judgement:
ivil Appeal No. 2348 Of 1966.
Appeal from the judgment and decree dated September 6, 1962, of the Punjab High Court in Regular First Appeal No. 53 of 1956.
V. C. Mahajan, for the appellant.
N. section Bindra and B. Datta, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
By this appeal the State of Punjab challenges the judgment and order of the Punjab High Court upholding the decree of the Subordinate Judge, Gurgaon declaring that the dismissal of the respondent from service was illegal and inoperative.
The respondent, a Sub Inspector of Police was called upon to answer a charge framed on October 12, 1949 setting forth extracts from his confidential character roll showing his inefficiency and lack of probity while in service from 1941 to 1948 and to submit his answer to the prima facie charge of inefficiency as envisaged in paragraph 16.25(2) of the Punjab Police Rules.
The respondent had joined the police service and had served as a Sub Inspector in various places which are now in Pakistan before he was posted to Gurgaon in the year 1948.
It appears that the view taken of his conduct and reputation by his superior officers, over the years was not consistent.
In some years he got what is known as a 'B ' certificate and in others an 'A ' certificate.
According to rule 13.17 of the Punjab Police Rules, Superintendents of Police had to prepare personally and submit annually to the Deputy Inspector General of Police confidential reports in the form prescribed on the working of all Assistant Sub Inspectors and Sub Inspectors serving under them.
The reports were to be of two kinds 'A ' and 'B ' and to be marked as such.
An 'A ' report was for recommending that incremental promotions should not be withheld while a 'B ' report was to contain a recommendation for reasons to be fully stated, that incremental promotions should be withheld.
The rule further shows that the purport of all 'B ' reports was to be formally communicated to the officer 696 concerned and his written acknowledgment to, be taken.
It also prescribed that the submission of two successive 'B ' reports regarding an officer would result, automatically in the institution of departmental proceedings against him with a view to stoppage of increment.
The punishments which could be awarded departmentally are set out in rule 16.1 and under.
rule 16.2(1) dismissal is to, be awarded only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service.
Rule ) 6.24 sets out the procedure to be followed in departmental enquiries.
The sum and substance of rule 16.24 is that in case the police officer did not admit the misconduct "the officer conducting the enquiry shall proceed to record such evidence, oral and documentary, in proof of the accusation as is available and necessary,to support the charge.
Whenever possible, witnesses shall be examined direct, and in the presence of the accused, who shall be given opportunity to take notes of their statements and cross examine them.
The officer conducting the enquiry is empowered, however,, to bring on to the.
record the statement of any witness whose presence cannot, in the opinion of such officer, be procured without undue delay and expense or inconvenience, if he considers such statement necessary, and provided that it has been recorded and attested by a police officer superior in rank to the accused officer or by a magistrate, and is signed by the person making Further the accused officer was required to state the defence witnesses whom he wished to call together with a summary of the facts as to which they would testify.
The enquiring officer was empowered to refuse to hear any witnesses whose evidence he considered would be irrelevant or unnecessary in regard to the specific charge framed.
Under rule 16.25(1) a police officer called upon to answer a charge of misconduct must be given every opportunity of proving his innocence.
Under sub rule (2) of this rule, charges need not be framed in relation only to a specific incident or act of misconduct and when reports received.
against an officer or a preliminary enquiry show that his general behaviour has been such as to be unfitting his position or that he has failed to reach or maintain a reasonable standard of efficiency he may and should be charged accordingly, and a finding of guilty on such a 697 charge would be valid ground for the infliction of any authorised departmental punishment which might be considered suitable in the circumstances of the case.
The confidential reports extracts, whereof were contained in the charge sheet make it clear that the respondent was being accused of laziness and ineffectiveness and as having a doubtful reputation as to his honesty.
Excepting for the year 1948 wherein a specific instance of corruption was charged against him the other reports only contained generally adverse remarks.
For instance the remarks against him for the year 1941 were to the effect that he was "lazy and ineffective and that he had been warned for dishonesty, laziness and lack of control." In the year 1942 When he was posted at Dera Gazi Khan his annual confidential report showed that although there were no definite complaints he had not shown any outstanding ability or energy.
The Superintendent of Police was not certain about hi& honesty but had no special complaints against him.
The respondent was not allowed to cross the efficiency bar in that year in view of his past reports.
It is the common case of the parties that the respondent was allowed to cross the efficiency bar in 1944.
in 1945 he was transferred to Montgomary And dot a 'B ' report and his honesty was characterised as doubtful.
He got another warning in that year.
In 1946 the Superintendent of Police remarked that he was a failure as a Station House Officer and was slow to carry out orders and had no grip on his staff.
I The Deputy Inspector General of Police, Multan Range, summed up his 16 years ' service with the note "From all accounts he is one of the worst Sub Inspectors in the Range and the department will be well rid of him, if action under r. 16.25(2) can be successfully taken against him.
Action under r. 16.25 cannot succeed at present but his past record is such that any further complaint should warrant his dis missal.
" In the confidential reports of the year 1946, the Superintendent of Police, Muzaffargarh, stated that he was not honest and was very poor on parade.
The Deputy Inspector General, Multan Range gave him a third warning.
The Superintendent of Police, Muzaffargarb, however remarked that although his previous record was unsatisfactory he appeared to be trying to mend himself.
In the year 1948 he got a 'C ' report and the Superintendent of Police described him as "thoroughly corrupt" The S.P. further remarked that "This officer fell to unheard of depths of moral degradation in corrupt practices while posted to City 698 Rewari inasmuch as he changed the opium recovered by him earlier with Rasaunt for Rs. 1,000/ bribe and then made over the opium for sale in the black market.
He was known to have mixed up with bad characters, gamblers and Rishawatdalals.
" According to the charge sheet the attested copies of these reports were to be used as evidence against him.
In regard to the year 1948 and the charge above mentioned it is enough to say ;hat an enquiry was held against him and he was held entitled to an honourable acquittal.
The respondent pleaded not guilty to the charge and filed a list of 63 witnesses whom he sought to examine in his defence.
He also gave a summary of the facts about which each of the witnesses was to depose.
The enquiry officer allowed him to examine 21 witnesses in defence.
No witness was examined on behalf of the department.
On 25th May 1950 Bishambar Das, Superintendent of Police made a report that the charge had been fully brought home to the respondent and it was suggested that he should be dismissed.
The Deputy Inspector General asked him to show cause why he should not be dismissed from service.
After receipt of a written representation made by the respondent and recording his statement the Deputy Inspector General passed an order dismissing the respondent from service.
The respondent then filed his suit in the court of the Subordinate Judge, Gurgaon, wherein his main complaint was that the enquiring officer did not record any evidence in support of the charge nor were the persons making the reports examined direct and in his presence with opportunity to him to crossexamine the persons who had made those reports : he also averred that good reports earned by him during his long period of service had not been taken into account.
He also pleaded that he had been allowed to cross the efficiency bar in December 1944 and had been given a selection grade in 1,945.
It was urged before us that the crossing of the efficiency bar must be regarded as giving him a clean bill up to that date and in view of this the reports of 1941 and 1942 should not have been taken into consideration against him.
As regards the reports for the years 1945 and 1946 the respondent 's complaint was that the Superintendent of Police.
Montgomary, was for certain communal reasons biased against him.
As regards the reports for the period May 27, 1946 to 30th June 1946 and the rest of the year the same had been made by Shamsheer Singh and Sadat Ali, Superintendents of Police of 699 Muzaffargarh.
Shamsheer Singh had given him no adverse remark and had left the column of honesty in the report "blank".
Sadat Ali who was biased against the respondent got the word "no" typed opposite the column of honesty.
The report for the year 1948 was based mainly on the opium case and as he had been cleared of the charge in respect of that case, there was no foundation for the report for that year.
Further the order of dismissal was in violation of r. 16.2 as this punishment was to be awarded for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service which facts did not exist in his case.
