judgement:
minal Appeal No. 65 of 1954.
Appeal by special leave from the judgment and order dated the 2nd January 1953 of the Judicial Commissioner 's Court at Ajmer in Criminal Appeal No. 3 of 1952 arising out of the judgment and order dated the 4th January, 1952 of the Court of Sessions Judge at Ajmer in Criminal Appeal No. 300 of 1951.
B.P. Berry and B. P. Maheshwari, for the appellant.
C. K. Daphtar Solicitor General of India (Porus A. Mehta and P. G. Gokhale, with him) for the respondent.
March 12.
The Judgment of the Court was delivered by BOSE J.
The appellant, S.N. Mehra, a Camp Clerk 201 Ajmer, has been convicted of offences under section 420 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947).
He was sentenced to two years ' rigorous imprisonment and a fine of Rs. 100 on each count.
The substantive sentences are concurrent.
The substance of the offences for which he was convicted lay in obtaining sums to talling Rs. 23 12 0 from Government as T.A. for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus.
The money represents the second class railway fare for these journeys.
The allegation against him is that either he did not travel at all between those places on the relevant dates, or, if he did, that he did not pay the fare.
He appealed to the Sessions Judge at Ajmer and was acquitted.
The State filed an appeal against the acquittal to the Judicial Commissioner of Ajmer ' The learned Judicial Commissioner accepted the appeal and remanded the case for retrial before a Special Judge because, by reason of certain amendments in the law, only a Special Judge could try an offence under section 5(2) of the Prevention of Corruption Act at the date of the remand.
The appeal here raises certain questions about sanction which we do not intend to discuss because, in our opinion, the evidence adduced does not justify a retrial as no conviction for those two offences could be based on it.
It was first alleged that the appellant did not travel at all on the relevant dates and that the burden of proving that he did was on him.
We do not think this issue arises because the charge assumes that he did travel and there is no evidence before us to justify even a prima facie inference that he did not.
The charge runs "That you, on or about etc . cheated the Government by dishonestly inducing the Government to pay you Rs. 62 9 0 on account of T.A. for the journeys performed on the above mentioned days. . " 202 There is no suggestion that the journeys were not performed and only purported to be; and it would be unfair to permit the State to go back on what it said in the charge at this stage, especially after the appellant has entered on his defence and virtually admitted that he did travel on those dates; in any case, he has not denied the fact and that would naturally operate to his disadvantage if the prosecution were to be allowed to change its position in this way.
We must therefore accept the fact that he did travel as alleged on the relevant dates, and the only question that remains is whether he paid the second class fares which he later claimed, and obtained, from Government as T.A. for those journeys.
The only proof that is adduced in support of the allegation that he did not is that no second class tickets were issued at Ajmer on the relevant dates either for Abu Road or for Reengus.
This is proved by the Booking Clerk Ram Dayal, P.W. 4.
But the same witness proves that tickets are not always issued and that passengers can pay the fare on the train; also, if the second class is fully booked no further tickets are issued till the arrival of the train.
In that case, passengers sometimes buy a third class or an inter class ticket and then pay the difference to the conductor or guard of the train if they are able to find second class accommodation when the train arrives.
There is no proof that one or other of these courses was not followed on the dates with which we are concerned.
The railway registers and books would show whether or not any such payments were made on those dates and the State could have proved the absence of such payments as easily as it was able to prove, from the same sort of material, that no second class tickets were issued.
Instead of doing that, the State contented itself with saying that no second class tickets were issued and, then relying on Illustration (b) to section 106 of the Evidence Act, it contended that the burden of proving that the accused did pay the second class fares was on him.
Illustration (b) runs thus: "A is charged with travelling on a railway with 203 out a ticket.
The burden of proving that he had a ticket is on him".
But this is only an illustration and must be read subject to the section itself and cannot travel beyond it.
The section runs "When any fact is especially within the knowledge of any person, the burden of proving that fact is on him".
The stress, in our opinion, is on the word "especially".
Section 106 is an exception to section 101.
Section 101 lays down the general rule about the burden of proof.
"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist".
Illustration (a) says "A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.
A must prove that B has committed the crime".
This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty.
On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are "especially" within the knowledge of the accused and which he could prove without difficulty or inconvenience.
The word "especially" stresses that.
It means facts that are preeminently or exceptionally within his knowledge.
If the section were to be interpreted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to prove that he did not commit the murder because who could know better than he whether he did or did not.
It is evident that cannot be the intention and the Privy Council has twice refused to construe this section, as reproduced in certain other Acts outside India, to mean that the 204 burden lies on an accused person to show that be did not commit the crime for which he is tried.
These cases are Attygalle vs Emperor(1) and Seneviratne vs R. (2).
Illustration (b) to section 106 has obvious reference to a very special type of case, namely to offences under sections 112 and 113 of the Indian Railways Act for travelling or attempting to travel without a pass or ticket or with an insufficient pass, etc.
Now if a passenger is seen in a railway carriage, or at the ticket barrier, and is unable to produce a ticket or explain his presence, it would obviously be impossible in most cases for the railway to prove, or even with due diligence to find out, where he came from and where he is going and whether or not be purchased a ticket.
On the other band, it would be comparatively simple for the passenger either to produce his pass or ticket or, in the case of loss or of some other valid explanation, to set it out; and so far as proof is concerned, it would be easier for him to prove the substance of his explanation than for the State to establish its falsity.
We recognise that an illustration does not exhaust the full content of the section which it illustrates but equally it can neither curtail nor expand its ambit; and if knowledge of certain facts is as much available to the prosecution, should it choose to exercise due diligence, as to the accused, the facts cannot be said to be "especially" within the knowledge of the accused.
This is a section which must be considered in a commonsense way; and the balance of convenience and the disproportion of the labour that would be involved in finding out and proving certain facts balanced against the triviality of the issue at stake and the ease with which the accused could prove them, are all matters that must be taken into consideration.
The section cannot be used to undermine the well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts.
Now what is the position here? These journeys (1) A.I.R. 1936 P.C. 169.
(2) , 49. 205 were performed on 8 9 1948 and 15 9 1948.
The prosecution was launched on 19 4 1950 and the appellant was called upon to answer the charge on 9 3 1951; and now that the case has been remanded we are in the year 1956.
The appellant, very naturally, said on 27 4 1951, two and a half years after the alleged offences: "It is humanly impossible to give accurate explanations for the journeys in question after such a lapse of time".
And what of the prosecution? They have their registers and books, both of the railway and of the department in which the appellant works.
They are in a position to know and prove his official movements on the relevant dates.
They are in a position to show that no vouchers or receipts were issued for a second class journey by the guard or conductor of the trains on those days.
This information was as much within their "especial" knowledge as in that of the appellant; indeed it is difficult to see how with all the relevant books and other material in the possession of the authorities, these facts can be said to be within the "especial" knowledge of the appellant after such a lapse of time however much it may once have been there.
It would, we feel, be wrong to allow these proceedings to continue any longer.
The appellant has been put upon his trial, the prosecution has had full and ample opportunity to prove its case and it can certainly not complain of want of time to search for and prepare its material.
No conviction could validly rest on the material so far produced and it would savour of harassment to allow the continuance of such a trial without the slightest indication that there is additional evidence available which could not have been discovered and produced with the exercise of diligence at the earlier stages.
