SC 190 are of no assistance on the facts in this case.
The public policy is not static.
It is variable with the changing times and the needs of the society.
The March of law must match with the fact situation.
A contract tending to injure public interest or public welfare or fraudulent to defeat the rights of the third parties are void under section 23 of the Contract Act.
From the record it is clear that there were as many as six bidders who participated in the auction, the upset price was fixed at Rs. 1,000.
The auction was started with the bid at Rs. 1,000 and ultimately at 20th knock the highest bid of the respondent was at Rs. 5,000.
Thus, the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the 893 evacuee property.
There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price.
Thus, the object of the agreement is not opposed to public policy, and therefore, it is not void under section 23 of the Contract Act.
Thus, on the facts of this case we have no hesitation to conclude that the impugned agreement between the appellant and the respondent is lawful Contract.
The Courts below committed no error of law warranting interference.
The appeal is accordingly dismissed, but in the circumstances without costs as we did not call upon the respondent to argue the case.
N.P.V. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The 4 appellants along with 11 others were tried for murder and for causing injuries.
The learned sessions judge while acquitting all others of all the charges, convicted A 1, A 2, A 5 and A 1 on different counts.
The sentences awarded to them under various charges including the sentence of life imprisonment under section 302 IPC were ordered to run concurrently.
The convicted accused preferred appeal to the High Court against their conviction and sentences and the State appealed against the acquittal of the rest of the accused.
The High Court altered the convection of A 1 and A 2 under section 302 I.P.C. and 302 read with section 34 respectively into one under section 302 read with section 149 I.P.C. and confirmed the sentence for imprisonment for life.
Except for this modification the convictions and sentences in respect of all the four accused were confirmed.
The state appeal against acquittal of all other accused was dismissed.
In this appeal preferred by the four convicted accused namely, A 1, A 2, A 5 and A 11 their counsel confined his arguments against their convictions and sentences under section 302 read with section 149 I.P.C. only as the appellants had either already served or had almost finished serving to their sentences awarded to them under other charges.
876 The argument was that in the absence of a specific finding to the effect that apart from the 4 appellants the prosecution has proved the involvement of other persons, section 149 I.P.C. cannot be invoked for convicting them under section 302 I.P.C. Confirming the convictions and sentences of the appellants under other charges but allowing their appeal against their conviction and sentence under section 302 I.P.C. read with section 149 I.P.C. this Court, HELD: Since the accused who are convicted were only four in number and the prosecution has not proved the involvement of other persons and the court below have acquitted the other accused of all the offences, section 149 cannot be invoked for convicting the four appellants herein.
The learned judges were not correct in stating that A1, A2, A5 and A11 can be held to be the members of an unlawful assembly along with some other unidentified persons on the facts and circumstances of this case.
The charge was not that accused 1,2,5 and 11 "and others" or "and other unidentified persons" formed into an unlawful assembly but it is that "you accused 1 to 15" formed into an unlawful assembly.
It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime.
When the 11 other accused were acquitted it means that their involvement in the offence had not been proved.
It would not also be permissible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object.
[882A D] Amar Singh vs State of Punjab, [1987] 1SCC 679 and Maina Singh vs State of Punjab, [1976]3SCR 651, followed.


judgement:
ite Petition No. 974 of 1989.
(Under Article 32 of the Constitution of India).
Gobinda Mukhoty, S.K. Bhattacharya and D.K. Garg for the Petitioner.
K. Swamy, R.C. Kaushik (NP) for the Respondents.
The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J.
In this write petition the petitioner has challenged the order passed by the Commandant, 11th Battalion C.R.P.F., the 4th respondent, dismissing the petitioner from service.
The petitioner was working as a Head Constable in the Central Reserve Police Force ("CRPF" for short) on the relevant date.
He joined as a Constable in the year 1963.
He was awarded three medals for performing his duty diligently and in the year 1967 he was given an award of Rs. 500 and a special promotion while fighting in the 897 Nagaland.
He also claims to have been awarded some other such cash awards later.
He was promoted as Head Constable later on.
In total he has put in 20 years of service.