A further complaint was made that the enquiry officer did not care to summon A. L. Chopra, the Rehabilitation Inspector and Captain Chuni Lal, Ex military man although they had been allowed to be examined previously.
The deposition of Ram Chander, Assistant Surgeon, a defence witness was not typed out and made a part of the record although his deposition was noted by the stenotypist in the note book.
The order of dismissal was passed by the Deputy Inspector General without considering this evidence.
Besides the above, the evidence of well placed officers like Deputy Commissioners, Superintendents of Police, Sub Divisional Magistrates and others who had testified to the respondent 's efficiency, honesty and reliability were totally ignored.
The Subordinate Judge held that the charge framed against the respondent was vague and indefinite and the enquiry was.
unfair and inadequate because some of the authors of the reports adverse to the respondent, though avail able, were not produced to enable the respondent to cross examine them, that oral and, documentary evidence sought by the respondent was withheld and as such no reasonable opportunity of defence was afforded to him.
in the result he held that the requirements of article 311 of the Constitution had been violated and the order of dismissal was inoperative.
The High Court did not agree that the charge was vague but focussed its attention mainly on the question as to whether there had been a substantial compliance with the requirements of article 311 and whether the enquiry conformed to the principles of fairplay and natural justice.
Considering the Service Rules already mentioned the High Court observed that there was no dispute that reports till 1940 were generally favourable to the plaintiff.
In our view reports earlier than 1942 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year.
It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could 700 have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944.
It will be noted that there was no specific complaint in either of the two years and at best there was only room for suspicion regarding, his behaviour.
It further appears from the judgment of the High Court based mainly on the lengthy finding of the, Superintendent of Police, Bishambar Das dated 25th May 1950 that from 1942 to April 1945 the respondent got 'A ' class reports,though his superior officers were not certain as regards his honesty.
His integrity was, considered to be doubtful in the succeeding reports up to 31st December 1946.
As regards the first half of 1947 the Superintendent of Police had noted that he was not in a position to make any remark about his honesty as he had not seen the respondent s work at any police station.
The Deputy Commissioner however remarked that his work was quite satisfactory, and he was honest.
For the remaining part of 1947 he received an 'A ' report from the District Superintendent of Police who also stated that the respondent seemed to be honest and competent.
There can be no doubt that the 1948 report was a very damaging one and if the allegations contained therein had any substratum of truth, the respondent could be dismissed from service on the strength .of the charges based on ' those allegations alone.
But, as already noted, the respondent was cleared of this charge.
The High Court opined that the enquiry officer, Bishambar Das, should not have neglected to summon five officers ' who made reports about the respondent and were available for examination at the enquiry.
They were Chunilal Malhotra, Choudhry Roshan Lal, Deputy Commissioner, Shri Ismail.
Shri, Holiday and Shri Sant Prakash Singh.
According to the High Court the defence of the respondent in the enquiry being that the reports against him were based upon no sufficient data and/or were made partly because of the poisoning of the mind of the District Superintendent of Police by the Deputy Superintendent of Police on communal considerations the only way the respondent could have substantiated his defence version would be by putting questions to the reporting officers if made available during the enquiry.
One of the above officers Shamsher Singh was actually examined as 'the respondent 's witness in the suit and his evidence showed that he had left the column for honesty in the report for 1946 blank as he had not seen the respondent at his work.
This evidence went to show that if he had been examined by the enquiry officer a portion of the report taken in consideration against the respondent would have been found to be without substance.
Another officer.
Chunilal Malhotra though not examined before the enquiry 701 officer was called in defence in the suit.
All that he could say., was that he had received complaints against the respondent but he did not remember whether they were oral or in writing.
The High Court justifiably commented that there was no sufficient reason for the enquiry officer refusing to summon Chunilal Malhotra.
On an overall consideration of the facts the High Court took the view that "The approach of the enquiry officer was such that whatever be the testimony of other witnesses, it could not undo the effect of the reports made by the superior officers about the plaintiff.
" In other words the enquiry officer shut his mind to the testimony, afforded by a large number of witnesses including a Deputy commissioner, Under Secretary, two Superintendents of Police, a few Magistrates and some Deputy Superintendents of Police who had given evidence about the respondent 's reputation and work.
Further the High Court took the view that the remarks of the Deputy inspector General of Police against the respondent in the year 1948 that he was not worth being retained in service had influenced the entire approach of the enquiry officer who was a subordinate to the Deputy Inspector General of Police.
The. Deputy Superintendent of Police Lekhraj examined at the hearing of the suit by the respondent and to whom another enquiry against the respondent had been entrusted earlier by Bishambar has the inquiry officer, told the court that when he (Lekhraj) exonerated the respondent in the other enquiry, Bishambar Das had sent for him and told him that the higher authorities wanted to take serious action to the extent of dismissal of the respondent.
In our view the High Court arrived at the correct conclusion and on the facts of this case it is impossible to hold that the respondent had been given reasonable opportunity of conducting his defence before the enquiry officer.
From what we have stated it is clear that if the enquiry officer had summoned at least those witnesses who Were available and who could have thrown some light on the reports made against the respondent the report might well have been different.
We cannot also lose sight of the fact that charge based on the reports for the years 1941 and 1942 should not have been levelled against the respondent.
Learned counsel for the appellant relied on two decisions of the Orissa High Court in support of his contention that it was not necessary to examine the authors of the confidential reports against I the respondent.
in sadananda Mohapatra vs State( ') the court considered the question as to whether reasonable Opportunity had (1) A.I.R. 1967 Orissa 49. 702 in fact been given to the petitioner before the punishing authority ,had made use of the adverse remarks in the confidential character roll.
According to the High Court the petitioner in his examination to the second show cause notice had referred to the good services that he had rendered to the department.
The High Court ,observed that the fact that the petitioner had done good work led the punishing authority to impose a lesser punishment and thus the confidential roll had helped the petitioner.
It also appears from the judgment that the punishing authority in that case had ,during the personal hearing discussed the confidential character with the petitioner and accordingly the High Court was of opinion that even though the adverse remarks in the petitioner 's confidential character roll were not included in the second show cause notice inasmuch as the same had been discussed at the personal hearing it could not be said that no reasonable opportunity had 'been given to the petitioner, In our view the facts in this case are entirely different.
The respondent before us wanted an opportunity by examining the witnesses mentioned by him to explain away the circumstances .which had led to the making of the adverse remarks and he was ,given no such chance.
The second authority relied on for the appellant was State of Orissa vs Sailabehari(1).
In this case the entry in the diary of a Deputy Collector went to show that the Special Assistant Agent, 'i.e., the respondent, had no reputation for honesty.
The diary mentioned the source of information on which the remarks were based and although none of the informants figured as witnesses in the departmental enquiry the touring officer was examined as a witness and his tour diary proved at the inquiry and the respondent had been given an opportunity to cross examine him. 'On those facts the High Court of Orissa after discussing this position, took the view that although insufficient for the establishment of a criminal charge the position was different in the case of departmental enquiries where punishment could be based merely on general reputation for corrupt conduct.
In our view there was no flaw in the enquiry which the Orissa High Court was called upon to examine in that case and the above dictum of the High Court was not really called for.
Learned counsel also wanted to rely on a decision of this Court in State of Jammu and Kashmir vs Bakshi Ghulam Mohammed (2) where the Court was dealing with the proceedings ,of a Commission of Inquiry under the Commission of Inquiry Act.
(1) A.I.R. 1963 Orissa 73.
(2) [1966] Supp.
S.C.R. 401.
703 Section 10 of that Act gave the delinquent a right to be heard but only a restricted right of cross examination, i.e., it was confined only to the witnesses called to depose against the person demanding the right.
It was further observed that as "the Act did not contemplate a right of hearing to include a right to cross examine" "it will be natural to think that the statute did not intend that in other cases a party appearing before he Commission should have any further right of cross examination".
