judgement:
: Criminal Appeals Nos. 251 & 307 of 1990.
From the Judgment and Order dated 11.8.1989 of the Allahabad High Court in Crl.
A. No. 1239 of 1978.
687 S.C. Maheshwari, Y.C. Maheshwari, Miss Sandhya Goswami and P.K. Chakraborty for the Appellants.
Prithvi Raj, Prashant Chaudhary and Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The appellants in criminal appeal No. 251 of 1990 were accused Nos. 3 and 4 before the trial court, namely, the VIIth Additional Sessions Judge, Meerut, whereas the appellants in criminal appeal No. 307 of 1990 were accused Nos. 1 and 2 before the said court.
These four appellants along with one Braham Singh (since acquitted) took their trial for offences under Sections 302 read with section 149 IPC and 323 read with section 149 IPC.
Besides, these four appellants were also charged for offence under section 147 IPC whilst Braham Singh under section 148 IPC.
The trial court, on appreciation of the evidence adduced by the prosecution, found the 5th accused, Braham Singh, not guilty of any charges and acquitted him.
However, these four appellants were found guilty of offences under section 302 read with section 34 IPC and under section 323 read with section 34 IPC and sentenced to undergo imprisonment for life and to six months ' rigorous imprisonment respectively.
The High Court on appeal preferred by all the appellants, for the reasons mentioned in its judgment, held that the prosecution has not made out a case punishable under section 302 read with section 34 IPC but only under section 304, Part II, IPC read with section 34 and consequently set aside the conviction and the sentence imposed for the offence under section 302 read with section 34 IPC and instead convicted them under section 304 Part II, read with section 34 IPC and sentenced each of them to undergo rigorous imprisonment for a period of five years.
The conviction of all the appellants under section 323 read with 149 IPC was altered into one under section 323 read with 34 IPC and the sentence of six months ' rigorous imprisonment was retained.
The facts of the case which have given rise to the present appeals as unfolded by the evidence, can be briefly stated thus: Appellants in criminal appeal No. 307/90 are brothers.
Similarly appellants in criminal appeal No. 251/90 and Braham Singh (who was arrayed as accused No. 5 before the trial court) are also brothers among themselves.
PWs 1 and 5 are the brother and wife respectively of one Bali 688 (the deceased herein).
PW 1 and the deceased Bali had a common 'Chak '.
The appellants belonged to a village named Kaulbhandora, which is at a distance of about four furlongs from the Chak, situated just adjacent to the road and 'Rajbaha '.
The appellants used to take the 'Rajbaha ' Patri in auction for grazing their cattle.
It seems that there was strained relationship between the appellants and the deceased for a considerable length of time.
According to the prosecution the cattle belonging to the appellants, when allowed to enter the 'Patri ' (grazing field) used to stray into the field of Bali and cause damage to the standing crops.
Although Bali made a protest, it did not yield any result.
On account of this, there was simmering feeling between the parties.
Added to that, there were certain criminal prosecutions between the parties, pending for over a period of two years.
On 23.12.1976 at about 1 p.m. when Bali along with PWs 1 and 5 was in his field, these appellants each armed with a Lathi along with Braham Singh armed with a 'Ballam ' came there.
On the exhortation of Chandroo, all other appellants and Braham Singh attacked Bali with their respective weapons and caused injuries to him.
While PW 3 tried to save her husband, she too was injured.
When PW 1 along with PWs 3 and 4 rushed to the scene of occurrence, the assailants took to their heels.
Injured Bali was removed to the Hastinapur hospital for treatment.
PW 6, the medical officer attached to the said hospital examined Bali and found on his person as many as fifteen injuries of which injury No. 15 was a stab wound and most of the other injuries were contusions.
PW 6 prepared a medical report, Exhibit Ka 6 and on the same day he examined PW 5 and found on her person 2 contusions in respect of which he prepared the injury report (exhibit Ka 7).
However, Bali succumbed to his injuries on the same day at about 7.45 p.m. PW 1 lodged a written report (exhibit Ka 1) at about 8 p.m. before PW 2 a Head Constable attached to the Hastinapur Police Station.
PW 2 prepared Exhibit Ka 2 on the basis of exhibit Ka 1 and made G.O. entry i.e. exhibit Ka. 3.
PW 9, the then sub Inspector of Police attached to the Police Station took up the investigation and examined PW 1 and others.
He held the inquest over the dead body of the deceased and prepared exhibit Ka 11, PW 5 could not make any statement as she was unconscious.
The PW 9 inspected the spot and prepared a site plan exhibit Ka. 14 and seized certain material objects including a piece of wood and blood stain earth.
PW 7, yet another Medical Officer, conducted the post mortem examination on the dead body of the deceased Bali on 24.12.1976 and found a number of injuries, as noted in his post mortem report 689 exhibit Ka 8.
According to PW 7, the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased.
PW 9, after completing the investigation, laid the chargesheet against all the five accused.
Though the appellants admitted the earlier criminal prosecutions between the parties, totally denied their complicity with the offence of murder.
Of the witnesses examined, PWs 4 and 5 corroborated the testimony of PW 1 but PW 3 was declared hostile as this witness mentioned only the name of the first appellant and denied participation of rest of the appellants and Braham Singh and also the presence of the ocular witnesses except PW 5.
The trial court, however, found accused Nos. 1 to 4 (all the appellants herein) alone guilty of the offence, convicted and sentenced them as aforementioned and acquitted the 5th accused Braham Singh.
On appeal, the High Court accepted the testimony of PWs 1, 4 and 5 holding that they are giving a consistent version in regard to the participation of the appellants in attacking the deceased and agreed with the finding of the trial court that these appellants were responsible for inflicting the injuries on the deceased Bali and PW 5.
But coming to the nature of the offence perpetrated on the deceased, the High Court held the offence as one punishable under section 304 Part II but not under section 302 IPC and consequently altered the conviction and the sentence as indicated above while retaining the conviction under section 323 against all the appellants for causing injuries to PW 5.
Hence, the present appeals are directed by the appellants who were accused Nos. 1 to 4 before the trial court.
Mr. Maheshwari, Senior Counsel appearing on behalf of the appellants in both the appeals, forcibly contended that since both the courts below have overlooked the glaring infirmities and ignored the material evidence supporting the defence theory as well as the manifest errors appearing in the evidence, this Court would be justified in interfering with the concurrent findings of both the courts, otherwise substantial injustice would be caused to the appellants.
According to the learned counsel, the prosecution has shifted the scene of occurrence, changed the time of occurrence, unduly delayed the registration of the case and put forth a false explanation for its tardiness both in the matter of registration and investigation of the case; that PW 9; the investigating officer, has deliberately feigned ignorance of the receipt of exhibit Kha 1 in order to shield his indolence and failure in immediately and promptly taking up the investigation; that PW 1 and 4 in order to ventilate their grievance which they were bearing against the appellant 's party on account of the previous 690 animosity and simmering feelings that existed between them and to settle their personal scores; that the credibility of these two witnesses is impaired and their testimony is successfully impeached.
The learned defence counsel further states that a thorough and strict scrutiny of the evidence furnished by PWs 1, 3 and 4 shows that the entire prosecution story in concocted, fanciful and incredible and, as such, it deserves to be rejected with scorn and that both the courts below have completely pretermitted all the pitfalls in the prosecution and have summarily disposed of the case without subjecting the evidence under the usual test of scrutiny.
Before we analyse the above contentions with reference to the evidence adduced by the prosecution and see whether the prosecution case suffers from any illegality and the conclusion of the courts below from perversity, we shall deal with the scope of interference of this Court in an appeal arising from concurrent findings of fact.
