judgement:
Civil Appeal No. 1148 1979.
From the Judgment and Order dated 4.4.1979 of the Delhi High Court in S.A.O. No. 103 of 1979.
P.H. Parekh and A.K. Gupta for the Appellant.
940 Dr. U.R. Lalit, C.M. Oberai and D.N. Misra for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
This appeal by special leave is directed against a judgment of the Delhi High Court dismissing the second appeal preferred by the appellant herein to impugn the order passed against him in execution proceedings taken under Section 21 of the Delhi Rent Control Act 1958 by the Rent Controller and confirmed by the Rent Control Tribunal.
The respondent, a Government official who has since retired from service is the owner of a house bearing number A/15, Naraina Vihar, New Delhi.
During the year 1976, the respondent was residing in Government Quarters situated in Kidwai Nagar, New Delhi.
On June 1, 1976 the respondent and the appellant appeared before the Rent Controller and sought for permission of the Rent Controller for the rear portion of the ground floor being leased out for a period of 18 months to the appellant under Section 21 of the Delhi Rent Control Act (hereinafter referred to as the Act).
Besides filing the application, the parties gave their declarations before the Rent Controller.
The respondent declared that he was the owner of the premises No. A 15, Naraina Residential Scheme, Delhi, that he did not require the rear portion of the ground floor as shown in the plan Exhibit A 1 for his own use.
that as such he wanted to let out the same to the appellant for residential purpose at a monthly rent of Rs.500 exclusive of water and electricity charges for a period of 18 months with effect from June 1, 1976 as per proposed lease deed Exhibit A 2.
The appellant for his part declared that he had heard the statement of the respondent and he accepted the same as correct, that he wanted to take on lease the rear portion of the ground floor of the re spondent 's house as marked in plan Exhibit A I for his residence on a monthly rent of Rs.500 exclusive of water and electricity charges for a period of 18 months with effect from June 1, 1976 as per the terms contained in the draft lease deed Exhibit A 2 and further declared that he "shall vacate the premises on the expiry of the aforesaid period of 18 months.
" Thereupon the Rent Controller passed an order as under: "Having regard to the averments made in the petition and the statements of the parties recorded above, permission under Section 21 of the Delhi Rent Control Act, 1958 is granted to the petitioner for letting out the aforesaid por 941 tion of the aforesaid house as detailed in the statement of the petitioner to the respondent for residential purpose for a period of 18 months with effect from today, the 1st of June, 1976.
File be consigned to the record room.
" It was the case of the respondent in the execution application filed by him that pursuant to the above said permission granted by the Rent Controller, the appellant was inducted into possession of the leased portion on June 2, 1976, that the period of lease came to an end on November 30, 1976 and that as the appellant failed to deliver posses sion on December 1, 1977 as undertaken by him, he had to file the application under Section 21 for recovering posses sion of the leased portion.
The said execution application was filed on December 12, 1977.
The appellant contested the application and raised a three fold defence as under: (1) He had been inducted into possession as a tenant on May 28, 1976 itself, i.e. before the Rent Controller gave permission to the lease transaction by his order dated June 1. 1976 and that as such the tenancy was not governed by the order passed under section 21 of the Act by the Rent Con troller.
(2) Though the leased portion was taken on rent for being used as a residence, the parties by mutual arrangement had agreed soon after the lease to make the proprietary concern of the appellant viz. M/s. Refaire Projects Corpora tion the tenant of the premises and as such the firm was the tenant and not the appellant and hence the execution appli cation against the appellant was not maintainable.
After the period of tenancy was over, a fresh tenancy was entered into governing not only the leased portion of the ground floor on a higher rent of Rs.550 P.M. but also covering a garage and servants quarters on a monthly rent of Rs. 150 and by reason of the new tenancy the respondent was disentitled to file an execution application.
The Rent Controller and the Rent Control Tribunal, after a due consideration of the materials placed before the court by the parties, rendered concurrent findings to the effect that the tenancy came into effect only by reason of the permission granted by the Rent Controller under Section 21, that the several pleas of the tenant viz. a tenancy 942 coming into existence even prior to the order of the Rent Controller, a subsequent modification of the tenancy so as to make the firm the tenant and a fresh tenancy being creat ed so as to cover an additional area and on revised rental terms were all untenable and baseless contentions.
Both the authorities therefore allowed the execution application and directed the appellant to deliver possession of the leased premises.
Before the High Court, in the second appeal preferred by the appellant, the question of a fresh tenancy on revised terms of lease was again sought to be canvassed but the High Court very rightly declined to examine the matter as the exercise would call for appraisal of evidence on factual matters which is in the domain of the Trial Court and the first Appellate Court and would also necessitate sitting in judgment over concurrent findings of facts rendered by the courts below.
It was then urged before the High Court that there was no agreement in writing as required under Section 21 of the Act and hence the permission granted by the Rent Controller was not a valid one on the strength of which an execution application can be filed.
The High Court rejected this contention stating that inasmuch as the parties had made statements before the Rent Controller and duly signed them, there was sufficient compliance with the terms of Section 21 and it was not necessary that there should be a separate agreement in writing over and above the draft agreement and the statements rendered before the Rent Con troller.
The High Court also briefly went into the question whether the proprietary concern of the appellant had become the tenant and whether thereby the use of the premises had been changed from residential to non residential purpose and found the contentions of the appellant to be wholly devoid of merit.
The High Court therefore dismissed the second appeal and hence the present appeal by special leave by the tenant.
Mr. Parekh, learned counsel for the appellant, realising the futility of canvassing once over again the unsuccessful defences raised before the courts below and the High Court, sought to assail the judgment of the High Court and the order in the Execution Application on two grounds alone viz. (1) the permission obtained by the respondent from the Rent Controller under Section 21 was in fraud of the statute and (2) an important condition prescribed by Section 21 was not fulfilled.
It has to be mentioned even here that these contentions had not been raised before the Rent Controller and the Appellate Tribunal or even before the High Court.
943 In so far as the first contention is concerned, the appellant has alleged in the special leave petition that the respondent had been obtaining permission from the Rent Controller under Section 21 on several occasions for leasing out different portions in the ground floor as well as the first floor of the house to different tenants for short periods in order to deprive the tenants of their rights conferred by the Act and also to get higher rent from each successive tenant.
