judgement:
Appeal No. 379 of 1958.
Appeal from the judgment and decree dated January 17, 1956 of the Patna High Court in Appeal from Original Decree No. 169 of 1947.
L. K. Jha, D. P. Singh, R. K. Garg, M. K. Ramamurthi and section C. Agarwal, for the appellant.
R. C. Prasad, for the respondent.
September 15.
The Judgment of the Court was delivered by DAS GUPTA, J.
Can a wife 's sister 's daughter 's son be validly adopted to a person governed by the Benaras School of the Mitakshara Hindu Law ? That is the main question raised in this appeal brought on a certificate granted by the High Court at Patna.
The plaintiffs who would succeed to the properties left by Babu Ram Singh on the death 629 of his widow but for the adoption of Devendra Singh which this widow made on June 9, 1935, brought the present suit for a declaration that Devendra Singh was not adopted by the second defendant, Babu Ram Singh 's widow and that in any case, the adoption is invalid in law and so Devendra Singh acquired no right in the properties left by Babu Ram Singh.
The main ground on which the adoption is attacked as invalid is based on the fact that Devendra Singh is Babu Ram Singh 's widow 's sister 's daughter 's son.
The other ground raised in the plaint based on the plaintiff 's allegation that Babu Ram Singh was governed by Mithila School of Hindu Law was negatived by the courts below and has been abandoned before us.
No dispute is also raised now as regards the factum of adoption.
The only question that arises in this appeal therefore is whether the adoption of a wife 's sister 's daughters son is valid in law.
The High Court answered this question in the affirmative and dismissed the suit.
It is against that decision that the present appeal has been preferred.
In support of his contention that such an adoption is invalid in Hindu Law reliance is placed by the learned counsel on the following passage of Nanda Pandit 's Dattak Mimansa : (see Whitley Stokes 's Hindu Law Books at pp.
590 and 591).
Accordingly, the brother, paternal and maternal uncles, the daughter 's son, and that of the sister, are excluded : for they bear no resemblance to a son.
Intending this very position, it is declared in the sequel, by the same author: "The daughter 's son, and the sister 's son, are declared to be the sons of Cudras.
For the three superior tribes, a sister 's son, is No. where mentioned as a son.
Here even the 630 term "sister 's son" is illustrative of the whole not resembling a son, for prohibited connection is common to them all.
Now, prohibited connection is the unfitness of the son proposed to be adopted to have been begotten by the individual himself through appointment to raise issue on the wife of another.
The mutual relation between a couple, being analogous to the one, being the father or mother of the other, connection is forbiden: as for instance the daughter of the wife 's sister, and the sister of the paternal uncle 's wife".
The meaning of the text is this.
Where, the relation of the couple, that is of the bride and bridegroom, bears analogy to that of father or mother ; if the bridegroom be, as it were, father of the bride, or the bride stand in the light of mother, to the bridegroom, such a marriage is a prohibited connection.
The two examples illustrate these cases in their order.
In the same manner as in the above text, of the Grihaparisistha, on marriage, prohibited connection, in the case of marriage, is excepted and so in the case in question, one who if begotten by the adopter, would have been the son of a prohibited connection, must be excepted; in other words, such person in to be adopted, as with the mother of whom, the adopter might have carnal knowledge.
It is urged that in view of this specific exclusion of a wife 's sister 's daughter 's son from the list of those who are fit for adoption there is no escape from the conclusion that such an adoption would be invalid in law.
Learned Counsel has emphasised that great authority attaches to all statements of law as regards adoption that are contained in Dattak Mimansa.
There is no doubt that for many years now the Dattak Chandrika of Kuvera and Dattak Mimansa of Nanda Pandit have been recognised to 631 be of great authority on all questions of adoption.
It is true that Prof. Jolly in his Tagore Law Lectures had in no uncertain terms characterised the latter to be of little value; and eminent scholars like Dr. Mandlik and Golap Chandra Sarkar while writing in the latter part of the last century subjected many of Nanda Pandit 's views to unfavorable criticism.
In spite of all this the Privy Council in Bhagwan Singh vs Bhagwan Singh(1) did recognise that both the Dattak Mimansa and Dattak Chandrika had been received in courts of law including the Privy Council as high authorities and after drawing attention to Lord Kingsdown 's statements as regards these in Rungama vs Atchama (2) and Sir James Colvile 's statement in Collector of Madura vs Moottoo Ramlinga Sathupathy(3), stated thus : ",To call it (i.e., Dattak Mimansa), infallible is too strong an expression, and the estimates of Sutherland and of West and Buhler, seem nearer the true mark; but it is clear that both works must be accepted as bearing high authority for so long a time that they have become embedded in the general law.
" While saying this mention must also be made of the observations of the Privy Council in Sri Balusu Gurulingaswami vs Sri Balasu Ramalakshmamma(4) decided on the same date (March 11, 1899) but immediately before Bhagwan Singh 's Case, was decided, expressing their concurrence with the view that caution was required in accepting the glosses in Dattaka Mimansa and Dattak Chandrika where they deviate from or added to the Smirities.
There can be no doubt that in laying down the rule that the adoption of the son of a woman who could not have been married by the adoptive father because of incongruous relationship (Viruddha Sambandha) Nanda Pandit was adding to the existing state of law.
It 'is interesting to notice here that commenting on what Saunaka had said in describing the ' ritual of adoption that a (1) (1899) L.R. 26 I.A. 153, 161.
(2) (1846) T.A. 1, 97.
(3) (1863) 12 M.I.A. 397, 437.
(4) (1899) L.R. 26 I.A. 113,136.
632 son should be adopted the Dattaka Chandrika observed at p. 14 : (Reflection of a son The resemblance of a son,or in other words the capability to have been begotten, by the adopter, through appointment, and so forth).
(Sutherland 's translation).
The Dattak Mimansa adopts this view, and introduces the further doctrine of (Viruddha Sambandha) relationship as a bar to adoption.
It is unnecessary for us to examine what authority should be attached to this serious addition to the texts for determining who can be adopted, as for reasons to be presently mentioned we are of opinion that assuming that this rule should be accepted as of authority Nanda Pandit has stated this merely as a recommendation and not as a mandatory prohibition.
For many years now courts have recognised the position that not only the Dharma Sutras and Grihya Sutras but also the commentaries thereon and digests mingle without hesitation statements of law which are intended to be recommendations merely with statements which are intended to be mandatory.
In Balu Gurulingaswami 's case to which reference has just been made the Privy Council pointed out that recent extension of the study of Sanskrit had strengthened the view of Sir William Macnaughten that "it by no means follows that because an act has been prohibited it should therefore be considered illegal.
The distinction between the vinculum juris and the vinculum pudoris is not always discernible," and adding to the previous statement of the Board in Rao Balwant Singh vs Rani Kishori(1) decided in the previous year the Privy Council observed these ,words of caution in Balusu Gurulingaswami 's case : .lm15 "They now add that the further study of the subject necessary for the decision of these (1) (1898) L.R. 25 I.A. 69.
633 appeals has still more impressed them with the necessity of great caution in interpreting books of mixed religion, morality and law, lest foreign lawyers, accustomed to treat as law what they find in authoritative books and to administer a fixed legal system, should too hastily take for strict law precepts which are meant to appeal to the moral sense, and ,should thus fetter individual judgments in private affairs, should introduce restrictions into Hindu society, and impart to it an inflexible rigidity never contemplated by the original law givers.
" The importance of this caution has by no means decreased in the years that have gone by.
It is therefore necessary to examine the words used by Nanda Pandit himself in laying down this rule against Viruddha Sambandha adoption.
It has to be noticed that while he says (One who if begotten by the adopter would have been the son of a prohibited connection must be excepted Sutherland 's translation), he does not say anything about what would happen if Viruddha Sambandha Putra was adopted.
If the rule was intended to be mandatory it is reasonable to expect that the author who as the treatise itself shows was a master of logic and well acquainted with the rules of logic and other rules which deal with the question of mandatory injunctions would give clear indication of that view.
This was all the more reasonable to expect as he was introducing a new rule.
But he contents himself with saying that We do not think this language that adoption of a son of a Viruddha Sambandha girl should be avoided, can properly be taken as mandatory so that the rule must be obeyed on pain of the adoption being otherwise invalid in law.
Notice has necessarily to be taken in this connection of the fact that the only authority mentioned by Nanda Pandit himself against 634 Viruddha Sambandha marriage from which he deduces his rule of Viruddha Sambandha in matters of adoption is to be found in the text of Ashvalayana (The bridegroom duly qualified should marry a duly qualified maiden who is younger in years, is not a sapinda, is not of the same gotra, and whose marriage does not involve a viruddha sambandha) (contrary relationship).
