judgement:
ition No. 11222 of 1983.
(Under article 32 of the Constitution of India) Soli J. Sorabjee, Gopal Subramanyam, L. P. Agarwala, R. P. Singh, N. P. Agrwala and V. Shekher for the Petitioner.
F. section Nariman, Rathin Das for Respondent Nos. 1 & 2.
section N. Kacker, D. K. Sinha and J. R. Das for Respondent No. 3.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This is an application under article 32 of the Constitution of India.
Notice was issued and the respondents have filed counters and have made submissions on the application.
The petitioner is the lessee of the premises No. 7/1 A D Lindsay street, Calcutta which is situated in an important commercial locality of Calcutta.
The ground floor and mezzanine floor of premises No. 7/1 D, Lindsay Street, Calcutta were requisitioned by Government of West Bengal by order of requisition No. 21/58 Reqn.
dated 25th February, 1958 which was substituted by requisition order No. 123/60 Reqn.
dated 10th November, 1960 issued under the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947, hereinafter called the said Act for establishing main Sales showroom of respondent No. 4 herein which is the West Bengal Handicraft and development Corporation Limited (a West Bengal Government undertaking).
The area under requisition is 2521 sq.
ft on ground floor and 1677 sq.
on mezzanine floor aggregating to 4198 sq.
The rent compensation payable under the said Act was fixed by the Land Acquisition Collector, Calcutta on or about 31st March, 1959 at Rs. 1, 450 per month inclusive of taxes and repairs with effect from 10th June, 1958 which was ultimately modified to Rs. 2,500 per month by the High Court of Calcutta.
It is alleged on behalf 689 of the petitioner that in fixing the monthly compensation for acquisition by Land Acquisition Collector, the High Court in appeal took into consideration the rate prevailing in the year 1958, being the year in which the requisition took place.
A showroom of respondent No. 4 has been set up there.
The contention of the petitioner is that from the very beginning the State Government had the intention of keeping the said requisitioned premises permanently.
The petitioner contends that the State Government had ample power to acquire the said property under the Land Acquisition Act at the time of issue of order of requisition.
In spite of power to acquire the premises in question, the State Government resorted to requisition the same with the intention of permanently acquiring property in an indirect manner thereby the State Government has acted in improper exercise of powers and authority and has not exercised the power bonafide, alleges the petitioner.
The petitioner further alleges that the object is clearly to avoid the obligation to pay reasonable compensation for acquisition and instead thereof continue occupying the area by paying nominal monthly rent as compensation.
Therefore, according to the petitioner, the order of requisition has been passed for extraneous purpose and is arbitrary and malafide.
The petitioner also alleges that according to the present letting value prevailing in the market, the value would be over Rs. 43,668 approximately per month.
We are, however, in this application not concerned with that controversy.
The petitioner has submitted that requisition can be for temporary period and for a temporary purpose, and the State Government under the garb of requisition has really acquired the property and has avoided the obligation to pay compensation for acquiring the property which will be over Rs. 29 lakhs.
According to the petitioner, the West Bengal Act of 1947 which was intended to remain in force for a short temporary period does not contain any provision for revision of rent.
The said Act came into force on or about 1st January 1948.
The said Act contains no provision for acquisition of any property but deals solely with requisition of property for making temporary provision.
The said Act by various Acts has been renewed from time to time, the last of such renewal as per averments has been extended upto 31st March, 1985.
It is further the case of the petitioner that the said 690 Act cannot be converted into a permanent Act and there cannot be a permanent requisition.
According to the petitioner, by this process the property in question has been kept under requisition for 25 years.
This, it was submitted, is a fraud upon the power.
According to the petitioner, the State Government had the option of acquisitioning the property.
The State Government had also full knowledge that the possession of the said area was required for a permanent purpose or at least for an indefinite period i.e. for setting up a show room and in spite of the same did not choose to acquire the property but arbitrarily issued the order of requisition under the said Act.
Petitioner states a that he requires the premises in question to carry on his own business and the said right is being interfered with and therefore infringes upon petitioner 's fundamental right.
The petitioner contends that it violates both article 14 and article 19(1)(g) of the Constitution.
There are various allegations about damages being done to the premises in question.
We are not concerned in this application with the said allegations.
The petitioner prays for an order of derequisition of the premises.