The respondent has controverted these averments in his counter affidavit.
Mr. Parekh submitted that the appellant was not setting up a new case because he had given the details of the names of the previous tenants and the portions occupied by them and the periods for which short term leases were granted to them after obtaining permission from the Rent Controller under Section 21 of the Act and as such there were enough materials before the Court to show that the respondent had been abusing the provisions of Section 21 and playing a fraud upon the statute and obtaining permission for leasing out portions of the house to several tenants for limited durations and as such the permission granted by the Rent Controller in this case is vitiated by the fraud committed by the respondent and hence the execution application filed by the respondent was not at all maintainable.
It is true we find that in the objections filed by the appellant to the execution application, he has given some particulars regarding the names of some tenants to whom the other portions of the building had been let out by the respondent after obtaining permission from the Rent Controller under Section 21.
But significantly enough, the appellant had not pursued the matter and substantiated the charge of fraud levelled by him.
He has not cross examined the respondent with reference to the leases granted earlier by him to other tenants nor has he adduced independent evidence to prove the factum of those leases and such leases being granted by abuse of the provisions of Section 21.
In the absence of factual materials to show the abuse or misuse of the provisions of Section 21, it is not possible for us to sustain the contention of the appellant 's counsel that the respondent had practised fraud on the Rent Controller and obtained permission under Section 21 to lease out a portion of the house to the appellant because a plea per taining to fraudulent practice is a mixed question of fact and law.
Without the requisite foundation on facts to prove a wilful contravention or abuse of a provision of law a finding cannot be rendered as to whether a party has commit ted a fraud by abusing any legal provision.
Besides, it has to be borne in mind that even if the respondent had let out the ground floor portions and the first floor of the build ing to other tenants on earlier occasions by having recourse to Section 21 of the Act, the respondent may have done so on the basis of bona .fide grounds and 944 genuine calculations and his calculations may have gone wrong due to factors or events beyond his control.
Learned counsel invited our attention to the decisions rendered in S.P. Noronah vs Prem Kumari Khanna, 1 and V.S. Rahi vs Ram Chambeli, ; and argued that the respondent had suppressed material facts from the Rent Controller when he asked for permission under Section 21 of the Act to lease out the premises in question to the appellant for eighteen months, and furthermore the Rent Controller had passed his order granting permission under Section 21 without the application of mind.
Similar contentions were raised before us in the case of Inder Mohan Lal vs Ramesh Khanna (C.A. No. 468 of 1977) in which judg ment has been rendered by us on 4.8. 1987.
The whole gamut of Section 21, the object underlying the provision, the field of its operation and the correct ratio to be applied in dealing with cases pertaining to Section 21 have been elaborately considered by us in the light of the earlier decisions of this Court and some of the decisions rendered by the Delhi High Court.
We have pointed out therein that in order to attract Section 21 four conditions have to be satisfied viz. (1) the landlord does not require the whole or part of any premises for a particular period, (2) the landlord must obtain the permission of the Controller in the prescribed manner, (3) the letting of the whole or part of the premises must be for residential purposes only; and (4) such letting out must be for such period as may be agreed to in writing.
After analysing the decision in Noronah 's case the resultant position emerging under law has been summa rised as follows: "An analysis of this judgment which has been applied in the various cases would indicate that Section 21 only gives sanction if the landlord makes a statement to the satisfaction of the court and the tenant accepts that the landlord does not require the premises for a limited period, this statement of a landlord must be bona fide.
The purpose must be for residence.
There must not be any fraud or collusion.
There is a presumption of regulari ty.
But it is open in particular facts and circumstances of the case to prove to the satisfaction of the executing court that there was collusion or conspiracy between the land lord and the tenant and the landlord did not mean what he said or that it was a fraud or that the tenant agreed because the tenant was wholly unequal to the landlord.
" 945 Viewed in this light it may be seen that the respondent herein has satisfied all the tests prescribed in Noronah 's case.
The respondent was a Government servant and was living in Government quarters allotted to him.
He had an apprehen sion that the allotment of the Government quarters may be cancelled because of his owning a house and so he had to provide for any contingency resulting from the cancellation of the allotment of Government quarters to him, and hence he felt he would be able to spare the leased premises only for a limited period.
There was no material before the Rent Controller to establish or even to arouse suspicion that the respondent was playing a fraud on the statute.
In such circumstances the order passed by the Rent Controller cannot be said to be vitiated in any manner.
It would also be pertinent to point out in this context that if the Rent Controller had reason to suspect the bona fides of the respondent 's application under Section 21, the Rent Control ler could only have declined to grant his permission for the lease transaction and, if he had done so, the lease transac tion would not at all have come to pass through.
The Rent Controller could not have compelled or directed the respond ent to give the premises on lease to the appellant for an indefinite period of time so as to enable the appellant to have the benefit of the statutory protection afforded by the Act against eviction except on one or more of the grounds set out in Section 14.
In so far as Rahi 's case (supra) is concerned, the facts therein were totally different and they were instrumental for the court declining to sustain the landlady 's application under Section 21 for eviction of the tenant.
The evidence in the case established that the land lady had previously let out the identical portion of the house to other tenants but still she had made a false decla ration before the Rent Controller that she had never let out the portion to any one earlier.
Furthermore her statement that after the lease period was over her mother would be joining her and the leased portion would be required for her was found to be false because the lady in question was not her mother but an aunt whom the landlady claimed to be her foster mother.
It was therefore a case where the permission under Section 21 had been obtained on the basis of false declarations and statements.
In the present case no such false declaration had been made by the respondent when he sought the permission of the Rent Controller under Section 21.
On the other hand we are inclined to agree with the argument of the respondent 's counsel that the facts of the case call for the court taking the view which it had taken in the case of Dhanwanti vs D.D. Gupta, (AIR In that case it was observed that there may be certain cases where the owner, after obtaining permission under Section 21 of the Act had let out the premises for a limited period and after the expiry of the said 946 period he may have again found it necessary to obtain per mission to let out the premises for another limited period due to genuine causes and therefore, the mere fact of let ting out of the premises once again by having resort to Section 21 of the Act for a limited period should not neces sarily lead to the inference that from the very beginning the premises were available for letting out indefinitely.
