judgement:
: Criminal Appeal No. 67 of 1991.
From the Judgement and Order dated 27.11.1987 of the Delhi High Court in Crl.
W. No. 527 of 1987.
N.N. Gupta and Rajiv Dutta for the Appellant.
J.D. Jain, Maninder Singh and Ms. Sushma Suri for the Respondents.
The Judgement of the Court was delivered by K. JAYACHANDRA REDDY, J.
This appeal, pursuant to the special leave granted, is directed against the order of the High Court of Delhi dismissing the writ petition filed by the appellant summarily.
The appellant was serving as a Jawan in the Indian Army.
On 17th September, 1985, he applied for leave and it was granted.
He was going to his home town, a village in Rajasthan.
He purchased 11 bottles of sealed rum and one bottle of brandy from his Unit Canteen as he required the same to celebrate the marriage of one of his close relations at his home town.
Admittedly, the appellant was entitled to carry 4 bottles of rum and one bottle of brandy as per the Unit Regulations/leave certificate when he was proceeding on leave.
According to the appellant, the remaining 7 bottles of rum he was able to purchase from the Unit Canteen over and above his entitlement on the orders of its Company Commander and Commanding Officer on compassionate grounds and that there was a written order to that effect which was retained by the Salesman of the Unit Canteen at the time of delivery of the extra 7 bottles of rum.
Enroute to his home 679 town he had to pass through Surendra Nagar which was under prohibition.
The local Civil Police at Surendra Nagar intercepted him and confiscated the bottles of liquor and handed over the appellant alongwith the liquor bottles to the City Police Station, Surendra Nagar.
The City Police in turn handed over him to his Unit authorities for action.
The 6th respondent, the Officer Commanding, 98 Field Regiment, ordered a summary court martial during which the witnesses including the Civil, Police Officer of Surendra Nagar were examined.
Ultimately the summary court martial sentenced the appellant to three months ' R.I. and dismissed him from service with effect from 9th October, 1985 by which time the appellant had already put in 10 years of service.
His plea throughout has been that he had purchased the liquor for the marriage of his brother in law on the basis of the permit issued to him and the chits issued by his superiors enabling him to draw the extra 7 bottles of rum and that he had no other bad intention in carrying the liquor bottles.
He preferred an appeal to the Army Commander mentioning several irregularities in the summary trial.
He also pleaded that he was having unblemished record of service in the Army, but his appeal was rejected.
Thereafter he filed a writ petition in the Delhi High Court which was summarily rejected.
In this appeal the learned counsel for the appellant submitted that several irregularities have been committed in conducting the summary trial.
But from the records we find that the evidence has been duly recorded and further it is an admitted fact that the appellant was carrying extra 7 bottles of rum without the necessary permit.
Therefore we are unable to agree with the counsel that the trial is vitiated and we are of the view that no prejudice has been caused.
The main submission and perhaps the only submission, if we may say so, in this appeal is that the sentence awarded to the appellant is wholly disproportionate to the offence committed by him.
According to the learned counsel the extreme punishment of imprisonment for 3 months and dismissal from the service under the circumstances is uncalled for.
We find considerable force in this submission.
Admittedly the appellant was granted leave when he was proceeding to his home town and unfortunately enroute to his home town he had to pass through Surendra Nagar where there was prohibition in force.
However, he had a valid permit to carry 5 bottles, the extra 7 bottles of rum, according to the appellant, were purchased from the Army Canteen itself and there is no dispute about the same.
Unless he had some permits or chits given by some higher authorities permitting him to purchase these bottles, he could not have purchased the same from the Canteen 680 over and above the bottles for which he had a valid permit.
He was taking this liquor to his home town to celebrate his brother in law 's marriage, but to his bad luck, the Civil Police of Surendra Nagar checked his baggage and confiscated the bottles as he had no valid permit to carry the extra bottles.
Under these circumstances the question is whether such a severe penalty is called for.
In the chargesheet it is merely stated that the action of the appellant in carrying 11 bottles of sealed rum and one bottle of sealed brandy when he was proceeding to his home town is "contrary to the existing orders on the subject".
In the counter affidavit it is stated that such an act of the appellant comes within the meaning of Section 63 of Chapter VI of the (`Act ' for short) which enumerates various types of offences.
Section 63 lays down as under: "63.
Violation of good order and discipline Any person subject to this who is guilty of any act or omission which, though not specified in this , is prejudicial to good order and military discipline shall, on conviction by court martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this act mentioned".
The Section may cover various types of misconducts committed by a person by way of an act or omission.
This Section also provides for awarding any other lesser punishment mentioned in the .
Therefore such depends on the nature of the act or omission of which the person is found guilty.
The provisions in Chapter VII enumerate various punishments that can be awarded.
Section 71 of the deals with punishments awardable by court martial and reads as under: "71.
Punishments awardable by courts martial Punishments may be inflicted in respect of offences committed by persons subject to this and convicted by courts martial, according to the scale following, that is to say (a) death; (b) transportation for life or for any period not less than seven years; (c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years; 681 (d) cashiering, in case of officers; (e) dismissal from the service; (f) reduction to the ranks or to a lower rank or grade or place in the list of their rank, in the case of warrant officers.
; and reduction to the ranks or to a lower rank or grade, in the case of non commissioned officers; Provided that a warrant officer reduced to the ranks shall not be required to serve in the ranks as a sepoy; (g) forfeiture of seniority of rank, in the case of officers, junior commissioned officers, warrant officers and non commissioned officers; and forfeiture of all or any part of their service for the purpose of promotion, in the case of any of them whose promotion depends upon length of service; (h) forfeiture of service for the purpose of increased pay, pension or any other prescribed purpose; (i) severe reprimand or reprimand, in the case of officers, junior commissioned officer, warrant officers and non commissioned officers; (j) forfeiture of pay and allowances for a period not exceedind three months for an offence committed on active service; (k) forfeiture in the case of a person sentenced to cashiering or dismissal from the service of all arrears of pay and allowances and other public money due to him at the time of such cashiering or dismissal; (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good.
" It can be seen that Sections 71(a) to 71(e) and Section 71(k) provide for extreme punishments and are severe in nature.
Sections 71(f) to 71(j) and Section 71(l) provide for comparatively lesser punishments.
Section 72 of the is the next relevant Section which reads as under: 682 "72.
Alternative punishments awardable by court martial Subject to the provisions of this , a Court Martial may, on convicting a person subject to this to any of the offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set set out in Section 71, regard being had to the nature and degree of the Offence." (emphasis supplied) Section 73 of the deals with combination of punishments and it reads as under: "73.
Combination of punishments A sentence of a court martial may award in addition to, or without any one other punishment, the punishment specified in clause (d) or clause (e) of Section 71 and any one or more of the Punishments specified in clauses (f) to (l) of that section.
" It can be seen that under Section 73 of the , the court martial may award more than one punishments as mentioned therein.
In the instant case Section 63 also is not mentioned in the chargesheet.