We set aside the order of the Judicial Commissioner and restore the order of the Sessions Judge acquitting the appellant on both counts of the charge framed against him.

summary/full:
The appellant was put up for trial under section 420 of the Indian Penal Code and section 5(2) of the Prevention of Corruption Act of 1947 for obtaining a total sum of Rs. 23 12 0 from the Government as T.A., being second class railway fares for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus, without having actually paid the said fares.
The prosecution proved from the railway books and registers that no such second class tickets were issued at Ajmer on the relevant dates and the same witness who proved this also proved that tickets were not always issued and the passengers could pay the fare in the train and if the second class was fully booked, no further tickets were issued till the train arrived,in which case passengers sometimes bought third class or inter class tickets and thereafter paid the difference to the guard of the train, if they could find second class accommodation on the arrival of the train.
There was no proof that one or other of those courses were not followed by the appellant and the prosecution instead of proving the absence of any such payments, in the same way as it had proved the non issue of second class tickets, relied on Illustration (b) to section 106 of the Evidence Act and contended that it was for the appellant to prove that he had actually paid the second class fares.
200 Held, that Illustration (b) to section 106 of the Evidence Act had no application, the evidence adduced by the prosecution did not warrant a conviction and the accused should, having regard to the long lapse of time, be acquitted.
That section 106 of the Evidence Act does not abrogate the well established rule of criminal law that except in very exceptional classes of cases the burden that lies on the prosecution to prove its case never shifts and s, 106 is not intended to relieve the prosecution of that burden. ' On the contrary, it seeks to meet certain exceptional cases where it is impossible, or disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which can be proved by him without difficulty or inconvenience.
But when knowledge of such facts is equally available to the prosecution if it chooses to exercise due diligence, they cannot be said to be especially within the knowledge of the accused and the section cannot apply.
Attygalle vs Emperor, (A.I.R. and Seneviratne vs
B., ([1936] 3 All E.R. 36), referred to.
That illustrations to a section do not exhaust its full content even as they cannot curtail or expand its ambit, and in applying section 106 the balance of convenience, the comparative labour involved in finding out and proving the facts and the ease with which the accused can prove them must be taken into consideration.
That cases coming under sections 112 and 113 of the Indian Railways Act to which Illustration (b) to section
106 has obvious application stand on a different footing.


judgement:
inal Writ Petition No. 1238 of 1978.
Under Article 32 of the Constitution for grant of a Writ of habeas corpus.
A. K. Sen and Herginder Singh for the Petitioner.
E. C. Agarwal and (Miss) A. Subhashini for Respondent No. 1 M. N. Phadke and M. N. Shroff for Respondent No. 2 The Judgment of the Court was delivered by SARKARIA, J.
This is a petition under Article 32 of the Constitution for the grant of a writ of habeas corpus.
The petitioner has been detained with effect from October 24, 1977 by an order passed by the Secretary to the Government of Maharashtra under Section 3 (1) of the (for short called COFEPOSA).
Reference was made to the Advisory Board on 24 11 1977.
At its sitting held on 23 12 i977, the Board rejected the representation of the detenu and opined that there was sufficient cause for the detention.
The detention has been challenged mainly on the ground that no order under clause (f) of Section 8 of the Act confirming the detention was passed by the appropriate Government within three months of the commencement of the detention and, as such, the continuance of the detention beyond the initial period of three months was violative of the mandate of Article 22(4) of the Constitution.
In support of this contention, Mr. Asoke Sen, appearing for the petitioner, has cited five decisions of this Court Shibapada Mukherjee vs State of West Bengal(1); Ujjal Mondal vs State of West Bengal(2); Deb Sadhan Roy vs State of West Bengal(3); Micki Khan etc.
vs The State of West Bengal (4); and Satyadeo Parshad Gupta vs State of Bihar(5).
As against the above, Mr. Phadke, appearing for the State of Maharashtra, contends that the view taken in the aforesaid decisions of this Court, is not in conformity with the plain language of Article 22(4).
In the counsel 's view, what Article 22(4) requires is that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months, unless an Advisory Board consisting of persons having the qualifications specified therein, reports before the expiration of the said period of three months that there is, in its opinion, sufficient cause for such detention.
This requirement proceeds the argument was fully complied with in (1) A. I. R. (2) A. I. R. (3)[1972] 2 S.C.R. 787 (4)A. I. R. (5) ; 819 the instant case because the Advisory Board had made such a report within three months of the date of detention and within 11 weeks of the receipt of the Reference from the Government.
It is stressed that there is nothing in the language of Article 22(4) or in COFEPOSA which requires that the confirmation of the detention on the basis of the report of the Advisory Board, should also be within three months from the commencement of the detention.
According to Mr. Phadke, COFEPOSA on the other hand clearly indicates that an order of confirmation of the detention can be passed by the appropriate Government within a reasonable time even after the expiry of the initial period of three months ' detention.
In this 'connection, counsel has adverted us to Clause (c) of Section 8, which requires that the Advisory Board shall, on receiving the Reference from the appropriate Government, submit its report as to whether or not there is sufficient cause for the detention, within 11 weeks from the date of the detention; while under the corresponding provisions of the , the period prescribed for the report of the Advisory Board is ten weeks only.
The point sought to be made out is that if the Advisory Board makes a report that there is sufficient cause for the detention, to the appropriate Government just before the expiry of the aforesaid period of 11 weeks, then hardly about 13 or 14 days would be left to the Government to consider whether or not the detention should be confirmed.
This period, it is contended, left to the Government for taking a decision on the report of the Advisory Board is too short from a practical point of view.
On the above premises, Mr. Phadke urges that the aforesaid decisions of this Court none of which was a case of detention under COFEPOSA need reconsideration.
Before dealing with these arguments, it may be noted that the aforesaid ground of challenge has been specifically adumbrated as Ground No. 12 in the petition.
In the counter filed on behalf of the, respondent State, the fact that the order of confirmation of the detention was not passed by the appropriate Government within three months of the date of detention, appears to have been impliedly admitted in these terms : " .
No confirmation is needed on the part of the State Government.
After the advice of the Advisory Board, the detention of the, detenu was continued and the order of the State continuing the detention on the basis of the advice of the Advisory Report was served upon the detenu of 27 2 78.
" Nothing has been placed before us to show that the order of detention was, in fact, passed by the appropriate Government within the requisite period of three months.
We therefore, take it that the order, if any, for confirmation of the detention of the petitioner by the Government, was made beyond three months of the date of the detention.
820 The ground is now clear for considering the legal question raised by Mr. Asoke Sen.
The decisions cited by Mr. Sen, primarily proceed on an interpretation of Article 22(4) of the Constitution, though they also in the context examine the relevant provisions of the detention law, under which the detention in question in those cases was purportedly made.
We can do no better than reiterate what Mathew,.
J. speaking for this Court, said in Ujjal Mondal 's case (supra): "Article 22(4) of the Constitution has specified the maximum limit of initial detention, and detention for a longer period than 3 months can only be made on the basis of the report of the Board.
The Act authorises a possible detention of more than 3 months.