It is followed a little later by this comment: (Viruddha Sambandha is that Sambandha (relation) which is viruddha (contrary or im proper) owing to the relationship (existing) between the bride and the bridegroom (before their marriage) being similar to that of a father or mother.
As for instance the daughter of the wife 's sister (and) the sister of the maternal uncle 's wife).
Is this rule mandatory? In other words, would a marriage of a girl standing in the Viruddha Sambandha relationship to the bridegroom be invalid.
We are not satisfied that this is the position in law.
It is striking that though the numerous Dharma Sutras and Grihya Sutras, deal at great length with the question of the girl who can be taken in marriage not one of them with the solitary exception of Ashvalayana has anything to say about Viruddha Sambandha.
Coming to more recent times the only Digest in which any reference to this Virudha Sambandha of Ashvalayana can be traced is in Nirnaya Sindbu (late 16th century).
There is no reference to this however in Raghunandana 's exhaustive treatise on marriage udhvahatattva which was written in the early 16th century.
In Nirnaya Sindhu there is only bald reference to this in these words 635 (There is also the bar to marriage by sayings (of sages).
As in the Grihyaparishistha should not marry a girl of Viruddha Sambandha (incongruous relationship)" Viruddha Sambandha was illustrated thus : "As in the case of wife ',% sister 's daughter; father 's brother 's wife 's sister." without any comments whatsoever.
It is reasonable to think that the numerous Smritikars and commentators who have dealt with the subject of marriage were acquainted with Ashvalayana 's text but (lid not think it necessary to refer to it as it was a recommendatory rule not considered to be of much importance.
Mr. Jha argues that when a positive statement is followed by a negative statement, the negative statement should always be held to contain a prohibitory mandate.
Thus he says that as after saying says next the rules contained in this latter portion should be held to be mandatory.
We can find no justification either in the modern rules of interpretation or in the rules of interpretation of the old Hindu Shastras for such a view.
One instance where a negative rule following a positive direction on this very subject of marriage cannot possibly be I considered to be mandatory can be found in Yajnavalkaya 's text : (Let him, whose life as bachelor is unsullied marry a wife who possesses good qualities, who has not been enjoyed by another, who is beautiful, who is not his sapinda, who is younger than himself, who is not suffering 636 from any complaints, who has brothers, and who does not belong to the family descended from the same primitive guide." Quite clearly the rule that a girl suffering from disease should not be married is not a mandatory rule even though it follows some positive rules about marriage.
That this is the position has been pointed by Vigyaneshwar.
It is interesting to notice in this connection Ashvalayana 's own statement about marriage rules in the fourth section of the first Chapter of his Grihaya Sutra.
After saying (a daughter should be given to a man of understanding) he says in the next text (that one should marry a girl of understanding, good looks, good conduct and good qualities) and one who is not suffering from any disease.
This also is a case of a positive statement that a person should marry a girl of understanding, good looks, good conduct and good qualities, followed by a rule that a person should not marry a girl suffering from disease.
Even so, it cannot be imagined for a moment that this rule that one should not marry a girl suffering from disease is a mandatory rule, implying that marriage with such a girl would be invalid.
In any case, argues the learned counsel, when we find the three rules against marriage to a sapinda girl and sagotra girl and Viruddha Sambandha girl in the same text as here and admittedly the first two are mandatory and marriage to a sapinda girl or a sagotra girl would be invalid there is no reason why the same result should not follow on breach of the third rule against marrying a Viruddha Sambandha girl.
The reasons why marriage to a sapinda girl or a sagotra girl has always been held to be invalid are succinctly stated by Raghunandana in his Udhvahatattva in a passage which has been translated thus by Dr. Jogendra Nath Bhattacharyya in his Commentaries on Hindu Law; Third Edition, Vol.
I at P. 188: 637 "The negative ordinances, prohibiting marriage with girls of the same gotra, pravara etc., are parudasa (exceptional clauses) having reference to a vidhi; they are also prohibitions proper, like the prohibitory rule about the sexual union on parva days, because they forbid such marriages by the accompaniment of condemnatory and penance clauses, (See Texts of Apastamba.
and Sumantu), (cited on p. 187) and in view also of the fact that such marriages may spring from natural inclination.
The term wife is like the terms yupa (sacrificial post) ahavaniya (sacrificial fire), and denotes a female taken in marriage with occult ceremonies.
Therefore, where a sapinda or a sagotra girl is taken in marriage, she does not become a wife.
" It is a clear that none of the reasons which justify the view that a breach of the first two rules in Ashvalayana 's text viz., the rules against marriage of a sapinda girl, or a sagotra girl, should have the consequence that the marriage should be invalid are present in the case of a breach of the third rule, which is against marrying a Viruddha Sambandha girl.
It appears clear to us that Ashvalayana himself did not intend the rule against marrying a Viruddha Sambandha girl as a mandatory prohibition.
This must have been even more clear to Nanda Pandit and so when extending Viruddha Sambandha to adoption on the % cry basis of Ashvalayanas rule against Viruddha Sambandha marriage, Nanda Pandit could not have but intended his rule against Viruddha Sambandha adoption as a mere recommendation and not a mandatory prohibition.
Our attention was drawn to a decision of the Madras High Court in Minakshi vs Ramanada where the learned judges observed: (1) Mad. 49. 638 "In the case of marriage.
, there are three prohibitions, viz., (1) The couple between whom marriage is proposed should not be sapindas; (2) They should not be sagotras; and (3) There should be no Viruddha Sambandha or contrary relationship as would render sexual connection between them incestuous." The real question which was before the Full Bench 'Was whether there can be valid adoption under the Hindu law if a legal marriage is not possible between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state.
In the case before the Full Bench, the adoptee 's mother was a sagotra of the adoptive father, and so, there could be no legal marriage between them.
It was not necessary there "ore for the learned judges in the Minakshi 's case to consider whether the Viruddha Sambandha rule against marriage was mandatory or not.
We are not aware of any decision in any of the High Courts where Nanda Pandit 's rule against Viruddha Sambandha adoption has been considered to be a mandatory, prohibition.
For the reasons discussed above we are of opinion that this rule introduced by Wanda Pandit is only a recommendation and consequently it is of no avail to the appellant to show that the adoption of wife 's sister 's daughter 's son is invalid.
Mr. Jha then tried to take advantage of the rule which has been accepted by almost all the High Courts except Bombay that there can be no valid legal adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted, in her maiden state, by urging that there can be no legal marriage between a person and, his wife 's sister 's daughter.
Assuming for the present that it is no 630 longer open to challenge the correctness of this rule at least so far as the Banaras School is concerned, we are still of the opinion that this argument is of no avail, for the simple reason that we see no reason to think that there can be no legally valid marriage between a person and his wife 's mister 's daughter.
For,the only argument in support of the contention, that there can be no such legal marriage between persons thus related, the learned counsel had to fall back upon Asvalayana 's Viruddha Sambandha rule.
That however as we have already shown, is in our opinion only a recommendation and cannot support a proposition that a marriage in breach of the Viruddha Sambandha rule is invalid.
An early as 1878 Dr. Gooroodas Banerjee (whose erudition equalled his orthodoxy) dealing with this question in his Tagore Law Lectures on the Hindu Law of Marriage and Stridhan observed thus (p. 64). "The prohibition by reason of affinity, which exsts in other systems, has no place in Hindu Law.
But the prohibition of marriage with sapindas to some extent supplies its place and so did the prohibition of widow marriage.
The Hindu Law, however, does not prohibit marriage with the wife 's sister, or even with her niece or her aunt." Dr. Jogendra Nath Bhattacharya in his Commentaries on Hindu Law (Third Edition) Vol.
I, also stated after referring to what has been mentioned in Nirnaya Sindhu against marriage with the wife 's sister 's daughter (already quoted above): " 'Instances of marriage with wife 's sister 's daughter, and wife 's brother 's daughter, are also not unknown in Bengal though, Hindu sentiment is strong against such marriages.
" The question was directly raised in Ragavendra Rau vs Jayaram Rau (1).
Mr. Justice Subramania Ayyar and Mr. Justice Benson relying on Dr. Gooroodas Banerjee 's statement of the law (1) Mad.
640 and also on Syama Charan Sarkar 's VyavasthaDarpan, Dr. Bbattacharyya 's commentaries on Hindu Law and certain other text books held that marriage between a man and his wife 's sister 's daughter is valid.
The learned judges pointed out that in South India at least there was little to 'indicate that such marriages are disapproved of "by the members of any section of the community." In our opinion a marriage of a Hindu with his wife 's sister 's daughter is not invalid in law even though it may not be liked by certain people.