Assuming that the offence committed by the appellant is covered by the residuary Section 63 but in awarding the punishment the court martial has to keep in view the spirit behind Section 72 of the and it has to give due regard to the nature and degree of the offence.
It can be seen that Section 63 provides for awarding any of the lesser punishments enumerated in Section 71 of the .
In view of these provisions of law and having regard to the nature and degree of the offence, we are firmly of the view that the punishments awarded to the appellant namely, three months ' R.I. and dismissal from service are severe and are also violative of Section 72.
In Council of Civil Service Unions vs Minister for the Civil Service, ; , 950 Lord Diplock said: "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review.
The first ground I would call `illegality ', the second `irrationa 683 lity ' and the third 'procedural impropriety ! This is not to say that further development on a case by case basis may not in course of time add further grounds.
I have in mind particularly the possible adoption in the future of the principle of 'proportionality ' which is recognised in the administrative law of several of our fellow members of the Eurpoean Economic community,. ." This principle was followed in Ranjit Thakur vs Union of India and Others, where this Court considered the question of doctrine of proportionality in the matter of awarding punishment under the and it was observed thus: "The question of the choice and quantum of punishment is within the jurisdiction and discretion of the court martial.
but the sentence has to suit the offence and the offender.
It should not be vindictive or unduly harsh.
It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias.
The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognised grounds of judicial review.
" In Bhagat Ram vs State of Himachal Pradesh, [1983] 2 SCC 442 this Court held as under: "It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.
" Applying these principles to the instant case, We are also constrained to say that there is an element of arbitrariness in awarding these severe punishments to the appellant.
We have heard both the learned counsel on this aspect elaborately and we are satisfied that an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments.
Having given our earnest consideration to the 684 facts and circumstances of this case and in view of the submissions made by both the counsel, we feel that ends of justice will sufficiently be met if a lesser punishment as provided under Section 71(f) is awarded to the appellant.
Accordingly, we set aside the punishments of three months ' R.I. and dismissal from service and remand the matter to the court martial which shall award any of the lesser punishments having due regard to the nature and circumstances of the case and in the light of the above observations made by us.
Since we are setting aside the sentence of three months ' R.I. any detention suffered by the appellant after the orders of the court martial shall not be treated as a disqualification for being reinstated into service which shall, however, be subject to any of the minor punishments to be awarded by the court martial.
Already much time has lapsed, therefore, we hope the court martial would dispose of the matter as expeditiously as possible preferably within three months.
The appeal is thus disposed of subject to the above directions.
N.P.V. Appeal disposed of.

summary/full:
The appellant, who had put in 10 years of service as Jawan in the Army, was sentenced to 3 months ' R.I. and dismissed from service by the Summary Court Martial, on the charge that his action in carrying 12 bottles of liquor while proceeding on leave to his home town was contrary to the orders on the subject.
The appeal preferred by the appellant, pointing out the irregularities committed in the summary trial, and pleading that he had unblemished record of service, was also rejected by the higher authority.
The writ Petition filed by the appellant was also summarily rejected by the High Court.
In the appeal before this Court, on behalf of the appellant it was contended that the summary trial was vitiated on account of several irregularities committed in conducting the trial, and the sentence awarded to him was wholly disproportionate to the offence committed by him.
Disposing of the appeal, and remanding the case to the Summary Court Martial on the question of sentence, this Court HELD 1.
The trial is not vitiated and no prejudice has been caused to the appellant, inasmuch as from the records it is found that the evidence has been duly recorded and, admittedly, the appellant was carrying extra seven bottles of liquor without the necessary permit.
However, there is an element of arbitrariness in awarding severe punishments and, therefore, an interference is called for and the matter has to be remanded on the question of awarding any of the lesser punishments provided in the .
[679E. 683G H] 677 2.1 Section 72 of the provides that the court martial may, on convicting a person subject to the Act, of any offences specified in Sections 34 to 68 inclusive, award either the particular punishment with which the offence is stated in the said sections to be punishable, or, in lieu thereof, any one of the punishments lower in the scale set out in Section 71, regard being had to the nature and degree of offence.
[680C D] 2.2 In the instant case, in the charge sheet it is merely stated that the action of the appellant in carrying 12 bottles of liquor when he was proceeding to home town was against the orders on the subject.
But in the counter affidavit it is stated that such an act of the appellant came within the meaning of Section 63 of the Act.
This Section may cover various types of misconducts committed by way of an act or omission.
It also provides for awarding any other lesser punishment mentioned in the Act.
Therefore, much depends on the nature of the act or omission of which the person is found guilty.
[680B,E] 2.3 Admittedly, the appellant was granted leave when he was proceeding to his home town.
Enroute he had to pass through a place where prohibition was in force.
He had a valid permit to carry 5 bottles of liquor and the extra 7 bottles were purchased from the Army Canteen itself.
Unless he had some permits or chits given by some higher authorities, he could not have purchased these extra bottles from the Canteen.
He was taking this liquor to his home town to celebrate his brother in law 's marriage, but the local Civil Police checked his baggage and confiscated the bottles as he had no valid permit to carry the extra bottles.
[679G H, 680A] 2.4 Assuming that the offence committed by the appellant is covered by the residuary Section 63, but in awarding the punishment, court martial has to keep in view the spirit behind Section 72 and it has to give due regard to the nature and degree of the offence.
Section 63 provides for awarding of any of the lesser punishments enumerated in Section 71.
In view of these provisions of law and having regard to the nature and degree of the offence, the punishments awarded to the appellant, namely, three months ' R.I. and dismissal from service are severe and are also violative of Section 72.
Ends of justice will be sufficiently met if a lesser punishment as provided under Section 71(f) is awarded to the appellant.
[682E F, 684F] 2.5 Accordingly, the punishments are set aside and the matter remanded to the court martial which shall award any of the lesser 678 punishments having due regard to the nature and circumstances of the case.
Any detention suffered by the appellant after the orders of the court martial will not be treated as a disqualification for being rein stated into service.
[648B] Ranjit Thakur vs Union of India and Others, and Bhagat Ram vs State of Himachal Pradesh, [1983] 2 SCC 442, relied on.
Council of Civil Service Unions vs Minister for the Civil Service, [1984]3 AII ER 935, 950, referred to


judgement:
ivil Appeal No. 2272 of 1991.
From the Judgment and Order dated 12.11.1990 of the Allahabad High Court in C.M.W.P. No. 11192 of 1990.
Sunil Gupta and S.Sukumaran for the Appellant.
Dr. Anand Prakash, B.K. Prasad and S.N. Sikka for the Respondents.
698 The Judgment of the Court was delivered by SHARMA, J.
Special Leave is granted.
In response to a notice inviting tenders by the Diesel Locomotive Works.
Indian Railways, in connection with disposal of one lot of Ferrous Scrap, a number of tenders were submitted by the appellant, the respondent No. 1 and other intending purchasers.