This Court in The State of Madras vs A. Vaidyantha Iyer, ; at 588 while interpreting the scope of Article 136 of the Constitution has ruled as follows: "In article 136 the use of the words "Supreme Court may in its direction grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India" shows that in criminal matters no distinction can be made as a matter of construction between a judgment of conviction or acquittal.
Having made the above rule, it has been said that the interference by the Supreme Court will be called for even with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.
Jaganmohan Reddy, J. agreeing with the view taken in Vaidyanatha Iyer 's case has observed in Himachal Pradesh Administration vs Shri Om Prakash, thus: "In appeals against acquittal by special leave under Article 136, this Court has undoubted power to interfere with the findings of fact, no distinction being made between judgments of acquittal and conviction, though in the case of acquittals it will not ordinarily interfere with the appreciation of evidence or on findings of fact unless the High Court "acts perversely or otherwise improperly".
691 Again in Balak Ram vs State of U.P., ([1975] 3 SCC 219 at page 227) this Court held as follows: "The powers of the Supreme Court under Article 136 are wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
" In Arunachalam vs P.S.R. Sadhananthan. ; at page 487 this Court while reinstating the principles laid down in Vaidyanatha Iyer & Om Prakash, cases, has stated thus: "The power is plenary in the sense that there are no words in Article 136 itself qualifying that power.
But the very nature of the power has led the Court to set limits to itself within which to exercise such power.
It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arise or a decision shocks the conscience of the Court.
But within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction, if the High Courts in arriving at those findings, has acted "perversely or otherwise improperly".
See also State of U.P. vs Hamik Singh & Ors., and State of U.P. vs Pheru Singh & ORs.
, [1989] Supp. 1 SCC 288 to which one of us (section Ratnavel Pandian, J.) was a party.
Bearing the above proposition of law, we shall now examine the evidence and see whether the concurrent findings of fact call for an interference.
With regard to the place of occurrence, learned counsel drew our attention to the first information report and to the evidence of the witnesses including that of PW 9, and pointed out that the prosecution had changed the scene of occurrence.
In the first information report under column 'place of occurrence ', it is mentioned as 'Jungle Village, Ganeshpur '.
PW 1 in his cross examination has admitted that the 'Chak ' in which the murder took place is situated in the jungle of village Bhandora and not in the jungle of village Ganeshpur.
A suggestion, though denied, has also been made by the defence to PW 1 that 692 they have changed the place of occurrence from Ganeshpur to Bhandora.
PW 2 who was then the Head Constable attached to Hastinapur Police Station, states that on submission of exhibit Ka 1 by PW 1 he prepared a chik report exhibit Ka 2 and that he mentioned the place of occurrence as jungle of village Ganeshpur only on the basis of the written report.
It is the evidence of PW 9 that he reached village Bhandora and did spot inspection thereby admitting that the place of occurrence was village Bhandora and not Ganeshpur.
a scrutiny of exhibit KA 1 shows that PW 1 did not give the specific place of occurrence in that earliest document.
It appears from the evidence of PWs 1 and 9 as well as the entry under column No. 2 of the First Information Report that the prosecution was probing in darkness even in respect of the place of occurrence.
Even in exhibit Ka 3 a memo prepared by PW 9 for seizure of the blood stained earth, the place of occurrence is not mentioned.
Hence, we hold that the submission made on behalf of the defence even at the threshold that the place of occurrence is changed or at any rate not specifically fixed, cannot be said to be without force.
We shall then scrutinise the evidence with regard to the time of occurrence.
According to the prosecution, the occurrence took place at about 1.00 p.m. on 23.12.1976.
Immediately, after the occurrence, the injured Bali & PW 5 were brought to the hospital which is at a distance of three miles from the scene of occurrence.
exhibit Kha 1 was prepared by the Medical Officer i.e. PW 6 on examing Bali.
exhibit Ka 7 is a report prepared by medical officer PW 6 relating to the injuries found on PW 5.
This document exhibit Ka 7 reveals that PW 5 was examined at about 3.30 p.m.
Therefore, the injured Bali could have been examined by PW 6 earlier to 3.30 p.m.
It may be mentioned here what PW 1 has stated that they reached the hospital approx, between 2 and 3 p.m.
The medical officer has opined that the injuries found on the injured could have been caused within six hours.
When a specific question had been addressed to this medical officer (PW 6) as to whether the injuries could have been caused at about 5/6 a.m. he would say: "It could have been caused at 8 'O clock".
We are not rejecting the case of the prosecution on this admission of the medical officer stating that the probable time of the causation of the injuries could be 8 a.m.
But the question would be, even admitting that the occurrence took place at about 1 p.m., whether the prosecution convincingly and satisfactorily established the guilt of the appellants by leading cogent and reliable evidence.
693 The next important point for determination is whether the case has been promptly registered and the investigation proceeded without causing undue delay thereby giving no room enabling the prosecution party to deliberately concoct a case against these four appellants.
It transpires from the evidence of PW 6 that he sent the information under exhibit Kha 1 to the Police Station through his peon intimating the fact of Bali having been bought to the hospital with a number of bleeding injuries in a very serious condition and also of PW 5 having been admitted in the hospital for treatment of the injuries sustained by her and the said document exhibit Kha 1 was sent by 4.30 p.m. on 23.12.1976 itself and the hospital 's peon had brought the Receipt evidencing the handing over of the intimation to the police.
It is only thereafter that PW 1 prepared exhibit ka 1 and handed it over to PW 2 at about 8 p.m. on 23.12.1976.
According to PW 2, after registration of the case, a death memo was received at the Police Station at about 8.15 p.m. saying that Bali had expired in the hospital at about 7.40 p.m.
According to PW 1, the distance between the hospital and the police station is about 1 or 2 furlongs and that the police station is not situated near the hospital.
Nonetheless PW 1 would admit when confronted further that the distance between the gates of the hospital and the police station would be about 50 steps.
Be that as it may, the fact ramains that both the hospital and the police station are situated within a very short distance.
Admittedly, neither PW 1 nor any of PWs 3 and 4 went to the police station to inform about the occurrence though they reached the hospital even by 2 p.m.
The only explanation given by PW 1 is that he was busy enquiring about the condition of his brother.
This explanation of PW 1 is totally unacceptable because after both injured persons, namely, Bali & PW 5 were brought to the hospital they were examined only by the medical officer, PW 6.
There was nothing preventing either PW 1 or any of the other witnesses in going to the police station and informing the police, if really they were eye witnesses to the occurrence and were in the hospital from 2 p.m. onwards, leaving apart PW 5 who was undergoing treatment in the hospital.
The delayed preparation of exhibit Ka 1 by PW 1 at the hospital after seven hours of the occurrence and that too after the death of his brother, leads to an indelible impression that PW 1 and other interested persons who were enimically disposed towards the appellants should have prepared exhibit Ka 1 after due deliberation and consultation.
The abortive explanation for not going to the police station for six hours after reaching the hospital is unworthy of credence.
694 The next and even more important point for consideration is the much delayed investigation.
The conduct of PW 9 in not taking an immediate action even after exhibit Kha 1 was handed over at the police station by 4.30 p.m. or at any rate after receipt of Ka 1 and the death intimation creates a suspicion in the veracity of the prosecution case.
Though PW 2 admits that he received the death intimation by about 8.15 p.m., PW 9, the investigating officer, has feigned total ignorance about exhibit Kha 1 stating thus: "Before this F.I.R. no intimation was received at the police station about this occurrence that Bali was injured and admitted in the hospital and his condition was critical.