Mr. Jha 's second argument based on the rule which we have assumed to be not open to challenge for the purpose of this case that there can be no valid adoption unless a legal marriage is possible between the person for whom the adoption is made and the mother of the boy who is adopted in her maiden state, must therefore fail.
We therefore hold that the High Court was right in its conclusion that the adoption of a wife 's sister 's daughter 's son is valid in law.
The appeal is accordingly dismissed with costs.
Appeal dismissed.

summary/full:
The appellant as reversioner sued for a declaration that the adoption of respondent 1 by respondent 2 to her deceased husband was invalid in law and respondent 1 acquired no right to the properties left by the husband of respondent 2.
The parties were governed by the Banaras School of Mitakshal a Hindu law and respondent 1 was the sister 's daughter 's son of respondent 2.
The question was whether a wife 's sister 's daughter 's son could 'be validly adopted to a person governed by the Banaras School of Mitakshara Hindu Law.
The High Court answered it in the affirmative and dismissed the suit.
Reliance wag placed on behalf of the appellant in this Court on Nanda Pandit 's Dattak Mimansa which specifically ,excluded a wife 's sister 's daughter 's son for the purpose of adoption on the ground of incongruous relationship (Viruddha Sambandha) as also on the text of Ashvalayana interdicting marriage with a sapinda, sagotra and viruddha sambandha girl such as a wife 's sister 's daughter on which the author of Dattak Mimansa had relied.
It was contended that when a positive statement in the text was followed by a negative one, the latter 628 containing the prohibition must be held to be mandatory and that in any case since the prohibition against marriage to a sapinda or sagotra girl was mandatory, the prohibition against marriage to a Viruddha Sambandha girl must also be equally go.
Held, that the contentions were without substance and must fail.
Adoption of a wife 's sister 's daughter 's son is legally valid under the Banaras School of Mitakshara Hindu law.
None of the reasons which rendered marriage to a sapinda or sagotra girl invalid were present in the case of a marriage to a Viruddha Sambandha girl and the rule against marrying a Viruddha Sambandha girl was not intended by its author to be mandatory.
The extension of the rule of Viruddha Sambandha to adoption made by Nanda Pandit was not meant by him to be mandatory.
Minakshi vs Ramanada, Mad. 49, distin guished.
Held, further, that the marriage of a Hindu with his wife 's sister 's daughter is not invalid in Hindu law.
Ragavendra Rau vs
Jayaram Rau, Mad. 283, referred to.
Case law reviewed.


judgement:
Appeal No. 155 of 1961.
Appeal by the special leave from the judgment and order dated January 5, 1959, of the Punjab High Court in Civil Writ Application No. 460 of 1957.
I. M. Lal, and M. L. Aggarwal, for the appellant.
section M. Sikri, Advocate General for the State of Punjab, N. section Bindra and P. D. Menon, for the respondents.
March 7.
The Judgment of the Court was delivered by MUDHOLKAR, J.
This is an appeal by special leave against the judgment of the Punjab High Court dismissing the appellants petition under article 226 of the Constitution.
715 The appellant was appointed a qanungo in the former State of PEPSU in the year 1950.
On December 1, 1953 he was appointed Assistant Consolidation Officer.
Certain complaints having been received regarding tampering with official records he was suspended and an enquiry was held against him by the Revenue Secretary of PEPSU Government.
As a result of that enquiry the Revenue Secretary dismissed him by order dated August 30, 1956, on the ground that the appellant was not above board and was not fit to be retained in service. ""his order was duly communicated to the appellant.
Thereupon the appellant preferred an appeal before the State Government.
It would appear that he had submitted an advance copy of his appeal to the Revenue Minister of PEPSU who called for the records of the case immediately.
After perusing them he wrote on the file that the charges against the appellant were serious and that they were proved.
He also observed that it was necessary to stop the evil with a strong band.
He, however , expressed the opinion that as the appellant was a refugee and bad a family to support, his dismissal would be too hard and that instead of dismissing him outright he should be reverted to his original post of qanungo and warned that if be does not behave properly in future he will be dealt with severely.
On the next day the State of PEPSU merged in the State of Punjab.
According to the appellant the aforesaid remarks amount to an order of the State Government and that they were orally communicated to him by the Revenue Minister.
This is denied on behalf of the State.
It is, however, common ground that the aforesaid remarks or order, whatever they be, were never communicated officially to the appellant.
After the merger of PEPSU with the State of 716 Punjab the file was put up before the Revenue Minister of Punjab, Mr.
Darbara Singh.
On December 1/4, 1956, Mr. Darbara Singh remarked on the file "Serious charges have been proved by the Revenue Secretary and Shri Bachhittar Singh was dismissed.
I would like the Secretary i/c to discuss the case personally on 5th December, 1956.
" Then on April 2/8, 1957 the Minister noted on the file "C.M. may kindly advise." With this remark the file went up before the Chief Minister, Punjab, who on April 16/18, 1957, passed an order, the concluding portion of which reads thus : "Having regard to the gravity of the charges proved against this official, I am definitely of the opinion that his dismissal from service is a correct punishment and no leniency should be shown to him merely on the ground of his being a displaced person or having a ' large family to support.
In the circumstances, the order of dismissal should stand.
" This order was communicated to the appellant on May 1, 1957.
Thereafter he preferred petition under article 226 of the Constitution which, as already stated, was dismissed by the Punjab High Court.
The validity of the order of the Revenue Secretary dismissing the appellant was not challenged before us.
The point urged before us is that the order of the Revenue Minister of the PEPSU having reduced the punishment from dismissal to reversion, the Chief Minister of Punjab could not sit in review over that order and set it aside.
Two grounds are urged in support of this point.
The first is that the order of the Revenue Minister of PEPSU was the order of the State Government and was not open to review.
The second ground is that in any case it was not within the competence of the Chief Minister of Punjab to deal with the matter 717 inasmuch as it pertained to the portfolio of the Revenue Minister.
Before we ' deal with the grounds we may state that the High Court was of the opinion that proceedings taken against the appellant were made up of two parts : (a) the enquiry (which involved a decision of the question whether the allegations made against the appellant were true or not) and (b) taking action (i.e., in case the allegations were found to be true, whether the appellant should be punished or not and if so in what manner.) According to the High Court the first point involved a decision on the evidence and may in its nature be described as judicial while the latter was purely an administrative decision and that in so far as this was concerned there was no reason why the State Government was incompetent to change its decision "if it thought administratively advisable to do so".
We cannot accept the view taken by the High Court regarding the nature of what it calls the second part of the proceedings.
Departmental proceedings taken against a Government servant are not divisible in the sense in which the High Court understands them to be.
There is just one continuous proceeding though there are two stages in it.
The first is coming to a conclusion on the evidence as to whether the charges alleged against the Government servant are established or not and the second is reached only if it is found that they are so established.
That stage deals with the action to be taken against the Government servant concerned.
The High Court accepts that the first stage is a judicial proceeding and indeed it must be so because charges have to be framed, notice has to be given and the person concerned has to be given an opportunity of being heard.
Even so far as the second stage is concerned article 311(2) of the Constitution requires a notice to be given to the person concerned ' as also an opportunity of being heard.
718 Therefore, this stage of the proceeding is no less judicial than the earlier one.
Consequently any action decided to be taken against a Government servant found guilty of misconduct, is a judicial order and as such it cannot be varied at the will of the authority who is empowered to impose the punishment.
Indeed, the very object with which notice is required to be given on the question of punishment is to ensure that it will be such as would be justified upon the charges established and upon the other attendant circumstances of the case.
It is thus wholly erroneous to characterise the taking of action against a person found guilty of any chargo at a departmental enquiry as an administrative order.
What we have now to consider is the effect of the note recorded by the Revenue Minister of PEPSU upon the file.
We will assume for the purpose of this case that it is an order.
Even so the question is whether it can be regarded as the order of the State Government which alone, as admitted by the appellant, was competent to hear and decide an appeal from the order of the Revenue Secretary.
article 166(1) of the Constitution requires that all executive action of the Government of a State shall be expressed in the name of the Governor.
Clause (2) of article 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor.
Clause (3) of that Article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business.
What the appellant calls an order of the State Government is admittedly not expressed to be in the name of the Governor.
But with that point we shall deal later.
What we must first ascertain is whether the order of the Revenue Minister is an order of the State Government i.e., of the Governor.
In this 719 connection we may refer to r. 25 of the Rules of Business of the Government of PEPSU which reads thus : "Except as otherwise provided by any other Rule, cases shall ordinarily be disposed of by or under the authority of the Minister incharge who may by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department.