On behalf of the respondents, the main contention is that the said Act has been renewed from time to time and there is no limitation to the power of requisition except that the same must be for public purpose.
According to the respondents, the purpose in this case is indubitably a public purpose and that public purpose remains.
The respondents contend that there is no limitation on the exercise of that power.
On behalf of the applicant, reliance was placed on the decision of this Court in H. D. Vora vs State of Maharashtra and Ors.
(Civil Appeal No. 1212 of 1984) judgment delivered by my learned brother Bhagwati to which I was a party.
There the question as was posed by Bhagwati, J. was whether an order of requisition of premises can be continued for an indefinite period of time or it must necessarily be of temporary duration.
The case discussed the other contention and repelled the attack on the order of requisition on the ground that the order of requisition did not set out the public purpose for which it was made.
It was noted by us in the 691 decision of H. D. Vora that the High Court had held that no material was placed before it to show what was the public purpose for which the order of requisition was made and in fact there was no denial on the part of the state government or the appellant of the averment made on behalf of the third respondent that the appellant in that case was neither a government servant nor a homeless person for whom the order of requisition was purported to have been made.
We found that the view taken by the High Court was well founded and it was not possible to hold on the material before us that the order of requisition was made for public purpose.
On behalf of the appellant, however it was contended that the order of requisition in that case was challenged after a lapse of over 30 years and as such that challenge was liable to be dismissed but this Court in Vora 's case relied on another ground namely, that an order of requisition was by its very nature temporary in character and could not endure for an indefinite period of time in the facts of that case, and the order of requisition in that case therefore ceased to be valid and effective after the expiration of a reasonable period of time and that it could not, under any circumstance, continue for a period o over 30 years.
Brother Bhagwati noted the difference recognised by law between "requisition" and "acquisition" and it was further stressed that where acquisition under Land Acquisition Act, 1894 was possible, the Government under guise of requisition could not continue to use the property under requisition for an indefinite period of time thereby in substance.
acquiring the property because that would be misuse by the Government of its powers.
It was observed in that case that if the Government wanted to take over the property for an indefinite period of time, the government should acquire the property but it could nor use the power of requisition for achieving that object.
In those circumstances it was observed that the power of requisition was exercisable by the government only for a public purpose which was of transitory character, if the public purpose for which the premises were required was a perennial one or of permanent character from the very inception, no order could be passed requisitioning the premises and in such a case the order of requisition if passed would be fraud upon the statute, for the government would be requisitioning the property when really speaking it wanted the property for acquisition, the object of taking the property being not transitory but permanent and in such circumstances it was held that an order of requisition for a period of such a long time as 30 years as it had happened in that case made the order of requisition 692 bad.
Relying mainly on the aforesaid basis and the facts alleged in this case, on behalf of the petitioner it was urged before us that the order of requisition was bad and arbitrary.
On behalf of the respondents, however, attention was drawn to a decision of this Court in the case of Collector of Akola and Ors.
vs Ramachandra & Ors a decision of a Bench of three learned judges, There, the land owned by the respondents was requisitioned under the Bombay Land Requisition Act for a public purpose viz,, for establishing a new village site to resettle victims of flood.
The respondents filed a writ petition in the High Court challenging the validity one extended until then upto 1963, the power to requisition thereunder would be with the government only during the time that it subsisted: so an order passed for a permanent purpose could not be in the contemplation of the Act.
The High Court accepted the objection and quashed the order.
It was held by this Court in appeal that the power of requisition under the Act could be exercised whether the public purpose was temporary or not and the exercise of that power for the purpose of rehabilitation of flood sufferers was neither in abuse of the power nor unjustified under the Act.
The words "for any public purpose" in Section 2(1) were wide enough to include any purpose of whatever nature and did not contain any restriction regarding the nature of that purpose.
It placed no limitation on the competent authority as to what kind of public purpose should be for the valid exercise of its power nor did it confine the exercise of that power to a purpose which was of temporary nature.
The Court observed that there was no antithesis between the power to requisition and the power of compulsory acquisition under Land Acquisition Act.
Neither of the two Acts contained any provisions under which it could be said that if one was acted upon, the other could not be.
In that case the facts were that the government made an order of requisition under temporary Act for rehabilitating the flood victims and also initiated proceedings under the Land Acquisition Act 1 of 1894 in respect of those very lands and issued a notification under Section 4 thereof.
It was contended that the action of the government was bad.