The tenders of the respondent No. 1 and some other bidders were rejected as defective and the appellant 's offer being the highest was accepted, and accordingly the appellant deposited a sum of about Rs.15 lacs.
The respondent no .1 challenged the decision by a writ petition before the Allahabad High Court contending that there was no defect in its tender and that the tender of the appellant could not have been validly accepted as the necessary condition of payment of Rs. 50,000 as earnest money with the tender had not been complied with.
The application was resisted on the grounds (i) that the respondent No. 1 having not deposited the earnest money at all was not entitled to a consideration of its tender and has no locus standi in the present matter; and (ii) that the appellant had substantially complied with the requirement by sending with its tender a Banker 's Cheque marked and certified by the Union Bank of India as good for payment.
The High Court accepted the appellant 's first ground, holding that the tender of the respondent had been rightly rejected for failure to deposit the earnest money, but allowed the writ petition on the finding that the appellant also did not satisfy the condition no.6 of the tender notice as the earnest money was offered by the Banker 's Cheque of a bank other than the State Bank of India mentioned in the said clause.
The High Court directed the authorities to consider the other valid tenders and further observed that should the other tenders be found to be unacceptable it would be open to the authorities to invite fresh tenders.
the present appeal is directed against this judgment.
The case of the appellant has been that its tender mentioned the highest amount of one and a half crores rupees for the 2000 M.T. of Ferrous Scrap which was a very fair price, and the authorities were absolutely right in accepting the same.
With respect to the alleged deficiency in the matter of deposit of the earnest amount, the stand is that a Banker 's Cheque is as good as cash and especially so when a verification from the bank in question about its authenticity was made and the Bank 's assurance to honour the same was obtained.
Admittedly, the Tender Committee had taken the precaution of getting the matter confirmed from the appellant 's bank before deciding to accept his tender.
699 4.
The relevant clause 6 of the notice required the tender to be accompanied by earnest money calculated at 5% of the offer under the tender subject to a maximum of Rs 50,000 and in terms permitted the deposit by cash or by demand draft drawn on the State Bank of India.
the defect pointed out by the respondent No. 1 and accepted by the High Court is in the appellant sending the cheque of the Union Bank of India drawn on its own branch and not on the State Bank.
By the impugned judgment it has been held that in view of this defect the authorities had no power to accept the appellant 's tender.
the learned counsel for the appellant has contended that having regard to the circumstances in the case it must be held that the Tender Committee had the power to accept the appellant 's tender.
Referring to the books "Bills of Exchange" by Byles, and "Cheques in Law and Practice" by M.S. Parthasarathy, it has been argued that certified cheques are as good as cash and the irregularity relied upon in the appellant 's submitting his tender could be validly waived by the Diesel Locomotive Works.
Reliance was also placed on M/s B.D. Yadav and M.R. Meshram vs Administrator of the City of Nagpur, and T.V Subhadra Amma vs Kerala Board of Revenue and Others, 6.
It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank the clause No. 6 of the tender notice was not obeyed literally, but the question is as to whether the said non compliance deprived the Diesel Locomotive Works of the authority to accept the bid.
As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance.
The requirements in a tender notice can be classified into two categories those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition.
In the first case the authority issuing the tender may be required to enforce them rigidly.
In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases.
This aspect was examined by this Court in GJ Fernandez vs State of Karnataka 7 Ors.
; , a case dealing with tenders.
Although not in an entirely identical situation as the present one, the observations in the judgment support our view.
The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty vs International Airport Authority of India & 700 Ors.; , but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon.
The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination.
The judgment indicates that the Court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question.
This part of the judgment demonstrates the difference between the two categories of the conditions discussed above.
However it remains to be seen as to which of the two clauses, the present case belongs.
The nature of payment by a certified cheque was considered by this Court in Sita Ram Jhunjhunwala vs Bombay Bullion Association Ltd. & Anr., Several objections were taken there in support of the plea that the necessary condition in regard to payment was not satisfied and in that context this Court quoted the observations from the judgment in an English decision (vide Spargo 's case: 1873 L.R. & Ch.
407) that it is a general rule of law that in every case where a transaction resolves itself into paying money by A to B and then handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards.
This Court applied that the observations to a transaction requiring payment by one to another.
The High Court 's decisions in B.D. Yadav 's case and T.V. Subhadra Amma 's case are also illustrations where literal compliance of every term of the tender notice was not insisted upon.
In the instant case the certified cheque of the Union Bank of India drawn on is own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank.
In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6, specially when it was in its interest of not to reject the said bid which was the highest.
We, therefore, set aside the impugned judgment and dismiss the writ petition of the respondent No. 1 filed before the High Court.
The appeal is accordingly allowed with costs through out.
R.P. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The Diesel Locomotive Works, Indian Railway, invited tenders for disposal of one lot of Ferrous scrap.
One of the conditions mentioned in the tender notice was that the earnest money should be deposited by cash or by demand draft drawn of the State Bank of India.
The appellant, one of the intending purchasers, submitted his tender accompanied by a cheque of Union Bank of India drawn on its own branch.
The tender of the appellant, being the highest, was accepted and tenders of respondent No. 1 and some others were rejected.
The Tender Committee had verified from Union Bank of India the bona fide of appellant 's cheque and then only decided to accept its tender.
Respondent No. 1 filed writ petition in the High Court challenging the rejection of its tender, and acceptance of appellant 's tender on the ground that the latter did not comply with the necessary condition for payment of earnest money with the tender.
The appellant contended that it had substantially complied with the requirement by sending with its tender a banker 's cheque marked and certified by the Union Bank of India as good for payment.
The High Court opined that respondent 's tender was rightly for failure to deposit the earnest money, but allowed the writ petition holding that the appellant also did not satisfy the condition regarding payment of the earnest money since the cheque sent was from a bank other than the State Bank of India as stipulated, and as such the authorities had no power to accept appellant 's tender.
Aggrieved, the appellant preferred the appeal by special leave to this Court.
Allowing the appeal, this Court 697 HELD: 1.
As a matter of general proposition it cannot be laid down that an authority inviting tenders in bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance.
The requirement in a tender notice can be classified into two categories those which lay down the essential conditions of eligibility, and the other which are merely ancilliary or subsidiary with the main object to be achieved by the condition.
In the first case the authority issuing the tender may be required to enforce them rigidly.
In the other case it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate case.
[699E G] 2.
In the instant case, in submitting the cheque drawn on the Union Bank of India and not on the State Bank of India, the relevant condition of the tender notice was not obeyed literally; but the said cheque must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank.
In the situation it could not be said that the Diesel Locomotive Works had no authority to waive the technical literal compliance of the clause, regarding manner of payment of earnest money especially when it was in its interest not to reject the said bid which was the highest.
[699D E; 700F G] GJ Fernandez vs State of Karnataka & Ors., ; and Sita Ram Jhunjhunwala vs Bombay bullion Association Ltd. & Anr., , relied on.