It is because the appropriate Government wants to detain a person for more than 3 months that the matter is referred to the Board and it is only 'when the Board makes its report that the appropriate Government can fix the period of detention under sub section (1) of ' Section 12.
So when the Government receives the report of the Board stating that there is sufficient cause for detention of a person, if the Government wants to detain him for a period beyond 3 months, it has to pass an order or make a decision under section 12(1) to confirm the order of detention.
The confirmation of the detention order without anything more would result in an automatic continuation of the detention, even if there is no; separate decision to continue the detention for any specific period.
as held by this Court in ; When Section 12(1) of the Act speaks of "and continue the detention of the person concerned for such period as it thinks fit", it can only mean continuance of detention from the point of time at which detention would become illegal if the order of detention is no t confirmed, namely, the expiry of 3 months from the date of detention.
It would not be necessary to, confirm the order of detention even after the receipt of the report of the Board by the Government if the Government only wants to continue the detention for the period of three months from the date of detention, as the initial order of detention would authorise the continuance of detention for that period without any confirmation.
Confirmation is necessary only to continue the detention after the expiry of 3 months.
If that be so, it stands to reason to held that the order of detention must be confirmed before the expiry of 3 months.
" The observations extracted above, apply mutatis mutandis to the language of clause (f) of Section 8, which is similar.
This clause runs as follows "8.
For the purposes of sub clause (a) of clause (4), and sub clause (c) of clause (7), of article 22 of the Constitution ."(f) in every case, where the Advisory Board has reported that there is in 821 its opinion sufficient cause for the detention of a person, the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, the appropriate Government shall revoke the detention order and cause the person to be released forthwith." (emphasis supplied) 'The key words in clause (f) are those which have been underlined.
These very words were also, employed in Section 12(1) of the West Bengal Prevention of Violent Activities Act, 1970, the interpretation of which had come, up for consideration in the context of Article 22(4) of the Constitution in Ujjal Mondal 's case.
These words also occurred in Sections 10 and 11 of the , which were in pari materia with Sections 11 and 12 of the .
The expression "may confirm" in clause (f) of Section 8 is significant.
It imports a discretion.
Even where the Advisory Board makes a report that in its opinion there is sufficient cause for the detention of the detenu concerned, the Government may not confirm the detention order.
Read in the light of Article 22(4) of the Constitution and the context of the words "continue the detention", they definitely lead to the conclusion that the sine qua non for continuing the detention made beyond the period of three months, is the confirmation the detention order by the appropriate Government.
Conversely, the non confirmation of the initial order by the appropriate Government before the expiry of the period of three months detention, shall automatically result in revocation and termination of the legal authority for its continuance.
This position is further clear from the language of Section 10, which provides : "The maximum period for which any person may be detained in pursuance of any detention order. which has been confirmed under clause (f) of Section 8, shall be one year from the date of detention.
" The crucial words in the Section are : "which has been confirmed under clause (f) of Section 8.".
They under score the same policy which underlies the constitutional mandate in Article 22(4).
These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention, the detention after the expiry of that period ipso facto becomes unauthorised and illegal.
We do not find any merit in the contention that since the period prescribed for the Advisory Board to make its report has been increased from 10 weeks (as prescribed under MISA) to 11 weeks in COFEPOSA, leaving only a short period for the Government to take a decision under Section 8(f), the legislative intent was that the order of confirmation of the detention and its continuance could be made after the expiry of three months from the date of the detention.
It is true that in certain situation when the Advisory Board makes its report in favour of the detention just before the expiry of II weeks from the date of the detention, the time left to the Govern 822 ment for taking a decision as to the confirmation of the detention and its continuance would be hardly two weeks.
That only shows the anxiety on the part of the legislature to ensure that the Government continues the preventive detention of a person beyond three months after due application of mind and for that purpose acts with utmost promptitude.
The law does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention.
There is no reason to doubt the law enunciated by this Court in the aforesaid decisions.
Respectfully following the ratio of those decisions, we hold that since no order of confirmation of the detention was made under clause (f) of Section 8 within three months of the date of detention by the appropriate Government, further detention of the petitioner after the expiry of that period is without the authority of law.
In the result, we allow this petition, quash the detention of the petitioner and direct that he be set at liberty forthwith.
Rule made absolute.
S.R. Petition allowed.

dataset_name: IN-Abs

summary/full:
The petitioner was detained with effect from October 24, 1977 by an order passed by the Secretary to the Government of Maharashtra under Section 3(1) of COFEPOSA.
The Advisory Board reported on 23 12 77 that there was sufficient cause for the detention but the Government did not pass any order confirming the detention within three months from the date of detention.
The petitioner assailed it as violative of article 22(4) of the Constitution.
Allowing the petition the Court.
HELD : 1.
since no order of confirmation of the detention was made under clause (f) of Section 8 within three months of the date of detention by the appropriate Government, further detention of the petitioner after the expiry of that period is without the authority of law.
[822 C] 2.The law does not lend its authority to the continuance of the detention even for a day more than the initial period of three months if the Government does not take a decision for that purpose on the report of the Advisory Board within three months of the commencement of the detention.
[822 A B] 3.The expression "may confirm" in clause (f) of Section 8 of COFEPOSA, is significant.
It imports a discretion.
Even where the Advisory Board makes a report that in its opinion, there is sufficient cause for the detention of the detenu concerned, the Government may not confirm the detention order.
Read in the light of Article 22(4) of the Constitution and the context of the words "continue the detention", the expression definitely leads to the conclusion that the sine qua non for continuing the detention made beyond the period of three months.
is the confirmation of the detention order by the appropriate Government.
Conversely, non confirmation of the initial order by the appropriate Government before the expiry of the period of three months detention, shall automatically result in revocation and termination of the legal authority for its continuance.
This position is further clear from the language of Section 10, which provides : "The maximum period for which any person may be detained in pursuance of any detention order. which has been confirmed under clause (f) of Section 8, shall be one year from the date of detention.
" The crucial words in the Section are : "which has been confirmed under clause (f) of Section 8." They underscore the same policy which underlies the constitu tional mandate in Article 22(4).
These words put it beyond doubt that if the initial order of detention is not confirmed by the appropriate Government within three months of the date of the detention, the detention after the expiry of that period ipso facto becomes unauthorised and illegal.
[821 C F] Ujjal Mandal vs State of West Bengal, ; reiterated; Shibapada Mukherjee vs State of West Bengal, AIR 1972 SC 1356, Deb Sadhan Roy vs State of West Bengal, ; Micki Khan etc.
vs The State of West Bengal.
AIR 1972 SC 2262; and Satyadeo Parshad Gupta vs State of Bihar, ; referred to. 818


judgement:
Civil Appeal No. 252 of 1969.
Appeal by Special Leave from the Judgment and Order dated 19 8 68 of the Allahabad High Court in Civil Appeal No. 254/65.
G. N. Dikshit and M. V. Goswami for the Appellant.
section C. Manchanda, section C. Patel and Trilok Singh Arora for the Respondent.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the judgment and order of the Allahabad High Court dated August 19, 1968 dismissing a second appeal arising out of a suit for declaration.
The respondent was appointed as a Sub Inspector of Police in a temporary post in 1955.
He was discharged from service on July 13, 1957.