In the instant case there is no evidence except the averment of the appellant that the respondent had let out the leased portion on earlier occasions also for limited periods by having resort to Section 21.
However even if that statement is true there cannot be an automatic inference that the permission granted by the Rent Controller pertaining to the lease of the premises to the appellant had been obtained by fraudulent means by the respondent.
Apart from these things there is also another factor which weakens the objections raised by the appellant and denudes them of force and content.
He has waited for the full term of the lease to raise objections about the re spondent playing a fraud on the statute.
He has failed to put forth these objections within a reasonable time after the permission was granted by the Rent Controller to impugn the order on the ground of the alleged fraud perpetrated by the respondent.
It was observed by this Court in J.R. Vohra vs India Export House, ; at 911 912 that the remedy available to a tenant in a case where there was only a ritualistic observance of the procedure while granting permission for the creation of a limited tenancy or where such permission was procured by fraud practised by the landlord or was a result of collusion between the strong and the weak, would be for the tenant approaching the Rent Controller during the currency of the limited tenancy itself for adjudication of his pleas as soon as he discovers facts and circumstances that tend to vitiate ab initio the initial grant of permission and not to wait till the landlord makes his application for recovery of the premises after the expiry of the period fixed under Section 21.
We are, therefore, unable to sustain the first ground of attack of the appellant 's counsel to assail the judgment of the High Court.
In so far as the second ground is concerned, this aspect of the matter also has been considered by us and dealt with in a detailed manner in Inder Mohan Lal 's case.
After notic ing the decisions of the Delhi High Court which have held the field all along declaring that Section 21 is a complete Code by itself and that a permission granted under Section 21 would not become invalid either on account of the 947 landlord failing to disclose the reasons for non requirement of the leased premises for a particular period or because of the landlord and the tenant not entering into an agreement in writing subsequent to the grant of permission under Section 21 or on account of the agreement of tenancy in writing not being subsequently registered, this Court af firmed the decisions of the Delhi High Court laying down the above ratio in observance of the settled judicial policy that in the matter of interpretation of a local statute the law settled by the High Court over a continuous period of time should be normally adhered to and should not be dis turbed.
The relevant passage in the judgment reads as fol lows: "Learned counsel for the appellant also stressed before us that Section 21 of the Rent Act was a complete Code by itself.
The order was under section 21 of the Rent Act.
No further question of lease or registered lease arose thereafter.
This question has been settled by series of decisions of the Delhi High Court upon which people have acted for long.
See the decision in Kasturi Lal vs Shiv Charan Das Mathur, [1976] Rent Control Reporter Vol.
8 703 where at pages 708 709 Misra J. of the Delhi High Court had clearly indicated numer ous cases where it was held that Section 21 was a Code by itself.
The order of the permis sion is itself an authority; no lease was necessary and if that is the state of law in Delhi, it is too late in the day to hold otherwise.
See the observations of this Court in Raj Narain Pandey and others vs Sant Prasad Tewari & others; , where this Court observed that in the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should normally be adhered to and not to be disturbed.
A different view would not only introduce an element of uncertainty and confu sion but it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions.
In Delhi, transactions have been completed on the basis of permission and it was never doubted that there was any requirement of any lease or any agreement subsequent to the order and the same required registration.
There is therefore, no merit in the second contention of the appellant 's counsel that since the lease transaction was not reduced to 948 writing in terms of Exhibit A 2 subsequent to the grant of permission by the Rent Controller, the terms of Section 21 are not fulfilled and hence the execution application under Section 21 would not lie.
In the light of our conclusions the appeal has to fail and it will accordingly stand dismissed with costs to the respondent.
P.S.S Appeal dis missed.

summary/full:
The respondent, a government official, while residing in Government quarters sought permission of the Rent Controller under section 21 of the Delhi Rent Control Act, 1958 for leasing out a portion of his house to the appellant for residential purposes for 18 months as he did not require it for his own use for that period.
The appellant declared before the Rent Controller that he accepted the statement of the respondent and that he shall vacate the premises on the expiry of the period of 18 months.
The Rent Controller, thereupon, passed an order granting permission in terms of the declaration.
When after expiry of the stipulated period the appellant failed to vacate the leased portion, the respondent filed an execution application for recovering possession.
The Rent Controller as well as the Appellate Authority rendered concurrent finding to the effect that the tenancy came into effect only by reason of the permission granted by the Rent Controller under section 21 and directed the appellant to deliver possession to the respondent.
In second appeal before the High Court it was contended by the appellant that since the lease agreement was not reduced to writing, as required under section 21 of the Act, the permission granted by the Rent Controller was not valid.
Dismissing the appeal the High Court held that in as much as the parties had made statements before the Rent Controller and duly signed them, there was sufficient compliance with the terms of section 21 and it was not necessary that there should be a separate agreement in writing over and above the draft agreement and the statements rendered before the Rent Controller.
938 In the appeal by special leave, the contention taken before the High Court was reiterated, and in addition it was contended for the first time that the permission obtained by the respondent from the Rent Controller under section 21 was in fraud of the statute inasmuch as he had been obtaining such permission on several occasions for short periods in order to deprive the tenants of their rights under the Act.
Dismissing the appeal, HELD: 1.1 A plea pertaining to fraudulent practice is a mixed question of fact and law.
Without the requisite foun dation on facts to prove a wilful contravention or abuse of a provision of law a finding cannot be rendered as to wheth er a party has committed a fraud by abusing any legal provi sion.
[943FG] 1.2 In the instant case, the appellant had not cross examined the respondent with reference to the lease granted earlier by the respondent to other tenants nor had he ad duced independent evidence to prove the factum of those leases and such leases being granted by abuse of the provi sions of section 21 of the Delhi Rent Control Act, 1958.
In the absence of factual material to show the abuse or misuse of the provisions of section 21, it cannot be said that the respond ent had practised fraud on the Rent Controller in obtaining permission.