On the facts before it the Court came to the conclusion that no case had been made by Bakshi Ghulam Mohammad that rules of natural justice required that he should have a right to cross examine all the persons who had sworn affidavits supporting the allegations made against him.
In our opinion the above observation regarding the limit of the right to cross examine dissociated from the context in which it was made cannot help the appellant.
Although the case is governed by article 311 as it stood prior to its amendment in 1963 the respondent could not be deprived of an effective right to make representation against the action of dismissal.
In our opinion, refusal of the right to examine witnesses who had made general remarks against his character and were available for examination at the inquiry amounted to denial of a reasonable opportunity of showing cause against the action.
In the result we hold that the High Court came to the correct conclusion and the appeal should be dismissed with costs.
G.C. Appeal dismissed.

summary/full:
The respondent was a Sub Inspector of Police and had served as such in various places which are now in Pakistan before being posted to Gurgaon in 1948.
His confidential 'service reports upto 1940 were satisfactory.
In 1941 and 1942 he got bad reports.
However he was allowed to cross the efficiency bar in 1944.
The reports relating to 1945 and 1946 were again adverse.
In 1948 the report charged him with having taken bribe in a particular case, but the charge was on enquiry found to be false.
On October 12, 1949 he was served with a charge sheet setting forth extracts from his confidential character roll imputing inefficiency and lack of probity while in service from 1941 to 1948.
He was asked to answer to the prima facie charge of inefficiency as envisaged in paragraph 16.25(2) of the Punjab Police Rules.
A departmental enquiry was held and the enquiry officer in 1950 recommended his dismissal.
After a further show cause notice the respondent was dismissed from service.
He thereupon filed a suit in which he challenged his dismissal as wrongful on the grounds inter alia that (i) Reports relating to the years 1941 & 1942 should not have been taken into consideration against him; (ii) that the enquiry officer did not allow him to examine in defence the officers who had written adverse reports against him and other witnesses who could have thrown light on these reports.
The trial court decreed the suit and the High Court also held in the appellant 's favour mainly on the ground that article 311 of the Constitution had not been complied with.
In appeal to this Court by the State of Punjab.
HELD : (i) Reports earlier than 1944 should not have been considered at all inasmuch as the respondent was allowed to cross the efficiency bar in that year.
It was unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports for 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944.
Moreover there was no specific complaint in either of the two years and at best there was only room for suspicion re garding his behaviour.
[699 H] (ii) On the facts of this case it was impossible to hold that the respondent had been given reasonable opportunity of conducting his defence before the enquiry officer.
It was clear that if the enquiry officer had summoned at least those witnesses who were available and who could have thrown some light on the reports made against the, respondent the report might will have been different.
Refusal of the right to examine witnesses who had made general rem arks against the respondent 's character and were available for examination at the enquiry amounted to denial of a reasonable opportunity of showing cause against the action proposed.
Although the case was governed by article 311 as it stood prior to its 695 amendment in 1963 the respondent could not be deprived of an effective right to make representation against the action of dismissal.
[701 F G; 703 C D] In this view the appeal by the State of Punjab must fail.
Sadananda Mohapatra vs State, A.I.R. 1967 Orissa 49 and State of Jammu & Kashmir vs Bakshi Ghulam Mohammed, [1966] Supp.
S.C.R. 401, distinguished.
State of Orissa vs Sailabehari, A.l.
R. 1963 Orissa 73, referred to.


judgement:
iminal Appeal No.256 of 1969.
Appeal by special leave from the judgment and order dated January 15, 1969 of the Allahabad High Court in Criminal Misc.
Case No. 1770 of 1968.
R. K. Garg, section C. Agarwal, D. P. Singh, V. J. Francis and section Chakravarty, for the appellant.
O. P. Rana, for respondent No. 2.
The report stated that one Bipen Kumar Tiwari had been attacked by certain goondas who also stabbed him with a knife and further caused injuries ot Vijay Shankar Nigam also.
One of the principal accused named in that report was section N. Sharma, Additional District Magistrate (Judicial), Gorakhpur, who is the appellant in this appeal.
The allegation against him was that it was at his instigation that the goondas had attacked Bipen Kumar Tiwari and attempted to murder him.
The offences made out by the report lodged by Vijay Shankar Nigam were cognizable and the Police, after registering the case, started investigation.
On the 13th April, 1968, the appellant moved an application before the Judicial Magistrate having jurisdiction to take cognizance of the offence, alleging that a false report bad been lodged against him at the connivance and instance of the local police.
It was urged that it would, therefore, be desirable in the interest of justice that provisions of section 159 of the Code of Criminal Procedure be 948 invoked and the preliminary enquiry may be conducted by the Court itself and necessary directions may be issued to the Police to stop the investigation.
The Magistrate, after hearing both parties, passed an order directing the police to stop investigation and decided to hold the enquiry himself.
Thereupon, on 2nd May, 1968, an application was moved in the High Court of Allahabad under section 561A, Cr.
P.C., to quash the order passed by the Magistrate on 13th April, 1968, on the ground that he had no jurisdiction to pass such an order under section 159, Cr.
This application was allowed by the High Court by its judgment dated 15th January, 1969, so that the High Court quashed the order of the Judicial Magistrate and held that the police of Gorakhpur was at liberty to conclude the investigation and submit its report to the Magistrate after which the case could proceed in accordance with law.
The appellant has challenged this order of the High Court in this appeal brought up by special, leave.
Section 156(1) of the Code of Criminal Procedure empowers an officer in charge of a police station to investigate any cognizable case without the order of a Magistrate.
Sub section (2) of section 156 lays down that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate, while sub section
(3) gives power to any Magistrate empowered under section 190 of the Code to order such an investigation in any case as mentioned in sub section
Section 157 requires that, whenever such information in received by an officer in charge of a police station that he has reason to suspect the commission of an offence which he is empowered to investigate under section 156, he must forthwith send a report of it to the Magistrate empowered to take cognizance of such an offence upon a police report and, at the same time, he must either proceed in person, or depute.
one of his subordinate officers to proceed, to the spot to investigate the facts and circumstances of the case, and, if necessary, to take measures for discovery and arrest of the offender.
This provision is qualified by a proviso which is in two parts.
The first clause of the proviso enables an officer in charge of a police station not to proceed to make an investigation on the spot or to depute a subordinate officer for that purpose if the information received is given against a person by name and the case is not of a serious nature.
The second clause.
of the proviso permits the officer in charge of a police station not to investigate the case if it appears to him that there is no sufficient ground for entering on an investigation.
The report to be sent to the Magistrate under sub section
(1) of section 157 requires that in each of the cases where the officer in charge of the police station decides to act under the two clauses of the proviso, he must state in his report 949 his reasons for not fully complying with the requirements of subsection (1) and, in addition, in cases where he decided not to investigate on the ground mentioned in the second clause of the proviso, he is required to notify to the informant the fact that he will not investigate the case or cause it to be investigated.
These provisions are followed by section 159 which is as follows "159.
Such Magistrate, on receiving such report, may direct an investigation or, if he thinks fit, at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary inquiry into, or otherwise to dispose of, the case in manner provided in this Code.
" The High Court has held that, under section 159, the only power, which the Magistrate can exercise on receiving a report from the officer in charge of a police station, is to make an order in those cases which are covered by the proviso to sub section
(1) of section 157, viz., cases in which the officer in charge of the police station does not proceed to investigate the case.
The High Court has furl, :her held that this section 159 does not empower a Magistrate to stop investigation by the police in exercise of the power conferred on it by section 156.
It is the correctness of this decision which has been challenged by the appellant, and the ground taken is that section 159 should be interpreted as being wide enough to permit the Magistrate to proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case in the manner provided in this Code, even if the report from the police, submitted under section 157, states that the police is proceeding with the investigation of the offence.