A writ petition filed by him in the Allahabad High Court was allowed on August 4, 1959, and accordingly on December 15, 1959 he was reinstated in service.
Thereafter, on January 21, 1960 his services were terminated by the Deputy Inspector General of Police, Agra Range, Agra.
On March 13, 1963 the respondent instituted a suit for a declaration that the order dated January 21, 1960 was illegal and void and that he continued as Sub Inspector of Police in the Uttar Pradesh Police Service.
It was alleged that on a false complaint made against him in respect of the custody and detention of one Smt.
Phoolmati, an enquiry had been made in consequence of which the appellant had been arbitrarily and illegally discharged from service on July 13, 1957.
It was pleaded that although he was reinstated on the success of his writ petition in the High Court, his services were terminated a mere five weeks later although no ground had arisen since for doing so.
It was asserted that the order of January 21, 1960 was passed as a simple order of termination in order to avoid a departmental enquiry under section 7 of the Police Act, which enquiry if held would have enabled him to expose the falsity of the allegations levelled against him.
The suit was contested by the appellant, who maintained that the termination of the respondent 's services was not by way of punishment hor motivated by malice, and that it was a simple termination of the services of a temporary government servant on the ground that they were no longer required by the State.
The suit was decreed by the learned Munsif, Etah and the decree was affirmed in appeal and second appeal.
The High Court, in second appeal, took the view that where an enquiry was instituted by a superior authority into a misconduct alleged against a government 1128 servant, the resulting termination of service was by way of punishment because it attached a stigma or amounted to a reflection on the competence of the government servant and affected his future career.
The High Court held that the findings recorded during the enquiry on the original complaint against the respondent were responsible for the order terminating the respondent 's services, and it affirmed that the order was vitiated by mala fides.
Attacking the findings of the High Court, learned counsel for the appellant contends that in the first place the order terminating the respondent 's services had not been made by way of punishment, but was an order of termination simpliciter passed in accordance with the rules applicable to temporary government servants.
In the second place, it is said, if the order is attributed to the complaint against the respondent concerning his conduct relating to Smt.
Phoolmati it was open to the Deputy Inspector General of Police to take the circumstances of the case into account for the purpose of considering the suitability of the respondent for continuing in service.
Learned counsel for the respondent points out that an enquiry had been originally instituted against the respondent which had resulted in an order terminating his services and, he urges, after the order of the High Court quashing his discharge on the ground of violation of Article 311(2) of the Constitution it was obligatory on the superior authority, in case it proposed to terminate the respondent 's services, to institute a proper and complete departmental enquiry, providing an opportunity to the respondent to lead evidence and be heard in his defence, and only thereafter could it make an order against the respondent.
We are of the opinion that the appellant is right on both counts.
Considered as an order made without reference to the earlier proceeding against the respondent, the impugned order cannot be regarded as one of punishment.
After the original order of discharge was quashed by the High Court, the respondent was reinstated in service.
He was even allowed an increment to his salary.
The Deputy Inspector General of Police made the impugned order subsequently terminating his services on the ground that they were no longer required.
The services were terminated on payment of one month 's salary in lieu of notice under the "general rules for termination of service of temporary government servants".
The Deputy Inspector General of Police was examined as a witness in the suit, and throughout he maintained that he terminated the respondent 's services because they were not required any more and that in making the order he did not intend to punish the respondent.
The evidence also discloses that no personal motive had influenced the order.
It was open to the superior authority to terminate the respondent 's services on the ground on which it did so.
1129 Assuming, however, that the impugned order was made in the background of the allegations against the respondent concerning his behaviour with Smt.
Phoolmati, we see no reason in law why a departmental enquiry should be necessary before the respondent 's services could be terminated.
It appears from the material before us that it was merely a preliminary enquiry which was made by the Superintendent of Police into the allegations made against the respondent 's conduct concerning the woman.
No departmental enquiry by way of disciplinary proceedings was instituted, no charge was framed, and the formal procedure characterising a disciplinary proceeding was never adopted.
The Deputy Inspector General of Police passed the original order dated July 13, 1957 discharging the respondent from the police force on the ground that he had behaved in a reprehensible manner, was not likely to make a useful police officer and was unfit for further retention in a disciplined force.
The original order plainly attached a stigma to the respondent 's record of service, and it is because of the specific grounds set forth in the termination order that the High Court considered the respondent entitled to the benefit of Article 311 (2) of the Constitution, and quashed the order.
Now the order having been quashed, the position reverts to what it was when the Deputy Inspector General of Police received the report of the Superintendent of Police on the Preliminary enquiry made by him.
There was nothing to prevent the Deputy Inspector General from deciding that instead of instituting disciplinary proceedings against the government servant he should consider whether the government servant was suitable for retention in service.
The case law on the point has been considered elaborately by one of us (Jaswant Singh, J.) in State of U.P. vs Ram Chandra Trivedi(1) and reference has been made in this behalf to Champaklal Chimanlal Shah vs The Union of India(2), Jagdish Mitter vs Union of India(3) and State of Punjab & Anr.
vs Shri Sukh Raj Bahadur(4).
It is apparent from the facts of this case that if the impugned order be considered as made in the light of the allegations against the respondent concerning the woman, the conduct of the respondent constituted a motive merely for making the order and was not the foundation of that order.
In this connection what has been stated by this Court in Union of India & Ors.
vs R. section Dhaba.(5) State of Bihar & Ors.
vs Shive Bhikshuk Mishra(6) and R. section Sial vs The State of U.P. & Ors.(7) appers relevant.
That it was not intended 1130 to take punitive action against the respondent for his misbehaviour with Smt.
Phoolmati is evident from the circumstance that thereafter the respondent was allowed an increment to his salary and was regarded as in service for all purposes.
The High Court, it seems to us, did not have regard to all the facts and circumstances of the case, and appears to have assumed that the respondent 's services were terminated as a measure of punishment.
The High Court relied on The State of Bihar vs Gopi Kishore Prasad(1) and Madan Gopal vs The State of Punjab(2).
Both cases are distinguishable.
In the former, the government servant was discharged from service because he was found to be corrupt and the order terminating his services branded him a dishonest and incompetent officer.
In the latter, the government servant had been served with a charge sheet that he had demanded and received illegal gratification and the Court found that the proceeding, consequent to which the termination order was made, was intended for the purpose of taking punitive action.
We are satisfied that the considerations which prevailed with the High Court in reaching its findings on the application of Article 311 (2) of the Constitution and the bona fides of the superior authority in making the impugned order are not warranted in law and on the material before us.
Accordingly, the appeal is allowed, the judgment and decree of the High Court dated August 19, 1968 are set aside and the respondent 's suit is dismissed, but in the circumstances without any order as to costs.
S.R. Appeal allowed.

summary/full:
The respondent was appointed as a Sub Inspector of police in a temporary post in 1955.
He was discharged from service on July 13, 1957.
A Writ Petition filed by him in the Allahabad High Court was allowed on August 4, 1959 and consequently he was re instated in service on December 15, 1959.
Thereafter, on January 21, 1960 his services were terminated on the ground that they were no longer required by the State.
A suit for declaration that the said order of termination was null and void was decreed in his favour by the trial court which was affirmed in appeal and also by the High Court in second appeal.