The only question which was argued in that case was whether an order of requisition could be made for a permanent purpose.
693 The order of requisition in that case was challenged on the ground that the purpose for which the order of requisition was made, namely rehabilitation of flood affected victims, was a permanent purpose and the order of requisition was therefore bad from its inception, since an order of requisition could be made only for a temporary purpose.
The argument of the petitioner who challenged the order of requisition was, inter alia, that the competent authority had no power to invoke the Land Requisition Act inasmuch as the purpose for which it was exercised was of a permanent character.
This argument appealed to the High Court and the High Court held that the order of requisition was "unjustified under the Bombay Land Requisition Act".
It was only this argument which was considered by this Court and this is how this Court formulated in that case the question for its decision: "The only question arising in this appeal thus is whether the Act authorises an order of requisitioning even if the purpose for which it is made is not a temporary purpose ?" This Court held that the only restriction imposed by the statute on the power of requisition conferred on the State Government was that this power could be exercised " Only for a purpose which is a public purpose" and "on the face of it the sub section does not contain any express limitation to the power to requisition, the only limitation being that an order thereunder can be passed for a public purpose only" and there is no implied limitation that the requisitioning authority has no power thereunder to pass an order where the purpose is not temporary".
This Court said that the premises requisitioned "may be used for a temporary purpose or for a purpose which is not temporary in nature", and added that the power of requisition is not" restricted to a temporary purpose only".
No question was raised before this Court in that case as to whether an order of requisition can continue for an indefinite duration.
The argument before this Court in H.D. Vora 's case was not that the order of requisition was initially bad, when made, on the ground that it was for a purpose which was a permanent purpose.
It fact, no one contended that the purpose of housing homeless person was not a temporary purpose but a permanent purpose and therefore the order of requisition was bad.
The principal argument advanced was that though the order of requisition was good when made, it ceased to be valid and effective, because it could not legitimately be continued for an indefinite length of time.
The order of requisition in that case had been allowed to continue for a period of almost 30 years and that is why this Court said that the order of requisition had ceased to be 694 valid and effective and the premises must therefore be derequisitioned.
It is no doubt true that some observations have been made in the judgment in that case with regard to the permanent or temporary character of the purpose for which an order of requisition could be made and to that extent what is said in that judgment may have to be slightly modified, but the principal decision in that case was that an order of requisition is by its very nature temporary in character and cannot be allowed to continue for an indefinite length of time, because then it would tantamount to an order of acquisition and would amount to a fraud on the exercise of the power of requisition, especially where there is no impediment in making the acquisition and no effort was made to acquire, must be regarded as a correct enunciation of the law which does not in any way conflict with what was laid down in the case of Collector of Akola vs Ramachandra (supra).
The latter decision merely laid down that an order of requisition can be made for a permanent purpose while the for mer dealt with a totally different question, namely, whether, whatever be the character of the purpose for which an order of requisition was made, the question was, could the order of requisition be continued for an indefinite length of time and it was held that the order of requisition would cease to be valid and effective after the expiration of a reasonable period of time, even if it was valid when made, and what, in the circumstances of a given case would be a reasonable period of time would depend on the facts and circumstances of the case.
There is therefore no contradiction between the decision in Collector of Akola vs Ramachandra and the latter decision in H.D. Vora 's case.
It may not be inappropriate to note that there are significant differences between 'requisition ' and 'acquisition '.
These have different legal consequences and these affect the owners concerned in different manners.
But the State has the power both of requisition as well as acquisition, subject to one condition, i.e., the property acquired or requisitioned must be for public purpose.
In the "Words and Phrases Judicially Defined" by Roland Burrows K.C. Vol.
4 at p. 562, it was observed that the word 'requisition ' was not a term of art and does not cannot the same state of things in every particular case.
In the Fourth Edition of Stroud 's Judicial Dictionary at page 2355, it has been mentioned that 'requisition ' is as follows: 695 "Requisitioning ' is not a term of art and has different meanings.
Its usual meaning is nothing more than hiring without taking the property out of the owner although the owner has no alternative whether he will accept the proposition of hiring or not.
It may, however, involve the taking over of the actual domination of a chattel (The Steaua Romana (1944) P.43).
"Requisitioned house"; "requisitioned land" Stat.
Def., Requisitioned Houses and Housing (Amendment) Act 1955 (c.24), section 18 (1).