It is wrong that any information was received at the Police Station before this F.I.R. which I am concealing.
I do not know whether exhibit Kha 1 was received in the police station or not.
During the investigation exhibit Kha 1 never came to my knowledge.
This paper came to my knowledge during the investigation and I made a copy of this in the case Diary.
I do not know whether this Letter was recorded in the General Diary or not.
No copy of G.D. is recoorded in my case diary in connection with exhibit Kha 1.
No such note is there in my case diary that I had seen any G.D. which is related to Ex Kha 1.
I have not recorded any statement of the H.M. relating to exhibit Kha 1.
" We shall examine whether PW 9 took up the investigation at least after registration of the case without causing further delay.
PW 2 states that the investigating officer took up the investigation at about 8 p.m. on 23.12.1976 and went to the hospital and returned to the police station only on the next day i.e. 24.12.1976 at 9.50 p.m. PW 9 has lodged in his presence by PW 1 and that he immediately took up the investigation during the course of which he examined PW 1 and then come to the hospital where he examined the medical officer Dr. B.D. Goel (PW 6) and saw the dead body lying in the male ward.
He continues to state that as PW 5 was in an unconscious condition, he could not examine her and as the light went off, he could not prepare even the Panchnama.
This piece of evidence of PW 9 that he took up the investigation even at 8 p.m. is not only contradicted but also falsified by the testimony of PW 1 according to whom after lodging the report he immediately came back to the hospital and remained there till next morning and that the Sub Inspector (PW 9) came to the hospital for the first time in the morning of 24.12.1976 and only thereafter he was 695 examined.
PW 4 also states that the investigating officer came to the hospital only in the next morning.
PW 6, the medical officer, does not speak of the Sub Inspector having came to the hospital on the night of occurrence and has stated that he did not remember of the Sub Inspector or any constable reaching the hospital after receipt of the death intimation or any one examining him on that date.
The said pieces of evidence, namely, the total unawareness of PW 9 about the existence of exhibit Kha 1 as well as the entry in the general diary made thereon and the diametrically contradictory evidence of PW 9 on the one hand and that of PWs 1,4 and 6 on the other, clearly indicate that either PW 9 did not have any knowledge about the incident till the next morning or even if he had such knowledge, he deliberately delayed the investigation; and his present version is nothing but a deliberate perjury and as such his evidence has to be thrown overboard as unworthy of credence.
In the cross examination, it is admitted by PW 9 that he did not write the names of the appellants/accused in the Panchnama and that he did not try to know the kinds of weapons that had been used by the assailants.
On the basis of this admission a suggestion had been addressed to him that the FIR relating to this incident, was prepared and lodged only after preparation of the Panchnama thereby indicating that the FIR was anti dated.
We shall now scan the evidence of PWs 1, 3 and 4 examine whether their evidence could be accepted and acted upon.
Admittedly, there was deep rooted animosity between the prosecution party and the appellants over a period of some years and they have developed bad blood.
It is the evidence of PW 1 that there were a number of criminal cases against deceased Bali along with one Birbal Kishore and Omi who were persons of notorious character in that village.
Besides, there were some more cases and counter cases between the parties.
A suggestion has been addressed to PW 1 that his brother Bali was having close connection with one Ramanand who was a known decoit belonging to their village but PW 1 has denied the relationship of Bali with Ramanand.
PW 4 admits that there was a dispute between Bali and the appellants in which Bali had beaten them and in that case he was a co accused along with PW 1 and deceased Bali.
PW 3 who has been treated as a hostile witness since he did not implicate all the appellants by their names except Chandroo has admitted that there was a case against Bali and Birbal Kishore in which he was a witness on the side of Bali and that there was a double murder case in which he (PW 3) was an accused and convicted.
In that murder case one Roop 696 Ram, cousin of appellant Chndroo was a witness on the prosecution side.
Thus it comes out of the evidence of these witnesses that all was not well between the parties and each one was having grudge against the other.
As pointed out by Mr. Maheshwari, learned counsel appearing for the appellants, the conduct of PW 1 belies his presence at the sence of occurrence as he did not intervene when his brother (deceased) and sister in law (PW 5) were attacked by the appellants and another and if PW 1 had really been at the scene, he having been a co accused along with his brother in previous case, would not have been standing as a mute spectator without taking any part in the occurrence in which case he would also have received injuries.
In exhibit Ka 1 he has mentioned PWs 3 and 4 as eye witnesses who were enemically disposed of towards the appellants and who were interested in the prosecution.
As seen from the evidence of these three witnesses, they all belong to one group either having been co accused in one case or other along with Bali or taking up the cause of Bali when the latter was involved in other criminal cases.
In fact, one sentence in exhibit Ka 1 would indicate that PWs 1, 3 and 4 were not at the scene at the time of occurrence but came to the spot later on.
The relevant version in exhibit Ka 1 reads: "On alarm, I and my uncle Chotte Lal and Shiv Charan of the village reached the spot and saved them" Of course, he at the next breath would claim to have witnessed the occurrence.
We have also noted that the place of occurrence is not satisfactory fixed; and that the evidence of PW 1 giving the reasons for the presence of his deceased brother with PW 5 in the field, is also falsified by the evidence of PW 9.
According to PW 1, his deceased brother and PW 5 were harvesting sugarcane in the field at the time of occurrence.
But PW 9 has deposed that at the time of spot inspection he did not find any Bugi, Dokra, Phawara, Dranti or harvested sugarcane.
This contradictory evidence when taken along with our finding with regard to the fixation of the scene of occurrence goes to show that PW 1 could not have been present at the scene of occurrence and only after a deliberation he has posed himself as one of the eye witnesses and projected PWs 3 and 4 as other eye witnesses along with him.
PW 4 during the course of cross examination has admitted that except himself, PWs 1 & 5, none reached the scene and people came to the scene of occurrence later on.
After reaching the hospital along with injured, PW 4 states that all of them remained in the hospital near the dead body and that he went to the police station in the morning of the next day at about 7.00 a.m. As we have pointed out earlier, PW 3 has not implicated all the appellants except Chandroo by name and as such, he has been treated 697 as a hostile witness.
PW 3 is none other than the uncle of PW 1 and the deceased, therefore, in view of the inherent infirmities adversely affecting the testimony of these eye witnesses, it would not be safe to convict the appellants on the scanty evidence.
The author of the earliest document exhibit Ka 1, namely, PW 1 seems to be a man of dubious character and his evidence is completely tarnished.
A thorough scrutiny of the evidence shows that the testimony of the eye witness is ambulatory and vacillating and compels this Court not to place any safe reliance.
Lastly, we are left with the evidence of PW 2 who is an injured witness.
The presence of PW 2 at the scene is fortified by the injuries found on her person.
After scanning her evidence very carefully, we are unable to safely accept her evidence since it is not only tainted with highly interestedness but also a coloured version, falling in line with that of PW 1.
She states that she was unconscious for 2 days and that it was she who told PWs 1 and 4 as to who were the assailants.
Immediately in the next breath, PW 5 comes forward to say that on the next day she told all the facts to the investigating officer and again became unconscious after coming to know the death of her husband.
To a Court question, she gives a prevaricating answer that she was conscious for some time and then became unconscious.
Though at one time, she testifies that she was beaten with sticks, she suddenly changes her evidence giving a contradictory version that she did not know whether she was beaten or not.
Though all the witnesses in a parrot like manner deposed that these 4 appellant along with Braham Singh armed with ballam attacked the deceased, their evidence when subjected to strict examination becomes unworthy of credence.