Allowing the State appeal by special leave the Court, ^ HELD: 1.
The considerations which prevailed with the High Court in reaching its findings on the application of Article 311(2) of the Constitution and the bona fides of the superior authority in making the impugned order of termination simpliciter are not warranted in law.
[1130D] 2.
The order terminating the services was order of termination simpliciter passed in accordance with the rules applicable to temporary Government servants.
After the original order of discharge was quashed by the High Court, the respondent was reinstated, allowed increment in pay and one month 's salary in lieu of notice under the 'general rules for termination of services of temporary government servants was also given.
[1128F G] 3.
It was open to the superior authority to terminate the respondent 's services on the ground on which it did so.
And the evidence disclosed no personal motive had influenced the order or that it was passed by way of punishment.
A departmental enquiry is not required under the law.
Instead of instituting disciplinary proceedings against the government servant, the suitability for retention in service could be decided.
[1128H, 1129A, E] State of U.P.v.
Ram Chandra Trivedi; , ; Champaklal Chimanlal Shah vs The Union of India, , Jagdish Mitter vs Union of India, A.I.R. 1964 S.C. 449 and State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, ; ; referred to.
Union of India & Ors.
vs R. section Dhaba, , State of Bihar & Ors.
vs Shiva Bhikshuk Mishra and R. section Sial vs The State of U.P. and Ors., ; applied.
The State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 SC 689 and Madan Gopal vs The State of Punjab, [1963] 3 SCR 716; distinguished. 1127


judgement:
: Criminal Appeal No. 10 of 1974.
Appeal by Special Leave from the Judgment and Order dated 22 11 1973 of the Karnataka High Court in Criminal Appeal No. 221/73 section section Javali and B. P. Singh for the Appellant.
M. Veerappa and J. R. Dass for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
In this appeal by Special Leave the appellant has been convicted under section 34 of the Mysore Excise Act and sentenced to three months ' rigorous imprisonment and a fine of Rs. 100/ for being in possession of 48 bottles of liquor which were recovered from a car which was being driven by the appellant.
Mr. Javali appearing for the appellant has raised a short point before us.
He has submitted that the Inspector of Excise who searched the car along with the panchas had no jurisdiction to do so because he did so without complying with 1132 the provisions of section 54 of the Excise Act.
In our opinion, the contention is well founded and must prevail, Section 53 runs thus: "If a Magistrate, upon information and after such inquiry (if any) as he thinks necessary, has reasons to believe that an offence under section 32, section 33, section 34, section 36 or section 37 has been, is being or is likely to be committed, he may issue a warrant (a) for the search of any place in which he has reason to believe, that any intoxicant still, utensil, implement, apparatus or materials which are used for the commission of such offence or in respect of which such has been, is being, or is likely to be, committed, are kept or concealed, and (b) for the arrest of any person whom he has reason to believe to have been, to be, or to be likely to be engaged in the commission of any such offence.
" Thus this section relates to a contingency where the Statute enjoins that any inspector before searching a place must obtain a warrant from the magistrate.
Section 54 is a special provision which arises in urgent cases where it may not be possible for the officer concerned to get a warrant from the Magistrate.
Section 54 runs thus: "Whenever the Excise Commissioner or a Deputy Commissioner or any police officer not below the rank of an officer uncharge of a police station or any Excise Officer not below such rank as may be prescribed has reason to believe that an offence under section 32, section 33, section 34, section 36, or section 37 has been, is being, or is likely to be committed, and that a search warrant cannot be obtained without affording the offender an opportunity of escape or of concealing evidence of the offence, he may after recording the grounds of his belief (a) at any time by day or by night enter and search any place and seize anything found therein which he has reason to believe to be liable to confiscation under this Act, and (b) detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of such offence as aforesaid.
" In the instant case, it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis 1133 of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of section 54 were not at all complied with.
This, therefore, renders the entire search without jurisdiction and as a logical corollary, vitiates the conviction.
We feel that both sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment.
The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyses the effect of the provisions of section 53 and 54.
The High Court observed that these two sections were wholly irrelavant.
With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far reaching consequences.
It was, however, suggested that the word "place" would not include the car, but the definition of the word "place" under the Act clearly includes vehicle which would include a car.
Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us.
We are satisfied that there has been a direct non compliance of the provisions of section 54 which renders the search completely without jurisdiction.
In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him.
M.R Appeal allowed.

summary/full:
The appellant was convicted under section 34 of the Mysore Excise Act and sentenced to three months R.I. and a fine of Rs. 100/ for being in possession of 48 bottles of liquor, recovered from the car being driven by him.
It was contended that the provisions of section 54 had not been complied with, and the search was made without jurisdiction.
Allowing the appeal, the Court, ^ HELD: 1.
The Inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed, before proceeding to search the car, and thus the provisions of section 54 were not at all complied with, thereby rendering the entire search without jurisdiction and, as a logical corollary, vitiating the conviction.
[1132H, 1133A B] 2.
Both, Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment.
[1133B]


judgement:
Civil Appeal No. 1584 of 1969.
Appeal from the Judgment and.
Decree dated 20 2 1969 of the Madras High Court in Appeal No. 104 of 1963.
G. L. Sanghi and Vineet Kumar for the Appellants.
Vepa P. Sarathy and Mrs. section Gopalakrishnan for Respondent No. 1.
1179 K. Jayaram for Respondents 2 5.
The Judgment of the Court was delivered by SHINGHAL, J.
This appeal by a certificate of the Madras High Court is directed against its judgment and decree dated February 20, 1969.
One Manikka Sankaranarayana Iyer, father of defendants 1 and 3 and grandfather of plaintiffs 1 to 5 and defendants 2, 4 and 5 and father in law of plaintiff No. 6 constituted an Annadanam Trust and he and his sons executed a registered deed of settlement for that purpose on June 3, 1908.
By that document Sankaranarayana Iyer became the first trustee for life, and it was provided that after him the senior most member would be the trustee, by turns.
Sankaranarayana died and defendant No. 1 became the managing trustee of the trust.
There was a suit for partition of the family properties including house No. 48A, and it was settled by a compromise under which a preliminary decree dated September 12, 1956 was drawn up for the sale of the properties amongst the members of the family.
Defendant No. 1 purchased the suit property for Rs. 21,500/ for the aforesaid trust on April 19, 1959.
A final decree was drawn up on November 29, 1959 in which house No. 48A was shown as the property of the trust.
Defendant No. 1 however sold that property soon after, to his son defendant No. 2 on July 14, 1960, for Rs. 25,000/ under sale deed exhibit B. 13.
Chithambaram Chettiar (P.W. 2), who was a tenant of that property from 1949 onwards, came to know of the intended sale and sent a registered notice to defendant No. 1 on July 21, 1960, offering to purchase it for Rs. 35,000/ .
Defendant No. 1 however went ahead with the sale of the property to his son and registered the sale deed on July 22, 1960.
The plaintiffs thereupon filed the present suit on September 15, 1960, challenging that sale and asking for its restoration to the trust.
The defendants resisted the claim in the suit on the ground that the sale price was fair and adequate and that the sale had to be made because of the disputes which had arisen between the second defendant as the owner of the adjacent house and the trust in regard to the easementary rights of drainage, light and air etc.