It was urged by counsel for the appellant that the narrower interpretation of section 159 accepted by the High Court will leave persons at the mercy of the police who can harass any one by having a false report lodged and starting investigation on the basis of such a report without any control by the judiciary.
He has particularly emphasised the case of the appellant who was himself a Judicial Officer working as Additional District Magistrate and who moved the Magistrate on the ground that the police had engineered the case against him.
We, however, feel constrained to hold that the language used in section 159 does not permit the wider interpretation put forward by counsel for the appellant This section first mentions the power of the Magistrate to direct an investigation on receiving the report under section 157, and then states the alternative that, if he thinks fit, he may at once proceed, or depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwise to dispose of, the case.
On the face of it, the first alternative of directing an investigation cannot arise in a case where the report itself shows that investigation by the police is going on in 950 accordance with section 156.
It is to be noticed that the second alternative does not give the Magistrate an unqualified power to proceed himself or depute any Magistrate to hold the preliminary enquiry.
That power is preceded by the condition that he may do so, "if he thinks fit".
The use of this expression makes it clear that section 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases where the police decide not to investigate the case under the proviso to section 157(1), and it is in those cases that, if he thinks fit, he can choose the second alternative.
If the expression "if he thinks fit" had not been used, it might have been argued that this section was intended to give in wide terms the power to the Magistrate to adopt any of the two courses of either directing an investigation, or of proceeding himself or deputing any Magistrate subordinate to him to proceed to hold a preliminary enquiry as the circumstances of the case may require.
Without the use of the expression "if he thinks fit", the second alternative could have been held to be independent of the first; but the use of this expression, in our opinion, makes it plain that the power conferred by the second clause of this section is only an alternative to the power given by the first clause and can, therefore, be exercised only in those cases in which the first clause is applicable.
It may also be further noticed that, even in sub section
(3) of section 156, the only power given to the Magistrate, who can take cognizance of an offence under section 190, is to order an investigation; there is no mention of any power to stop an investigation by the police.
The scheme of these,sections, thus, clearly is that the power of the police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police decide not to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case.
The power of the police to investigate has been made independent of any control by the Magistrate.
The High Court of Lahore in The Crown vs Mohammad Sadiq Niaz(1), and the High Court of Patna in Pancham Singh vs The State(1) interpreted section 159 to the same effect as held by us above.
The reasons given were different.
Both the Courts based their decisions primarily on the view expressed by the Privy (3) Council in King Emperor vs Khwaja Nazir Ahmad .
That case, however, was not quite to the point that has come up for decision before us.
The Privy Council was concerned with the question whether the High Court had power under section 561A of the (1) A.I.R. 1949 Lah. 204.
(3) 71 I.A. 203.
(2) A.I. R. 1967 Patna 418.
95 1 Code of Criminal Procedure to quash proceedings being taken by the police in pursuance of first information reports made to the police.
However, the Privy Council made some remarks which have been relied upon by the High Courts and are to the following effect : "In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court.
The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under section 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus." This interpretation, to some extent, supports the view that the scheme of the Criminal Procedure Code is that the power of the police to investigate a cognizable offence is not to be interfered with by the judiciary.
Their Lordships of the Privy Council were, of course, concerned only with the powers of the High Court under .sect ion 561A, Cr.
P.C., while we have to interpret section 159 of the Code which defines the powers of, a Magistrate which he can exercise on receiving a report from the police of the cognizable offence under section 157 of the Code.
In our opinion, section 159 was really intended to give a limited power to the Magistrate to ensure that the police investigate all cognizable offences and do not refuse to do so by abusing the right granted for certain limited cases of not proceeding with the investigation of the offence.
Counsel appearing on behalf of the appellant urged that such an interpretation is likely to be very prejudicial particularly to Officers of the judiciary who have to deal with cases brought up by the police and frequently give decisions which the police dislike.
In such cases, the police may engineer a false, report of a cognizable offence against the Judicial Officer and may then harass him by carrying on a prolonged investigation of the offence made out by the report.
It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all case 's where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under article 9 5 2 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal powers.
The fact that the Code does not contain any other provision giving power to a Magistrate to stop investigation by the police cannot be a ground for holding that such a power must be read in section 159 of the Code.
In theresult, the decision of the High Court in this case must be upheld,so that the appeal fails and is dismissed.
Y.P. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
A first information report was lodged in respect of a crime and the appellant, who was the Additional District Magistrate (Judicial) was named therein as principal accused.
The offences mentioned were cognizable and the Police after registering the case, started investigation.
The appellant applied to the Judicial Magistrate for invocation of the provisions of section 159 Cr.
P.C., and for conducting preliminary enquiry by the Court itself and for issuance of necessary directions to the Police to stop investigation alleging that a false report had been lodged at the instance of the local police.
The Magistrate directed the police to stop investigation and decided to hold the enquiry himself.
Thereupon an application was moved in the High Court under section 561 A Cr.
P.C. for quashing the order of the Magistrate as he had no jurisdiction to pass such an order under section 159 Cr.
The High Court accepted the application and set aside the Magistrate 's order.
Dismissing the appeal, this Court, HELD : Section 159 Cr.
P.C. does not empower a Magistrate to stop investigation by the police.
This section first mentions the power of the Magistrate to direct an investigation on receiving the report under section 157, and then states the alternative that, if he thinks fit, he may it once proceed, of depute any Magistrate subordinate to him to proceed, to hold a preliminary enquiry into, or otherwiseto dispose of, the case.
On the face of it, the first alternative of directing an investigation cannotarise in a case where the report itself shows that investigation by the police is going on in accordance with section 156.
It is to be noticed that the second alternative does not give the Magistrate an unqualified power to proceed himself or depute any Magistrate to hold the preliminary enquiry.
That power is preceded by the condition that he may do so, "if he thinks fit" The use of this expression makes it clear that section 159 is primarily meant to give to the Magistrate the power of directing an investigation in cases where the police decides not to investigate the case under the proviso to section 157(1), and it is in those cases that.
if he thinks fit, he can choose the second alternative.
Without the use of the expression "if he thinks fit" the second alternative could have been held to be independent of the first; but the use of this expression makes it plain that the power conferred by the_ second clause of this section is only ,in alternative to the Power given by the first clause and Fan, therefore.
he exercised only in those, cases in which the first clause is applicable.
Even in sub s.(3) of section 156, the only power given to the Magistrate, who can take cognisance of an offence under section 190, is to order an investigation, there is no mention of any power to stop an investigation by the police.
The scheme of these sections, thus, clearly is that the Dower of the Police to investigate any cognizable offence is uncontrolled by the Magistrate, and it is only in cases where the police 947 decide not, to investigate the case that the Magistrate can intervene and either direct an investigation, or, in the alternative, himself proceed or depute a Magistrate subordinate to him to proceed to enquire into the case.
[949 G 950 F] The Crown vs Mohammad Sadia Naiz, A.I.R. 1949, Lah.
204, Pancham Singh vs The State, A.I.R. 1967 Pat. 416 and King Emperor vs Khwaja Nazir Ahmad, 71 I.A. 203, referred to.
(2)The Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect a cognizable offence has been committed.
If the police engineer a false report of a cognizable offence against any person he can in appropriate cases always invoke the Power of the High Court under Act.
Therefore, the fact that the Code does not provide for.a power to a Magistrate to stop investigation by the Police cannot be a ground for holding that such a power must be read into section 159 of the Code.
[951 H]


judgement:
iminal Appeal No.166 of 1967.
2 Appeal by special leave from the judgment and order dated November 28, 1966 of the Mysore High Court in Criminal Peti tion No. 610 of 1966.
V. K. Sanghi and M. section Narasimhan, for the appellant.
section section Javali and M. Veerappa, for respondents Nos. 1 and 2.
R. Gopalakrishnan, for respondent No. 3.
section P. Nayar, for respondent No. 4.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal by special leave against the judgment and order of the High Court of Mysore dated November 28, 1966 in Misc.