The Trial Court on entertaining a grave doubt about the participation of Braham Singh with a ballam, acquitted him despite the fact that PW 6 has noted a stab wound on the inner side of left thigh measuring 2 x 1 x 1.5 cms which injury in the opinion of the medical officer could have been caused by a sharp edged weapon like 'ballam!.
The acquittal of Braham Singh was not challenged by the prosecution before the High Court, and therefore, we are not called upon to discuss on this aspect of the case.
However, it is clear that the trial Court was not inclined to accept a part of the evidence of these 3 witnesses i.e. PWs 1, 4 & 5 relating to the participation of Braham Singh.
In our considered opinion, the evidence, adduced by the prosecution, falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
698 A thorough and scrupulous examination of the facts and the circumstances of the case leads to an irresistible and inescapable conclusion that the prosecution has miserably failed to establish the charges levelled against these appellants by producing cogent, reliable and trustworthy evidence.
Both the Courts below instead of dealing with the intrinsic merits of the evidence of the witnesses, have acted perversely by summarily disposing of the case, pretermitting the manifest errors and glaring infirmities appearing in the case.
For all the aforementioned reasons, we allow the appeals by setting side the convictions and the sentence, imposed by the High Court and acquit the appellants.
The bail bonds, executed by the appellants, are discharged.
R.S.S. Appeals allowed.

summary/full:
On 23.12.1976 at about 1 p.m. when Bali (deceased) along with PWs 1 and 5 was in his field, the four appellants each armed with a Lathi, along with Braham Singh armed with a 'Ballam ', came there.
On the exhortation of Chandroo, all other appellants and Braham Singh attacked Bali with their respective weapons and caused injuries to him.
While PW 3 tried to save her husband, she too was injured.
When PW 1 along with PWs 3 and 4 rushed to the scene of occurrence, the assailants took to their heels.
Injured Bali was removed to the hospital.
He succumbed to his injuries on the same day at about 7.45 p.m.
It seems that there was trained relationship between the appellants and the deceased for a considerable length of time over grazing of cattle, resulting in damage to the standing crops.
On account of this, there was simmering feeling between the parties.
Added to that, there were certain criminal prosecutions between the parties, pending for over a period of two years.
The four appellants along with Braham Singh (since acquitted by the Trial Court) took their trial.
The Trial Court found the four appellants guilty of offences under section 302 read with section 34 and under section 323 read with section 34 IPC and sentenced them to undergo imprisonment for life and to six months ' rigorous imprisonment respectively.
The 5th accused, Braham Singh, was acquitted.
On appeal, the High Court held that the prosecution had not made out a case punishable under section 302 read with section 34 IPC but only under section 304, Part II, IPC read with section 34 IPC.
The High Court sentenced each of them to undergo rigorous imprisonment for a period of five years.
The conviction of all the appellants under section 323 read with 149 IPC was altered into one under section 323 read with 34 IPC and the sentence of six months ' rigorous imprisonment was retained.
686 Before this Court it was contended on behalf of the appellants that since both the courts below had overlooked the glaring infirmities and ignored the material evidence supporting the defence theory as well as the manifest errors appearing in the evidence, this Court would be justified in interfering with the concurrent findings of both the courts.
According to the learned counsel, the prosecution had shifted the scene of occurrence, changed the time of occurrence, unduly delayed the registration of the case and put forth a false explanation for its tardiness both in the matter of registration and investigation of the case.
Allowing the appeals by setting aside the convictions and the sentence imposed by the High Court, this Court, HELD: (1) Under Article 136, Interference by the Supreme Court will be called for even with the findings of fact given by the High Court, if the High Court has acted perversely or otherwise improperly.
[690F] The State of Madras vs A. Vaidyanatha Iyer, ; ; Himachal Pradesh Administration vs Shri Om Prakash, ; Balak Ram vs State of U.P., ; ; Arunachalam vs P.S.R. Sadhananthan, ; State of U.P. Hamit Singh & Ors., ; State of U.P. vs Pheru Singh & Ors., [1989] Suppl.
1 S.C.C. 288, referred to.
(2) The evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it.
[697H] (3) A thorough and scrupulous examination of the facts and the circumstances of the case leads to an irresistible and inescapable conclusion that the prosecution has miserably failed to establish the charges leveled against these appellants by producing cogent, reliable and trustworthy evidence.
Both the Courts below instead of dealing with the intrinsic merits of the evidence of the witnesses, have acted perversely by summarily disposing of the case, pretermitting the manifest errors and glaring infirmities appearing in the case.
[698A B]


judgement:
Civil Appeal No. 848 of 1991 etc etc.
From the Judgment and Order dated 14.12.1990 of Madhya Pradesh High Court in M.A. No. 227 of 1990.
Kapil Sibal, H.N. Salve, J.B. Dadachanji, Mrs A.K. Verma and section K. Mehta for the Appellants.
K.K. Venugopal, P. Chidambaram, S.S. Ray and P.P. Tripathi for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
The Olympic games are ancient in origin.
According to the Encyclopaedia Britannica they commenced some 3,500 years ago and the name came from its association with the place known as Olympia in Greece.
These games were played once in every four years and were abolished in 393 AD by the Roman Emperor Theodosius I.
In recent times, they were revived in 1896 and have until now been held at the turn of every four years excepting during the first and the second world wars.
The Olympic games are one of the biggest international events and provide great opportunities to amateur sportsmen in the different classifications.
Indian participation in the Olympic games dates back to 1900 when a single representative had joined the Olympics at Paris.
Gradually, such participation became more systematic and broad based.
While the Ministry of Youth Affairs and Sports of the Union Government looks after development of sports within the country, the management of the Olympic participation has been entrusted to a society registered under the Societies Registration Act (21 of 1860) known by the name 'Indian Olympic Association ' (for short IOA ') The Memorandum of Association of this society indicates that the principal objects of the society, inter alia, are: (i) to develop and promote the Olympic movement and amateur sport, (2) to promote and encourage the physical, moral and cultural education of the youth of the nation for the development of character, good heath and good 662 citizenship, (3) to enforce all rules and regulations of the International Olympic Committee (hereinafter referred to as 'IOC ') and the IOA; (4) to be the official organisation in complete and sole charge of all Olympic matters in the country, (5) to educate the public of the country as to the value of amateurism in sports; (6) to maintain the highest ideals of amateurism and to promote interest therein, particularly in connection with the Olympic games and other games under the patronage of the IOC as well as the IOA, (7) to have full and complete jurisdiction over all matters pertaining to the participation of India in the Olympic games and other games under the patronage of the IOC as well as the IOA, (8) to assist in cooperation with National Sports Federations/Associations the selection, training and coaching of the teams that will represent Indian in the Asian, Commonwealth, Olympic and other international competitions and tournaments, under the patronage of the teams in the said competitions and tournaments after selection, (9) to undertake with the assistance of National Sports Federations/Associations the financing, management, transportation, maintenance and welfare of teams from India taking part in the Olympic games and other games under the patronage of the IOC as well as the IOA; and (10) to timulate the interest of the people of the country in the promotion of sports and games in the Olympic programme, and to that end the formation of State Olympic Association for the development of sports and games within a State and National Sports Federations for games and sports in the Olympic programme.
We have quoted most of the important objectives to bring it to the forefront that the I.O.A. has been brought into existence to sponsor, supervise, finance, regulate and control all aspects of sports activity in relation to the Asian, Commonwealth, Olympic and international competitions and tournaments under the patronage of the IOC.