Besides, even if the respondent had let out different portions of the building to other tenants on earlier occasions by having recourse to section 21 he may have done so on the basis of bona fide grounds and genuine calcu lations and his calculations may have gone wrong due to factors or events beyond his control.
The mere fact of letting out of the premises once again by resort to section 21 for a limited period should not necessarily lead to the inference that from the very beginning the premises were available for letting out indefinitely.
[943EF, G 944A, 946A] Dhanwanti vs D.D. Gupta, (AIR referred to.
1.3 The respondent was a government servant and was living in Government quarters.
He had an apprehension that the said allotment may be cancelled because of his owning a house and so he had to provide for any contingency resulting from such cancellation and hence he felt he would be able to spare the leased premises only for a limited period.
There was no material before the Rent Controller to establish or even to arouse suspicion that the respondent was playing a fraud on the statute.
In such circumstances the order passed by the Rent Controller cannot be said to be vitiated in any manner.
[945AB] 939 S.B. Noronah vs Prem Kumari Khanna, ; , applied.
V.S. Rahi vs Ram Chambeli, ; , distinguished.
The appellant has waited for the full term of the lease to raise objections about the respondent playing a fraud on the statute.
He has failed to put forth these objections within a reasonable time, after the permission was granted by the Rent Controller, to impugn the order on the ground of the alleged fraud perpetrated by the respond ent,.
This factor weakens the objections raised by the appellant and denudes them of force and content.
[946CD] J.R. Vohra vs India Export House, ; at 911 912, referred to.
In the matter of interpretation of a local statute the law settled by the High Court over a continuous period of time should normally be adhered to and should not be disturbed.
The Delhi High Court has consistently held that section 21 of the Delhi Rent Control Act, 1958 is a complete Code by itself, and a permission granted thereunder would not become invalid either on account of the landlord failing to disclose the reasons for non requirement of the leased premises for a particular period or because of the landlord and the tenant not entering into an agreement in writing subsequent to the grant of permission under section 21 or on account of the agreement of tenancy in writing not being subsequently registered.
A different view would not only introduce an element of uncertainty and confusion but it would also have the effect of unsettling transactions which might have been entered into on the faith of those deci sions.
[947B, 946H 947A, FG] Inder Mohan Lal vs Ramesh Khanna (C.A. No. 468 of 1977) decided on 4.8.1987; Raj Narain Pandey & Ors.
vs Sant Prasad Tewari & Ors., ; and Kasturi Lal vs Shiv Charan Das Mathur, [1976] Rent Control Reporter, Vol.
8 p. 703, referred to.


judgement:
ON: Criminal Appeal No. 114 of 1954.
Appeal from the judgment and order dated July 21, 1954, of the Calcutta High Court in Reference No. 6 of 1954, under Section 307 of the Criminal Procedure Code made by the Additional Sessions Judge, 24 Parganas at Alipore on the June 7, 1954, in Sessions Trial No. 2 of May, 1954.
section C. Isaacs, and section N. Mukherjee, for the appellants.
A. C. Mitra, D. N. Mukherjee and P. K. Bose, for the respondent.
November 19.
The following Judgment of the Court was delivered by IMAM J.
In this appeal by special leave the substantial question for consideration is whether the reference made to the Calcutta High Court by the 962 Additional Sessions Judge of Alipur under section 307 of the Code of Criminal Procedure (hereinafter referred to as the Code) was competent and, if not, whether the High Court acted with jurisdiction in convicting or acquitting any of the accused who were tried by the Additional sessions Judge and a jury.
There were eight accused on trial in the Court of Session all of whom were charged under sections 147 and 304/149 of the Indian Penal Code.
Four of them, namely, accused No. 1, Sashi Mohan Debnath, accused No. 2, Rajendra Debnath, accused No. 3, Manindra Debnath and accused No. 6, Rohini Kumar Debnath were further charged under section 201, Indian Penal Code.
The trial Judge delivered a charge to the jury which was favourable to the accused.
The jury returned a unanimous verdict of not guilty under section 304/149 of the Indian Penal Code, which the learned Judge accepted.
He, accordingly, acquitted all the accused charged with this offence.
The jury, however, with respect to charges under sections 147 and 201 of the Indian Penal Code returned a unanimous verdict of guilty against the accused charged with these offences.
The trial Judge disagreed with this verdict and made a reference under section 307 of the Code to the High Court, being of the opinion that the accused were not guilty of these offences.
The High Court accepted the reference in part and in agreement with the jury 's verdict of guilty under sections 147 and 201 of the Indian Penal Code convicted the accused Sashi Mohan Debnath, Rajendra Debnath, Sudbanshu Kumar Debnath, Dinesh Chandra Debnath and Bonomali Das under section 147 of the Indian Penal Code and sentenced each of them to undergo one year 's rigorous imprisonment and the accused Sashi Mohan Debnath and Rajendra Debnath under section 201 of the Indian Penal Code and sentenced each of them to undergo rigorous imprisonment for three years.
The sentences with respect to the accused Sashi Mohan Debnath and Rajendra Debnath were ordered to run concurrently.
The High Court did not accept the verdict of the jury with respect to the accused Manindra Debnath and Gouranga Debnath under section 147 of the Indian Penal 963 Code and under section 201 against Manindra Debnath and Rohini Kumar Debnath and acquitted them.
The present appeal is by the accused Sashi Mohan, Debnath, Rajendra Debnath, Sudhanshu Kumar Debnath and Bonomali Das.
When the appeal came on for hearing on September 12, 1956, it was found necessary by this Court to have the appeal heard in the presence of the accused No. 3, Manindra Debnath, accused No. 6, Rohini Kumar Debnath and accused No. 8, Gouranga Debnath.
The reason for issuing notices upon them has been fully stated in the order passed that day.
Accordingly, notices were issued to these accused and they were served upon Manindra Debnath and Gouranga Debnath.
So far as Rohini Kumar Debnath was concerned, it was reported that he could not be traced and no one could say where he had gone after selling all his properties and that no relative of his could be found.
None of these three accused have entered appearances in this Court.
It is unnecessary to refer either to the facts concerning the occurrence or the case of the prosecution and the defence, as the only question for decision before us is a question of law.