Ramana Dayaram Shetty vs International Airport Authority of India & Ors., ; ; Spargo 's Case, ; M/s B.D Yadav and M.R. Meshram vs Administrator of the City of Nagpur, and T.V. Subharda Amma vs Kerala Board of Revenue and Others, , referred to.


judgement:
Special Leave Petition No. 13560 of 1983.
From the Judgment and Order dated 27.6.1983 of the Himachal Pradesh High Court in C. W. P. No. 86 of 1983.
P.P. Rao and H. J. Zaviri for the Petitioner.
V.K. Kanth and C.P. Pandey for the Respondents.
The following Order of the Court was delivered by K. JAYACHANDRA REDDY, J.
The petitioner was directly appointed as an Accountant in the Himachal Pradesh Tourism Development Corporation Ltd. ( 'Corporation ' for short) on 28.8.78 He was on probation in the Transport Wing of the Corporation.
After 704 training he was transferred to the Office of the Area Manager, Simla and was posted as an Accountant.
His conditions of service were governed by the Regulations made by the Board of Directors of the Corporation.
The petitioner detected certain irregularities in the Transport Wing and wrote a letter dated 19.6.1980 to the Transport Officer pointing out the financial irregularities and embezzlements committed by the then Cashier.
The employees ' Union took up the matter and demanded the Management to take necessary action and also made some demands on behalf of the Union.
The petitioner was the General Secretary of the Union.
In April 1980, the respondent No. 2 was posted as the new Managing Director.
According to the petitioner he was annoyed with the petitioner because of his union activities.
It is stated that the petitioner actively participated in highlighting the demands.
On 13.5.1981 an order transferring the petitioner to Dalhousie was passed, even though the petitioner had been earlier granted permission on 23.7.79 to do his 3 years Law course as an evening student.
the petitioner made a representation for cancellation of the transfer on the ground that he was already half way through his legal study and that the transfer was mala fide.
Respondent No. 2 got more annoyed.
The petitioner submitted a study leave application for one year.
But he was granted only 90 days leave in the first instance with full pay and allowances and later on half pay and subsequently without pay he was granted extra ordinary leave.
Meanwhile, a chargesheet was issued on 21st August, 1981 framing certain charges.
The gravamen of the charges is that while working in the Transport Wing of the Corporation the petitioner facilitated and abetted the embezziment of Rs. 100 by notensuring that the amount found was in excess and that he failed to serve the Corporation honestly and faithfully.
The other charge is that he made some fictitious entries in the Cash Book and the fourth charge is that he made certain information public without the permission of the Managing Director.
To this the petitioner submitted a reply stating that all the charges are fake and false.
It is stated that the petitioner 's leave was cancelled and the petitioner challenged the same in the High Court of Himachal Pradesh but the case was adjourned.
Meanwhile the petitioner 's services were terminated with effect from 8th January, 1982 stating that they are no longer required and one month 's pay in lieu of notice would be paid in terms and conditions of his appointment letter and provisions of Staff Regulations of the Corporation.
The petitioner challenged the same before the High Court, but the Writ Petition was dismissed in limine.
In this Court it is urged that the termination is only a camouflage and that though the petitioner was still a temporary servant yet the termination amounted to punishment because of the manner in which it was 705 passed and the background behind it.
It is not in dispute that the Corporation has power to terminate the services by giving one month 's notice or pay in lieu thereof, in the case of a temporary employee who have completed one month 's service.
Regulation 19(3) reads thus: Termination of service by notice "19(3) The Corporation may terminate the services of any employee by giving him: (a) xx xx xx (b) one month 's notice, or pay in lieu thereof, in the case of temporary employees who have completed one months service and one day 's notice or pay in lieu thereof in the case of temporary employees in the first month of their service.
" Regulation 39 prescribes various penalties that can be awarded and termination of service is one of them.
Now the only question that arises for consideration in this case is whether the termination of the petitioner 's services is simply one as per the Regulation 19(3) or in the nature of a camouflage and, therefore, amounts to punishment as contended by the petitioner.
In Anoop Jaiswal vs Government of India & Anr., p[1984] 2 SCR 453, it is held as under: "Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order.
If the Court holds that the order though in the form is merely a determination of employment is in reality a clock for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee.
" In Nepal Singh vs State of U.P. & Ors., [1985] 2 SCR it is held as under: 706 "Where allegations of misconduct are levelled against a Government Servant, and it is a case where the provisions of Article 31(2) of the Constitution should be applied, it is not open to the competent authority to take the view that holding the enquiry contemplated by the clause would be a bother or a nuisance and that therefore it is entitled to avoid the mandate of that provision and resort to the guise of an ex facie innocuous termination order.
The Court will view with great disfavour any attempt to circumvent the constitutional provision of article 311(2) in a case where that provision comes into play." In Jarnail Singh & Ors., etc.
vs State of Punjab & Ors.
, ; it is, held thus: "When an allegation is made by the employee assailing the order of termination as one based on misconduct though conched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of.
In other words, the Court, in such a case, will lift the veil and will see whether the order was made on the ground of misconduct, inefficiency or not." From the above decisions it can be seen that it is well settled that in a case of an order of termination even that of a temporary employee the Court has to see whether the order was made on the ground of misconduct if such a complaint was made and in that process the Court would examine the real circumstances as well as the basis and foundation of the order complained of and if the Court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoided an enquiry as warranted by Article 311(2) of the Constitution, then such a termination is liable to be quashed.
In the above mentioned decisions, the impugned termination order was accordingly quashed.
It is not in dispute that a regular chargesheet was served on the petitioner, as mentioned above, on 21st August, 1981 and to the said chargesheet a list of documents also was appended on the basis of which the articles of charge were framed.
The petitioner replied to these charges on 7th September, 1981.
Without reference to any of the charges or the reply the order of termination was passed on 8th 707 January, 1982 as already mentioned.
In the counter affidavit at more than one place it is admitted about the framing of the charges etc.
regarding the news item which refers to the information given out by the petitioner.
It is stated in the counter affidavit that services of the petitioner were terminated as a probationer and not on the basis of the enquiry report which came after the services of the petitioner had been terminated.
It can therefore be seen that an enquiry, in fact, was contemplated and was held but the report came into light after termination of the services of the petitioner.
It is also submitted on behalf of the petitioner that the audit report would show many irregularities as pointed out by the petitioner and that the petitioner acted honestly in pointing out the irregularities.
It is not necessary for us to go into this question.
Having gone through the various records and also the admissions made in he counter affidavit, we are satisfied that the termination order, though appears to be innocuous, was only intended to punish the petitioner for the misconduct, in respect of the allegations which are mentioned in the charges that were served on him.
After serving the chargesheet, as a matter of fact, the enquiry was conducted.
But before the conclusion of the enquiry the termination order was passed.
Therefore it is not difficult to see that the form of the termination order is only a cloak for an order of punishment.