" In the case of Mangilal Karwa vs State of Madhya Pradesh, it was observed as follows: "If the term 'requisition ' has acquired any technical meaning during the two World Wars it has been used in for the sense of taking possession of property for the purpose of the State or for such purposes as may be specified in the statute authorizing a public servant to take possession of private property for a specified purpose for a limited period in contradistinction to acquisition of property by which title to the property gets transferred from the individual to the State or to a public body for whose benefit the property is acquired.
In 'requisition ' the property dealt with is not acquired by the State but is taken out of the control of the owner for the time being for certain specified purposes.
Even for this limited purpose, however, the owner becomes entitled to compensation, because 'requisition ' of the property amounts at least to a temporary deprivation of the property." Thus, normally the expression 'requisition ' is taking possession of the property for a limited period in contradistinction to 'acquisition '.
This popular meaning has to be kept in mind in judging whether in a particular case, there has been in fact any abuse of the power.
Orders of requisition and acquisition have different consequences.
These have been noted by this Court in the observations of Mukherjea, 696 J. in the decision in the case in Chiranjit Lal Chowdhury vs The Union of India and Others and the distinction between 'requisition ' and 'acquisition ' is also evident from Entry 42 in List III of the Seventh Schedule.
Original Article 31 clause (2) of the Constitution recognised the distinction between 'compulsory acquisition ' and 'requisition ' of the property.
The two concepts are different: in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requiring authority.
One is the taking over of the title and the other is the taking over of the possession.
It was further contended on behalf of the respondents that part of the premises i.e. one room as in the instant case before us, cannot be acquired.
Therefore the ratio of the decision in the case of H. D. Vora would not be applicable because there was no power to acquire the premises in question.
Secondly, it was urged that the petitioner in the instant case was not the owner of the property at all and the question of acquisition of the requisitioned premises does not arise at all.
It was, thirdly, contended that it was not possible in the facts and circumstances of the case to get any other alternative accommodation for the showroom of the State Handicraft and Development Corporation which indisputably is a public purpose.
It was emphasised that the West Bengal Premises Requisition and Control (Temporary Provision) Act, 1947 does not contain any power to acquire the premises in question.
The main thrust of the argument was that section 49 (1) of the Land Acquisition Act, 1894 provides: "The provisions of this Act shall not be put in force for the purpose of acquiring a part only of any house, manufactory or other building, if the owner desire that the whole of such house, manufactory or building shall be so acquired." In other words it was urged that this provision almost prevents the acquisition of a part of a house or building.
It may be pointed out that section 49 (1) of the Act has been amended so far as West Bengal is concerned by the West Bengal of 1955 with effect from 20.10.1955 and the amended section 49 (1) so far as Calcutta is concerned runs thus: "Section 49 (1): The provisions of this Act shall not be put in force for the purpose of acquiring the part only of any house, manufactory or other building, if the acquisition of the part will render the full and unimpaired use of the remaining portion of the house, manufactory or building impracticable.
Provided that, if any question shall arise as to whether the part proposed to be acquired will render the full and unimpaired use of the remaining portion of the house, manufactory or building impracticable, the Collector shall refer the determination of such question to the court and shall not take possession of such part until after the question has been determined.
In deciding on such a reference the Court shall have regard only to the question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the remaining portion of the house, manufactory or building.
" The aforesaid provision suggests that even a part of a building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building as suggested by the counsel for the respondents.
In view of the decision in the case of H. D. Vora in the light of the decision of this court rendered by Bench of three Judges in Collector, Akola and Ors.
vs Ramachandra and Ors.
(supra) and bearing in mind the distinction between 'requisition ' and 'acquisition ' as also the provisions of West Bengal amended section 49 (1) (quoted above), the correct position in law would be that it will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfil 698 ment of the conditions of section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose, then that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith.
In other words, if there is power to acquire as also the power to requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the a Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better.
Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law.
It is true that the purpose indisputably in the instant case is a public purpose.
It is also true that the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature.
But that by itself without anything more would not enable the court to draw the inference that the exercise of the power was bad initially, nor would the continuance of the requisition become mala fide or colourable by mere lapse of time.
In order to draw such an inference some more material ought to have been placed before the court.
In the circumstances after having heard counsel on either side fully we feel that the following would be an appropriate order to be made in the instant case: 1.