Indeed, no submissions were made either on behalf of the appellants or on behalf of the respondent on the facts of the present case.
In order to determine whether the reference made under section 307 of the Code by the Additional Sessions Judge of Alipur was competent, it is necessary to examine the provisions of that section and consider some of the decisions of the High Courts in India in this connection.
But before we do this, some general considerations concerning trials by jury and interference with their verdict by the High Court may be stated.
The scheme of the Code clearly suggests that at a trial in the Court of Sessions the trial can be either with the aid of assessors or by a jury depending upon whether the offence for which the accused was,, being tried was triable with the aid of assessors or by a jury.
The Code even contemplates a trial of the accused for certain offences which were triable with the aid of assessors and other offences which were triable 964 by a jury at the same trial, in which case the jurors acted as assessors for the offences which were triable with the aid of assessors.
Although a trial by a jury was provided for by the Code, it did not compel the judge to accept the verdict.
It permitted him to disagree with it but did not permit him to record a judgment unlike the case of a trial with the aid of assessors where the Judge could disagree with their opinion and record a judgment.
The purpose of the Code was to regard the jury 's verdict as of sufficient importance to prevent the Judge in the Court of Session from recording a judgment if the Judge disagreed with it.
It was considered that if the verdict of the jury was to be displaced, it must be displaced, if at all, by the High Court which must give due weight to the opinion of the jury and the Judge and after considering the entire evidence.
In other words, the High Court could do what the jury did after giving due weight to the opinion of the Judge and considering the entire evidence.
Ordinarily, a jury 's verdict on questions of fact would not easily be disregarded by the High Court because the basic principle of a trial by jury is that the jury are masters of fact.
The verdict of the jury would not be reversed by the High Court merely because it disagreed with it.
If the High Court, after considering the entire evidence, came to the conclusion that no reasonable body of men could have reached the conclusion arrived at by the jury, then the High Court would be entitled to disregard the verdict.
At the time that the reference was made under section 307 by the Additional Sessions Judge, the provisions of section 307 were in the following terms: " 307.
(1) If in any such case the Judge disagrees ,with the verdict of the jurors, or of a majority of the jurors, on all or any of the charges on which (any accused person) has been tried, and is clearly of the opinion that it is necessary for the ends of justice to submit the case (in respect of such accused person) to the High Court, he shall submit the case accordingly, recording the grounds of his opinion, and, when the verdict is one of acquittal, stating the offence which he considers to have been committed (and in such 965 case, if the accused is further charged under the provisions of section 310, shall proceed to try him on such charge as if such verdict had been one of conviction).
(2) Whenever the Judge submits a case under this section, he shall not record judgment of acquittal or of conviction on any of the charges on which (such accused) has been tried, but he may either remand (such accused) to custody or admit him to bail.
(3)In dealing with the case so submitted the High Court may exercise any of the powers which it may exercise on an appeal, and subject thereto it shall.
, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict (such accused) of any offence of which the jury could have convicted him upon the charge framed and placed before it; and, if it convicts him, may pass such sentence as might have been passed by the Court of Sessions ".
In construing section 307 we must consider first the words "if in any such case" at the very commencement of the section.
These words refer to the case mentioned in section 306(1).
That case is the case which is tried before the Court of Session by a jury and therefore obviously the whole case and not a part of it.
When the jury have given their verdict in the case, then the Judge has to consider whether he agrees with it and, if he does, then he must give judgment accordingly.
If, however, he disagrees and is clearly of the opinion that it was necessary for the ends of justice to submit the case to the High Court he must submit the case accordingly.
In our opinion, the case to be submitted to the High Court is the whole case against the accused and not a part of it.
This appears to us to be clearly the effect of the provisions of sections 306 and 307 when read together.
Section 307 (2) specifically prohibits the Judge, when be considers it necessary to submit the case by way of reference to the High Court, from recording any judgment of acquittal or of conviction on any of the charges on which the accused had been tried.
This prohibition is mandatory and a Judge, who records a judgment of acquittal or of conviction on an of the charges on which the accused had been 966 tried, contravenes the provisions of section 307(2) and the judgment so recorded is illegal.
We cannot accept the submission of the learned Counsel for the appellants that the action of the Judge in recording a judgment is a mere irregularity.
Section 307(3) provides for the powers which the High Court may exercise in dealing with the case so submitted and it enjoins that although the High Court may exercise any of the powers conferred on it, when hearing an appeal, it should consider the entire evidence and after giving due weight to the opinion of the Sessions Judge and the jury, either convict or acquit the accused of any offence for which he was tried, and if it convicted him of an offence for which the jury should have convicted him, pass such sentence as might have been passed by the Court of Session.
But before the High Court could exercise the powers conferred on it under section 307(3) it was necessary that the reference under section 307 should have been according to law.
This was, in our opinion, a condition precedent to the exercise of such power by the High Court.
The words "with the case so submitted" make it quite clear that a reference under section 307(1) must be of the whole case against the accused and not a part of it.
In order that the High Court may be in a position to properly exercise its powers under section 307(3), it was necessary for it to consider the entire evidence in the case, which obviously it could not do if the trial judge had already recorded a judgment.
By recording a judgment the trial Judge prevents the High Court from properly exercising its powers under section 307(3) as the reference made thereafter is not of the entire case with respect to the accused.
Indeed, in the present case the Judge having accepted the jury 's verdict and having recorded a judgment of acquittal under section 304/149, Indian Penal Code, in the case of each accused, took it out of the hands of the High Court to deal with the case of each accused with re ference to the other charges framed against him.
The effect of the amendments to section 307 of the Code made in 1923 and 1955 lend further support to the view that it is the whole case which must be referred and not a part of it, The provisions of section 307(1) before 967 the amendment of 1923 were so expressed as to make it possible to say that it was necessary for the trial Judge to refer the whole case concerning every accused on all the charges framed against them irrespective of the fact that the Judge was in agreement with the jury with respect to a particular accused on all the charges framed against him.
The amendment of 1923 introduced the words " any accused person " in place of the words " the accused " and " in respect of such accused person " in a. 307(1).