While its funding is partially out of membership fee, bulk of it comes from Government contribution.
The society has a set of rules and regulations.
There are five categories of members as described in rule 3.
The management of the affairs of the Association is entrusted to an Executive Council defined in rule 1(v).
Rule 8 provides that the Executive Council shall have (i) a President (ii) 9 Vice Presidents (iii) a Secretary General (iv) 6 Joint Secretaries (v) a Treasurer (vi) 7 Members elected from among representatives of State Olympic Associations and (vii) 12 members elected from among the representatives of National Sports Federation/Association/ SSCB.
Rule 8 provides the manner of elections to be held 663 for the Executive Council.
The term of the Executive Council is 4 years.
Rule 11 provides the voting procedure.
Clause (b) of that rule requires that voting if necessary in the IOA Executive Council, IOA Emergency Executive Council and/or at the annual general or special general meetings of the IOA shall be by show of hand.
However, if in a particular case the procedure has to be changed, the same will be done by a resolution of the concerned body passed by majority vote.
The very rule provides as to the voting power of the different units composing the IOA.
Rule 12 deals with the office bearers like the President, the Vice President, the Secretary General, the Joint Secretaries, the Treasurer etc.
For the resolution of the dispute before us perhaps reference to the other rules is not necessary.
The IOA was reconstituted with effect from 28th of October, 1984, with appellant Shri V.C. Shukla as the President.
K. Murugan, appellant in C.A. No. 848 of 1991 (arising out of SLP 1064/91) was one of the 6 Joint Secretaries.
In November, 1988, Shri B.S. Adityan, one of the vice President of the 1984 Executive Council was elected as President for a term of four years.
On 16th of May, 1990, there was a requisition of 17 Members for a special general meeting for considering the move of a no confidence motion against Shri Adityan and his Executive Council.
With this started a period of confrontation between the two groups in the Association.
In May, 1990, the Executive Council overruled the requisition as invalid and President Adityan called a meeting of the General assembly at Madras for 15th of June, 1990.
For the same day the other group summoned a meeting of the general assembly at New Delhi.
This led to Court proceeding and the Delhi High Court restrained the requisitionists from holding their meeting at New Delhi and appointed a retired Judge of the Delhi High Court as an observer for the meeting to be held at Madras.
In the convened meeting of 15th of June, minutes of the proceedings whereof have been seriously disputed Shri Shukla claimed to have been elected.
A little before the meeting of the 15th of June at Madras, further proceedings were taken in Court which have been labelled as collusive and manipulations for obtaining an order for the manner of voting.
The warring factions lost sight of the laudable goals of the IOA and the purpose for which the Association had been set up and put their entire attention on winning control over the affairs of the IOA in their grip through litigation.
664 A Single Judge of the Madras High Court having decided in favour of Shri Adityan, the matter ultimately came before a Full Bench which by its order dated 3rd of January, 1991, remitted the matter to the learned Single Judge and appointed Justice Natarajan, a retired Judge of this Court, to discharge the functions of the President of the IOA as an interim measure.
This order is challenged in the appeal by Shri Murguan and Shri V.C. Shukla by two different appeals being Civil Appeals Nos. 852.853 of 1991 (arising SLPs 1599 and 1787/91).
Not content with the litigation in the Delhi and Madras High Courts, the Fencing Association of India filed a civil suit at Jabalpur asking for declaration that Shri Shukla had been duly elected as President.
An application for injunction in support of Shri Shukla having been rejected by the trial Judge an appeal had been taken before the High Court where a learned Single Judge made a status quo order.
The other two appeals arise out of proceedings including contempt taken therein.
Long arguments have been advanced before us by Mr. Venugopal for Shri Adityan and by Mr. Sibal for Shri Shukla.
The main contention of Mr. Venugopal is that under the rules the terms of the President and the Executive Council is four years and in the absence of a clear provision for a vote of No. confidence, which would curtail the period, there could be no reduction of the period of office.
It has also been contended that the entire Executive Council could not be voted out of office by a motion of no confidence and, therefore, Shri Adityan had rightly overruled the requisition.
Serious challenge has been advanced by Mr. Sibal against the proceedings taken before the Madras High Court and particularly, the learned Judge making an order changing the manner of voting from show of hands to one by ballot in what is stated to be a collusive proceeding.
This does not appear to us to be a matter where individual rights in terms of the rules and regulations of the Society should engage our attention.
Sports in modern times has been considered to be a matter of great importance to the community.
International sports has assumed greater importance and has been in the focus for over a few decades.
In some of the recent Olympic games the performance of small States has indeed been excellent and laudable while the performance of a great country like India with world 's second highest populations has been miserable.
It is unfortunate that the highest body in charge of monitoring all aspects of such sports has got involved in group fight leading to litigation and the objectives of the Society have been lost sight of.
The representation of India in the IOA has been in jeopardy.
665 The grooming of amateurs has been thrown to the winds and the responsibility placed on the Society has not been responded.
This, therefore, does not appear to us to be a situation where rights to office will have to be worked out by referring to the provisions of the law relating to meetings, injunction and rights appurtenant to elective office.
What seems to be of paramount importance is the healthy conditions must be restored as early as possible into the working of the Society and a fresh election has to be held as that seems to be the only way to get out of the malady.
The entire nation is looking up to the results of the competitions at the international games when they are held.
As we have already pointed out, IOA has great responsibities to discharge in organising and streamlining the national sport activities intended for international events.
The monitoring has to be a continuous one and unless the scheme is ongoing and is made result oriented, the international performance cannot be up to any appreciable level.
The question for consideration, therefore, is not as to which of the two factions should succeed.
On the other hand, it is appropriate that all the litigations now pending should abate.
In the interest of the appropriate functioning of the Society the litigation outside the headquarters of the Society should not be permitted.
We accordingly direct that any litigation, if at all, should only be within the jurisdiction of the Delhi High Court and no Court in India would entertain litigations relating to the functioning of IOA in any aspect.
A fresh Executive Council should be set up and for that purpose elections should be held within two months hence.
The general assembly should be convened to meet at Calcutta on 28th of April, 1991.
We appoint Mr. Justice A.D. Koshal, a retired Judge of this Court to conduct the elections keeping the provisions of the rules and regulations of the IOA in view.
Voting shall be by secret ballot.
The list of voters should be finally settled within four weeks from now and if it is necessary to have any hearing in the matter we authorise such hearing to be undertaken by Mr. Justice Koshal.
Until then, Mr. Justice Natarajan will continue to exercise his powers as conferred by the order of the Madras High Court.
Once the results of the elections are announced, Mr. Justice Natarajan would cease to be in office and the Association would take over.
To enable Mr. Justice Koshal to discharge the obligations cast upon him by this decision, the Ministry of Youth Affairs and Sports is directed to place at his disposal a sum of Rs.25,000 (Twenty five thousand) within two weeks and a small group of assistants as he may need.
Payment of remuneration for the work done shall be fixed by the Court later.
666 All the proceedings in the different High Courts abate; the suit in the Jabalpur High Court shall stand dismissed.
The contempt proceedings now pending shall not be proceeded with.
In the course of arguments some criticism was advanced against the order of the High Court providing monthly remuneration to Mr. Justice Natarajan.
We leave this aspect to be considered by Mr. Justice Natarajan himself and do not propose to deal with it in our order.
Before we leave this matter we would like to point that the Union of India should take greater interest in organising sports both for national and international purposes.
Sports have a role to play in building up good citizens.
That aspect should be kept in view.
We have a feeling that while a lot of money is allotted for the purpose of improvement of sports, the result has been considerably poor and deceptive.