Criminal Petition No. 610 of 1966.
By that order the High Court held that the present appellant Bhimappa had no locus standi to invoke section 417(3) of the Code of Criminal Procedure and to ask for special leave to file an appeal against the acquittal of the respondent.
The appellant questions the correctness of the order.
Bhimappa (appellant) had a house at Athni, Taluka Belgaum District.
It stood in the name of his eldest son and his two other sons lived in one part of the house and the other part was let out to the first respondent Laxman who ran a boarding house and also lived there with his wife and children and his mistress Champevva, the second respondent.
No rent was fixed but the sons of Bhimappa used to have their meals with respondents Nos. 1 and 2.
Bhimappa asked his tenant to vacate the house as he wanted to reside in it himself and his son Yamnappa (P.W. 14) wanted space for a godown for 400 bags of groundnut purchased by him.
The first respondent was asked to vacate a portion of the house but was reluctant.
It is not necessary to give the details of what happened further.
Suffice it to say that the house was set on fire to cause loss to Bhimappa.
All efforts to save the house failed and it was burnt down.
Yamanappa then filed a report in the police station.
The police arrested respondents Nos. 1 and 2 and submitted a charge sheet against them in the court of Junior Magistrate, Athni.
Bhimappa was dissatisfied that the police had not prosecuted Mallappa, respondent No. 3 also and he filed a complaint against him in the same court.
The magistrate inquired into the two cases together and finding a prima facie case established committed the first two respondents and the third respondent separately to the Court of Sessions.
The three respondents asked that the two cases be consolidated and a combined charge be framed in the case.
3 The two sessions cases were numbered as Sessions Trials Nos. 79 80 of 1965.
They were tried together and the Sessions Judge, Belgaum by his judgment, July ' 13, 1966 held the respondents not guilty and acquitted them.
The appellant then applied to the High Court of Mysore under section 417(3) of the Code of Criminal Procedure for special leave to appeal against the acquittal of the three respondents.
With the petition he filed a memorandum of appeal.
The High Court held ' on November 28, 1966 as follows : "The petitioner has no locus standi to prefer an appeal when the State had prosecuted the respondent in the Sessions Court.
This petition is dismissed.
Sd/ H. Hombe Gowda, Chief Justice, Sd/ M. Santhosh," Bhimappa filed also a revision application, which was dismissed on December 5, 1966 by C. Honniah J. Bhimappa 's request for a certificate was also rejected.
He now appeals to this Court.
His contention is that he had a right to move the High Court unders.
417(3) of the Code of Criminal Procedure for special leave as the order of 'acquittal was passed in a case instituted upon his complaint.
The High Court could not, therefore, hold that he, had no standing to move the High Court under section 417(3) of the Code of Criminal Procedure.
Sub section 3 of section 417 as an amendment was introduced by Act XXVI of 1955.
Previously the right of appeal against acquittal belonged only to the State Government.
By the amendment this right is also conferred on a complainant if the order of ' acquittal is passed in any, case instituted upon complaint.
The sub section may be read here "3.
If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from, the order of acquittal, the complainant may present such an appeal to the High Court.
" Under sub section 4 the application has to be made within 60 days from the date of the order of acquittal while under sub section 5 it the application under sub section 3 for the grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of acquittal shall lie at the instance of the State Government.
4 The short question in this case is whether the sessions case .Started on the complaint of Bhimappa entitles him to move the High Court for special leave (a) against all the three respondents ,or (b) at least against respondent No. 3.
The answer to this question depends upon whether we can say that there was a case instituted upon a complaint by Bhimappa in which an acquittal was recorded, for these are the words of the sub section and also the condition precedent to the right.
The word 'case ' is not defined by the Code but its meaning is well under stood in legal circles.
In criminal jurisdiction means ordinarily a proceeding for the prosecution of a person alleged to 'have committed In offence.
In other contexts the word may represent other kinds of proceedings but in the context of the sub section it must mean a proceeding which at the end results either in discharge, conviction, or acquittal of an accused person.
What is meant by 'instituted ' may next be explained.
There are three different ways in which cognizance is taken by Magistrates of offences.
This is stated in section 190 of the Code.
They are "(a) upon receiving a complaint of the facts which constitute an offence; (b) upon a report in writing of such facts made by any police officer; and (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed.
" The third sub section, therefore, obviously refers to a case in which cognizance is taken upon a complaint of facts constituting an offence.
The word 'complaint ' has been defined in section 4(1)(h) ,and means an allegation made orally or in writing to a Magistrate, with a view to his taking action, under the Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer.
The word 'complaint ' has a wide meaning since it includes even an oral allegation.
It may, therefore, be assumed that no form is prescribed which the complaint must take.
It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts for the Magistrate to take action.
Section 190(1)(a) makes it necessary that the alleged facts must disclose the commission of an offence.
The Code then proceeds to provide different procedures for different cases arising under section 190 and also in relation to the 5 seriousness of the offence.
Chapter XVI deals with proceedings instituted upon a complaint, Chapter XVIII with inquiries into cases triable by the Court of Session or the High Court, Chapter XX with the trial of Summons cases by Magistrates, Chapter XXI with the trial of Warrant cases by Magistrates, Chapter XXII with summary trials and Chapter XXIII with trial before High Courts and Courts of Sessions.
The offence here was mischief by fire with intent to destroy a house etc.
punishable under section 436 I.P.C.
This offence is triable7 exclusively by the Court of Session.
Section 207 of the Code of Criminal Procedure provides : "Procedure in inquiries preparatory to commitment In every inquiry before a Magistrate where the case is triable exclusively by a Court of Session or High Court, or in the opinion of the Magistrate, ought to be tried by such Court, the, Magistrate shall (a) in any proceeding instituted on a police report, follow the procedure specified in section 207A; and (b) in any other proceeding, follow the procedure specified in the other provisions of this Chapter." Under section 206 the Magistrate is required to commit an accused to the Court of Session for trial.
In cases triable by the Magistrate himself he has to follow the procedure for trial of cases according to the other procedures mentioned earlier by us.
As this was a case for the application of sections other than section 207 A it fell under section 208.
That section provides for cases of complaint and the is complainant has to be heard when the accused appears or brought before the Magistrate who has to take such evidence as may be produced in support of the prosecution or in behalf of the accused, or as may be called by the Magistrate.
Then under section 209 the accused may be discharged unless the Magistrate con siders it necessary that the person should be tried before himself or some other Magistrate in which case he shall proceed accordingly.
If he considers that there are reasons to commit the accused, he shall frame a charge, explain it to the accused, obtain from the accused a list of his defence witnesses.
The Magistrate may in his discretion examine any of these witnesses and then commit the accused to stand his trial before the Court of Session or if satisfied that there are no grounds for committing the accused.
, he may cancel the charge and discharge the accused.
It will be noticed that in a case involving an offence triable exclusively by the Court of Session the procedure under sections 206 220 6 has to be followed if the complaint is filed initially.
There are other sections in the Chapter and other Supplementary provisions Which are not relevant to the discussion and, therefore, reference .to them is omitted here.
The position regarding other cases triable by the Magistrate himself or by another magistrate are laid down in Chapter XVI.
There the magistrate shall examine the complainant and the witnesses present, if any.
The Magistrate may even send the case to the police for investigation under section 156(3) if he is empowered to act under section 190.
This procedure of course does not arise in cases in which the trial is of an offence triable by the Court of Session.
As we are not concerned with the problems arising under Chapter XVI we refrain from expressing an opinion on the various aspects of the problem arising under that Chapter.
For that reason we do not refer to cases which were mainly concerned with trials before Magistrate.
In the present case the police had put up a chargesheet against two respondents only.