The impugned requisition order is upheld but the continu 699 ance of the requisition of the premises in question is permitted subject to the conditions mentioned hereinafter.
The Government is directed to take steps to acquire premises in question by complying with the conditions mentioned and by following the procedure prescribed in section 49 (1) of the Land Acquisition Act, 1894 as substituted for the State of West Bengal by the West Bengal Act 32 of 1955 and if possible issue an appropriate order acquiring the same if Government wants the continued use of the premises.
Such steps should be completed within a period of three years from today.
If, however, there are insurmountable difficulties in acquiring the premises under section 49 (1), the Government will be at liberty to apply to this court for appropriate directions.
We also hope that the Government would take steps to acquire any alternative property or premises under Land Acquisition Act, 1894 in view of the fact that the purpose of the Government is more or less permanent and such steps should also be taken not beyond a period of three years as aforesaid.
If the aforesaid conditions or directions are not complied with, the petitioner will also be at liberty to apply to this court for appropriate directions in accordance with law.
In the meantime, the parties are at liberty to make any appropriate application for the enhancement of rent or compensation in accordance with law, if they are so entitled to, and this will also not prejudice the parties from proceeding with any suit for damages etc.
that may be pending.
The parties will pay and bear their own costs.
The application is disposed of accordingly.
CIVIL ORIGINAL JURISDICTION: Review Petition No. 641 of 1984.
Order in Writ Petition No. 11222 of 1983.
dated 15th April 1985 Since it has been brought to our notice (which should have been done when the matter was heard) that the West Bengal Act 32 of 1955 is not applicable to the facts of the case, we direct that any reference to that Act wherever it occurs shall be deleted and in particular, in para 2 of the order portion of our Judgment we delete the words "as substituted for the State of West Bengal by the West Bengal Act of 1955".
The rest of the order stands.
The Review Petition is disposed of accordingly.
S.R. Appeal dismissed.

summary/full:
The petitioner is the lessee of the premises No. 7/1A D, Lindsay Street, Calcutta which is situated in an important commercial locality of Calcutta.
The ground floor and mezzanine floor of the said premises were requisitioned by Government for establishing main Sales Show room of respondent No. 4, namely west Bengal Handicrafts and Development Corporation Ltd., by an order of requisition No. 21/58 Regn.
dated 25.2.1958 under the West Bengal Premises Requisition and Control (Temporary Provision) Act 1947.
Though this Act itself is a temporary Act, this has been renewed from time to time, the last one renewing it upto 31st March, 1985.
Aggrieved by the piece meal extension of the 1947 Act and the requisitioning of his premises since 1985, the petitioner challenged the same by a petition under Article 32 of the Constitution and contended that (a) the West Bengal premises Requisition Control (Temporary Provision) Act 1947 cannot be converted into permanent Act and therefore requisition of his premises cannot be a permanent requisition ; (b) Requisitioning the property in this manner for more than 25 years amounts to indirect acquisition of the property and is a fraud upon the power; and (c) It violates both Articles 14 and 19 (1) (g) of the Constitution, since the petitioner who himself requires the premises for his own business is prevented from using.
Disposing of the petition, the Court ^ HELD: 1.
There are significant differences between 'requisition ' and 'acquisition '.
Normally the expression requisition is taking possession of the property for a limited period in contradistinction to acquisition.
This popular meaning has to be kept in mind in judging whether in a particular case there has been in fact any abuse of the power.
The distinction between 'requisition ' and 'acquisition ' is also evident from Entry 42 in List III of the Seventh Schedule, Original Article 31 clause (2) of the Constitution recognised the distinction between compulsory acquisition and requisition of the property.
The two 687 concepts are different; in one title passes to the acquiring authority, in the other title remains with the owner, the possession goes to the requiring authority.
One is the taking over of the title and the other is the taking over of the possession.
Thus the orders of requisition and acquisition have different consequences and affect the owners concerned in different manners.
But the State has the power both of requisition as well as acquisition, subject to one condition that is the property acquired or requisitioned must be for public purpose; Mangilal Karwa vs State of Madhya Pradesh, AIR 1955 Nagpur p. 153 at p. 157 approved, Chiranjit Lal Chowdhury vs The Union of India and others [1950] I SCR p. 869 referred to.
[695H; G; 696A B] 2.