In this context, the learned counsel also questioned the termination order from another angle.
In that order it is mentioned that the services of the petitioner are no longer required, therefore they are terminated.
But from the record it is clear that juniors to the petitioner are retained and they are continuing in service.
In the affidavit it is clearly mentioned that juniors whose names are given there are retained in service in violation of Article 14 and 16 of the Constitution.
In the counter affidavit only a vague reply is given simply stating that the averments made by the petitioner are not correct.
In K.C. Joshi vs Union of India and Ors., It is observed that 'If it is discharge simpliciter, it would be violative of Article 16, because a number of store keepers junior to the appellant are shown to have been retained in the service '.
Likewise in Jarnail Singh 's case it was observed as under: "In the instant case, ad hoc services of the appellants have been arbitrarily terminated as no longer required while the respondents have retained other surveyors who are juniors to the appellants.
Therefore, on this ground also, the impugned order of termination of the services of the appellants are illegal and bad being in contravention of the 708 fundamental rights guarantee under Article 14 and 16 of the Constitution of India." After a careful perusal of the record we are satisfied that the juniors to the petitioners are retained.
Therefore on this ground also the termination order is liable to be quashed.
Admittedly the petitioner has been practising as a lawyer ever since his services were terminated.
In the rejoinder filed by him he merely stated that he was not earning much in that profession and that he has incurred debts.
The learned counsel for the Corporation, however, submitted that since the petitioner was admittedly practising as a lawyer the question of granting him back wages is any event does not arise and that even otherwise there cannot be a roving enquiry to the earning he has made as a lawyer at this distance of time.
The petitioner, however, at this juncture filed a further affidavit that his total income from 1985 onwards uptilnow was only Rs.15,550 and that he has not received any other income during all these years.
It is also submitted on his behalf that in similar circumstances this Court awarded back wages even in a case of an employee who practised as a lawyer from the date of dismissal till his reinstatement.
In section M. Saiyad vs Baroda Municipal Corporation, the employee was directed to be reinstated in service by the labour court.
Then ultimately on the question of back wages it was urged before this Court that though the appellant was practising as a lawyer after enrolment during that period still he was entitled for back wages.
This Court accepted this plea and observed as under: "The appellant seeks back wages for the period December 12, 1969 to October 26, 1976.
This period according to the respondent has to be divided in two parts; (1) from December 12, 1969 to Jan. 20, 1972 when the appellant was enrolled as an advocate, and (2) for the period Jan. 21, 1976 to October 26, 1976 from which date he has already been awarded back wages, it was submitted on behalf of the respondent that the appellant himself has admitted that since his being enrolled as an advocate he was earning Rs. 150 per month which aspect must be borne in mind while considering the submission of the appellant for the award of back wages.
" Partly accepting this plea this Court ultimately observed that the appellant therein must have atleast stated earning after a lapse of one 709 year from the date on which he was enrolled as an advocate.
Ultimately this court directed that: "We, accordingly, allow this appeal and set aside the decision of the High Court refusing the back wages for the period December 12, 1969 to October 26, 1976 and directed that the appellant shall be entitled to back wages including salary and allowances and other benefits to which he would be entitled as if the has continued the service.
While making the payment of back wages as per this order the respondent is entitled to deduct the amount of Rs. 150 p.m. from January 20, 1973 to October 26, 1976 from the amount which becomes payable to the appellant.
The respondent must compute the amount payable as herein directed and pay what becomes payable to the appellant within a period of two months from today.
" It can therefore be seen that this Court did not refuse to grant back wages on the simple ground that the employee was a practicing lawyer during the relevant period.
But on the other hand it took into account the probable income and after deducting the same the balance of back wages was directed to be computed.
In the instant case in the affidavit filed by the petitioner it is stated that he was practising as an income tax advocate ever since his enrolment in October, 1982.
But, however, he asserted that he got his first brief in the year 1985.
These averments are contradicted by the other side.
Under these circumstance we cannot make a roving enquiry nor would it be possible for the corporation to unearth the income which the petitioner would have derived as a practising advocate.
There are many imponderables and conjectures too.
Under these circumstances we asked both the counsels to suggest a solution.
We have heard both the sides on this aspect elaborately.
Shri P. P. Rao, learned counsel for the petitioner submitted that if the relevant period is to be treated as one of suspension pending enquiry the petitioner would have been entitled to the subsistence allowance till his reinstatement.
That atleast should be the criteria in granting the back wages in a situation like this.
We think this is a reasonable and fair suggestion.
In the result the termination order is quashed and consequently the petitioner shall be reinstated in service.
However, he shall be entitled to the full back wages upto the date of his enrolment as a 710 lawyer which was in the month of October, 1982.
From the date of his enrolment upto the date of reinstatement he shall be entitled to the back wages at the rate of half of the subsistence allowance per month and the total amount shall be computed on that basis.
Out of that the income of Rs.15,550 admittedly earned by him as a practising lawyer shall be deducted and the balance amount shall be paid to the petitioner.
The amount so paid to him shall for the purpose of income tax, be spread over as if derived during those financial years from the date of his dismissal till the date of reinstatement.
However, we would like to make it clear that it is open to the Corporation to proceed with the disciplinary enquiry if it so chooses.
The special leave petition is accordingly disposed of.
In the circumstances of the case there will be no order as to costs.
N.P.V SLP disposed of.

summary/full:
A charge sheet was issued to the petitioner, a directly recruited Accountant in the respondent Corporation alleging that while working in the Transport Wing of the Corporation, he facilitated and abetted the embezzlement of Rs.100 by not ensuring that the amount found was in excess, and thus he failed to serve the Corporation honestly and faithfully, that he made some fictitious entries in the Cash Book and that he made certain information public without the permission of the Managing Director.
The petitioner replied that all the charges were fake and false.
the leave sanctioned to the petitioner earlier for prosecuting legal study was canceled and the petitioner challenged the same in the High Court but the case was adjourned.
Meanwhile, the petitioner 's services were terminated on the ground that he was no longer required and that one month 's pay in lieu of notice would be paid in terms and conditions of his appointment letter and provisions of Staff Regulations of the Corporation.
The petitioner challenged the same before the High Court, but the Writ Petition was dismissed in limine.
702 In the appeal before this Court it was contended that the termination was only a camouflage and that though the petitioner was still a temporary servant, yet the termination amounted to punishment, because of the manner in which it was passed and the background behind it.
It was also contended that though the termination order stated that the petitioner 's services were no longer required, his juniors were retained and were continuing in service, in violation of Articles 14 and 16 of the Constitution.
Disposing of the Special Leave Petition, this Court HELD: 1.1 In a case of an order of termination, even that of a temporary employee, the Court has to see whether the order was made on the ground of misconduct if such a complaint was made and in that process the Court would examine the real circumstances, as well as the basis and foundation of the order complained of and if the Court is satisfied that the termination of services is not so innocuous as claimed to be and if the circumstances further disclose that it is only a camouflage with a view to avoid an enquiry as warranted by Article 311(2) of the Constitution, then such a termination is liable to be quashed.