We hope and trust that this aspect of the criticism heard from everywhere in this country shall also be given due consideration.
V.P.R. Appeals disposed of.

dataset_name: IN-Abs

summary/full:
The Indian Olympic Association was a society registered under the Societies Registration Act, with the principal object to sponsor, supervise, finance, regulate and control all aspects of sports activity in relation to the Asian, Commonwealth, Olympic and International competitions.
The Society had a set of rules and regulations.
There are five categories of members described in Rule 3.
The management of the affairs of the Association is entrusted to an Executive Council defined in Rule 1(v).
Rule 8 provided that the Executive Council shall have (i) a President, (ii) 9 Vice Presidents, (iii) a Secretary General, (iv) 6 Joint Secretaries, (v) a Treasurer and (vi) 19 Members.
The terms of the Executive Council was to be 4 years, while Rule 11 provides the voting procedure.
The Indian Olympic Association was reconstituted with effect from 28 of October, 1984, with the appellant in C.A. No. 852 of 1991, Shri V. C. Shukla as the President, K. Murugan, the appellant in C.A. No. 848 of 1991 as one of the 6 Joint Secretaries.
In November, 1988, one of the Vice President of the 1984 Executive Council, Shri B.S. Adityan, the appellant in C.A. No. 849/91 was elected as President for a term of four years.
On 16th of May, 1990, there was a requisition of 17 Members for a special general meeting for considering the move of a no confidence 659 motion against the aforesaid Shri B.S. Adityan and his Executive Council.
This initiated a period of confrontation between the two groups in the Association.
In May 1990, the Executive Council overruled the aforesaid requisition as invalid and President Adityan called a metting of the General Assembly at Madras for 15th of June, 1990.
For the same day the other group summoned a meeting at New Delhi.
This aforesaid situation led to Court proceedings, and the Delhi High Court restrained the requisitionists from holding their meeting at New Delhi and appointed a retired Judge of the Delhi High Court as an observer for the meeting to be held at Madras.
At this meeting Shri V.C. Shukla, the appellant in C.A. No. 852/91 claimed to have been elected.
The matter was taken to Court and a Single Judge decided in favour of Shri B.S. Adityan, the appellant C.A.No. 8549/91, but when the matter came up before the Full Bench of the High Court, it remitted the matter to a Single Judge who appointed a retired Judge of this Court to discharge the function of the President of the Association as an interim measure.
This Order has been challenged by the appellants in Civil Appeals Nos.
852 853/91.
The Fencing Association of India filed a civil suit at Jabalpur for the declaration that Shri V. C. Shukla had been duly elected.
The application for injunction from having been rejected by the Trial Judge, an appeal had been taken to the High Court where the Single Judge ordered status quo.
Two Civil Appeals were also filed against this order.
It was contended on behalf of the appellants that under the rules the term of the President and the Executive Council was four years and in the absence of a clear provision for a vote of no confidence which would curtail the period, there could be no reduction of the period of office, and that the entire Executive Council could not be voted out of office by a motion of no confidence.
Disposing of the appeals, this Court, HELD: 1. Sports in modern times has been considered to be a matter of great importance to the community.
International sports has assumed greater importance and has been in the focus for over a few decades.
[664D E] 660 2.
It is unfortunate that the highest body incharge of monitoring all aspects of such sports has got involved in group fight leading to litigation and the objectives of the I.O.A. have been lost sight of.
The representation of India in the I.O.A. has been in jeopardy.
[664E F] 3.
The grooming of amateurs has been thrown to the winds and the responsibility placed on the Society has not been responded.
This, therefore, does not appear to be a situation where rights to office will have to be worked out by referring to the provisions of the law relating to meetings, injunction and rights appurtenant to elective offices.
[664F G] 4.
What seems to be of paramount importance is that healthy conditions must be restored as early as possible into the working of the Society and a fresh election has to be held as that seems to be the only way to get out of the malady.
[644G H] 5.
The entire nation is looking up to the results of the competitions at the international games when they are held.
I.O.A. has great responsibilities to discharge in organising and streamlining the national sport activities intended for international events.
The monitoring has to be a continuous one and unless the scheme is ongoing and is made result oriented, the international performance cannot be up to any appreciable level.
[664G 665B] 6.
This does not appear to be a matter where individual rights in terms of the rules and regulations of the Society should engage attention.
[664D E] 7.
It is appropriate that all the litigations now pending should abate, and for appropriate functioning of the Society the litigation outside the headquarters of the Society should not be permitted.
[665B C] 8.
A fresh Executive Council should be set up and for that purpose, elections should be held within two months hence; a retired Judge of this Court is appointed to conduct the elections keeping the provisions of the rules and regulations of the I.O.A. in view.
All the proceedings in the different High Courts abate.
[665C D, G] 9.
It is directed that the Union of India should take greater interest in organising sports both for national and international purposes.
Sports have a role to play in building up good citizens.
That 661 aspect should be kept in view, while a lot of money is allotted for the purpose of improvement of sports, the result has been considerably poor and deceptive.
This aspect of the criticism hear from everywhere in this country shall also be given due consideration.
[666A B]


judgement:
ivil Appeal No. 4974 of 1990.
From the Judgment and Order dated 20.6.1990 of the Bombay High Court in W.P. 2403 of 1989.
G.L. Sanghi, Mrs. Jayshree Wad, Dhruv Mehta and Ms. Tamali Das Gupta for the Appellant S.V. Deshpande, V.N. Patil and A. section Bhasme (NP), for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Pursuant to the Notification issued in June 1986 the elections of Directors to the District Central Cooperative Bank, Chandrapur, hereinafter referred to as 'the Bank ' the appellant filed his nomination papers in July 1986, and he was elected on 18.8.1986 as one of the Directors of the Bank from the Brehmapuri Agricultral Sales and Purchase Society.
His election was not called in question according to the procedure prescribed by the Maharashtra Cooperative Societies Act, 1960, hereinafter referred to as 'the Act '.
On 8.1.1987, the District Deputy Registrar of the Cooperative Societies, Chandrapur, hereinafter referred to as 'the Deputy Registrar ', issued a notice to the appellant under section 78(1) of the Act to show cause within 15 days as to why he should not be removed from the Board of Directors of the Bank as per the provisions of section 73FF, and directed him to remain present on 2.2.1987 at 11 678 A.M. in the Deputy Director 's office.
The notice stated that the appellant had borrowed a loan of total Rs. 10,000 (Rs. 7,000 as debt and Rs. 3,000 subsidy) from the Bank and he kept the loan constanty in arrears till 21.10.1986, and being elected as Director of the Bank on 18.8.1986.
till then he was working as the Director of the Bank.
The notice further said: "Because you have remained in arrars of the loan instalments as referred above to the Maharashtra State Cooperative Land Development Bank, under Section 73FF(i)(b) of the Maharashtra State Cooperative Societies Act, 1960, you are disqualified to be elected or to continue as Director or Executive Committee Member of the Executive Committee of a Cooperative Society and u/s 73FF(2) of Maharashtra State Cooperative Societies Act, 1960 a person committing defaults ceased to be the Executive Committee (member) or Director.
From the information above given because the loan instalments of Maharashtra State Cooperative Land Development Bank remained due from you on the date of filing nomination papers for the election of post of Director of Chandrapur District Central Cooperative Bank and also on the date of your election and thereafter, you are disqualified to contest the election to the post of Director of Chandrapur District Central Cooperative Bank as also to be elected and to continue as Director.