The suit was decreed by the Subordinate Judge of Madurai on September 10, 1962.
The High Court of Madras however allowed the appeal against that judgment and decree and dismissed the suit with costs of both the courts holding that Rs. 25,000/ was "quite adequate and fair" price for the suit property and that defendant No. 1 acted with "perfect bona fides and no ulterior motive can be attributed to him.
" That is why the plaintiffs have come up in appeal to this Court.
1180 It is not indispute before us that the , hereinafter referred to as the Act, applied to the trust in question and that it was necessary for the plaintiffs to prove that defendant No. 1 did not exercise his discretionary power of selling the suit property "reasonably and in good faith" and that he indirectly purchased it for himself, in the name of his son (defendant No. 2), within the meaning of section 49 and 52 of the Act.
There is some controversy on the question whether defendant No. 1 made an outright purchase of the suit property for and on behalf of the trust for Rs. 21,500/ on April 19, 1959, or whether he intended to purchase it for himself and then decided to pass it on to the trust, for defendants have led their evidence to show that the property was allowed to be sold for Rs. 21,500/ , which was less than its market value, as it was meant for use by the trust and that defendant No. 1 was not acting honestly when he palmed of the property to his son soon after by the aforesaid sale deed exhibit B. 13 dated July 14, 1960.
The fact however remains that defendant No. 1 was the trustee of the property, and it was his duty to be faithful to the trust and to execute it with reasonable diligence in the manner an ordinary prudent man of business would conduct his own affairs.
He could not therefore occasion any loss to the trust and it was his duty to sell the property, if at all that was necessary, to best advantage.
It has in fact been well recognised as an inflexible rule that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family.
It can also not be gainsaid that he is not allowed to put himself in any such position in which a conflict may arise between his duty and personal interest, and so the control of the trustee 's discretionary power prescribed by section 49 of the Act and the prohibition contained in section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust, and the equally important prohibition in section 52 that the trustee may not, directly or indirectly, buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as the trustee.
It does not require much argument to proceed to the inevitable further conclusion that the rule prescribed by the aforesaid sections of the Act cannot be evaded by making a sale in the name of the trustee 's partner or son, for that would.
in fact and substance, indirectly benefit the trustee.
Where therefore a trustee makes the sale of a property belonging to the trust, without any compelling reason, in favour of his son, without obtaining the permission of the court concerned, it is the duty of the court, in which the sale is challenged, to examine whether 1181 the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefitting himself from the transaction in an indirect manner.
The sale in question has therefore to be viewed with suspicion and the High Court committed an error of law in ignoring this important aspect of the law although it had a direct bearing on the controversy before it.
The High Court in fact proceeded to examine the case on the assumption that the plaintiffs had instituted the suit not so much out of a genuine desire to redress any wrong done to the trust, as out of "ulterior motives and ill will against the first and second defendants.
" This shows that instead of examining the case according to the criterian mentioned above, the High Court based its decision on an extraneous consideration and blamed the plaintiffs for raising the suit on account of "personal grouse" and "personal spite".
We have not been referred to any evidence which could justify the High Court 's view that there was any such grouse or spite.
But even if it were assumed for the sake of argument that the plaintiffs had any such motive for raising the suit, the fact remains that their action was eminently one for the advantage of the trust which had been created by their ancestor and in which they had a substantial and a direct interest.
Some important facts stand out from the evidence on the record which are directly in point.
The suit property belonged to the family which had created the trust.
It was purchased by defendant No. 1, in his capacity as the trustee of the Annandanam Trust for Rs. 21,500/ on April 19, 1959, at a family sale.
It appears from the statement of defendant No. 2 that the property was capable of, or could fetch a rent of about Rs. 190/ per mensem, amounting to Rs. 2,280/ per annum.
It has also been admitted that the sum of Rs. 25,000/ was not utilised by the trustee (defendant No. 1) for purchasing any other better property, but was invested in fixed deposit with a bank at 3 1/2 per cent interest per annum.
That could yield an income of only Rs. 875/ per annum.
The trust therefore lost heavily in the bargain.
What is worse, defendant No. 1 has not been able to explain how the sale could be said to be beneficial to the trust and how he could possibly contend that he acted as a man of ordinary prudence in slashing down the income of the trust by making the sale.
The further fact that stands out from the evidence on the record is that when Chithambaram Chettiar (P.W. 2), who was a tenant in the suit property from 1949 onwards, learnt about the intended sale, 1182 he sent a notice to defendants Nos. 1 and 3 offering to purchase it for Rs. 35,000/ .
That notice was issued on July 21, 1960.
The receipt of the notice has been admitted by defendant No. 1 in his statement in the trial court, and he has further admitted that Chithambaram Chettiar offered to purchase the property for Rs. 35,000/ and that he sold it to his son for Rs. 25,000/ without even informing him that he had received the offer of Rs. 35,000/ .
Defendant No. 1 in fact proceeded to register the sale deed of the property in favour of his son, the second defendant, on July 22, 1960.
It is therefore quite clear that he did not care to act in accordance with the law in the discharge of his fiduciary relationship with the trust and executed the sale deed in his son 's favour in disregard of his statutory duty, for no man of ordinary prudence would possibly have sold his property for Rs. 25,000/ when he had an offer of Rs. 35,000/ .
That offer could not be said to be from a man of no substance because Chithambaram Chettiar (P.W. 2) who made it, was known to the defendants and he has stated that he was a man of means and was worth rupees four lakhs.
It may be that the son in law of plaintiff No. 2 was employed in his shop, but that could not detract from the basic fact that a much higher offer had been made by a man of substance.
Instead of examining the appeal with due regard to the above mentioned evidence, the High Court was obsessed by a consideration of the evidence which had been led for the purpose of showing that while defendant No. 1 had purchased the property for himself on April 19, 1959, for Rs. 21,500/ , he gave up that advantage in favour of the trust.
The evidence on the point is not unequivocal, for it may well be that defendant No. 1 did not want to obtain a sale deed in his own name for other reasons, but even if it were assumed that he made a gesture of goodwill in favour of the trust on April 19, 1959, he could not possibly absolve himself from what he did in selling it off, after it had become the property of the trust, to his own son a few months thereafter for Rs. 25,000/ when he had a genuine offer of Rs. 35,000/ .
Another consideration which prevailed with the High Court in setting aside the finding of fact of the trial court was that, according to it, the evidence on the record showed that some difficulties had cropped up after the property had been purchased as his son, defendant No. 2, began to "give trouble" and that he resolved that trouble on the advice of his family lawyer Shri V. Rajagopala Iyengar (D. W. 3) by selling the property to his son.
This view was obviously incorrect, for even it were assumed that there was some 1183 difficulty in respect of some common rights of easement, that could well have been a lever in the hands of the trustee to make a bargain for Rs. 35,000/ or more with his son who was equally interested in those easementary rights.
A man of prudence would not have sold his property for a considerably lesser amount than that offered to him by another person and agreed to sell it just because a co sharer in the easementary right was causing trouble and was offering a far lesser price.
We have gone through the statement of V. Rajagopala Iyengar (D.W. 3) on whose advice defendant No. 1 claims to have sold the property for Rs. 25,000/ .