While working as Post Commander of Vijaynagar Post Tirap District, two undertrial prisoners who were Burmese nationals, were handed over on 29.3.83 till further order by the Circle Officer to the custody of the CRPF Vijaynagar Post of which the petitioner was the Post Commander.
On the intervening night of 4th and 5th April, 1983 the two Burmese nationals escaped from the custody.
It was alleged that the petioner was negligent in his duty and that he did not take immediate action to report the matter to the Circle Officer and that he also connived the escape of the two undertrial prisoners and deliberately dug a tunnel to make it appear that the undertrial prisoners had dug the tunnel and and escaped through the same.
On the basis of this incident, a chargesheet was served on 18th August, 1983 on the petitioner and an enquiry was conducted.
The Deputy Superintendent of Police was the Enquiry Officer and he recorded the statements of some witnesses who were then posted under the petitioner.
That Enquiry was cancelled and a fresh enquiry was commenced.
Three charges were framed which are referred to as Articles in the report of the Enquiry Officer.
These are as under: "Article I No. 630110316 HC.
L.S. Pandey of E. Coy 11 Bn.
CRPF while functioning as post Commander of Vijay Nagar post in distt.
Tirap (ACP) from 11/3/83 to 18/6/83 and while functioning a Guard Commander of the Guard post Vijay Nagar post in Distt.
Tirap (ACP) on 5/4/83 committed an offence of remissness in his capacity as a member of the force U/S 11 )1) of CRPF Act, 1949 in that he allowed No. 800210049 Ct.
Md Shamsher Alam to leave the santry post at 0430 hrs without arranging proper relief which resulted in the escape of 2 UTPs from the prisoner cell.
Article II That during the aforesaid period while functioning as post Commander and guard Commander at Vijay Nagar post, the said No. 630110316 H.C.L.S. Pandey of E Coy 11 Bn, CRPF committed an offence of neglect of duty in his capacity as a member of the force U/S 11 (1) of CRPF Act, 1949 in that he did not take immediate action to report the matter to the Circle Officer of Vijay Nagar and sent Crash 898 Message to Bn Hqrs.
When the UTPs were found missing from the UTPs cell at about 0500 hours on 5/4/83.
Article III That during the aforesaid period while functioning as post/guard Commander of Vijay Nagar post of Distt.
Tirap (ACP) the said No. 630110316 HCLS.
Pandey of E Coy 11 Bn, CRPF committed an offence of grave misconduct in his capacity as a member of the force U/S 11 (1) of CRPF Act, 1949 in that he connived the escape of two UTPs and deliberately dug the tunnel to make it appear that the UTPs and deliberately dug the tunnel to make it appear that the UTPs had dug the tunnel and escaped through the tunnel.
He did not handover the guard duty roster to next post Commander No. 630040452 HCB Lakara thereby destroying the documents to prevent its production as evidence.
" The statements of some of the witnesses were recorded.
Thereafter the deliquent 's statement also was recorded.
The deliquent was again given an opportunity to put forward his plea.
He pleaded not guilty and the deliquent was asked to enter his defence by filing a written statement and also produce a list of defence witnesses.
He accordingly gave a list of defence witnesses and only one def witness was examined.
The Enquiry Officer submitted the report holding that the delinquent connived the escape of the two undertrial prisoners and then deliberately dug the tunnel to make it appear that the undertrail prisoners dug the same and escaped and he accordingly recommended that the disciplinary proceedings should be initiated against the petitoner as well as against another Constable Mohd. Shamsher Alam.
On the basis of this report a dismissal order was passed against the petitioner on 30th June, 1984.
The petitioner preferred an appeal under Section 28 of the CRPF Rules to the Deputy Inspector General of Police, CRPF, the appellate authority, but the same was dismissed on 23rd October, 1984.
A further revision filed by him to the Inspector General of Police, CRPF was also dismissed on 2.5.86.
During all these enquiries the plea of the petitioner had been that on 29.3.83, the two undertrail prisoners were entrusted late in the evening and he was not given full strength of 40 Constables and that there were only 11 Constables and it was dark and raining heavily and that neither torches nor candle sticks nor kerosene oil were available.
There were also no locks and stationery and there were no proper arrangements of the building where the two undertrial prisoners could be kept in custody and he also sent a message that more persons should be deputed but no 899 steps were taken.