Copies of such standing orders shall be sent to the Rajpramukh and the Chief Minister.
" According to learned counsel for the appellant his appeal pertains to the department which was in charge of the Revenue Minister and, therefore, he could deal with it.
His decision and order would according to him, be the decision and order of the State Government.
On behalf of the State reliance was, however, placed on r. 34 which required cer tain classes of cases to be submitted to the Rajpramukh and the Chief Minister before the issue of orders.
But it was conceded during the course of the argument that a case of the kind before us does not fall within that rule.
No other provision bearing on the point having been brought to our notice we would, therefore, hold that the Revenue Minister could make an order on behalf ' of the State Government.
The question, therefore, is whether he did in fact make such an order.
Merely writing something on the file does not amount to an order.
Before something amounts to an order of the State Government two things are necessary.
The order has to be expressed in the name of the Governor as required by cl.
(1) of article 166 and then it has to be communicated.
As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made.
Until such an order is drawn up the State Government cannot, in our opinion, be 720 regarded as bound by what was stated in the file.
As along as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.
The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities.
The constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Raj pramukh.
It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh.
We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh,* is to act with the aid and advice of his Council of Ministers.
Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State.
Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion.
Which of them can be regarded as the "order ' of the State Government? Therefore to make the opinion amount to a decision of the Government it must be communicated to the person concerned.
In this connection we may quote the following from the judgment of this Court in the State of Punjab vs Sodhi Sukhdev Singh (1). "Mr. Gopal Singh attempted to argue that before the final order was passed the Council *Till the abolition of that office by the Amendment of the Constitution in 1956.
(1) ; 409.
721 of Ministers had decided to accept the respon dent 's representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders.
We are unable to understand this argument.
Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communica ted to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent.
" Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order.
For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.
We are, therefore, of the opinion that the remarks or the order of the Revenue Minister, PEPSU are of no avail to the appellant.
Now as regards the next contention, Learned counsel for the appellant contends that since his appeal was not decided by the Revenue Minister of Punjab, Mr. Darbara Singh but by the Chief Minister Mr. Pratap Singh Kairon, who bad no jurisdiction to deal with it, the appeal must be deemed to be still pending.
In this connection he relied upon r. 18 of the Rules of Business framed by the Governor of Punjab which corresponds to r. 25 of the PEPSU rules, which reads thus: " 'Except as otherwise provided by any other Rule., cases shall ordinarily be disposed 722 of by or under the authority of the Minister in charge who may, by means of standing orders give such directions as he thinks fit for the disposal of cases in the Department.
Copies of such standing orders shall be sent to the Chief Minister and the Governor.
" Now, unquestionably the matter here did pertain to the portfolio of the Revenue Minister.
But it was he himself who, after seeing the file submitted it to the Chief Minister for advice.
Learned counsel, however, contends that the Chief Minister could, therefore, only give him advice and not asurp the jurisdiction of the Revenue Minister and decide the case himself.
But this argument ignores r.28 (1) of the Punjab Rules of Business, the relevant portions of which run thus: "28 (1) The following classes of cases shall be submitted to the Chief Minister before the issue of orders : x x x (ii) Cases raising questions of policy and Cases of administrative importance not already covered by the Schedule.
x x x (vii) Proposals, for the prosecutions, dis missal, removal or compulsory retirement of any gazetted officer.
x x x (xix) Such other cases or classes of cases as the chief Minister may consider necessary.
The learned Advocate General contends that the case would be covered by every one of these clauses.
In our opinion, cl.(vii) cannot assist him because it is not the contention of the State that the appellant is a gazetted officer.
We, however, think that 723 cl.
(ii) would certainly entitle the Chief Minister to paw an order of the kind which he has made here.
The question to be considered was whether though grave charges had been proved against an official he should be removed from service forthwith or merely reduced in rank.
That unquestionably raises a question of policy which would affect many cases all and the departments of the State The Chief Minister would, therefore, have been within his rights to call up the file of his own accord and pass orders thereon.
Of course, the rule does not say that the Chief Minister would be entitled to pass orders but when it says that he is entitled to call for the file before the issue of orders it clearly implies that he has a right to interfere and make such order as he thinks appropriate.
Finally there is cl.
(xix) which confers a wide discretion upon the Chief Minister to call for any file and deal with it himself.
Apart from that we may refer to r. 4 of the Rules of Business of the Punjab Government, which reads thus : "The Council shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these Rules whether such orders are authorised by an individual Minister on a matter pertaining to his portfolio or as the result of discussion it a meeting of the Council, or howsoever otherwise." Thus the order passed by the Chief Minister even though it is on a matter pertaining to the portfolio of the Revenue Minister, will be deemed to be an order of the Council of Ministers.
So deemed its contents would be the Chief Minister 's advice to the Governor, for which the Council of Ministers would be collectively responsible.
The action taken thereon in pursuance of r. 8 of the Rules of Business made by the Governor under article 166(3) of the Constitution 724 would then be the action of the Government.
Here one (if the Under Secretaries to the Government of Punjab informed the appellant by his letter dated May, 1, 1957 that his representation "had been considered and rejected", evidently by the State Government.
This would show that appropriate action had been taken under the relevant rule.
The appeal is thus without substance and is dismissed.
In view of the fact that the appellant is a displaced person with heavy responsibilities and with limited or possibly hardly any means we direct that the costs shall be borne by the parties concerned.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was appointed a qanungo in Pepsu and latter as Assistant Consolidation Officer.
Complaints having been received against him, an enquiry was held as a result of which he was dismissed by the Revenue Secretary.
Against this order he preferred an appeal to the State Government.
The Revenue Minister Pepsu wrote on the file 'chat dismissal would be too hard and instead he should be reverted as qanungo but no written order to that effect was served upon the appellant.
After merger of Pepsu with Punjab, the Revenue Minister Punjab sent up the file to the Chief Minister with the remarks "C.M. may kindly advise".
The Chief Minister passed the order confirming the dismissal.
and the order was duly communicated to the appellant.
The appellant challenged the order of the Chief Minister Punjab on the ground that the Chief Minister Punjab could not sit in review on the order of the Revenue Minister Pepsu and that the Chief Minister was not competent to deal with the matter as it pertained to the portfolio of the Revenue Minister.
Held, that the order of the Revenue Minister Pepsu could not amount to an order by the State Government unless it was expressed in the name of Rajpramukh as required by article 166(1) of the Constitution and was then communicated to the appellant.
Until the order was so communicated it was only of a provisional character and could be reconsidered over and ever again.
Before communication the order was binding neither on the appellant nor on the State Government.
State of Punjab vs Sodhi Sukdev Singh A.I.R. (1961) 2 S.C.R. 3 71 referred to.
714 Held, further, that the Chief Minister Punjab was competent to deal with the appeal and to pass the order which he did.
Under r. 25 of the Rules of Business of the Punjab Government the matter undoubtedly related to the portfolio of the Revenue Minister.
But since tinder r. 28(1)(ii) and (xix) which provide that cases involving questions of policy and cases of administrative importance and such other cases or classes of cases as the Chief Minister may consider necessary shall be referred to the Chief Minister, the case was properly referred to the Chief Minister.
Under r. 4 the order passed by the Chief Minister, even though it pertained to the portfolio of the Revenue Minister, would be deemed to be an order of the Council of Ministers.
It would be the Chief Ministers advice to the Governor, for which the Council of Ministers Would be collectively responsible and action taken thereon would be the action of the Government.
Departmental proceedings cannot be divided into two parts : (i) enquiry and (ii) taking of action ; there is one conti nuous proceeding though there are two stages.
Any action decided to be taken against a public servant found guilty misconduct is a judicial order and as such it cannot be varied at the will of the authority.


judgement:
minal Appeal No. 2244 of 1959.
Appeal by special leave from the judgment and order dated 1959, May 5 of the Allahabad High Court in Criminal Appeal No. 1049 of 1958 and Government Appeal No. 1766 of 1958.
Jai Gopal Sethi, O. L. Sareen and B. L. Kohli for the Appellants.
G. C. Mathur and C. P. Lal fur the Respondent.
March 9.
The Judgment of Kapur and Das Gupta, JJ. was delivered by Kapur, J. Dayal, J., delivered a separate Judgment.
KAPUR, J.
The appellants and Prithviraj Singh were tried by the Sessions Judge, Hamirpur, the former for offences under section 302, read with section 149 and section 201 read with section 149 and of them some under 8. 147 and others under section 148 and the latter under section 201 read with section 149 of the Indian Penal Code.
From amongst the accused persons Nathu Singh was acquitted and so was Prithviraj Singh but ten others were convicted under section 302 read with section 149 and section 201 read with section 149 and two of them were convicted under section 147 and others under 9. 148.