Under Section 49 (1) of the Land Acquisition Act, 1942 as amended by the West Bengal Act 32 of 1955, even a part of the building or a house can be acquired provided the conditions mentioned and the procedure specified therein are followed and there is no absolute bar to the acquisition of a part of a house or a building.
[697F] 3:1 It will not be correct to say that in no case can an order of requisition for permanent purpose be made but in a situation where the purpose of requisitioning the property is of a permanent character and where the Government has also the power and the opportunity to acquire the property or a part thereof especially upon the fulfilment of the conditions of section 49 (1) of the Land Acquisition Act (as amended by the West Bengal Act) to the extent applicable, if the Government chooses not to exercise that power nor attempts to exercise that power to achieve its purpose, than that will be bad not because the Government would be acting without power of requisition but the Government might be acting in a bad faith.
In other words, if there is power to acquire as also the power of requisition and the purpose is of permanent nature by having the property or a part thereof for the Government then in such case to keep the property under requisition permanently might be an abuse of the power and a colourable exercise of the power not because the Government lacks the power of requisition but because the Government does not use the other power of acquisition which will protect the rights and interests of the parties better.
[697H; 698A C] 3:2 Where one is repository of two powers that is power of requisition as well as power of acquisition qua the same property and if the purpose can equally be served by one which causes lesser inconvenience and damage to the citizen concerned unless the repository of both the powers suffers from any insurmountable disability, user of one which is disadvantageous to the citizen without exploring the use of the other would be bad not on the ground that the Government has no power but on the ground that it will be a misuse of the power in law.
[698D E] 3:3 In the instant case, it is indisputably true that (a) The purpose of requisition is a public purpose; and (b) That the only part of the building namely one room has been requisitioned for the show room but the premises in question has remained under requisition for over 25 years and the purpose of having the premises in question is of a permanent and perennial nature.
But that by itself without anything more would not enable the court to draw 688 the inference that the exercise of the power was bad initially nor, would be continuance of the requisition became malafide or colourable by mere lapse of time.
In order to draw such an inference some more material ought to have been placed before the Court.
In the circumstances the continuance of the requisitioning of the premises in question must be permitted subject to fulfilment of the conditions mentioned.
[698H F]


judgement:
ition (Criminal) No. 941 of 1984.
(Under article 32 of the Constitution of India) S.L. Chibber for the Petitioner.
Ashwani Kumar and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The short question which arises for decision in this petition under Article 32 of the Constitution is whether it is open to a person who is undergoing imprisonment on being convicted of an offence committed by him to claim that the period occupied by the investigation or inquiry carried on and the trial held while he was undergoing imprisonment in respect of another offence alleged to have been committed by him should be set off against the term of imprisonment imposed on him on being convicted of the latter offence, under section 428 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code ').
726 The facts relevant for the purpose of this case are these: The petitioner was convicted of an offence punishable under section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 100/ in a Sessions Case on February 1, 1980 by the Addl.
Sessions Judge, Karnal.
In the same case, he was also convicted of an offence punishable under section 459 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 100/ .
Both the sentences of imprisonment were directed to run concurrently.
The petitioner was in judicial custody with effect from January 11, 1980 in another case F.I.R. No. 315/78 under sections 457/380/411 of the Indian Penal Code before a Metropolitan Magistrate at Delhi.
That case ended in his conviction on February 16, 1981 for an offence punishable under section 457 of the Indian Penal Code and he was sentenced to undergo imprisonment for one year and to pay a fine of Rs. 200/ .
In the same case he was convicted of an offence punishable under section 380 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four months and to pay fine.
The two sentences of imprisonment imposed in this case were directed to run concurrently.
In this case it was further ordered that the petitioner was entitled to the set off as provided by section 428 of the Code.
It is not necessary to refer to the other case or cases in which he has also been convicted in order to decide the issue involved in this case.
The petitioner is undergoing rigorous imprisonment for seven years as directed by the Addl.
Sessions Judge, Karnal in the Sessions case from February 1, 1980 at the District Jail at Rohtak.
The sentences of imprisonment imposed by the Metropolitan Magistrate, Delhi will commence to run at the expiration of the imprisonment imposed by the Addl.
Sessions Judge, Karnal as prescribed by section 427 of the Code since the court has not directed that the subsequent sentence shall run concurrently with the previous sentence.