With regard to the enquiry, his grievance has been that suddenly area of enquiry was shifted from Khonsa to Logding 50 kms.
away and that all the defence witnesses cited by him were not examined.
He has also stated that the first enquiry was dropped and he was exonerated and on the whole the enquiry was not fair and not according to the Rules and that the entire proceedings were mala fide in as much as the first enquiry officer dropped the enquiry and exonerated the petitioner from all charges.
In this writ petition also the same submissions are put forward.
In the counter affidavit filed on behalf of the respondents, it is stated that full opportunity was given to the petitioner during the departmental enquiry and that venue of enquiry was shifted from Khonsa to Longding only to avoid unnecessary delay in the enquiry and that the petitoner never objected to the shifting of the place of enquiry.
It is also submitted that the petioner was given full opportunity to produce the defence witnesses and notices were also served on them but they did not appear.
Regarding the first enquiry it is stated that the same was not completed by the Enquiry Officer.
Therefore a fresh enquiry was ordered and that it cannot be said that by cancellation of the first enquiry the petitoner was exonerated.
It is further submitted that the petitioner was given full opportunity and that he duly participated in the enquiry and no prejudice whatsoever was caused.
On a careful examination of the affidavit, and the counter affidavit and the allegations as well as the denials, we are of the opinion that there are a number of disputed questionss of fact.
The learned counsel for the petitoner, however, submitted that under Article 32 even disputed questions of fact can be gone into by this Court.
He relied on a judgement of this Court in Kavalappara Kottarathil Kochunni Moopil Nayar vs The State of Madras and Others, [1959]Suppl.
2SCR 316 where it is observed that: "Clause (2) of article 32 confers power on this Court to issue directions or orders or writs of various kinds referred to therein.
This Court may say that many particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or any breach thereof and accordingly dismiss the petition.
In both cases this Court decides the petition on merits.
But we do not countenance the proposition that, on an application under article 32, this Court may decline to entertain the same on the 900 simple ground that it involves the determination of disputed questions of fact or on any other ground.
If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights.
We are not unmindful of the fact that the view that this Court is bound to entertain a petition under article 32 and to decide the same on merits may encourage litigants to file many petitions under article 32 instead of proceeding by way of a suit.
But that consideration cannot, by itself, be a cogent reason for denying the fundamental right of a person to approach this Court for the enforcement of his fundamental right which may, prima facie, appear to have been infringed.
Further, questions of fact can and very often are dealt with on affidavits." In support of the same proportion, the learned counsel for the petitioner also relied on the decision of this Court in Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963] 1SCR 778.
Having carefully examined the entire records and the submissions made, we do not think that it is necessary to examine the scope of Article 32 in this case.
Since the petitioner who has been in service for 20 years has been dismissed, we thought fit even to examine and their statements clearly establish the charges framed against the petitioner.
That apart undisputedly the two Burmese national were entrusted to the custody of the petitioner and they escaped and the responsibility entirely lies with the petitioner who was the Post Commander of Vijaynagar Post.
No doubt, he pleaded that the arrangements were inadequate and the two undertrial prisoners took advantage, dug a tunnel through which they managed to escape.
The Dy.
Superintendent of Police who visited the premises inspected the same and made a report and in he said report he clearly observed that there was certainly some negligence on the part of CRPF men for not noticing the activities of the undertrial prisoners and therefore an enquiry was necessary.
In the enquiry report the statements of the witnesses namely the Constables who were on duty are referred to in detail and it is held that the petitioner was the Guard Commander till 5.4.83.
The Enquiry Officer has also referred to the records in this regard and on the basis of the oral an documentary evidence, he concluded that the petitioner committed an offence of neglect of duty and that he did not take immediate action to report the matter to the Circle Officer.
What is more the statements of 901 PWs 1, 3, 4, 5, 6, 8 and 9 go to show that there was no tunnel at all when they reached the spot of hearing the alarm.
It is in the statement of PW 2 that he saw the petitioner digging the tunnel.
In view of these clear statements made by the Constables who were on duty alongwith the petitioner when the two Burmese nationals escaped, the Enquiry Office was justified in recommending disciplinary action.