The amend ment, accordingly, enabled the Judge to accept the verdict of the jury on all the charges framed against any accused person and to record a judgment with reference to him while referring the case of another accused to the High Court where he disagreed with the verdict on any of the charges framed against him.
The amendment was made to remove the necessity of referring the whole case, including the case of an accused concerning whom the Judge was in agreement with the verdict on all the charges framed against him.
The amendment would have been unnecessary if section 307(1) contemplated a reference of only a part of the case and not the whole of it.
The amendment of 1955 completely recast section 282 of the Code.
This amendment provided for the continuance of the trial with the reduced number of jurors, in the circumstances mentioned in the section, instead of the trial re commencing with a newly selected jury.
Consequently, in section 307 sub section (1)A was introduced which directed that where the jurors were equally divided on all or any of the charges on which any accused person had been tried, the Judge must submit the case in respect of such accused to the High Court recording his opinion on such charge or charges and the grounds of his opinion.
This direction, in our opinion, makes it clear that the whole case had to be submitted to the High Court.
In our opinion, the amendments of 1923 and 1955 to section 307 clearly indicate that Parliament itself thought that it was the whole case and not a part of it which was to be submitted to the High Court.
Indeed, as already stated, section 307, even before its amend 123 968 ment in 1955, when properly construed, leads to no other reasonable conclusion.
It is now necessary to consider the cases decided by some of the High Courts in India in this connection.
The Patna High Court in Hazari Lal ' s case (1) expressed the opinion that having regard to the provisions of section 307 a reference made thereunder must be of the whole case against the accused and not a part of it.
If only a part of it is referred then the reference made under section 307 is incompetent.
That High Court reaffirmed the view taken in Hazari Lal 's case in the case of Ramjanam Tewari(2).
This was the view also taken by the three Judges of the Calcutta High Court in the case of The Emperor vs Bishnu Chandra Das(3), two of whom, however, in rejecting the reference directed that the accused be acquitted.
The third Judge, Mr. Justice McNair, however, confined himself to the observation that the Sessions Judge had disabled himself from making a valid reference under section 307 of the Code by accepting the verdict of the jury against the accused on some of the charges.
In our opinion, the view taken by the Patna High Court was correct and in accordance with the provisions of section 307.
It was, however, submitted on behalf of the appellants that in view of certain decisions of the Calcutta High Court and the Allahabad High Court, when a reference had in fact been made, it was open to the High Court to deal with it and record a judgment.
Reference was made to the case of King Emperor vs Ananda Charan Ray (4).
It is true that in this case the learned Judges did consider the evidence in order to ascertain whether the verdict of the jury was one which a body of reasonable men could have arrived at.
The learned Judges, however, observed before considering the evidence in the case, " If the learned Officiating Additional Sessions Judge considered that the interests of justice required a reference to this Court, I should say that he would have been better advised if he had referred the whole case leaving it to this Court to consider the whole of the evidence that (1) (2) (3) (4) , 437.
969 was placed before the jury.
As it is, this Court is precluded from considering whether the accused mis appropriated or had a hand in misappropriating any portion of these sums of Rs. 200 and Rs. 458.
" After referring to the evidence, the learned Judges expressed the following opinion: " The real truth of the matter is that, if the learned Judge considered that this was a case that ought to be referred under section 307, Cr. P. C., he never ought to have sent up the case in this way by tying the hands of the Crown or of the Court or even the defence by agreeing with the verdict of the jury on the charges framed under sees.
406 and 477A of the Indian penal Code.
As it is, he had precluded the Court from questioning or going behind that verdict and thus from considering the large body of evidence that was placed before the jury.
In the result, we find it impossible in this case to accept the reference made by the learned Officiating Additional Sessions Judge and we think, having regard to the fact that the accused has been acquitted on the charges framed under secs.
406 and 477A, Indian Penal Code, we ought to accept the verdict of not guilty on the charges framed under sec.
467 read with see.
471 and sec.
474 1. P. C., and direct that the accused be acquitted.
" This decision, in substance, takes the same view as that expressed by the Patna High Court in the cases of Hazari Lal and Ramjanam Tewari.
In the case of Emperor vs Nawal Behari(1), the learned Judges of the Allahabad High Court held that when a Sessions Judge refers a case under section 307 of the Code, he must refer the whole case against the particular accused and not merely those charges on which there happens to be a finding by the jury with which lie disagrees.
This view is substantially in keeping with the view taken by the Patna High Court in the cases mentioned above.
It is true that the learned Judges them proceeded to consider the evidence and set aside the conviction and sentence under section 193 passed by the Sessions Judge and substituted in its place a conviction by the High Court under section 193.
In our opinion, if the reference under section 307 of the Code had to be of (I)(1930) I.L.R. All.
970 the whole case against the accused and not merely those charges on which the trial Judge disagreed with the jury, then the reference was incompetent and the High Court could not proceed to exercise any of the powers conferred upon it under section 307(3), because the very foundation for the exercise of that power was lacking, the reference being incompetent.
In the case of Emperor vs Jagmohan(1), while the learned Judges held that the reference to the High Court only of a part of the case was irregular, the High Court could consider not Only the part of the case referred to it, but the whole case.
We are unable to accept this view.
Whatever support this decision may give to the submission made by the learned Counsel for the appellant, we are clearly of the opinion that the decision of the Allahabad High Court in this case was erroneous in law.
In Emperor vs Muktar(2) thelearned Judges were of the opinion that the reference was not in order when the trial Judge recorded a finding on some charges in respect of the very accused whose cases so far as other charges were concerned were referred, but the defect was not necessarily fatal to the reference and the High Court might entertain the same.
This view cannot be sustained, having regard to the provisions of section 307.
In our opinion, a reference made in the circumstances of the present case, was incompetent and the High Court should have rejected it and not proceeded to record any judgment of acquittal or conviction.
We, accordingly, allow the appeal, set aside the judgment of the High Court and hold that the reference under section 307 to the High Court was incompetent.
A question has arisen as to what consequential order should be passed by this Court as the result of our conclusion that the reference under section 307 to the High Court was incompetent and the appeal succeeding.
The High Court should have rejected the reference as incompetent and remitted the case to the Additional Sessions Judge for disposal according to law.