He has admitted in his statement that he had not even seen the suit property, and he knew nothing about the so called trouble in regard to the easementary rights between defendant No. 1 and his son.
On the other hand, we find that he was indebted to the family of defendants Nos. 1 and 2 and he did not even care to ascertain what rent the suit property was fetching when he advised its sale for Rs. 25,000/ to the son of defendant No. 1.
The High Court therefore did not even read the evidence correctly while placing reliance on his testimony.
For the reasons mentioned above, we have no doubt that the High Court did not examine the controversy in its proper legal perspective and with due regard to the salient facts which had been established by the evidence on the record and it was not therefore justified in setting aside the finding of the trial court.
The appeal is allowed.
The impugned judgment and decree of the High Court are set aside and the decree of the trial court is restored with costs throughout.
P.B.R. Appeal allowed.

summary/full:
Plaintiffs and defendants were descendants of a common ancestor who was the founder of a trust.
Defendant No. 1, at the relevant time, was the managing trustee of the trust.
On partition and sale of family properties a house, which was the suit property, was purchased for the trust.
Soon thereafter defendant No. 1 sold it to his son.
Before the sale, however, the tenant of the house who was a man of substance, offered a much higher price than what was paid by the son but the defendant sold it to his son.
In the plaintiffs ' suit challenging sale of the trust property to the managing trustee 's son for a lesser consideration the defendant claimed that the property had to be sold because his son who was the owner of adjacent property raised a dispute claiming easementary rights over the property.
The suit was decreed by the trial court but on appeal the High Court held that the consideration was adequate and fair, that the sale was bona fide and that no ulterior motive could be attributed to the defendant no 1 in the sale.
The High Court, therefore, dismissed the suit.
Allowing appeal, ^ HELD: (a) The sale had to be viewed with suspicion The High Court committed an error of law in ignoring important aspects of law which had direct bearing on the controversy before it.
[1181A] (b) It is well recognised that a person in a fiduciary position like a trustee is not entitled to make a profit for himself or a member of his family.
He is not allowed to put himself in a position in which a conflict may arise between his duty as a trustee and his personal interest.
[1180E] (c) The control of the trustee 's discretionary power prescribed by section 49 of the Trusts Act and the prohibition contained in section 51 that the trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust and the equally important prohibition in section 52 that the trustee may not directly or indirectly buy the trust property on his own account or as an agent for a third person, cast a heavy responsibility upon him in the matter of discharge of his duties as trustee.
The rule prescribed by these sections cannot be evaded by making a sale in the name of the trustee 's partner or son, for that would, in fact and substance, indirectly benefit the trustee.
[1180F G] (d) Where a trustee makes the sale of a property belonging to the trust, without any compelling reason in favour of his son, without obtaining the 1178 permission of the court concerned, it is the duty of the court to examine whether the trustee has acted reasonably and in good faith or whether he has committed a breach of the trust by benefiting himself from the transaction in an indirect manner.
[1180H] (i) In the instant case defendant No. 1 was the trustee of the property.
It was his duty to be faithful to the trust and execute it with reasonable diligence in the manner in which an ordinary prudent man of business would conduct his own affairs.
He could not occasion any loss to the trust and it was his duty to sell the property, if that was so necessary to sell, to the best advantage of the trust.
[1181D] (ii) The High Court was wrong in blaming the plaintiffs that they had brought the suit on account of personal grouse and spite.
Assuming that they were so actuated, their action was eminently for the advantage of the trust created by their ancestor in which they had a substantial and direct interest.
[1181D] (iii) Defendant No. 1 was not able to explain how the sale was beneficial to the trust.
Income by way of rent which the property was fetching was far more than interest which the sale proceeds fetched when they were invested in fixed deposits in a Bank.
He was therefore unable to explain how he acted as a man of ordinary prudence in slashing down the income of the trust by making the sale.
[1181G] (iv) When defendant No. 1 sold the trust property to his son at a lesser price than was otherwise available, he did not act in accordance with law in the discharge of his fiduciary relationship with the trust.
He sold the property to his son in disregard of his statutory duty which no man of ordinary prudence would have done.
[1182C] (v) Assuming that defendant No. 1 made a gesture of goodwill in favour of the trust when he allowed the sale of the family property to the trust, he could not possibly absolve himself from what he did in selling it off to his son at a lesser price than was offered by another reason.
[1182F] (vi) Assuming that there was some difficulty in respect of rights of easement between the trust and the defendant 's son who was the immediate neighbour of the property, that could have been a lever in the hands of the trustee to make a bargain for higher consideration from his son who was equally interested in the property.
A man of prudence would not have sold his property for a considerably lesser amount than that offered to him by another person and agreed to sell it just because a co sharer was causing trouble and offering a few lesser price.
[1183A B]


judgement:
N: Criminal Appeal No. 255 of 1973.
Appeal by Special Leave from the Judgment and Order dated 16 7 73 of the Rajasthan High Court in S.B. Crl.
No. 309/73.
A. N. Mulla and B. P. Singh for the Appellant.
Sobhag Mal Jain and section K. Jain for the Respsondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
This appeal by special leave is directed against a judgment of the Rajasthan High Court by which the conviction of the appellant under Section 494 I.P.C. and sentence of two years rigorous imprisonment and fine of Rs. 2,000/ have been upheld.
The facts of this case have been detailed in the judgments of the courts below and it is not necessary to repeat them.
Suffice it to say that the accused Gopal Lal married the complainant Kanchan sometime in the year, 1963 and a child was born out of this wedlock.
Soon thereafter the parties appeared to have fallen out and parted company.
While the first marriage was subsisting Gopal Lal contracted a second marriage which according to the custom prevalent amongst Tellis is a valid marriage commonly known as nata marriage.
This marriage was contracted on 20th of March, 1969.
The complainant Kanchan, the first wife having come to know about this marriage filed a complaint on the 22nd March, 1969, on the basis of 1173 which appellant was prosecuted and ultimately convicted as mentioned above.
Mr. A. N. Mulla, learned counsel for the appellant, had submitted two points before us.
In the first place it was contended that in view of the provisions of Section 17 of the , the second marriage being a void marriage, the provisions of Section 494 I.P.C. are not attracted at all.
We have given our anxious consideration to this argument but we are of the opinion that the argument is wholly untenable.
Section 494 runs thus: "Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge".
The essential ingredients of this offence are: (1) that the accused spouse must have contracted the first marriage.
(2) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage and (3) that both the marriages must be valid in the sense that the necessary ceremonies required by the personal law governing the parties had been duly performed.
It may also be noticed that Section 494 I.P.C. would come into play only if the second marriage becomes void by virtue of the fact 1174 that it had taken place in the life time of one of the spouses.
Thus, it is not possible to accede to the contention of Mr. Mulla that merely because the second marriage was void under Section 17 of the hence Section 494 I.P.C. would not be attracted.
Section 17 of the runs thus: "Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly".
What Section 17 contemplates is that the second marriage must be according to the ceremonies required by law.
If the marriage is void its voidness would only lead to civil consequences arising from such marriage.
Section 17 makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of Section 494 of the Penal Code which has been extracted above.
Section 17 clearly provides that provisions of Sections 494 and 495 of the Penal Code shall apply accordingly.