[706E F] Annop Jaiswal vs Government of India & Anr., ; ; Nepal Singh vs State of U.P. & Ors., ; and Jarnail Singh & Ors.
vs State of Punjab & Ors.
, ; , relied on. 1.2 In the instant case, the termination order, though appears to be innocuous was only intended to punish the petitioner for the misconduct, in respect of the allegations which are mentioned in the charges that were served on him.
As a matter of fact, the enquiry was conducted, but before the conclusion of the enquiry, the termination order was passed.
Therefore, it is not difficult to see that the form of the termination order is only a clock for an order of punishment.
[707C D] 1.3 Besides, the termination is also liable to be quashed on the ground that it is violative of Articles 14 and 16 of the Constitution, as it is clear from the records that while the petitioner 's juniors are retained in service, the petitioner 's services are terminated as no longer required.
[708F, 709A B] Jarnail Singh & Ors.
vs State of Punjab & Ors., [1986]2 SCR 1022 and K.C. Joshi vs Union of India and Ors., [1985]3 SCR 869, relied on.
703 1.4 In the circumstances, the termination order is quashed and the petitioner is directed to be reinstated in service.
However, it shall be open to the respondent Corporation to proceed with the disciplinary enquiry if it so chooses.
[709H] 1.5 As regards the backwages, admittedly the petitioner has been practising as a lawyer since his termination.
But this Court has not refused to grant background that the employee has been practicing as lawyer during the relevant period, but has taken into consideration the probable income that would have been earned him, while granting backwages.
However, a roving enquiry cannot be made by this Court nor would it be possible for the respondent Corporation to unearth the income which the petitioner would have derived as practising advocate.
Undoubtedly, the petitioner would have been entitled to subsistence allowance till his reinstatement, even if the relevant period is treated as one of suspension pending enquiry.
Therefore, the petitioner shall be entitled to the full back wages upto the date of his enrollment as a lawyer and from that date upto the date of reinstatement at the rate of half of the subsistence allowance per month.
Out of the total income, the income admittedly earned by him as a practising lawyer shall be deducted and the balance paid to the petitioner.
The amount so paid shall, for the purpose of income tax, be spread over as if derived during those financial years from the date of his dismissal till date of reinstatement.
[708B, 709D G, 710A B] S.M. Saiyad vs Baroda Municipal Corporation, relied on.


judgement:
N: Criminal Appeal No. 194 of 1979.
From the Judgment and Order dated 4.7.1978 of the Andhra Pradesh High Court in Crl.
A. No. 576 of 1977.
K. Madhava Reddy, and G. Narasimhulu for the Appellants.
B. Parthasarthi for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The appellants are Bollavaram Pedda Narsi Reddy (A 1), Bollavaram Chinna Narsi Reddy (A 2), Kavalakuntla Rama Subba Reddy (A 3), Duddula Venkata Subba Reddy (A 5) and Mala Prakasam (A 6) before this Court.
These appellants along with accused No. 4 Duddela Ramana Reddy, were tried for the 726 murder of one Chandrasekhara Reddy on the night of August 15, 1974.
The trial court acquitted all the accused.
On appeal by the State, the High Court convicted these appellants under sections 302 read with 149, I.P.C., and sentenced them to undergo imprisonment for life and also imposed short term imprisonment for minor offence to run concurrently.
Chandrasekhara Reddy, the deceased, and the accused were residents of village Jeereddy Kotharpallai.
In 1970, Accused No. 3 was elected as a Sarpanch of the village with active support of the deceased.
However, differences arose between them as they supported rival groups in the election in the neighbouring village.
10 days before the incident, the deceased is stated to have openly declared that he would get Accused 3 removed by moving a no confidence motion.
This according to the prosecution is the motive for the crime.
On the date of occurrence, Chandrasekhara Reddy met PW 1 (Guddeti Balaveera Reddy) and PW 2 (Donthireddi Subba Reddy) in the hotel of Subbamma (PW 8) in the neighbouring village Proddatur.
The deceased along with the two witnesses attended a cinema show at Anwar Talkies.
They came out of the theatre 10 minutes earlier around 9.30 P.M. and were walking along the road towards the bus stand.
When they reached near the old telephone exchange about 50 metres away from Anwar Talkies, there was an explosion of crackers.
The accused persons suddenly surrounded the deceased.
They were armed with daggers.
They attacked him after one of them pushing aside PW 1.
PW 1 fell on the barbed wire fence of the transformer and received scratches on his thigh.
The deceased was stabbed indiscriminately and simultaneously by all the assailants who retreated in two different directions and the deceased died on the spot instantaneously.
Besides PWs 1 and 2, who witnessed the occurrence, PW 3 Donthireddi Narayana Reddy, and PW 4 Poreddi Subba Reddy.
had also seen the attack.
These witnesses were passing along the road.
PW 5, Mekkamalla Balireddi, reached the scene attracted by the crowd and had seen the accused persons running away.
The street light besides the electric light at a petrol bunk and the light in the bunk on the side of the road were burning at the time of the occurrence.
The assailants had been identified by the witnesses in that light.
The assailants were strangers to the PWs 1 and 2 but A 2, 3 and 5 were known to PWs 3 and 4 and 5 who had also acquaintance with the deceased PW 5 informed PW 7 (Polagiri Siva Reddy), the brother of the deceased, about the occurrence, while PWs 3 and 4 left the place after seeing the deceased lying at the scene.
This in short is the prosecution case.
727 The Town Police Station is situated about two furlongs away from the place of occurrence.
PW 1 along with PW 2 went to the police station and lodged the first information report.
A crime ws registered against six unidentified persons.
PW 16 (Sri section Khasim Sab, Sub Inspector of Police), recorded the statement exhibit P 1.
The Circle Inspector visited the scene.
PW 2 was referred to the Medical Officer at 4 A.M.
The inquest on the dead body was held on the next morning.
The post mortem examination revealed that deceased had sustained 54 injuries all except one being incised wounds.
At the time of the inquest, the statements of PWs 2 and 7 were recorded.
PW 7 suspected the involvement of Accused 2, 3 and 5.
On 17.8.1974, the police dogs were pressed into service.
It is stated that the sniffer went to the village of the deceased and thereafter to the houses of Accused 2 and 3.
Statements of PWs 3, 4 and 5 were recorded on 18.8.1974.
Accused No. 6 was arrested on 25.9.1974.
A test identification parade was conducted by PW 9 (Sri G.V. Raghavaiah, Judicial Second Class Magistrate) on 31.10.1974.
A 6 was identified by PWs 1, 2, 3 and 4 at the parade as recorded in exhibit P 2 proceeding.
The other accused persons were arrested on 1.11.1974.
PW 10 (Sri D. Sreeramulu, Judicial Second Class Magistrate), conducted the test identification parade in which as per exhibit P 3 proceeding, PWs 1,and 2 identified accused 1, 2, 3 and 5.