The Sessions Judge sentenced the convicted persons to imprisonment for life under section 302 read with section 149, to three years ' rigorous imprisonment under section 201 read with section 149, two of them to two years ' rigorous imprisonment under section 141 and others to three years ' rigorous imprisonment under section 148 but all the sentences were concurrent.
Against that order the convicted persons took an appeal to the High Court at Allahabad and the State appealed against the acquittal of Nathu Singh and also applied for enhancement of sentences against the con victed persons.
The High Court dismissed the appeal of the convicted persons and allowed the appeal against Nathu Singh.
Thus 11 persons were convicted and sentenced to imprisonment for life 771 and to other concurrent sentences and they have appealed to this court by special leave.
The appellants and Prithviraj Singh are residents of village Kharela and they were on terms of enmity with the deceased Raja Ram Singh.
On July 28, 1957, at about 3 30 p.m. the appellants collected in front of the house of Kali Charan appellant, two of them armed with lathis, two with pharsas and seven of them had spears.
Dharam Singh appellant asked RajaRam Singh as to why he, had been abusing him to which the reply given by Rajaram Singh was that he was not in the habit of abusing any body at his back and if he felt like abusing any body he would do so to his face and he fixed his spear in the ground and stood there.
Appellant Dharam Singh threw away the spear, rushed towards Rajaram Singh, caught hold of him by the waist and asked his ten companions to beat the enemy.
Rajaram Singh was thereupon attacked with various weapons as a result or which he, fell down severely injured.
He was still alive when appellants Sheo Rattan Singh and Gulab Singh struck on his neck with pharsas and partially severed it.
At the instance of Dharam Singh, his cart was brought by others and Prithviraj Singh also arrived at the spot.
Dharam Singh asked him to go home and bring his Dharam Singh 's) gun which Prithviraj Singh did and handed, over the gull and the bandolier of cartridges to Dharam Singh who loaded the gun, put the dead body of the deceased on the bullock cart and the ten persons then took away the dead body from the village and it is alleged that they left it in a nullah near village Jataura.
There is a police post in the village of which Head Constable ' Shivsewak Singh is incharge and there is also is an armed guard there.
At 3 45 p.m. Shyam Lal who is the brother in law (wife 's brother) of Rajaram Singh made a report at the police 772 post and at 7 30 p.m. he made a report at the police station Muskara which is 8 miles away from village Kharela.
This occurrence was witnessed by five persons P. W. Babu Singh.
P. W. Shivnath Singh, P. W. Ram Narain, P. W. Mulain Singh and P. W. Brij Rani.
While the corpse was being taken in the bullock cart three witnesses deposed to having seen it being carried in the cart.
They are Ram Nath P. W. 21, Tijiwa P. W. 22 and Jurkhan P. W. 23.
In the High Court the appeal was heared in the first instance by Cak and Verms JJ.
There was a difference of opinion between the learned judges and the matter was referred under section 429, Criminal Procedure Code to Desai J., who agreeing with Cak J., upheld the conviction of the ten appellants who were convicted by the Sessions Judge and set aside the acquittal of Nathu Singh.
Thus 11 persons were convicted and they have appealed to this court by Special Leave.
It was contended on behalf of the appellants that under section 429, Criminal procedure Code where there is difference of opinion between the judges constituting a Division Bench and the matter is referred to a third judge the opinion of the Judge acquiting the accused has to be treated in the same manner as the judgment of acquittal by the trial court and even though it may not be necessary 'to find compelling reasons for disagreeing with the opinion of the acquiting judge it is necessary that the judgment should show that all the findings and the reasons given in the opinion of the acquitting judge are mentioned in the opinion of the third judge and the judgment should indicate the reasons for disagreeing with the opinion of the acquitting Judge.
We can see no warrant for this contention, Section 429 of the Criminal Procedure Code Provides: 773 " When the Judges composing the Court of appeal are equally divided in opinion, the case, with their opinions 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".
All it says is that the opinion of the two judges who disagree shall be laid before another judge who after giving such hearing, if any, as he thinks fit, shall deliver his opinion and the judgment or order should be in accordance with such opinion.
Now it is obvious that when the opinions of the two Judges are placed before a third Judge be would consider those two opinions and give his own opinion and the judgment has to follow the opinion of the third judge.
Consequently on that opinion is based the judgment of the court.
For all practical purposes the third Judge must consider the opinions of his two colleagues and then give his own opinion but to equate the requirements with appeals against acquittals is not justified by provisions of section 429 or by principle or precedent.
Desai J., was of the opinion that the eye witnesses had seen the occurrence and their evidence must be accepted but there are certain circumstances proved by the evidence on the record which when considered materially affect the force of the finding in regard to oral evidence and which have to be considered in order to adjudicate on the correctness or otherwise of the prosecution case.
The first point is whether the murder was committed in the village as is submitted by the prosecution? According to the prosecution the murder was committed in the village at 3.30 p.m. in the mouth of July in broad daylight on a public road and the number of injuries caused to Rajaram Singh are such that there must 774 have been a fair amount of blood spilt at the place.
According to the prosecution evidence after the murder was committed Dharam Singh sent for his bullock cart which must necessarily have taken a little time.
Meanwhile Babu Singh P.W. went and informed Shyam Lal who went to make a report at the police post in the village.
It is stated to be about 4 furlongs away.
It is contended by the appellants that if the murder had taken place as stated and there was an armed guard in the village, it would have been difficult for the appellants to have sent for the cart, to put the dead body on it and take it out of the village and that within the time between the commission of the murder and the time of the making of Report at the police post; that there is a considerable doubt about the occurrence having taken place in the village because no blood was found at the place of the murder; at least no evidence has been produced to show that there was any blood there.
On behalf of the prosecution it was submitted that the evidence discloses that after the murder the blood was washed away by throwing a, good deal of water and plastering the place and thus no blood was found when the place was visited by the investiga ting Sub Inspector.
It was also submitted that some blood was found on the wall of the chabutra in front of the house of the appellant Kali Charan which was collected in a small tin and was sent to the Chemical Examiner.
It may here be pointed out that when the dead body was to the place where it was found 6 1/2 miles away from the place of occurrence the neck was cut and taken away and only the headless body was 'found there.
That place was in the dry bed of a nullah.
According to the prosecution; witness Ram Avtar there plenty of blood there but P. W. Raziuddin stated that blood was found in drops lying in adjacent places but it was not found in heavy quantities at one place.
Blood stained earth was taken from the 775 wall of the chabutra of Kali Charan.
Unstained earth was also taken from the same place which was also put in a small tin.
Blood stained earth was also taken from the place in the bed of the nullah where the dead body was found.
All these tins were sent to the Chemical Examiner.
It is not quite clear what exactly was his finding but he found that the earth in two tins was blood stained but blood has not been shown to be of human origin.
It is not clearly shown as to what was the extent of the blood on the wall of the chabutra of Kali Charan.
Desai J., was of the opinion that a lot of blood must have been spilt at the place where the murder was stated to have been committed but Kali Charan poured water over the spot, therefore no blood was visible at the spot and the Investigating Officer found the place wet when he examined it at night and that no explanation was given by the appellants as to bow blood came to be on the wall of the chabutra.
It does not appear from the examination of the appellants under section 342 that any question was put to Kali Charan in ragard to the finding of the blood on the wall of his chabutra nor was any of the other appellants asked this question.
The High Court should not have used this fact against the appellants.
Another circumstance which has been pressed at great length on behalf of the appellants is that no attempt was made to take any earth from the place and no investigation was made as to whether there was any blood at the spot or not.
If at man 's neck is cut and he is caused the number of injuries that the deceased had, the amount of blood spilt there must have been in a fairly large quantity and it is difficult to imagine that just by pouring water over the spot and plastering it no blood was visible and even if it was not visible no blood could be found if any effort was made.
No attempt seems to have been made to take the earth from there and send it.
to the Chemical Examiner for the purpose 776 of examination.
Desai J., has observed that the Investigating Officer found the ground to be wet.
The Investigating Officer came there at II p.m. on the night of occurrence which was a dark night and if he found the place to be wet it is not clear whether it was wet because of water or because of blood.
It was the month of July when any water poured at 3 30 p.m. should have dried up by 11 p.m. Anotier point which has been pressed on behalf of the appellants is that no trail of blood was discovered from the place where the murder is alleged to have been com.
mitted to the place where the dead body was ultimately found in the dry bed of the nullah.
Although the evidence is conflicting there was some amount of blood at the place where the dead body was found.
The head had been completely severed and taken away.
In the cart also there was some blood and a blood stained axe was also found there.