Bhimappa filed a complaint in which he charged these two respondents and respondent No. 3 with the same offence of mischief by fire but with the aid of section 34 I.P.C. As he had charged the three respondents with having entered into :a Criminal Conspiracy a charge under section 120 B I.P.C. was also framed while committing the accused to the Court of Session.
Mallappa was also charged under section 436 read with section 109 I.P.C. for abetment of the offence by the other accused.
The two cases in the Magistrate 's Court were registered under their own numbers but were tried together and were committed separately.
In the Court of Session they were also registered separately and bore numbers Sessions Cases Nos.
79 and 80 of 1965.
Both the cases ,ended in acquittal.
Bhimappa applied for special leave in both cases to file an 'appeal under section 417(3).
His right to ask for special leave was not accepted in the High Court.
Now there can be no manner of doubt that one of the cases was instituted on the report of a police officer and the other on the complaint of the complainant.
There can be no question of merger because the identity of the two cases is maintained right up to the end of the Sessions trial.
The case of Bhimappa proceeded on its own number and although evidence was led in both the cases together, the acquittal was recorded in each of the two cases.
The police did not present a charge sheet against Mallappa and the trial of Mallappa can be said to be in the other case and not in the case filed by the police.
In this view of the matter it is quite plain that Bhimappa was entitled to move the High 7 Court for special leave in his own case.
The order saying that he had no standing cannot, therefore, be sustained.
Bhimappa had also applied for revision and his application was rejected.
He applied for special leave against that order but leave was refused by this Court.
It was argued that that must conclude the matter.
We do not agree.
Bhimappa 's statutory right to move the High Court could not be lost by reason of the revision.
The result of the revision, therefore, had no bearing upon the matter.
Bhimappa was thus entitled to have a hearing of his petition for special leave under section 417 (3) of the Code.
Whether he could ask for leave against Malappa alone.or against the other two because the charge under section 120 B I.P.C. was framed against all the three respondents on his complaint is a point which we do not decide because it will be for the High Court to consider the matter when his petition is considered and only if it is allowed.
We accordingly set, aside the order of the High Court and remit the case for consideration of the petition under section 417(3) filed by Bhimappa.
R.K.P.S. Appeal allowed.

summary/full:
The appellant 's house was set on fire and burnt down.
As a result of a report filed by his son the police arrested Respondents 1 and 2 and submitted a charge sheet against them.
The appellant was dissatisfied that the police had not prosecuted Respondent No. 3 also and he filed a complaint against him, in the same Court.
The Magistrate inquired into the two cases together and committed separately the first two respondents and the third respondent separately to the Court of Sessions.
After the Sessions Judge had held all the three respondents not guilty and acquitted them, the appellant applied under section 417(3) Cr.
P.C., for special leave to appeal against the acquittal of the three respondents; but this petition was dismissed by the High Court on the ground that the petitioner had no locus standi to prefer an appeal when the State had pro secuted the respondents in the Sessions Court.
A revision application filed by the appellant was also rejected.
On appeal to this Court, HELD : The appellant was entitled to have a hearing of his petition for special leave under section 417(3) and the case must therefore be remitted to the High Court for this purpose.
The answer to the question whether the appellant had a right to move the High Court for special leave under section 417(3) depended upon whether there was a case instituted by him upon a complaint in which an acquittal was recorded, for this is the requirement of the special section and also the condition precedent to the right.
[4 B].
On the facts, there could be no doubt that one of the cases was instituted on the report of a police officer and the other on the complaint of the complainant.
There could be no question of merger because the identity of the two cases was maintained right upto the end of the Sessions Trial.
The case of the appellant proceeded on its own number and although evidence was led in both cases together, the acquittal was recorded separately in each of the two cases.
The appellant was therefore entitled to move the High Court for special leave in his own case.
[6 G] The fact that the appellant had also applied for revision which was rejected and had applied for special leave against that order which was refused by this Court, did not mean that that must conclude the matter.
The appellant 's statutory right to move the High Court could not be lost by reason of the revision and the result of the revision, had no bearing upon the matter.


judgement:
iminal Appeal No.100 of 1967.
Appeal from the judgment and order dated March 13,1967 of the Gujarat High Court in Criminal Appeal No. 566 of 1965.
J. L. Hathi, K. L. Hathi and K. N. Bhat, for the appellant.
section K. Dholakia, Badri Das Sharma and section P. Nayar, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This is an appeal from the judgment of the High Court of Gujarat.
The appellants were charged with offences under sections 302 and 323 read with section 34 of the Indian Penal Code.
Accused Nos. 1 and 2 were charged for the individual offences under sections 302 and 323 of the Indian Penal Code for intentionally causing death of Amarji and for causing simple hurt to Vaghji Mansangji.
The deceased Amarji was the brother in .
law (sister 's husband) of Vaghji Mansangji.
Two important eyewitnesses were Pabaji Dajibha and Pachanji Kesarji.
Amarji 33 was Pabaji 's mother 's sister 's son.
Pachanji is the first cousin of Vaghji Mansangji.
Accused No. 3 Mulubha is the maternal uncle (mother 's bro ther) of accused No. 2 Ranubha Naranji and accused No. 1 Hethubha alias Jitubha is the son of another maternal uncle of accused No. 2.
Accused No. 2 was residing at Bhalot.
Vaghji also resided there.
About two months prior to the date of the occurrence on 26 January, 1965 at 8 p.m. there was a quarrel between the children of the house of accused No. 2 Ranubha and the children of the house of Vaghji.
There was exchange of words between the members of the two families.
Accused No. 2 Ranubha and his father Naranji assaulted the wife of Vaghji.
Vaghji then filed a complaint.
Ultimately, the complaint was compounded on the intervention of accused No. 3 Mulubha.
The prosecution case is that because of the behaviour of accused No. 2 Ranubha towards the wife of Vaghji, Ranubha had to leave his own village of Bhalot and had to go to reside with his maternal uncles at Bhuvad.
The further prosecution case is that the relations of Ranubha thereafter went to village Bhalot for fetching the goods of Ranubha and at that time they had threatened Vaghji and others that Ranubha had to leave the village and Vaghji and others would not be able to continue to, reside in the village.
On 26 January, 1965 Amarji, Pabaji Vaghji and Pachanji took their carts of fuel wood for selling it in the village Khedoi which is about 7 miles from Bhalot.
They left Bhalot at about 10 a.m. and reached Khedoi at about 1 p.m.
The cart loads of fuel wood were sold in Khadoi by about 5 p.m.
They made some purchases and then left Khedoi at about 7 p.m.
While returning home Amarjis cart was in the front and Pabaji, Pachanji and Vaghji followed him in.
that order.
There was not much distance between each cart.
When the carts had gone about 2 miles from Khedoi and they were about to enter village Mathda, the three accused persons were noticed waiting on the roads.
All of them caught hold of Amarji and attacked him who was in the first cart.
In the meantime, accused No. 3, Mulubha, caught hold of the hand of Pabaji and prevented him from going near Amarji.
Mulubha was armed with an axe.
Accused Nos. 1 and 2 dealt knife blows to Amarji.
The prosecution suggested that the accused persons realised their mistake that instead of Vaghji they had attacked Amarji, and so both the accused Nos. 1 and 2 left Amarji and went to the cart of Vaghji and gave blows with sticks to Vaghji.
On seeing the attack on vaghji Pabaji intervened and asked the accused to desist from attacking Vaghji any 34 longer as they had already killed Amarji.
Thereupon the accused stopped attacking Vaghji.
By this time Amarji had come staggering to the spot where Pabaji was standing.
Then Amarji was placed in one of the carts and Vaghji was made to sit in that cart.
Pachanji drove his cart first and the two carts without any drivers which had been formerly driven by Vaghji and Amarji, were kept in the middle and Pabaji with the two injured men in his cart was driving his cart last.
The carts were taken to village Khedoi.
It is the prosecution case that the three accused persons followed these carts up to a certain distance and then accused Nos '.