(1) I.L.R. (1947) All. 240.
(2) 971 We emphasise the absolute need for making a competent reference under section 307 of the Code and the case being remitted to the Court making the reference as soon as possible if an incompetent reference is made in order to avoid legal complications, unnecessary waste of time and money and harassment to the accused.
In this case the letter of reference is dated June 7, 1954, that is, more than three years ago.
The occurrence took place on October 21, 1953.
After such lapse of time we will not order that the case be returned to the Court of the Additional Sessions Judge of Alipur for disposal according to law, particularly as we are informed that the Judge who made the reference to the High Court has retired from service and it is doubtful whether, in law, his successor can at all deal with the case.
In the circumstances of this particular case, therefore, the only order which we pass is that the reference being incompetent is rejected.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
Sections 306 and 307 of the Code of Criminal Procedure, read together clearly indicate that where the Sessions judge disagrees with the verdict of the jury and is of the opinion that the case should be submitted to the High Court, he must submit the whole case against the accused, not a part of it.
If the jury returns a verdict of guilty in respect of some charges and notguilty in 961 respect of others he cannot record his judgment of acquittal in respect of the latter charges in agreement with the jury in contravention of the mandatory provision Of section 307(2) of the Code.
Such recording must have the effect of preventing the High Court from considering the entire evidence against the accused and exercising its jurisdiction under section 307(3).
Hazari Lal 's case, (1932) 1.
L. R.//Pat. 395 and Ramjanam Tewari, , approved.
Emperor vs jagmohan, 1.
L. R. (1947) Allahabad 240, and Emperor vs Muktar, , disapproved.
The Emperor vs Bishnu Chandra Das, , King Emperor vs Ananda Charan Ray, , and Emperor vs Nawal Behari, , considered.
Consequently, in a case where eight persons were put up for trial in the Court of Session charged under sections I47 and 304/I49 Of the Indian Penal Code and four of them were further charged under section 201 of the Indian Penal Code and the jury returned a unanimous verdict of not guilty under section 304/I49 and guilty under sections 147 and 201 and the Judge accepting the former recorded a judgment of acquittal in the case of each accused but disagreeing with the latter referred the matter to the High Court, the reference was incompetent and the High Court was in error in acting upon it and its judgment must be set aside.
Held further, that although the proper order in such a case should be to remit the case to the trial court for disposal according to law, in view of the long lapse of time and peculiar circumstances of this case the reference must be rejected.


judgement:
Criminal Appeal No. 415 of 1986.
From the Judgment and Order dated 16.5.
1984 of the Allahabad High Court in Crl.
Rev. No. 2330 of 1983.
R.N. Trivedi, Additional Advocate General (U.P.) Mrs. section Dikshit and C.B. Singh for the Appellant.
Ram Jethmalani, Rajinder Sachhar, and D.N. Mishra for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave is directed against the judgment and order of the High Court of Allahabad dated May 16, 1984 setting aside in its revisional jurisdiction an order of the Chief Judicial Magistrate, Gaziabad dated November 3, 1983 directing the issue of process against the respondents on a complaint filed by the appellant under section 44 of the Water (Prevention and Control of Pollu tion) Act, 1974.
The issue involved is whether the Chair man, ViceChairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited, the Company owning the industrial unit called Messrs Modi Dis tillery could be proceeded against on a complaint against the said industrial unit.
A learned Single Judge (K.C. Agarwal, J.) following the decision of this Court in State (Delhi 801 Admn.) vs LK.
Nangia & Anr., ; interpreting a similar provision contained in sub section
(4) of section 17 of the had held that there was no sufficient ground against the respondents inasmuch as the allegations made in the complaint do not constitute an offence punishable under section 44 for the admitted contravention of sections 25(1) and 26 read with section 47 of the Act.
The question essentially turns upon the rule of construction to be adopted in section 47.
The facts of the case are these.
Messrs Modi Industries Limited is an existing company under the .
It is a large business organisation having diversified business activities.
Prior to the commencement of the Act it had established an industrial unit called Messrs Modi Dis tillery at Modi Nagar, Gaziabad engaged in the business of manufacture and sale of industrial alcohol.
During the process of manufacture of such industrial alcohol, the said industrial unit discharges its highly noxious and polluted trade effluents into the Kali River through the Kadrabad Drain which is a stream within the meaning of section 2(j) of the Act and thereby causes continuous pollution of the said stream without the consent of the Board and therefore it falls within the purview of section 26.
Under the provisions of section 26, as amended, it has been made mandatory for every existing industry to obtain the consent of the Board for discharging its trade effluent into a stream or well or sewer or on land.
The last date for submission of such application seeking the consent of the Board by an existing industry had been extended upto December 31, 1981.
In ac cordance with the procedure laid down under sections 25(1) and 26 of the Act, the Company was required to submit an applica tion for consent of the Board in the prescribed form along with the prescribed consent fee and the particulars.
Instead of the Company its industrial unit, namely, Messrs Modi Distillery on March 27, 1981 applied to the Board for grant of consent to discharge its trade effluents into the stream.
The aforesaid application was scrutinised by the Board and found incomplete in many respects.
The Board accordingly by its letter dated April 29, 1981 informed the said industrial unit with regard to the discrepancies and the particulars wanting.
There was no response from the respondents nor did they rectify the discrepancies pointed out or furnish the particulars required.
The Board accordingly by its letter dated July 30, 1981 refused to grant the consent prayed for in the public interest since the application was found incomplete in many respects and also because the said indus trial unit did not have proper arrangements for treatment of its highly polluted trade effluents.
Thereafter, the Board by its letter dated June 30, 1982 issued a notice under section 20 of the Act 802 directing the Company to furnish certain information regard ing the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the Company, but the respondents did not furnish the infor mation called for.
This was followed by two subsequent letters of the Board dated February 21, 1983 and June 9, 1983 drawing the attention of the respondents that they were deliberately violating the provisions of the Act and thereby rendering themselves liable to be punished under section 44 for contravention of the provisions of sections 25(1) and 26.
On October 21, 1983 the Board lodged a complaint against the respondents under section 44 of the Act in the Court of the Chief Judicial Magistrate, Gaziabad.