Therefore if the head was out at the place where the dead body was found and there was blood oozing out at that time it is difficult to imagine that there would not be any blood oozing all the time and there would be no trail of blood.
But none has been found.
It may be pointed out that there was blood on the planks of the cart on which the dead body is alleged to have been taken.
According to the books on Medical Jurisprudence blood does not coagulate till after four hours.
Therefore the submission of the appellants that there should have been some trail of blood from the place where the murder was committed to the place where the dead body was taken has considerable force.
The judgement of Desai, J., seems to indicate that the onus of certain matters was placed on the appellants which is unwarranted by law.
For instance, the learned Judge said that the appellants were asked in the Magistrate 's court about the 777 evidence that they had killed Rajaram Singh at 3 30 p.m. in the abadi and had then carried away his dead body in the cart of Dharam Singh.
and they contented themselves by denying all the allegations and none of them had said that the deceased was not murdered in the abadi and in the day time.
The learned Judge then observed: "If he was not murdered in the adadi and in day time they must have heard when and where he was murdered.
Their statements were not evidence governed by the Evidence Act and they could say that they had heard.
Yet when they refrained from saying anything about it, it just shows that they had not heard that Raja Ram Singh was murdered elsewhere and at another time".
This, in our opinion, was an erroneous approach to the question.
At another place in his judgment the learned Judge again seems to have placed the onus on the appellants and that was concerning the ownership of the cart in which the dead body was taken.
The finding of the bloodstained bullock cart was relied upon by the prosecution in support of their case.
That evidence was attacked on the ground that there was no identification parade of the cart and the bullocks.
The learned Judge said in regard to this matter that there was no necessity for any identification proceedings because if the Investigating Officer believed the witness who stated that the cart belonged to Dharam Singh then he was not required to cross examine the prosecution witnesses by asking them to identify the cart and the bullocks.
He then observed: "Dharain Singh, Babu Singh and Prithviraj Singh appellants denied that the cart and the bullock produced were theirs but did not say to whom they belonged and how they were obtained by the police.
They also did 778 not produce any evidence to rebut the evidence of the prosecution witnesses about their ownership".
In that very connection the learned Judge has also relied on the fact that the bullock cart was brought from the bara of Ram Adhin Singh and the site plan prepared by S.H.O. showed that there, were signs of fresh removal of the bullock cart from the bara.
Now this again is not admissible evidence because nothing shown on the plan unless deposed to by witnesses is evidence against the appellants.
It was so held in Santa Singh vs State of Punjab (1) and Tori Singh vs State of Uttar Pradesh (2).
There is another significant fact in regard to this cart According to prosecution witness Babu Singh, the bullock which were yoked in the cart belonged to Ram Adhin Singh when he was asked to identify he said one of them was the same but the second one was not the same which was yoked in the cart at the time when the dead body was being taken.
It is an extraordinary circumstance that the bullocks which are alleged to have belonged to Ram Adhin Singh, and which were yoked to the cart carrying the dead body, which all the time remained in police custody got changed so that one of the bullocks is not the same.
Another circumstance which is equally significant is the finding of the yoke of prosecution witness Tijiwa with the cart.
It is stated that Tijiwa met the appellants when they were driving the cart away from the village.
At the time Tijiwa was returning home bringing his employers cart.
Tijiwa 's yoke was borrowed because the yoke of the cart driven by the appellants got broken and Tijiwa 's yoke was found at the place where the cart was subsequently dis covered.
What happened to the broken yoke is not shown, how Tijiwa took his own cart back without the yoke to the village is not shown.
This circum (1) A.I. (2) [1962] 3S.C.R. 779 stance does not seem to have received the attention of the High Court which it deserved.
The appellants have vigorously pressed before us another argument which deals with the First Information Report and investigation by the police.
According to the prosecution the occurrence was at about 3 30 p.m. and an information was given at the police post at 3 45 p.m. and according to the evidence of the prosecution witness Raziuddin, the Head Constable and two constables of the armed guard proceeded to recover the dead body and follow the murderers by following the track of the cart.
They left the police post of Kharela at 3 45 p.m., and from there they went to the house of the appellant Kali Charan and then they followed the track of the bullock cart.
At a distance of four or five paces from the place of occurrence they met Pancham Singh who does not seem to be a witness; so what he stated to the constable is not evidence.
They then followed the track of the bullock cart and found the dead body lying in the nullah about three furlongs away from the ' abadi of village Jataura.
The dead body was headless.
They left the two armed guards at the place and proceeding a little further they found the bullock cart with the two bullocks and there was no one near the bullock cart.
Head Constable Shivsewak Singh bad gone at 12 noon to Balatal for appearing as a witness.
There are no entries in the Police Duty Register at the Police Post as to his return nor as to his going with Raziuddin and others following the track of the cart.
Leaving the armed guard at the place where the dead body was found Head Constable Shivsewak Singh went to Jataura and called Chowkidar Sumera.
At about 10 or 11 in the night he sent Chowkidar Sumera to Thana Charkhari to give information and it is stated that as a result of the 780 information given by Chowkidar Sumera the Sub Inspector in charge of Charkhari Police Station came to the place where the dead body was found and he started the investigation on the morning of July 29, 1957.
He took the dead body into possession, held the inquest report and took bloodstained earth and the cart into possession.
There is no reason why the Head Constable should have sent Sumera to the police station Charkhari when the offence was committed in the village in the jurisdiction of police station Muskara.
It is next stated that the Officer in Charge of Muskara Police Station, Sub Inspector Basu Deo came to village Kharela at 11 p.m.
There is no entry in the Register at the Police Post showing his coming to the place of the occurrence.
He has deposed that he went to the place of occurrence and noticed that outside the house " 'Some water appeared to be lying and at places it appeared that the ground had been washed with hand and water".
How in the middle of a dark night he could have seen all that has been explained and the appellants rightly challenge his very coming to the village at that time.
From these circumstances the appellants submit that there is a great deal of doubt as to the time of the making of the First 'Information Report and the time and place of murder.
We have these facts which cast a good deal of doubt as to the authenticity of the report or the investigation by the police of Muskara into the alleged occurrence.
(1) if the information was given at the police post soon after the occurrence, as is alleged, there is no reason why the police should not have reached the place and prevented the removal of the dead body which was after all being carried on a bullock cart.
(2) It is not shown by the entries of the Duty Register that the Head Constable returned from Balatal at 4 O 'Clock and came back to the village 781 (Kharela) and then proceeded to follow the track of the bullock cart in which the dead body was alleged to have been carried.
(3) There is no reason why when the dead body was found near the nullah at about 6 30 p.m. the Head Constable should have sent the Chowkidar of Jataurs to Police Station Charkhari to make a report at that place and why the investigation should have.been carried on by the police of that police station and not by the police of Muskara Police Station when the latter had come to know of it about 6 30 p.m. that murder had been committed in their jurisdiction.
(4) There is no reason why the Police Sub Inspector Kharela Police Post should go at 11 p.m. and in a most casual manner to the place of occurrence, see water lying at the place and that in the hot mouth of July.
Why the next day he did not take any earth from that place is also a very significant question.
(5) There is total absence of blood at the place of the occurrence.
It is stated that there was some blood on the wall of chabutra of Kali Charan what was the extent and nature of the blood is not shown.
How far the chabutra was from the exact place of murder is not shown.
(6) There is no evidence at all that any earth was opened with human blood.
(7) There is total absence of entries in the Duty Register.
Therefore the coming of Sub Inspector Basu Deo is also doubtful.
There is no indication that there was any trail of blood even for a short distance from the place of occurrence.
(8) The evidence in regard to the borrowing of the yoke from prosecution witness Tijiwa is highly suspicious in the circumstances of this case.
782 (9) Lastly we find that the approach of the learned Judge to the case is not in accordance with law in that as to two or three matters he has approached the question as if it is for the defence to disprove certain facts.
For instance the failure of the defence to produce reliable evidence to contradict eye witnesses there failure to state that the murder was not committed in the village ; there failure to say as to whom the cart belonged if it did not belong to Dharam Singh.
Desai J., was of the opinion that no blood was found by Raziuddin on the way from the abadi to the nullah and no trail of blood could be expected because the bleeding must have stopped before the cart left the abadi.
On what evidence he found that bleeding must have stopped is not clear.
The learned Judge also relied upon the fact that Chowkidar Sumera made a report at the police station Charkhari about certain facts which are mentioned there.
Sumera is not a witness.
Therefore what he stated cannot be evidence in this case.
It appears that the learned Judge also took into consideration the fact that the appellants were absconding and that they gave no explanation as to their absconding but they do pot seem to have been asked any question in regard to it.