1 and 2 left while accused No. 3 disappeared near Khari Vadi.
Pabaji took the carts to Moti khedoi and saw police head constable Banesing who had come to Khedoi for patrolling work.
Banesing was attached to the police outpost at Bhuvad.
Banesing directed these persons to take Amarji to the Khedoi hospital.
By that time Amarji had died.
Banesing left Khedoi with Pabaji for Anjar police station which is about 8 miles from Khedoi.
They reached, Anjar at about 11 p.m. and Pabaji 's F.I.R. was recorded before police sub inspector Khambholja.
The police sub inspector then preceded to, Khedoi hospital.
Amarji was declared to be dead.
The police sub inspector recorded the statements of Vaghji and Pachanji and :then took steps in the investigation of the case.
At the trial all the three ' accused denied having committed the offence.
, The Sessions Judge acquitted all the three persons under section 302 read with section 34.
He however convicted all the accused for the offence punishable under section 304 Part II read,with section 34 and sentenced them to suffer rigorous imprisonment for five years.
Accused Nos. 1 and 2 were convicted for the offence under section 323 and accused No. 3 was convicted for the offence under section 323 read with section 34 of the Indian Penal Code.
Accused Nos. 1 and 2 were sentenced to suffer rigorous imprisonment for three months while accused No. 3 was sentenced to suffer rigorous imprisonment for two months.
All the sentences were to run concurrent All the accused filed appeals against their convictions.
Before the Division ' Bench in the High Court of Gujarat Divan, J. held that accused No. 1 alone was responsible for the fatal injury on Amarji and he was found guilty for the offence under section 302 while accused Nos. 2 and 3 were found, guilty for the offence under section 324 read with section 34.
Shelat, J. was of the view that all the accused must acquitted because he ' was not satisfied with the evidence and proof of the identity of the accused.
The case was then placed under Section 429 of Criminal ' Procedure Code before Mehta, J. who held that accused No. 1 35 must be Convicted for the offence under section 302 while accused Nos. 2 and 3 must be convicted for the offence under section 302 read with section 34 and all of them should be sentenced to suffer rigorous imprisonment for life.
The conviction of accused Nos. 1 and 2 under section 323 and of accused No. 3 under section 323 read with section 34 was upheld.
The conviction of all the accused under section 304 Part 11 was altered by convicting accused No. 1 under section 302 and accused Nos. 2 and 3 under section 302 read with section 34 of the Indian Penal Code.
Counsel for the appellants contended first that the third learned Judge under section 429 of the Criminal Procedure Code could only deal with the differences between the two learned Judges and not with the whole case.
The same contention had been advanced before Mehta, J. in the High Court who rightly held that under section 429 of the Criminal Procedure Code the whole case was to be dealt with by him.
This Court in Babu and Ors.
vs State of Uttar Peadesh (1) held that it was for tic third learned Judge to decide on what points the arguments would be heard and therefore he was free to resolve the differences as he thought fit.
Mehta, J. here dealt with the whole case.
Section 429 of the, Criminal Procedure Code states "that when the Judges comprising the Court of Appeal are equally divided in opinion, the case with their opinion thereon, shall be laid before another Judge of the same Court and such Judge, after such hearing, if any, as he thinks fit shall deliver his opinion, and the judgment or order shall follow such opinion".
Two things are noticeable; first, that the, case shall be laid before another Judge, and, secondly, the judgment and order will follow the opinion of the third learned Judge.
It is, therefore, manifest that the third learned Judge can or will deal with the whole case.
The second and the main contention of counsel for the ap pellants was that there was no common intention to kill Amarji.
The finding of fact is, ,that the attack the three accused was a concerted one under prearranged plan.
Amarji Was attacked by mistake :but whosoever inflicted, injury in the region of the collar bone of Amarji must be held guilty of murder.
under section 302.
Amarji was further found to have been attacked by accused Nos. 1 and 2 and accused No. 3 who was armed with an axe caught hold of the hand of Pabaji.
The injury on Amarji was an incised wound 1 3/4" *3/4" over the left side of the neck neck just above the left collar bone.
The direction of the wound was was towards right and downwards.
The other injury was incised (1) ; 36 wound 1" * 1/2" * 1/2" over the chest (right side) near the middle line between the 6th and 7 ribs.
The evidence establishes these features; first, that all the accused were related; secondly, they were residing at Bhuvad at the relevant time; thirdly, all the three accused made sudden appearance on the scene of the occurrence; fourthly, they started assault as soon as the carts arrived at the scene of the offence; fifthly, the way in which Amarji was attacked by accused Nos. 1 and 2 and stab wounds were infficted on him and the manner in which accused No. 3 held up Pabaji would show that the three accused were lying in wait under some pre arranged plan to attack these persons when they were returning to Bhalot.
It therefore follows that the attack took place in pursuance of the pre arranged plan and the rapidity with which the attacks Were made also shows the pre concerted plan.
The attack by accused Nos. 1 and 2 on Amarji and the holding up, of Pabaji by accused No. 3 all prove ,common intention, participation and united criminal behaviour of all and therefore accused No. 3 would be equally responsible with ,accused Nos. 1 and 2 who had attacked Amarji.
This Court in the case of Shankarlal Kachrabhai and Ors.
vs State of Gujarat(1) said that a mistake by one of the accused as to killing X in place of Y would not displace the common intention if the evidence showed the concerted action in furtherance of pre arranged plan.
The dominant feature of section 34 is the ,element of participation in actions.
This participation need not in all cases be by physical presence.
Common intention implies acting in concert.
There is a pre arranged plan which is proved either from conduct or from circumstances of from incriminating facts.
The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code.
The existence of common intention is to be the basis of liability.
That is why the prior concert and the pre arranged plan is the foundation of common intention to establish liability and guilt.
Applying these principles to the evidence in the present case it appears that there was pre arranged plan of the accused to commit offences.
All the accused were lying in wait to attack the party of Amarji, Vaghji, Pabaji and Pachanji.
Amarji was in the forefront.
The accused attacked him.
Vaghji was also attacked and prevented from going to the relief of Amarji.
The plea that Amarji was mistaken for Vaghji would not take away the common intention established by pre arranged plan and participation of all the accused in furtherance of common intention.
The act might be ,done by one of the several persons in furtherance of the common intention of them all, without each one of them having intended (1) ; 37 to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be done.
In view of the evidence that Amarji was killed in furtherance of the common intention of all the accused the appellants are guilty of murder. 'In Shankarlal 's case(1) this Court said that if the common intention was to kill A and if one of the accused killed B to wreck his private vengeance, it could not be possibly in furtherance of the common intention for which others can be liable.
But if on the other hand he killed B bona fide believing that he was A and the common intention was to kill A the killing of B was in furtherance of the common intention.
All the three accused in the present case were lying in wait and assaulted the driver of the first cart and stabbed him in pursuance of their prearranged plan Therefore, all the three accused including the appellant must share the liability of murder under section 302 read with section 34 of the Indian Penal Code.
Further, in view of the finding that the the concerted plan was to cause injuries to the intended victim with dangerous weapons with which the assailants were lying in wait, the liability of the appellant is established.
The conclusion of Mehta, J. is correct.
The appeal, there fore, fails and is dismissed.
The accused must surrender to the bail and serve out the sentences.

summary/full:
The three appellants were charged with offences under sections 302 and 323 read with section 34, of the Penal Code and appellants 1 and 2 were charged with the individual offences under sections 302 and 323 for intentionally causing the death of A, mistaking him for V and for causing simple hurt to V. The Sessions Judge acquitted all the three accused under section 302 read with section 34 but convicted them under section 304 Part 11 read with section 34 and sentenced them to suffer rigorous imprisonment for five years.
Appellants 1 and 2 were also convicted for the offence under section 323 and appellant 3 was convicted for the offence under section 323 read with section 34.