In other words though the marriage may be void under Section 17, by reason of the fact that it was contracted while the first marriage was subsisting the case squarely falls within the four corners of Section 494 and by contracting the second marriage the accused incurs the penalty imposed by the said statute.
Thus the combined effect of Section 17 of and Section 494 I.P.C. is that when a person contracts a second marriage after the coming into force of the said Act, while the first marriage is subsisting he commits the offence of bigamy.
(Emphasis ours).
This matter no longer res integra as it concluded by a decision of this Court in Bhaurao Shankar Lokhande and Anr.
vs State of Maharashtra & Anr.(1) This Court while considering the question of bigamy qua the provisions of Section 17 observed as follows: "Section 17 provides that any marriage between two Hindus solemnized after the commencement of the Act is void if at the date of such marriage either party had a husband or wife living, and that the provisions of sections 494 and 495 I.P.C. shall apply accordingly.
The marriage between two Hindus is void in view of section 17 if two conditions are satisfied: (i) the marriage is solemnized after the commencement of the Act; 1175 (ii) at the date of such marriage, either party had a spouse living.
If the marriage which took place between the appellant and Kamlabai in February 1962 cannot be said to be 'solemnized ', that marriage will not be void by virtue of section 17 of the Act and section 494 I.P.C. will not apply to such parties to the marriage as had a spouse living".
The word 'solemnize ' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due form ', according to the Shorter Oxford Dictionary.
It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and in due form ' it cannot be said to be 'solemnized '.
It is therefore essential, for the purpose of section 17 of the Act that the marriage to which section 494 I.P.C. applies on account of the provisions of the Act should have been celebrated with proper ceremonies and in due form".
It was thus pointed out by this Court that Section 17 of the requires that the marriage must be properly solemnized in the sense that the necessary ceremonies required by law or by custom must be duly performed.
Once these ceremonies are proved to have been performed the marriage become properly solemnized and if contracted while the first marriage is still subsisting the provisions of Section 494 will apply automatically.
In a decision of this Court in Kanwal Ram & Ors.
vs The Himachal Pradesh Administration the earlier case was noticed by the Court and relied upon.
The matter has also been fully discussed in Priya Bala Ghosh vs Suresh Chandra Ghosh.
In view of the authorities of this Court, therefore, the following position emerges: where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under Section 494 if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed.
The voidness of the marriage under Section 17 of the is in fact one of the essential ingredients of Section 494 because the second marriage will become void only because of the provisions of Section 17 of the .
In these circumstances, therefore, we are unable to accept the contention of Mr. Mulla that the second marriage being void Section 494 will have no application.
It was next contended by Mr. Mulla that there is no legal evidence to show that the second marriage which is said to 1176 be a nata marriage was actually performed.
We are afraid, we are unable to go into this question because three courts have concurrently found as a fact that the parties were governed by custom of nata marriage and the two essential ceremonies of this marriage are: (1) that the husband should take a pitcher full of water from the head of the prospective wife; (2) that the wife should wear chura by the husband.
There is evidence of P.Ws. 2, 3, 4 and 5 who have proved fact that these ceremonies had been duly performed in their presence.
That there was such a custom which requires these ceremonies was admitted by D.Ws. 3 and 5 who were examined by the appellant.
The evidence led by the prosecution has been accepted by the High Court and the courts below and after perusing the evidence we are not in a position to hold that the finding of facts arrived by the courts below are wrong in law or perverse.
From the evidence led by the prosecution, therefore, it has been clearly established that the second marriage which was performed by the appellant Gopal Lal with Gopi was a valid marriage according to the custom of the nata marriage prevalent in the Telli community to which the appellant belonged.
This being so and the validity of the first marriage not having been disputed, Section 494 I.P.C. applies in terms and the appellant must be held to have committed the offence of bigamy as contemplated by Section 494 I.P.C. Lastly, Mr. Mulla pressed this appeal on the question of sentence.
Bigamy is a serious offence and the maximum punishment under Section 494 is seven years.
Therefore, where the offence of bigamy is proved the Court cannot take a very lenient view.
In the instant case the appellant was sentenced to two years and a fine of Rs. 2,000/ .
It appears that the appellant has already paid a fine of Rs. 2,000/ .
In these circumstances, therefore, we feel that the ends of justice will be met by reducing the sentence of imprisonment from two years to one year but maintaining the sentence of fine.
With this modification the appeal is dismissed.
The appellant will now surrender and serve out the remaining portion of the sentence.
S.R. Appeal dismissed.

summary/full:
After having fallen out and parted company with his wife Kanchan in the year 1963, the appellant, belonging to Telli community contracted a second marriage prevalent amongst his community with Gopi on 20th March 1969.
A complaint filed by his first wife ended in his conviction under section 494 I.P.C. and sentence of two years R.I. and a fine of Rs. 2,000/ , the conviction and sentence having been upheld by the Rajasthan High Court.
Dismissing the appeal by special leave, the Court, ^ HELD: 1.
The second marriage was a valid marriage according to the custom of the nata marriage prevalent in the Telli community which requires the following two essential ceremonies: (a) that the husband should take a pitcher full of water from the head of the prospective wife, and (b) that the wife should wear chura by the husband.
The prosecution through PWs.
2, 3, 4 and 5 having proved that these ceremonies have been duly performed, that there was such a custom which requires the said ceremonies having been admitted by the defence witnesses 3 and 5 and the validity of the first marriage not having been disputed, Section 494 I.P.C. applies in terms and the appellant must be held to have committed the offence of Bigamy as contemplated by section 494 I.P.C. [1176A E] 2.
The combined effect of section 17 of the Hindu Marriage Act and section 494 I.P.C. is that when a person contracts a second marriage after the coming into force of the said Act while the first marriage is subsisting, such a person commits the offence of bigamy.
[1174 E] Section 17 of the makes it absolutely clear that the provision has to be read in harmony and conjunction with the provisions of section 494 I.P.C., the essential ingredients of which are: (i) that the accused spouse must have contracted the first marriage (ii) that while the first marriage was subsisting the spouse concerned must have contracted a second marriage, and (iii) that both the marriages must be valid in the sense that the necessary 1172 ceremonies required by the personal law governing the parties had been duly performed and (iv) the second marriage must have become void by virtue of the fact that it had taken place in the life time of one of the spouses.
[1173F H] 3.
Where a spouse contracts a second marriage while the first marriage is still subsisting the spouse would be guilty of bigamy under section 494, I.P.C. if it is proved that the second marriage was a valid one in the sense that the necessary ceremonies required by law or by custom have been actually performed.
The voidness of the marriage under section 17 of the is in fact one of the essential ingredients of section 494 because the second marriage will became void only because of the provisions of section 17 of the .
Therefore, the contention that the second marriage being void section 494 I.P.C. will have no application is not correct.
[1175F G] Bhaurao Shankar Lokhande and Anr.
vs State of Maharashtra and Ors., [1965]2 S.C.R. 837; Kanwal Ram and Ors.
vs The Himachal Pradesh Administration, [1966]1 S.C.R. 539 and Priya Bala Ghosh vs Suresh Chandra Ghosh; [1973]3 S.C.R. 961 applied.
[Bigamy being a serious offence for which the maximum punishment is seven years, the Court while maintaining the conviction reduced the sentence to one year.]