In regard to the witnesses Ram Nath, Tijiwa and Jurkhan who saw the dead body being carried in the cart, the learned Judge said that he found no reason to disbelieve their testimony.
At another place in the judgement the learned Judge observed that when witnesses talked about the neck of Rajaram Singh being out they must have been tutored about it.
In this view of the matter and taking other material improbabilities in the testimony of these witnesses which the learned Judge does not seem to have considered it is difficult to place any reliance on their evidence.
783 The whore case is full so many inconsistencies and improbabilities and peculiarities that it must be said that the case has not been established against the appellants beyond reasonable doubt.
We are opinion that the High Court 's failure to consider the important circumstances disclosed by the evidence, and the error in wrongly placing onus on the accused has resulted in miscarriage of justice.
The case therefore falls within the rule laid down in Pritam Singh vs State (1) and calls for our interference.
In these circumstances the conviction of the appellants must be set aside and the appeal must be allowed.
The appellants are acquited & must be released forthwith unless required in some other case.
RAGHUBAR DAYAL, J.
I have bad the advantage of perusing the judgment prepared by my learned brother Kapur, J. I agree with the interpretation of section 429, Cr.
P.C. I am, however, of opinion that the circumstances urged for the appellants do not justify interference with the verdict of the High Court on questions of fact.
They have all been considered by Desai J., in forming his opinion.
He has relied on the statements of the eye witnesses.
It is argued for the appellants that the circumstances tend to throw doubt on the correctness of the prosecution story that the incident took place inside the village abadi and that therefore the appellants ' conviction should be set aside.
The first circumstance is that the incident took place at 3.30 p. m., information about it reached the police outpost four furlongs away at 3.45 p.m., the armed guard at the outpost then proceeded to the spot and yet it is said that the (1) ; 784 accused could remove the dead body from the spot prior to the arrival of the armed guard.
The getting of the bullock cart and the loading of the corpse would have taken sufficient time and the arrival of the armed guard could have been within that time.
In this connection, it is to be noticed that Babu Singh, P. W. 1, an eye witness, left the spot after the body had been removed on the cart.
It was he who informed Shyam Lal about the incident.
Thereafter, Shyam Lal left for the police outpost.
Babu Singh states : "After the cart left I rain to the house of Raja Ram Singh.
There we met Shyam Lal.
I told Shyam Lal all what I witnessed.
He went to the police outpost to make a report and I went home.
" The first information report was lodged at the thana at 7.30 p.m.
It mentions the fact of the dead body being taken away on the cart.
In view of this fact it is clear that the armed guard could not have reached the spot in time to prevent the removal of the corpse.
Another fact against the circumstance urged is that the incident did not take place at 3.30 p. m., which was really the time when Babu Singh informed Shyam Lal Shyam Lal dictated in the first information report : "At about 3.30 p.m., Babu Singh. came to my house and informed me as follows. ".
The incident therefore must have started much earlier, say at about 3 O ' clock and the body must have been removed by about 3.25 p.m.
The other circumstance urged.
is that no bloodstained earth was found at the spot and that therefore this throws doubt on the incident having taken place at the spot alleged.
It is in the prosecution evidence that some of the accused washed the 785 ground where blood had fallen and plastered it.
According to the Sub Inspector, P. W. 27, bloodstained earth was taken in possession from the door of the accused Kalicharan Singh, which really means, from the front of his house.
Siya Ram, P.W. 26, stated that a few places in the Chabutra where blood stains were detected were scraped and that the stains were on the walls of the Chabutra.
The recovery list exhibit K 29 mentions : "blood stained earth was scraped from in front of the house of Sri Kali Charan, son of Bhan Singh, Thakur, ;and from the 'Chabutra ' (platform), whereon there appeared to be some stains of blood.
" Blood stained earth from the place where the dead body was recovered was also taken in possession.
The two samples of earth so taken in possession were sent in different packets to the Chemical Examiner who found them stained with blood.
The Serologist could not determine the nature of the blood due to disintegration.
In vie* of this evidence, it cannot be said that no blood stained earth was found at the alleged spot.
Further, Raziuddin, P.W. 17, who went with the armed guard to the spot stated; ",When at first I visited the house of Kali Charan I had noted that in front of his house there were indications of the washing of the ground at places.
It appeared that somebody had removed things from that place with hands and legs by spreading water at different places.
" This supports the statement of the other witnesses about the washing and plastering of the spot.
Sub Inspector Basudeo, P.W. 27, stated that when he reached the house of Kali Charn at about 11 p.m., he noticed that outside it some water 786 appeared to be lying and at places it appeared that the ground had been washed with hand and water.
It is true that the night was dark and he did not carry out the local inspection due to want of a suitable light.
But these facts can hardily affect his testimony.
He could not have mistaken the nature of the witness and should have been able to distinguish whether it was from water or from blood.
The witness of the ground is not to be doubted even though about 8 hours had elapsed since the washing took place.
Raziuddin has deposed that there had been rain fall two days earlier.
The incident had taken place on the 28th of July.
The ground could have been went from before and fresh washing could have wetted it more.
In fact, the more the spilling of blood, the more would have been the water used to wash it away.
Another circumstance urged is that no trail of blood was noticed between the village and the actual place where the dead body was recovered, a distance of over six miles.
The corpse was laid on the planks of the cart.
They got blood stained.
Any dropping of the blood from the cart on the track would have depended on the extent of the flow of blood and on the openings between the planks.
It is not expected that blood would have fallen in a continuous stream.
Some drops could have fallen down at places.
They could ' be easily pressed upon by the accused 's feet, some of whom would have been walking behind the cart.
The armed guard and others who followed the cart in pursuit were more.
concerned with the following of the marks left by the art than with noticing some minute drops of blood which might have fallen here and there on the track.
Absence of blood on the passage, therefore cannot discredit the prosecution case.
787 When the cart was produced in Court, it had one of the bullocks used at the time when the corpse was removed and another bullock substituted for the other one.
Much has been made of this change in the other bullock.
The Sub Inspector has stated in his evidence.
" I had entrusted the recovered bullocks and carts to the custody of Binda Lodhi of village Kharedi.
One bullock which is white in colour could not be brought here as it is suffering from small pox.
" The questions put to the accused mentioned the allegation about the other bullock suffering from small pox and in their replies this fact was not denied.
The police was not, in charge of the cart and the bullock and explanation has been given for not producing the other bullock in Court.
This circumstance too cannot therefore affect the correct ness of the prosecution case.
It has also been urged that the carts and bullocks found near the dead body were not put up for identification by witnesses.
Desai, J., has rightly observed that when witnesses could recognize the cart and bullocks there could be no point in having the cart and bullocks formally identified before a Magistrate.
Only such articles and accused are put up for a test identification as are not known to the witnesses.
Those known are never put up for identification.
The statements of the witnesses who re cognized them are judged from other circumstances.
Further, the evidence about the ownership of the cart was only by way of corroborating the statements of the prosecution witnesses.
Any cart which could be available to the accused could be used for the purpose of transporting the dead body.
Tijwa, P. W. 22, stated that Arjun Singh, accused, stopped the cart about a mile from the village abadi when he was returning home from his 788 fields and replaced the yoke of the cart with that of Tijwa 's as the former bad broken.
It is urged that the absence of evidence with respect to what happened to the broken yoke and how the cart of Tijwa reached the village, important circumstances, had not been noticed by the High Court in its judgment.
These circumstances cannot be said to be important.
In fact, they were very remotely relevant to test the veracity of Tijwa.
Tijwa was not cross examined about it.
He stated that the broken yoke was also taken away in the cart of Arjun Singh.
It should follow that Tijwa 's cart remained on the passage till its owner Mahadev Brahmin could have brought it back.
It may be mentioned that the recovery memo, exhibit K. 22, did not mention about the finding of the broken yoke in the cart.
The broken yoke is said to have been tied with a towel.
It might have been that the accused had removed the towel and thrown away the broken pieces.
The police party had no knowledge about the broken yoke when the cart was recovered and could not therefore have looked for the broken parts.
It may equally be that the broken yoke was used by Tijwa.
His cart had to go 'a much smaller distance that the cart which took the dead body to the nala.
When the accused started with the cart they expected the broken yoke to serve the purpose of driving the cart to the nala and back.
It was just accident that they happened to meet Tijwa on the way and borrowed his yoke.
However, I consider these matters very insignificant in assessing the correctness of the prosecution case.
Another matter severely commented upon for the appellants is the conduct of Sheo ' Sewak Singh, P. W. 20, Head Constable, Kharela Police Outpost, and the Investigating Officer, Basudeo, P. W. 27, mainly on account of the absence of entries in the duty register of the outpost about 789 Sheo Sewak Singh 's return there at about 4p.m., and about the Sub Inspector 's visit to it at about 11 p.m., on 28th July.