All three were sentenced for these convictions to rigorous imprisonment for terms.
to run concurrently.
On appeal to a Division Bench of the High Court one learned Judge held, that the first appellant alone was responsible for the fatal injury on A and found him guilty under section .302, while the second and third appellants were found guilty under section 324 read with section 34.
The second learned Judge was of the view that all the accused must be acquitted as he was not satisfied with, the evidence and proof of. the identity.
of the accused.
The case was then placed before , a, third learned Judge under section 429 Cr.
P.C. who held that the first appellant must 'be convicted under section 302 while the second and third appellants must be convicted, under section 302 read with section 34 and all of them must be sentenced to suffer rigorous prisonment for life.
The conviction of the first and second appellants under section 323 and of the third appellant under section 323 read with section 34 was upheld.
In appeal to this Court it was contended (i) that the third learned Judge under section 429 Cr. P.C. could only,.deal with the differences between the two learned Judges and not with the whole case; and (ii) that there was no comnmittee intend on within the meaning of supp I.P.C. on the part of the three appellants to kill A as he was attacked by, mistake.
HELD : Dismissing the appeal.
(i) Section on of the Criminal Procedure Code.states "that when the judges comprising the Court of Appeal are equally divided in opinion the case with their opinion thereon shall be laid before another Judge of the same Court and such Judge, after hearing,if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such before another Judge, and, secondly, the Judgment and order will follow the, opinion of the third learned Judge.
It is, therefore, manifest that the third learned Judge can or will deal with the whole case.
[35 D F] 32 Babu and Ors.
vs State of Uttar Pradesh, [1965] 2 S.C.R. 771; referred to.
(ii) The plea that A was mistaken for V would not take away the common intention established by a pre arranged plan and participation of all the accused in furtherance of common intention.
The act might be done by one of the several persons in furtherance of the common intention of them all without each one of them having intended to do the particular act in exactly the same way as an act might be done by one member of an unlawful assembly in prosecution of the common intention which the other members of the unlawful assembly did not each intend to be don. .
[36 H] On the facts, it was clear that the attack took place in pursuance of a pre arranged plan.
, The attack by appellants 1 and 2 on A and the evidence showing that appellant 3 held back P during the attack all proved common intention, participation and united criminal behaviour of all; appellant 3 was therefore equally responsible and guilty with appellants 1 and 2 who had attacked A. Shankarlal Kachrabbhai and Ors.
vs State of Gujarat, ; ; referred to.
The dominant feature of section 34 is the element of participation in actions.
This participation need not in all cases be by physical presence.
Common intention implies acting in concert.
There is a pre arranged plan which is proved either from conduct or from circumstances or from incriminating facts.
The principle of joint liability in the doing of a criminal act is embodied in section 34 of the Indian Penal Code.
The existence of common intention is to be the basis of liability.
That is why the prior concert and the pre arranged plan is the foundation of common intention to establish liability and guilt.
[36 E]


judgement:
ew Petition No. 29 of 1969.
Application for review of this Court 's Judgment dated July 17, 1969 in Civil Appeal No. 1878 of 1967 arising out of the judgmentand order dated July 18, 1966 of the Bombay High Court, Nagpur Bench in Special Civil Application No. 722 of 1965.
N. section Bindra and section P. Nayar,for the petitioner/appellants.
A. G. Ratnaparkhi, for the respondent.
47 The, Judgment of the Court was delivered by Shah, J. Appeal No. 1878 of 1967 was ordered to be dismissed by this Court on July 17, 1969.
The Court held that the sale of standing trees is not sale of goods chargeable to sales tax under the Bombay Sales Tax Act, 1959.
A petition for review of Judgment has been filed by the State contending that after the judgment of the High Court and before the appeal was heard, the Bombay Sales Tax Act, 1959 was amended by the Maharashtra Act 15 of 1967 with retrospective operation, and by the amendment standing timber was included 'in the definition of timber, but counsel for the State failed to invite the attention of the Court to that Act.
Since the judgment of this Court it is claimed suffers from an error apparent on the face of the record, we have granted review of judgment.
The expression "goods" was defined in section 2(13) of the Bombay Sales Tax Act, 1959.
By Maharashtra Act 15 of 1967 by section 2 the definition of "goods" was altered by providing that "In section 2 of the Bombay Sales Tax Act, 1959 .
in clause (13), after the words 'and commodities ' the following shall be, and shall be deemed always to have been, added, namely: 'and all standing timber which is agreed to be severed before sale or under the contract of sale '.
" The definition was retrospective in operation and the expression " goods" included at all relevant times standing timber agreed to be severed before sale or under the contract of sale.
The expression "sale of goods" in Entry 54 List 11 of Sch.
VII of the Constitution has the same connotation as it has in the .
This Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd.(1) observed that the expression "sale of goods" was, at the time when the Government Of India Act, 1935, was enacted, a term of well recognised legal import in the general law relating to sale of goods and in the legislative practice relating to that topic and must be interpreted in Entry 48 in List 11 in Sch.
VII of the Act as having the same meaning as in the : see also Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh (2).
The expression " sale of goods" in Entry 54 in List II of Sch.
VII of the Consti tution has also the same meaning as that expression had in Entry 48 in List II of the Government of India Act, 1935.
The State Legislature may not therefore extend the import of the expression (1) ; (2) ; 48 " sale of goods" so as to impose, liability for tax on transactions which are not sales of goods within the meaning of the .
By article 366(12) of the Constitution the expression "goods" is defined as inclusive of "all materials, commodities and articles".
That is, however an inclusive definition and does not throw much light on the meaning of the expression "goods".
But the definition of "goods" in the , as meaning "every kind of moveable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale".
Standing timber may ordinarily not be regarded as "goods", but by the, in clusive definition given in section 2(7) of the things which are attached to the land may be the subject matter of contract of sale provided that under the terms of the contract they are to be severed before sale or under the contract of sale.
In the present case it was expressly provided that the timber agreed to be sold shall be severed under the contract of sale.
The timber was therefore "goods" within the meaning of section 2(7) of the and the expression "sale of goods" in the Constitution in Entry 54 List 11 having the same meaning as that expression has in the , sale of timber agreed to be severed under the terms of the contract may be regarded as sale of goods.
The appeal is allowed and the petition filed by the respondent must be dismissed.
Since the State succeeds in this appeal, relying upon a statute which was passed after the judgment of the High Court, there will be no order as to costs throughout.
V.P.S. Appeal allowed.

summary/full:
The contract of sale entered into by the respondent expressly provided that the timber agreed to be sold shall be severed.
The High Court held that the sale of standing trees was not a sale of goods chargeable to sales tax under the Bombay Sales Tax Act, 1959.
and the decision was confirmed by this Court on appeal.
But after the judgment of the High Court and before the appeal was heard in this Court, the expression "goods" in the Act was amended by Maharashtra Act 15 of 1967 with retrospective operation, so that, it included at all relevant times, standing timber agreed to be severed before sale or under the contract of sale.
In a petition for review to this Court, HELD : Since the judgment of this Court suffers from an error apparent on the face of the record, the judgment should be reviewed and the appeal allowed.
[47C] A State Legislature may not extend the import of the expression sale of goods" so as to impose liability for tax on transactions which are not sales of goods within the meaning of the Sale of Goods Act.
But, by the inclusive definition in section 2(7) of the Sale of Goods Act, things which are attached to the land may be the subject matter of contract of sale provided that under the terms of the contract they are to be severed before sale of under the contract of sale.
The timber in the present case was therefore "goods" within the meaning of section 2(7) of the Sale of Goods Act.
Since the expression " sale of goods" in Entry 54, List II, of the Constitution has the same meaning as that expression has in the Sale of Goods Act, the amendment is valid.
[47 H; 48 A E] The State of Madras vs Gannon Dunkerley, ; and Pandit Banarsi Das Bhanot vs The State of Madhya Pradesh, ; , referred to.