Under these circumstances, we see no force in the submission that the enquiry was not properly conducted and that prejudice was caused to the petitioner.
After having perused all the records carefully, we are unable to find any clinching circumstances on the basis of which it can be said that the petitioner was not negligent in discharge of his duties and that he did not commit any act of misconduct.
On the other hand we find that the statements of PWs 1, 3, 4, 5, 6, 8 and 9 coupled with that the PW 2 falsify the plea of the petitioner that the undertrial prisoners themselves dug the tunnel and managed to escape.
As already mentioned the learned counsel also submitted that the enquiry is vitiated inasmuch as proper opportunity was not given to the petitioner as all the defence witnesses were not examined and that place of hearing was shifted because of which the witnesses could not be produced and that the cancellation of the first enquiry amounted to exoneration.
therefore, according to the learned counsel for the petitioner, the impugned order of dismissal should be quashed as there is clear violation of his fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India.
In this context he relied on decisions of this Court in Tata Oil Mills Co. Ltd. vs Its Workmen, ; State of Uttar Pradesh vs Om Prakash Gupta, ; State Bank of India vs R.K. Jain 7 Ors., [1972] 1 SCR 755 and State of Andhra Pradesh & Ors.
vs Chitra Venkat Rao, ; In all these cases it is laid down that such enquiries must be conducted in accordance with the principles of natural justice and that a reasonable opportunity to deny the guilt and to cross examine the witnesses produced and examined, should be given and that the enquiry should be consistent with the rules of natural justice and in conformity with the statutory rules prescribing the mode of enquiry.
We have already referred to the details of enquiry conducted in the instant case and we are unable to say that there was any violation of principles of natural justice.
It is, however, urged that in these matters merely following the rules in the procedure established is not enough, but the principles of natural justice must also necessarily be followed.
What this Court in a number of cases has been observed is that what particular rule of natural justice should apply to a given case depends to a 902 great extent on the facts and circumstances of the case.
Reliance has also been placed on some of the decisions of this Court.
In A.K. Kraipak and Others vs Union of India and Others, it is pointed out that: "Para 20.
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice.
These rules can operate only in areas not covered by any law validly made.
In other words they do not supplant the law of the land but supplement it.
xx xx xx What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose.
Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.
" In Capt.
Harsh Appall vs Union of India and Others, ; the contention was that before confirming the sentence by the court material under the Army Act, an opportunity should have been given to the delinquent officer.
In respect of this contention is observed that: "to insist that the confirming authority should give a hearing to the petitioner before it confirmed the sentence passed by the Court Martial is a contention which cannot be accepted.
To accept this contention would mean that all the procedure laid down by the Code of Criminal Procedure should be adopted in respect of the Court Martial, is a contention which cannot be accepted in the face of the very clear indications in the Constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed Personnel." (emphasis supplied) As observed in Khemchand vs Union of India, to which there is a reference in some of the decisions cited above all that the courts have to see is whether there was non observance of any of 903 those principles in a given case and whether the same has resulted in defecting the course ofjustice and that what principles of natural justice should be applied in a given case depends on the facts and circumstances of that case (vide State of Uttar Pradesh vs Om Prakash Gupta, In our view even applying all these principles the petitioner has failed to prove that the enquiry is vitiated in any manner.
The last submission of the learned counsel is that the punishment of dismissal is wholly disproportionate to the alleged act of misconduct.
We are unable to go to the extent of holding that the punishment by way of dismissal is arbitrarily awarded.
But there are certain mitigating circumstances.
The petitioner joined as a Constable in the year 1963 and he was awarded medals for the performing his duties diligently.
He has put in 20 yard of service and no act of negligence or misconduct is attributed to him at any time before during this long service.
Under these circumstances if the petitioner makes any representation the concerned authority may consider the question of awarding a lesser sentence.
With the above observations the writ petition is dismissed.
G.N. Petition dismissed.

summary/full:
The petitioner, a Head Constable in the Central Reserve Police Force was charge sheeted for negligence in his duty, resulting in the escape of two undertrial prisoners, who were handed over to him for custody.