And therefore under powers given to me by Section 78(1) of Maharashtra State Cooperative Societies Act, 1960 and order No. CSL/1481/24982/15 C(87) dated 1.7.81 of Agriculture and Cooperation Department of Maharashtra State Government.
I, K.M. Deshpande, District Dy, Registrar, Cooperative Societies, Chandrapur hereby ask you to show cause in writing as to why you should not be removed from the Board of Directors of Chandrapur District Central Cooperative Bank and from the Executive Committees of the other cooperative societies in the District.
Your explanation in writing should be submitted to this office within 15 days from the receipt of this notice.
" The appellant showed cause and also filed an additional reply on 10.11.87 stating that he "had not committed any default after the 679 amended section 73FF came into existence.
" The Assistant Regisrar, Cooperative Societies, Chandrapur by his order dated 7.12.1987 removed the appellant from the Committee of Directors of the Bank holding that appellant was defaulter on 31.1.1986, on 31.3.1986 and he became defaulter under the provisions of section 73FF(1) of the Act, and rejected the appellant 's contention that section 73FF became applicable from 6.8.1986 as per the Government Notification issued on 18.4.1986 and that as he had accepted that he paid the dues on 21.10.1986, on 18.8.1986 when he was elected as Director, he was defaulter under section 73FF(1) of the Act.
The order of the Assistant Registrar dated 7.12.1987 was served on the appellant on 8.12.87.
The appellant 's appeal against that order was dismissed by the Divisional Joint Registrar of the Cooperative Societies, Nagpur on 15.2.1988, holding, inter alia, that section 73FF of the Act came into force on 12.5.1986 and the appellant could be treated as a defaulter under that section; and the mere making of payment on 21.10.86 did not mean that the disqualification on account of his being defaulter which continued from 18.8.1986 to 21.10.1986 was extinguished and hence the appellant was not at all eligible to contest the election.
The appellant 's revision petition therefrom under section 154 of the Act was dismissed on 30.8.89 by the Cooperation and textile Department, State of Maharashtra, Bombay holding that the appellant was defaulter under section 73FF of the said Act on 18.8.1986 i.e. the date when he was declared elected as Director.
The appellant 's writ petition in the High Court filed on 1.9.1989 challenging the above order dated 30.8.89 was dismissed by the impugned Judgment and Order dated 20.6.90, holding that the dues calculated on 31.1.86 became recurring dues every following day and on 12.5.1986 when section 73FF came into force the outstanding dues continued even on 18.8.1986 when the appellant contested the election; and that the question of giving retrospective effect to the section did not arise because the appellant was a defaulter when he contested the election and though he paid all the debts on 21.10.1986 yet he could not be "absolved of the disqualification on the day he contested the election".
Hence this appeal by special leave.
Mr. G. L. Sanghi, the learned counsel for the appellant submits, inter alia, that the impugned order of the Assistant Registrar removing the appellant from the Committee of the Directors is without jurisdiction inasmuch as the Act prescribes a separate procedure for calling in 680 question the appellant 's election as a Director of the Bank and that procedure having not been followed the Assistant Registrar could not have acted under section 78(1) of the Act which did not envisage the setting aside of an election as has been done by the impugned order;that the appellant having repaid the entire loan before the impugned notice under section 78(1) of the Act was issued, he was surely not a defaulter in presenti on the date of the notice and the provisions of section 78(1) were not attracted; and that even assuming that the disqualification on the ground of default is common both for election and for continuation as a Director in the Committee, the special provision for setting aside an election must prevail over section 78 as there would be apparent conflict between the two and the maxim generalia specialibus non derogant general words do not derogate from special, would apply, Mr. V. N. Patil, the learned counsel for the State of Maharashtra, submits that the disqualification as defaulter continued after the election of the appellant and section 78 envisaged such a default and the appellant having continued to be a defaulter was lawfully removed and the fact that he repaid the loan before the notice was issued would not be material for the purpose of taking action under section 78.
Chapter XI A of the Act deals with election of committees and officers of certain societies.
Admittedly this Chapter applies to the Bank.
Section 144E deals with disqualification for membership.
Under sub section (1) thereof a person shall be disqualified for being elected as, and for being a member, of the committee of any specified society, . (e) if he is so disqualified by or under any other provision of this Act.
Section 144T deals with desputes relating to election and provides in sub section (1) that notwithstanding anything contained in section 91 or any other provisions of this Act, any dispute relating to an election shall be referred to the Commissioner of the Division in which such election is held or to an officer not below the rank of Additional Commissioner of division authorised by the State Government in this behalf.
The procedure for an election petition is prescribed by the subsequent section of that Chapter.
Admittedly the appellant 's election was not called in question under the above provision.
Section 144E, as have noted, over and above the other specified disqualifications in sub section (e) included disqualifications by or under any other provisions of the Act.
Section 78(1) which deals with powers of removal of committees or member thereof provides as follows: 681 "78(1) If, in the opinion of the Registrar, the committee of any society or any member of such committee makes default, or is negligent in the performance of the duties imposed on it or him by this Act or the rules or the bye laws, or commits any act which is prejudicial to the interests of the society or its members, or wilfully disobeys interests of the society or its members, or wilfully disobeys directions issued by the State Government, or by the Registrar for the purposes of securing proper implementation of cooperative policy and development programme approved or undertaken by the State Government or is otherwise not discharging its or his functions properly and diligently and the business of the society has or is likely to come to a standstill, or where any member of such committee stands disqualified by or under this Act for being a member, the Registrar may, after giving the committee or the member, as the case may be, an opportunity of stating its or his objections, if any, within 15 days from the date of receipt of notice, and after consultation with the federal society to which the society is affiliated, by order (a) (i) remove the committee, and (ii) appoint a committee consisting of three or more members (who shall not be the members of the committee so removed) of the society in its place, or appoint one or more Administrators who need not be the members of the society, but who shall not be the members of the committee so removed, to manage the affairs of the society for a period not exceeding six months, which period, at the discretion of the Registrar, be extended by a further period not exceeding three months so, however, that the total period does not exceed nine months in the aggregate: Provided that, the Registrar shall have the power to change the committee or any member thereof or the Administrator or Administrators appointed under paragraph (ii) at his discretion even before the expiry of the period secified in the order made under this sub section; (b) xxx xxx xxx" Section 78(1) empowers the Registrar to remove a member of a committee who "makes default" or where any member of such committee 682 "stands disqualified by or under this Act for being a member".
Section 73FF deals with disqualification for membership of committee.
Sub section (1) provides: "Without prejudice to the other provisions of this Act or the rules made thereunder in relation to the disqualification of being a member of a committee, no person shall be eligible for being appointed, nominated, elected, co opted or, for being a member of a committee, if he (i) is a defaulter of any society; Explanation For the purposes of this clause, the term "defaulter" includes (a) in the case of a primary agricultural credit society, a member who defaults the repayment of the crop loan on the due date; (b) in the case of term lending society, a member who defaults the payment of any instalment of the loan granted to him; xxx xxx xxx xxx xxx xxx Sub section (2) says: "A member who has incurred any disqualification under sub section (1), shall cease to be a member of the committee and his seat shall thereupon be deemed to be vacant." This section was inserted by Maharashtra Act, XX of 1986 with effect from 12.5.86.
If the impugned order is found to have been passed by way of setting aside the election of the appellant the order would be bad as the appellant 's election had not been called in question in accordance with the procedure prescribad by the Act.
However, the notice has ex facie been issued under section 78 of the Act.