The petitioner, however, contends that since he was in judicial custody from January 11, 1980 in connection with the investigation and trial of the case which ended in his conviction by the Metropolitan Magistrate on February 16, 1981, the whole of the period between January 11, 1980 and February 16, 1981 should be set off against the sentence of imprisonment imposed by the Metropolitan Magistrate, Delhi.
This claim of the petitioner is contested by the State Government of Haryana.
It is urged on behalf of the State Government that while the petitioner is entitled 727 to set off under section 428 of the Code, the period between January 11, 1980 and February 1, 1980 on which date he was sentenced to imprisonment for seven years by the Addl.
Sessions Judge, Karnal against the sentence of imprisonment imposed by the Metropolitan Magistrate, Delhi, the period between February 1, 1980 and February 16, 1981 on which date the petitioner was convicted by the Metropolitan Magistrate, Delhi cannot be set off since during that period the petitioner was actually undergoing imprisonment imposed on him in the Sessions case.
The State Government has relied in support of its contention on the instruction issued by the High Court of Punjab and Haryana in No. 29442 Rules VI.V.38 dated November 29, 1975, the relevant part of which reads thus: "The period of detention undergone by a convict in execution of sentence of imprisonment imposed on him by a court of law while facing inquiry or trial in some other case(s) should not be set off against the term of imprisonment imposed on him on conviction in such other case(s).
" We are concerned in the present case with the correctness of the above instruction.
Section 428 of the Code reads thus: "428.
Period of detention undergone by the accused to be set off against the sentence of imprisonment.
Where an accused person has: on conviction, been sentenced to imprisonment for a term not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
" There was no provision corresponding to section 428 of the Code in the Code of Criminal Procedure, 1898 which was repealed and replaced by the present Code.
It was introduced with the object of remedying the unsatisfactory state of affairs that was prevailing when the former Code was in force.
It was then found that many persons were being detained in prison at the pre conviction stage for unduly long periods, many times for periods longer than the actual sentence 728 of imprisonment that could be imposed on them on conviction.
In order to remedy the above situation, section 428 of the Code was enacted.
It provides for the setting off of the period of detention as an under trial prisoner against the sentence of imprisonment imposed on him.
Hence in order to secure the benefit of section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced.
It follows that if a person is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he was under detention during such period.
In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence.
It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment.
He cannot claim a double benefit under section 428 of the Code i.e. the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well.
The instruction issued by the High Court in this regard is unexceptionable.
The stand of the State Government has, therefore, to be upheld.
The petitioner is not, therefore, entitled to claim that the period between February 1, 1980 on which date he was convicted in the Sessions case and February 16, 1981 on which date he was convicted by the Metropolitan Magistrate, Delhi when he was undergoing imprisonment imposed on him in the Sessions case should be set off against the term of imprisonment imposed by the Metropolitan Magistrate, Delhi.
That period should be counted as part of the imprisonment undergone by the petitioner as directed in the Sessions case.
No other contention is urged.
In the result the petition is dismissed.
S.R. Petition dismissed.

dataset_name: IN-Abs

summary/full:
The petitioner was convicted for an offence under Section 307 and Section 459 of the Indian Penal Code and sentenced on February 1, 1980 to a term of rigorous imprisonment.
During the pendency of the trial the petitioner was in judicial custody with effect from January 11, 1980 in another case F.I.R. 315/78 under Sections 457/380/411 of the Indian Penal Code which also ended in his conviction on February 16, 1981 and was sentenced for a term of rigorous imprisonment.
In the latter case it was ordered that the petitioner was entitled to the set off as provided by Section 428 of the Code.
The petitioner claimed that in spite of his conviction in the earlier case from February 1, 1980 he was entitled for set off from 11.1.1980 to 16.2.81.
The question in the present Writ Petition is whether such a claim is in order.
Dismissing the Writ Petition, the Court ^ HELD: 1.
The petitioner is not entitled to claim that the period between February 1, 1980 on which date he was convicted in the Sessions Case and February 16, 1981 on which date he was convicted by the Metropolitan Magistrate, Delhi in another case when he was undergoing imprisonment imposed on him in the Sessions Case should be set off against the term of imprisonment imposed by the Metropolitan Magistrate, Delhi.
That period should be counted as part of the imprisonment undergone by the petitioner as directed in the Sessions Case.
[728G H] 2: 1.