The investigation was completed and the charge was laid against the six persons.
The learned sessions judge analysed the prosecution evidence meticulously and discarded the testimony of PWs 1 to 5.
He considered PWs 3, 4 and 5 as chance witnesses, found their conduct in not disclosing the involvement of the accused persons known to them until their statements were recorded on 18.8.1974 as suspicious and strange when they had acquaintance with the deceased.
PWs 3 and 4 when examined by PWs 9 and 10 for the purpose of test identification parade had given statement which vary with their earlier statement and their evidence before court was contradictory to their prior statements.
It was, doubtful whether they could have seen the occurrence or identified any of the assailants.
Their evidence was, therefore, rejected as untrustworthy.
The testimony of the two eye witnesses PWs 1 and 2 who claimed that they were in the company of the deceased at the time of the occurrence was also not accepted by the trial court for various reasons.
They were strangers to the accused persons.
Their evidence regarding the identification of the assailants as the accused did not impress the trial court which pointed out that the prosecution had no consistent case regarding the source of light at the scene that these witnesses even if present at the scene when the assailants mounted the 728 attack on the deceased could not have remained there to observe and memorize the features of the assailants and identify them after a long lapse of time.
PW 1 rushed to the police station in utter confusion even without his dhoti.
The witnesses were frightened and ran away.
In this situation in the meagre light available, they could not have identified the assailants as the accused.
The learned judge on a consideration of the medical evidence was also of the view that the occurrence could not have happened at the time mentioned by these witnesses and, said there were several suspicious features which render their version doubtful.
The learned judge also pointed out that the identification parade was perfunctory and was of no assistance to the prosecution.
The learned sessions judge analysed the entire evidence and considered it unsafe to accept the testimony of the two witnesses to record a conviction.
In that view of the matter, he acquitted all the accused persons.
The High Court considered the reasoning as perverse and on a reappraisal of the evidence, took a contrary view.
In the opinion of the High Court, PWs 1 to 4 are truthful witnesses and their evidence could be accepted.
In its view, there was no serious infirmity in the prosecution evidence.
Accordingly, the High Court accepted the testimony of PWs 1 and 2, corroborated by the evidence of test identification parade and the testimony of PWs 3 and 4 to find the appellants guilty.
Since accused No.4 was not identified by PWs 1 to 4, he was given the benefit of doubt and his acquittal was confirmed.
The learned counsel for the appellants has taken us through the entire evidence in the case.
The appeal is one under Section 2 of the .
It is, no doubt, open to this Court to re examine the evidence for the purpose of satisfying itself whether the High Court was justified in reversing the order of acquittal in the facts and circumstances of the case.
It is well settled proposition of law that in an appeal against acquittal, the Appellate Court is empowered to evaluate the evidence and arrive at its own conclusion.
It is equally settled law that where the view taken by the trial court or an appreciation of the evidence is also a plausible view, the Appellate Court shall be slow to interfere with it even when a different view is possible on a reappraisal of the evidence.
The learned counsel for the appellants pointed out that the High Court in reversing the order of acquittal in this case had departed from these established principles and had thus erred grievously in convicting the appellants.
It was submitted that the conviction recorded by the High Court essentially rests on the testimony of PWs 1 and 2.
When the 729 serious infirmities in the evidence of the other two eye witnesses PWs 3 and 4 had been brought to the notice of the High Court, it has eschewed that evidence and has placed reliance only on the testimony of PWs 1 and 2 in arriving at the conclusion that the appellants are guilty of the offence.
The appellants ' learned counsel, therefore, contended that if the view taken by the trial court on the testimony of PWs 1 and 2 cannot be characterised as perverse or wholly unreasonable, there is no justification for the High Court to accept that evidence as the basis of a conviction even if in its opinion the evidence of these two witnesses could have been relied on.
The main plank of the argument of the learned counsel is that the witnesses being strangers to the assailants when there are circumstances to show that they did not have the opportunity to identify the assailants, their evidence involving these appellants is not free from doubt and, therefore the trial court had taken the reasonable view that it is unsafe for the court to accept that evidence to convict the accused persons.
We see considerable force in the contention of the learned counsel for the appellants.
The evidence given by the witnesses before the court is the substantive evidence.
In a case where the witness is a stranger to the accused and he identifies the accused person before the court for the first time, the court will not ordinarily accept that identification as conclusive.
It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered.
If the accused persons are got identified by the witness soon after their arrest and such identification does not suffer from any infirmity that circumstance lends corroboration to the evidence given by the witness before the court.
But in a case where the evidence before the court is itself shaky, the identification before the magistrate would be of no assistance to the prosecution In the present case, the appellants are admittedly persons with whom the two witnesses had no previous acquaintance.
The occurrence happened on a dark night.
When the crime was committed during the hours of darkness and the assailants are utter strangers to the witnesses, the identification of the accused persons assumes great importance.
The prevailing light is a matter of crucial significance.
The necessity to have the suspects identified by the witnesses soonafter their arrest also arises.
According to the prosecution, the attack on the deceased was sudden and simultaneous and the assailants slipped away in no time.
Both PWs 1 and 2 had deposed that they were attracted by the explosion and when they turned back, the assailants surrounded the deceased and inflicted the stab injuries.
PW 1 was pushed aside.
730 He fell on the fence of the barbed wire of the transformer, received scratches.
His dhoti stuck to the wire.
He left it there and ran to the police station in utter confusion.
His P 1 does not disclose that PW 2 accompanied him, though PWs 1 and 2 stated before court that they went together.
The possibility of the companions of the deceased having been scattered and gone in different directions cannot be ruled out.
Even in Ex.
P 1 statement what PW 1 said is that six persons attacked the deceased; they were villagers; they were wearing dhoti and kurta.
One was about 45 years of age and of dark complexion, another was 30 years of age lean and yet another was also a lean person.
These may be the vague impression the witness had on seeing the assailants suddenly.
It is not however in evidence that the description given by PW 1 in exhibit p 1 fits in with the description of any one of the appellants.
When the magistrates recorded the statements of the witnesses, they could not give any characteristic feature of any one of the assailants.
The entire case depends on the identification of the appellants and the identification is founded solely on the test identification parades.
Therefore, in the absence of cogent evidence that PWs 1 and 2 by reason of the visibility of the light at the place of occurrence and proximity to the assailants had a clear vision of the action of each one of the accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify the assailants even after a long lapse of time, it would be hazardous to draw the inference that the appellants are the real assailants.
There is no whisper in exhibit P 1 that there was some source of light at the scene.
The omission cannot be ignored as insignificant.
When the Investigating Officer has visited the scene, he made reference to the street lights, petrol bunk light etc.
Whether the street lights and the petrol bunk/ light had been burning at the time of the occurence and the spot where the incidence happened was so located as to receive the light emanating from these sources are required to be made out by the prosecution.