No doubt there is reference to the appellant 's having been a defaulter and disqualified for being elected but it has been addressed to the appellant as Director of the Bank and also stated: "You have been elected as Director on the Board of Directors of Chandrapur District Central Cooperative Bank on 18.8.1986 and today on this date you are working as the Director of the said Bank.
" It also refers to the appellant 's being disqualified or to continue as Director or Executive Committee member of the Executive Committee ' under 683 section 73FF of the Act and about ceasing too be a Director by committing default.
From the above contents, there is no room for holding that the appellant 's election has been set aside by the impugned order; on the other hand, the emphasis is on the appellant 's being disqualified to continue as Director or creasing to be Director on account of his having committed default.
The question of generalibus specialia derogant special things take from general or generalia specialibus non derogant general words do not derogate from special, therefore, does not arise.
What was stated in para 36 of the report in Hundraj Kanayalal Sajnani vs Union of India, ; at 1121 will not be relevant.
The question of repugnancy involved in Zaverbhai Amaidas.
vs The State of Bombay, [1955] 1 SCR 799 does not arise in this case.
The decision in Maharashtra State Board of Education vs Paritosh Sheth, ; is also not apposite.
The provisions relating to election have to be interpreted harmoniously with other provisions of the Act such as in section 78(1).
Interpretare concordare leges legibus est optimus interpretendi modus.
To interpret and in such a way as to harmonize laws with laws is the best mode of interpretation.
Mr. Sanghi does not dispute that the appellant was in arrear in respect of instalments on the date of his election and till 21.10.1986 i.e. both prior and posterior to his election on 18.8.1986.
Admittedly the instalment was not paid on due date.
There was of course some dispute as to the amount of interest payable and appropriation of the amount paid against interest instead of capital but all this would not exonerate the appellant from being in default on non payment of instalment on due date.
Mr. Sanghi, however, submits that the expression, "makes default" or "stands disqualified" being in present the default must have been committed after the coming into force of section 73FF and that his default even, if any, was prior to that date and not after that date.
We are unable to persuade ourselves to accept this submission.
The day an instalment falls due on its due date failure to pay results in default and that default continues from day to day until it is repaid.
Every day thereafter until payment results in making of default and, therefore, it could not be said that default could be on the due date only and thereafter no default but only liability.
Considered by this principle the appellant can be said to have made default on the first day of his directorship and on every subsequent day till the instalment or instalments were paid.
The submission, has therefore, to be rejected.
684 Similarly the submission that the defalult must have been one committed after the Act came into force has also to be rejected on the same ground that immediately on the Act coming into force the appellant was a defaulter and so long that default continued he must be taken to have made default until repayment.
What then would be the consequence of such a default.
Sub section (2) of section 73FF says that a member who has incurred any disqualification under sub section (1) shall cease to be a member of the Committee and his seat shall thereupon be deemed to be vacant.
Therefore, the moment the appellant after election continued to be in default, and, therefore, must be taken to have made default, stood disqualified and thereby ceased to be a member of the committee and his seat deemed to have fallen vacant.
In this view of the matter the notice of the Deputy Registrar was in effect to say that the appellant had already ceased to be a Director and his seat already fell vacant.
In Keshaorao Narayanrao Patil vs District Deputy Registrar reported in Bombay High Court held that section 73FF(2) did not operate automatically and that passing of an order of removal was necessary.
This has to be interpreted in the context of the provisions in the section.
In this view of the matter there could not be any infirmity either in the notice or in the impugned order of removal.
The result is that this appeal fails and is dismissed.
The interim orders, if any, stand vacated.
No. costs.
R.N.J. Appeal dismissed.

summary/full:
The appellant was elected on 18.8.1986 as one of the Directors of the District Central Co operative Bank, Chandrapur, Maharashtra from the Brehmapuri Agricultural Sales and Purchase Society.
On 8.1.1987 the District Deputy Registrar of the Co operative Societies, Chandrapur issued a notice to him under section 78(1) of the Act to show cause as to why he should not be removed from the Board of Directors of the Bank and from the Executive Committees of other Co operative Societies in the District for having remained in arrears of the loan instalments due from him on the date of filing of nomination papers for election to the post of Director of the Bank and thereafter till 21.10.1986 when he actually repaid the dues thereby incurring the disqualification as contemplated by section 73FF of the Act.
The appellant showed cause and by additional reply took the stand that he had not committed any default after the amended section 73FF came into existence.
This was rejected and by Order dated 7.12.1987 passed by the Assistant Registrar Co operative Societies, Chandrapur he was removed from the post of Director holding him to be a defaulter under section 73FF of the Act.
Appeal against that order was dismissed by the District Joint Registrar and his revision therefrom made under section 154 of the Act too met the same fate at the hands of the Cooperative & Textile Department, State of Maharashtra, Bombay Dismissing his Writ Petition filed thereafter, the High Court of Bombay held that when the appellant contested the election he was a defaulter and even though he had paid all the debts on 21.10.1986 yet he could not be absolved of the disqualification on the day he contested the election.
In the appeal before this Court it was argued on behalf of the appellant that the impugned order of the Assistant Registrar removing him from the Board of Directors was without jurisdiction in as much as 676 the Act prescribes separate procedure for calling in question the election and that procedure having not been followed the Assistant Registrar could not have acted under section 78(1) of the Act; that the entire loan having been repaid before the issue of notice under section 78(1) he was not a defaulter in presenti and lastly even assuming that the disqualification on the ground of default is common both for election and continuation as Director in the Committee, the special provision for calling in question an election mut prevail over section 78.
Rejecting the contentions and dismissing the appeal, the Court.
HELD: If the impugned order is found to have been passed by way of setting aside the election of the appellant, it would be bad as his election had not been called in question in accordance with the procedure prescribed by the Act.
However, the notice has ex facie been issued under section 78 of the Act.
No doubt there is reference to his having been a defaulter and disqualified for being elected but it has been addressed to him as Director on the Board of Directors.
It also refers to his being disqualified "to be elected or to continue as Director or Executive Committee member of the Executive Committee" under section 73FF of the Act and about ceasing to be a Director by committing default.
From the above contents, there is no room for holding that the appellant 's election has been set aside by the impugned order.
On the other hand, the emphasis is on his being disqualified to continue as Director or ceasing to be Director on account of his having committed default.
[682F 683A] The day an instalment falls due on its due date, failure to pay results in default and this default continues day after day until it is repaid.
The appellant can be said to have made default on the first day of his directorship and on every subsequent day till instalments were paid.
The appellant was a defaulter immediately on the coming into force of section 73FF and so long that default continued he must be taken to have made default until repayment.
[683G 684A] Sub section (2) of Section 73FF says that a member who has incurred any disqualification under sub section (1) shall cease to be a member of the committee and his seat shall thereupon be deemed to be vacant.
Therefore, the moment the appellant after election continued to be in default and must be taken to have made default, stood disqualified and thereby ceased to be a member of the Committee and his seat deemed to have fallen vacant.
In this view of the matter the notice of the Deputy Registrar was in effect to say that the appellant had already ceased to be a director and his seat already fell vacant.
In Keshaorao 677 Narayanrao Patil vs District Deputy Registrar, reported in , Bombay High Court held that section 73FF(2) did not operate automatically and that passing of an order of removal was necessary.
This has to be interpreted in the context of the provisions in the section.
[684B D] Hundraj Kanayalal Sajnani vs Union of India, A.I.R. at 1121; Zaverbhai Amaidas vs The State of Bombay, [1955] 1 S.C.R. 799; Maharashtra State Board of Education vs Paritosh Sheoth, ; , distinguished.
Keshaorao Narayanrao Patil vs District Deputy Registrar, , approved.