The Sub Inspector has stated : "It is not necessary to make any arrival and departure (entry) at police out post Kharela, when I visit that post in the record, of that outpost." The statement is with reference to making an entry about his arrival and departure.
He further stated: "I did not make any entry of my activities in the night between the 28th and 29th July 1957, in the record of police out post at Kharela nor it was necessary to note them there." And again: "Entries are made in the record at Kharela outpost about the duties allotted to the staff during duty hours." Sheo Sewak Singh, P.W.20, deposed: "I do make entries in the records at the police out post Kharela about my arrival there and also about my departure from that post.
These entries are made in the general diary by way of allotment of duty." Sheo Nandan Singh, P.W.19, Constable at that outpost, stated: "This (Ex.K.5) is not a general diary in which cases are registered and entered.
It is a register in which duties that are allotted and the Amad and Rawangi of the police staff are noted.
When the Sub Inspector attached so Muskara comes to the police out post at Kharela 790 he notes his arrival and departure in the register kept at police outpost Kharela.
No entry of his arrival and departure is made in the register in the night between the 28th and 29th of July 1957.
" Police officers do write their arrivals and departures in the general diary at the police station and may also be doing so at the out post duty registers, if Sheo Nandan Singh 's statement is to be preferred to the statements of the Sub Inspector and the Head Constable.
But even then such entries are usually made when the arrival of an outside police officer is in connection with some work at the out post.
A casual visit on his way to another spot may not be required to be noted.
Similarly, the return of a member of the police force at the out.post would be noted when he finally returns to duty.
His mere return to his quarters at the out,post may not be noted.
Any way, any omission to make an entry the duty register at the out post is not to discredit the entire prosecution evidence about the incident and the course of the investigation.
After the recovery of the dead body, Sumera, Chowkidar, was sent to Police Station Charkhari, in whose jurisdiction the dead body was found.
He lodged a report there at 3 a.m., and stated in it what had taken place earlier.
Ram Autar Dixit, P.W.14, the then second officer at Thana Charkhari, went to the spot, took in possession the dead body and the cart, prepared the inquest report and took other necessary steps.
Criticism.
is made of Sumera 's being sent to Charkhari police station and of ' this Sub Inspector making an investigation in connection with an offence said to have been committed in the jurisdiction of police station Muskara.
The criticism is unjustified.
The recovery of the corpse had to be 791 reported to the nearest police station and was properly made at Charkhari Police Station in whose jurisdiction also the dead body was found.
It was the duty of the Sub Inspector to proceed to the spot to prepare the inquest report and to take such other action as was necessary in the circumstances with respect to the recovery of the various articles (section 174 Cr.
P.C.).
He was not questioned about his bona fides or about his jurisdiction to do what he stated to have done.
The fact that Sumera was sent to report the recovery of the dead body to police station Charkhari can hardly lead to the conclusion that this was done as no incident had taken place in village Kharela as alleged by the prosecution.
Lastly, grievance is made of certain observations of Desai, J., generally to the effect that the accused had not stated something or had not led evidence to rebut the prosecution evidence on certain points.
It is urged that be therefore wrongly placed on the accused the onus of proving the defence version negativing the prosecution version.
I am of opinion that he made references to this as a factor supporting the conclusions hi) had already arrived at on the consideration of the evidence and circumstances.
He did not base his findings on such conduct of the accused.
He based his conclusion on more solid grounds.
Some of such observa tions are : (1) 'That the accused gave no explanation as to how the blood came to be on the wall of the Chabutra '.
The accused were not, questioned about it and therefore their omission to explain it could not go against them.
However, the fact that blood was found on the wall of the platform or in the earth in front of Kali Charan 's house was proved from the positive evidence on record.
792 (2) After Desai, J. had expressed his opinion about the reliability of the eye witnesses, he stated : "Kharela is a large village and if the murder did not take place inside the abadi and at 3.30 p.m. it would not have been difficult for the appellants to produce reliable evidence to contradict the eye witnesses, but they did not produce any evidence .
None of them said that Raja Ram Singh was not murdered in the abadi and in day time.
If he was not murdered in the abadi and in day time they must have heard when and where he was murdered.
Their statements were not evidence governed by the Evidence Act and they could say that what they bad heard.
" I am of opinion that there is nothing wrong in this observation when the incident is alleged to have taken place in broad daylight in the village abadi and yet the accused did not examine any witness to establish that no such incident took place in the village.
of course, a finding that the incident did take place in the village as alleged by the prosecution could not have been based on such consideration alone and the finding to that effect has not been so based.
(3) Similarly, Desai, J., made reference to certain accused not stating as to whom the bullock.
, ; .belonged and how they were obtained by the police.
A finding about the ownership of the cart and bullocks is based on the evidence of Tijwa and other witnesses and not on the omission of the accused to state as to whom they belonged.
Desai, J., was certainly wrong in using a note in the site plan when the subject matter of that note was not deposed to by any witness in Court, but this error with respect to the note that there were fresh marks of a cart in the cart enclosure of Dharam Singh had no significant bearing on the 793 In connection with Sumera 's Report at Police Station Charkhari, Desai, J., observed in his judgment : "Neither H.C. Sheo Sewak nor P.C. Raziuddin nor the armed guard had any interest in concocting a false case against the appellants on their own.
Therefore, when the information was conveyed through Sumera Chaukidar that Kharela police had gone in search of the murderers, it must be accepted that information was received at the out post at about 3 45 p.m. about the murder in the Abadi and that the outpost police went at once in search of the murderers.
In other words the murder must have been committed in the Abadi and in day time as deposed by the prosecution witnesses.
" Earlier, Desai J., had said what Sumera had informed at the Police Station.
He said: 'Sumera reached the police station at 3 a.m., met the second officer and informed him that constables of police circle Muskara went to his house in Jataura and told him that Raja Ram Singh was murdered, in Kharela, that the murderers carried away his corpse in a bullock cart and they and.
the head constable of the out post followed them, that the murderers ran away after throwing the corpse into the nala of Jataura, that the head of the corpse was missing but the bullock cart had been recovered and that he was sent to convey the information at the police station.
" I do Dot consider the evidence about Sumera 's making the report and stating certain things there to be inadmissible in evidence.
These are matters of record.
What he dictated cannot be considered to be substantive evidence of the facts stated, when 794 Sumera was not examined as a witness to prove them.
But what he actually dictated and the time when he dictated are facts which 'have been duly proved.
They can be considered to determine the probability of what the direct evidence tended to establish.
This is what Desai J., did when he used these facts of his making the report and making certain statements in considering that they tend to support the prosecution version.
It may be noted that he had earlier considered at length the suggestion that the entire prosecution case was concocted by the police and the villagers and bad given his reasons for repelling the suggestion.
Desai J., was in error to refer to the absconding of the accused as a circumstance against them as that had not been put to them when examined under section 342, Cr.
But as it did not basically affect the finding with respect to the correctness of the prosecution case, that would not justify interference with the findings of fact.
I would therefore dismiss this appeal.
By COURT.
In View of the opinion of the majority, the appeal is allowed.
The appellants are acquitted and must be released forthwith unless required in some other case.

summary/full:
The appellants were convicted of offences under section 302 read with section 34 and section 201 read with section 34 Indian Penal Code by the Sessions judge.
On appeal to the High Court there was a difference of opinion between the two judges who heard it and the case was referred under section 429 Code of Criminal Procedure to a third judge.
The third judge upheld the con victions.
The appellants contended that where a case was referred under section 429, the opinion of the judge acquitting the accused had to be treated as a judgment of acquittal and that the third judge must consider all the reasons given by the acquitting judge and his judgment should indicate the reasons for disagreeing with the opinion of the acquitting judge.
The appellants further contended that there were certain circumstances proved by the evidence on the record which showed that the eye witnesses could not be relied upon.
Held, that there was nothing in section 429 which required the third judge to whom the reference was made to act as though he was sitting in appeal against acquittal.
He had to consider the opinion of the two differing judges and to give his own opinion.
Held, further (per Kapur and Das Gupta JJ.
Dayal.
J. contra) that the judgment of the High Court suffered from such infirmities as placing the onus of proof of certain facts on the appellants and using of inadmissible evidence.
The case was full of so many inconsistencies and improbilities and peculiarities that it made it difficult to rely upon the testimony of the eye witnesses and to hold that the case against the appellants was established beyond reasonable doubt.
Per Dayal J.
The circumstances urged by the appellant did not make out a case for interference with the findings of facts of the High Court.