An enquiry was conducted against the petitioner, but later it was cancelled and a fresh enquiry was commenced on the charges that he allowed a Santry to leave the santry post without arranging proper relief resulting in the escape of 2 undertrial prisoners; that he did not take immediate action to report the matter to the Head Quarters; that he connived the escape of the two undertrial prisoners; that he dug up a tunnel to make it appear that the two undertrial prisoners escaped through the tunnel and that he did not hand over the guard duty roster thus preventing its production as evidence.
Statement of some witnesses and that of the Petitioner were recorded.
Only one defence witness was examined.
The Enquiry Officer submitted his report recommending disciplinary proceedings against the petitioner.
On the basis of the Report , a dismissal order was passed against the petitioner.
The petitioner 's appeal against the dismissal order was dismissed by the appellate authority.
Revision Petition preferred by him also met the same fate.
In the present Writ Petition, challenging the dismissal order, the 895 petitioner contended that during the relevant time, there was absolute shortage of personnel, non supply of torch or candle or kerosene and absence of proper arrangements to keep custody of the undertrial prisoners.
It was also contended that all the defence witness cited by him were not examined and that the enquiry was mala fide since the earlier enquiry was dropped and he was exonerated.
The Respondents contended that no prejudice was caused to the petitioner since full opportunity was afforded to him, that the venue of the enquiry was shifted only to avoid unnecessary delay and the petitioner never objected to it during the enquiry.
As regards the first enquiry, it was contended that since the same was not completed and later cancelled, fresh enquiry was ordered and it did not mean that the petitioner was exonerated.
Dismissing the Writ Petition, this Court, HELD: 1.
It is necessary to examine the scope of Article 32 of the Constitution in this case.
Since the two undertrials were entrusted to the custody of the petitioner and they escaped, the responsibility was entirely on the petitioner.
No doubt, he pleaded that the arrangements were inadequate and the two undertrial prisoners took advantage, dug a tunnel through which they managed to escape.
The Deputy Superintendent of Police who visited the premises inspected the same and made a report in which he clearly observed that there was certainly some negligence in not noticing the activities of the undertrial prisoners and therefore an enquiry was necessary.
The Enquiry Officer, on the basis of the oral and documentary evidence, concluded that the petitioner committed an offence of neglect of duty and that he did not take immediate action to report the matter to the Circle Officer.
The statements of PWs 1, 3, 4, 5, 6, 8 and 9 to show that there was no tunnel at all when they reached the spot on hearing the alarm.
It is in the statement of PW 2 that he saw the petitioner digging the tunnel.
In view of these clear statements made by the PWs viz. the Constables who were on duty alongwith the petitioner when the two undertrial escaped, the Enquiry Officer was justified in recommending disciplinary action, and no prejudice was caused to the petitioner.[900D H, 901A B] Kavalappara Kottarathil Kochunni Moopil Nayar vs The State of Madras and Ors., [1959] (supp.) 2 SCR 316 and Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963]1 SCR 778, referred to. 2.
Whether there was non observance of any of the principles of 896 natural justice in a given case and whether the same has resulted in defecting the course of justice, and what principles of natural justice should be applied in a given case depends on the facts and circumstances of that case.
In the instance case, the petitioner has failed to prove that the enquiry is vitiated in any manner whatsoever.
[902H;903A B] Tata Oil Mills Co. Ltd. vs Its Workmen, [1964] 7Scr 555 ; State of Uttar Pradesh vs Om Prakash Gupta, ; State Bank of India vs R.K. Jain & Ors., [1972] 1 SCR 755; State of Andhara Pradesh & Ors.v.
Chitra Venkata Rao, [1976]1SCR 521; A.K. Kraipak and Ors.
vs Union of India and Ors.
, [1969] 2SCC 262; Capt.
Harish Uppal vs Union of India and Ors., ; and Khemchand vs Union of India, , referred to.
[Though the Petitioner 's challenge to the dismissal order was negatived by the Court, appreciating the mitigating circumstances such as the petitioner 's long service of 20 years in which he was performing his duties diligently and bagging medals therefore, and that no act of negligence or misconduct was attributed to him earlier, the Court observed that if the petitioner marks any representation, the authority concerned may consider the question of awarding a lesser sentence.]