Section 428 of the Code of Criminal Procedure 1973 was introduced with the object of remedying the unsatisfactory state of affairs that was prevail 725 ing when the former Code of 1898 was in force.
It was then found that many persons were being detained in prison at the pre conviction stage for unduly long periods, many times for periods longer than the actual sentence of imprisonment that could be imposed on them on conviction.
[727F G] 2: 2.
In order to secure the benefit of Section 428 of the Code, the prisoner should show that he had been detained in prison for the purpose of investigation inquiry or trial of the case in which he is later on convicted and sentenced.
It follows that if a person is undergoing the sentence of imprisonment imposed by a court of law on being convicted of an offence in one case during the period of investigation, inquiry or trial of some other case, he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the latter case even though he had been detained during such period.
In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence.
It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on convicted and sentenced to undergo imprisonment.
He cannot claim a double benefit under Section 428 of the Code that is the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well.
The instruction issued by the High Court of Punjab & Haryana No. 29442 Rules VI.
V. 38 dated 29th November, 1975 is unexceptionable.
[727G H]


judgement:
tition (Criminal) Nos. 371 75 of 1983.
(Under article 32 of the Constitution of India) Govind Mukhoty and Ms. Kamini Jaiswal for the petitioners.
777 L.N, Sinha, K.G. Bhagat, Addl.
General, R. N. Poddar, P.P. Singh and D. Goburdhan for Respondents.
The Order of the Court was delivered by FAZAL ALI, J. We have heard counsel for the parties at length and have also gone through the Reports and documents filed by the petitioners.
In view of the fact that the counsel for the respondents are more or less agreed to the order we propose to pass, it is not necessary to go into further details.
The facts as gleaned from the Reports and documents reveal a most shocking state of affairs in the region in question.
It seems that a very large number of people have been languishing in jails without trial for petty offences.
Though most of the said people are alleged to have been released but the main infirmity has not been cured.
Without going into further details, we dispose of the petitions in terms of the following Order: "(1) In all cases instituted against the adivasi accused concerned which involve sentence of 7 years or more, they will be entitled to be released on consideration of merit by the court concerned only on executing a personal bond.
These cases will be disposed of on merits expeditiously.
(2) In the other cases where trial has already started and which do not come within the first category, indicated above, the accused will be entitled to be released on bail on executing a personal bond in the absence of very special circumstances.
(3) In the cases where no proceedings at all have taken place in regard to the accused within 3 years from the date of the lodging of FIR, the accused should be released forthwith under section 169 Cr.
P.C. (4) If there are other cases in which neither charge sheet have been submitted nor investigation has been completed during the last three years, the accused 778 concerned should be released forthwith subject to reinvestigation of the said case on fresh facts and they shall not be arrested without the permission of the Magistrate and where permission is given they would be released by the Magistrate on execution of personal bond.
We would like to observe that Section 144 Cr.
P.C. should not be misused and orders under this Section should be passed in the light of principles laid down in at page 169.
At the same time, we would like to warn Adivasi accused that they should not take the law in their own hands by shooting or using their arrows on Government Officers or other forest officers.
If they have any complaint they can move the appropriate authority and get suitable orders from him.

summary/full:
Code of Criminal Procedure, 1973, section 144 and section 169.
The writ petitioners brought to the notice of the Court that a very large number of people had been languishing in jails without trial for petty offences.
Disposing of the writ petitions, ^ HELD: (1) In all cases instituted against the adivasi accused involving sentence of 7 years or more, they will be entitled to be released on consideration of merit by the court on executing a personal bond.
These cases will be disposed of on merits expeditiously.[777E] (2) In the other cases where trial has already started and which do not come within the first category, indicated above, the accused will be entitled to be released on bail on executing a personal bond in the absence of very special circumstances.[777F] (3) In cases where no proceedings at all have taken place in regard to the accused within 3 years from the date of the lodging of FIR, the accused should be released forthwith under section 169 Cr.
P.C. [777G] (4) If there are other cases in which neither change sheet have been submitted nor investigation has been completed during the last three years, the accused concerned should be released forthwith subject to reinvestigation of the said cases on fresh facts and they shall not be arrested without the permission of the Magistrate and where permission is given they would be released by the Magistrate on execution of personal bond.
[777H; 778A B] (5) Section 144 Cr.
P.C. should not be misused and orders under this Section should be passed in the light of principles laid down in at page 169.