When this significant fact is left out in the earliest record, the improvement in the course of the investigation and trial could be of no avail.
The fact that there had been no proof regarding the identity of the assailants until 18.8.1974 would suggest that even persons who collected at the scene in the course of the incidence or soon thereafter were not in a position to identify any one of the assailants.
Since the Investigating Officer arrived at the scene the same night and the inquest ws held in the next morning, it would have been possible for the investigating agency to collect information regarding the identity of the assailants earlier to 18.8.1974, if they had been really identified by any one of the witnesses examined in the case.
When no natural 731 light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake.
The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression.
This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2.
The High Court has ignored the inherent infirmity and failed to deal effectively with every important circumstance in the evidence which weighed with the trial court to disbelieve the prosecution case.
We have noticed that the magistrates in conducting the test identification parade have committed a grave error.
In the case of Accused No.6 PW 9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused.
Similarly, in the identification of the other accused, PW 4 who claimed acquaintance with Accused Nos.2, 3 and 5 was mixed up with PWs 1 and 2.
When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile.
Value of identification parade depends on the effectiveness and the precautions taken against the identifying witness having and opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.
Therefore, the evidence of the earlier identification in this case is unacceptable.
The testimony of PWs 1 and 2 before court is also unsafe to be acted upon.
Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous.
The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial.
Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.
Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt.
We accordingly allow the appeal, set aside the conviction and sentence and maintain the order of acquittal.
The bail bonds of the appellants shall stand cancelled.
TNA Appeal allowed 731 light was available and the street light was distance it is unlikely that the eye witnesses by monetary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake.
The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression.
This aspect of the matter had been stressed by the trial court in appreciating the evidence of PWs 1 and 2.
The High Court has ignored the inherent infirmity and failed to deal effectively with the important circumstance in the evidence which weighted with the trial court to disbelieve the prosecution case.
We have noticed that the magistrates in conducting the test identification parade have committed a grave error.
In the case of Accused No. 6 PW 9 had mixed up along with PWs 1 and 2 a person, Gulati who knew the accused.
Similarly, in the identification of the other accused, PW 4 who claimed acquaintance with Accused Nos. 2, 3 and 5 was mixed up with PWs 1 and 2.
When persons who have already known the accused persons to be identified are mixed up with the witnesses, the test identification is clearly vitiated and is futile.
Value of identification parade depends on the the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.
Therefore, the evidence of the earlier identification in this case is unacceptable.
The testimony of PWs 1 and 2 before court is also unsafe to be acted upon.
Thus we do not consider that the view taken by the learned sessions judge on the whole was erroneous.
The overall view of the evidence taken by the learned sessions judge is reasonable and plausible, while it is true that some of the reasons given if taken individually do not appear to be substantial.
Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.
Thus on a careful and anxious consideration of the evidence in the light of the reasoning adopted by the trial court as well as the High Court, we are of the opinion that the High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellants had not been established beyond reasonable doubt.
We accordingly allow the appeal, set aside the conviction and sentence and maintain the order or acquittal.
The bail bonds of the appellants shall stand cancelled.
TNA Appeal allowed.

summary/full:
The appellants (A 1 to A 3 and A 5 6), along with Co accused (A 4), were prosecuted under sections 302/149 of the Indian Penal Code.
Test identification parades were conducted by the Magistrates in which A 6 was identified by PWs 1, 2, 3 and 4 and A 1, 2,3,and 5 were identified by PWs 1 and 2.
The trial court held that the identification parade was perfunctory and was of no assistance to the prosecution.
It also rejected the testimony of PWs 1 to 5 by holding that the evidence of PWs 3, 4, and 5 was untrust worthy and that it was unsafe to accept the testimony of other two eye witnesses, PWs 1 and 2 for recording a conviction.
Accordingly the trial court acquitted all the accused persons.
Against the order of acquittal, the State preferred an appeal before the High Court.
The High Court accepted the testimony of PWs 1 and 2, corroborated by the evidence of test identification parade and the testimony of PWs 3 and 4 to find the appellants guilty.
Accordingly the High Court reversed the order of acquittal and convicted the appellants.
Since A 4 was not identified by the PWs 1 to 4, he was given the benefit of doubt and the High Court confirmed his acquittal.
724 In appeal to this court under section 2 of the , it was contended on behalf of the appellants that PWs (1 and 2) were strangers to the assailants and in the circumstances of the case they did not have the opportunity to identify the assailants and consequently their testimony was not free from doubt; the trial court was right in rejecting the testimony of these witnesses but the High Court erred in reversing the order of acquittal and convicting the appellants by accepting the testimony of these witnesses.
Allowing the appeal and setting aside the order of conviction and sentence, this Court, HELD: 1.It is open to Supreme Court to re examine the evidence for the purpose of satisfying itself whether the High Court was justified in reversing the order of acquittal in the facts and circumstances of the case.
In an appeal against acquittal, the Appellate Court is empowered to evaluate the evidence and arrive at its own conclusion.
But where the view taken by the trial court on an appreciation of the evidence is also a plausible view, the Appellate Court shall be slow to interfere with it even when a different view is possible on a reappraisal of the evidence.
[728F G] 1.1 Even when two evenly balanced views of the evidence are possible one must necessarily concede the existence of a reasonable doubt.
[731F] 2.The evidence given by the witnesses before the Court is the substantive evidence.
In a case where the witness is a stranger to the accused and he identifies the accused person before the court for the first time, the court will not ordinarily accept that identification as conclusive.
It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered.
If the accused persons are got identified by the witness soon after their arrest and such identification does not suffer from any infirmity that circumstance lends corroboration to the evidence give by the witness before the Court.
But in a case where the evidence before the court is itself shaky, the identification before the magistrate would be of no assistance to the prosecution.
[729D E] 2.1 The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression.
725 In the instant case at the scene of the crime when no natural light was available and the street light was at a distance it is unlikely that the eye witnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake.
Therefore the testimony of PWs 1 and 2 is unsafe to be acted upon.
The overall view of the evidence taken by the Trial Court is reasonable and plausible.
The High Court was not justified in interfering with the order of acquittal when the identity and involvement of the appellant was not established beyond reasonable doubt.[731A B, E F G, 730H] 3.
Value of identification parade depends on the effectiveness and the precautions taken against the identifying witness having an opportunity of seeing the persons to be identified before they are paraded with others and also against the identifying witness being provided by the investigating authority with other unfair aid or assistance so as to facilitate the identification of the accused concerned.
When persons who have already known the accused persons to be identified are mixed up with the witnesses the test identification is clearly vitiated and is futile.
In the instant case the magistrates in conducting the test identification parade have committed a grave error because in the case of Accused No. 6 he had mixed up along with PWs 1 and 2 a person known to the accused.
Similarly, in the identification of the other accused, PW 4 who claimed acquitance with Accused Nos. 2, 3 and 5 was mixed up with PWs 1 and 2.
[731C E]