Unfortunately, the complaint was inartistically drafted.
It was averred in paragraph 2 that Messrs Modi Distillery i.e. the industrial unit was a company within the meaning of section 47 of the Act, that it had been knowingly and wilfully discharging its highly noxious and polluted trade effluents into the Kali River which is a stream within the meaning of section 2(j) of the Act through the Kadrabad Drain and thereby causing continuous pollution of the said stream.
There were eleven persons arrayed as ac cused.
Instead of launching a prosecution against Messrs Modi Industries Limited, the Board impleaded its industrial unit Messrs Modi Distillery as respondent No. 1 while re spondents nos. ' 2 11 were the Chairman, Vice Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited i.e. the Company owning the industrial unit.
It appears that the respondents did not appear before the learned Chief Judicial Magistrate in response to the notice issued to them.
The learned Magistrate after record ing the statement of S.M. Pandey, Legal Assistant of the Board directed the issue of process to the respondents.
Aggrieved, respondents nos.
2, 3 and 4, namely, K.M. Modi, K.K. Modi and M.L. Modi, the Chairman, Vice Chairman and Managing Director respectively of Messrs Modi Industries Limited preferred a revision before the High Court under section 397 of the Code of Criminal Procedure, 1973.
Two of the other accused, namely, S.C. Trikha and Raghunath Rai, the nominated members of the Board of Directors of the Company also filed an application before the High Court under section 482 of the Code for quashing the proceedings.
As already stated, a learned Single Judge invoking the revisional jurisdiction of the High Court has quashed the proceedings on the ground that there could be no vicarious liability saddled on the Chairman, Vice Chairman, Managing Director and other members of the Board of Directors of the Company under section 47 of the Act unless there was a prosecution of the Company i.e. Messrs Modi Industries Limited.
He 803 held that the complaint suffers from the serious legal infirmity and in the circumstances, to allow the proceedings to continue would amount to an abuse of the process of the Court.
The question that arises in the appeal is whether the Chairman, Vice Chairman, Managing Director and members of the Board of Directors are liable to be proceeded against under section 47 of the Act in the absence of a prosecution of the Company owning the said industrial unit.
section 47 insofar as material reads as follows: "47.
Offences by companies (1) Where an offence under this Act has been committed by a company every person who at the time the offence was committed was in charge of, and was responsible to the company for the con duct, of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Provided that nothing contained in this sub section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything con tained in subsection (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of or, is attributable to any neglet on the part of, any director.
manager, secretary or other officer of the company, such director, manag er, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
" On a plain reading of sub section
(1) of section 47 of the Act, where an offence has been committed by a company, every person who at the time of the commission of the offence was in charge of and responsible to ' the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
Proviso to sub section
(1) however engrafts an exception in the case of any such person if he were to prove that the offence was committed without his knowledge or that he exercised all due diligence to prevent the 804 commission of such offence.
It would be noticed that sub section
(1) of section 47 is much wider than sub s.(4) of section 17 of the which fell for consideration in I.K. Nangia 's case.
Furthermore, proviso to sub section
(1) shifts the burden on the delinquent officer or servant of the company responsible for the commission of the offence.
The burden is on him to prove that he did not know of the offence or connived in it or that he had exercised all due diligence to prevent the commission of such offence.
The non obstante clause in sub section
(2) expressly provides that notwithstanding anything contained in sub section
(1), where an offence under the Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or, is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence, and shall be liale to be proceeded against and punished accordingly.
On a combined reading of the provisions contained in sub sections
(1) and (2), we have no doubt whatever that the Chairman, Vice Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited, the Company owning the industrial unit Messrs Modi Distill ery could be prosecuted as having been in charge of and responsible to the company, for the business of the indus trial unit Messrs Modi Distillery owned by it and could be deemed to be guilty of the offence with which they are charged.
The learned Single Judge has failed to bear in mind that this situation has been brought about by the industrial unit viz. Messrs Modi Distillery of Messrs Modi Industries Limited because in spite of more than one notice being issued by the Board, the unit of Messrs Modi Distillery deliberately failed to furnish the information called for regarding the particulars and names of the Managing Direc tor, Directors and other persons responsible for the conduct of the Company.
Having wilfully failed to furnish the requi site information to the Board, it is now not open to the Chairman, Vice Chairman, Managing Director and other members of the Board of Directors to seek the Court 's assistance to derive advantage from the lapse committed by their own industrial unit.
The learned Single Judge has focussed his attention only on the technical flaw in the complaint and has failed to comprehend that the flaw had occurred due to the recalcitrant attitude of Messrs Modi Distillery and furthermore the infirmity is one which could be easily removed by having the matter remitted to the Chief Judicial Magistrate with a direction to call upon the appellant to make the formal amendments to the averments contained in paragraph 2 of the comp 805 laint so as to make the controlling company of the industri al unit figure as the concerned accused in the complaint.
All that has to be done is the making of a formal applica tion for amendment by the appellant for leave to amend by substituting the name of Messrs Modi Industries Limited, the Company owning the industrial unit, in place of Messrs Modi Distillery.
Although as a pure proposition of law in the abstract the learned Single Judge 's view that there can be no vicarious liability of the Chairman, Vice Chairman, Managing Director and members of the Board of Directors under sub section
(1) or (2) of section 47 of the Act unless there was a prosecution against Messrs Modi Industries Limited, the Company owning the industrial trait, can be termed as cor rect, the objection raised by the petitioners before the High Court ought to have been viewed not in isolation but in the conspectus of facts and events and not in vacuum.
We have already pointed out that the technical flaw in the complaint is attributable to the failure of the industrial unit to furnish the requisite information called for by the Board.
Furthermore, the legal infirmity is of such a nature which could be easily cured.
Another circumstance which brings out the narrow perspective of the learned Single Judge is his failure to appreciate the fact that the aver ment in paragraph 2 has to be construed in the light of the averments contained in paragraphs 17, 18 and 19 which are to the effect that the Chairman, Vice Chairman, Managing Direc tor and members of the Board of Directors were also liable for the alleged offence committed by the Company.
It is regrettable that although Parliament enacted the to meet the urgent need for introducing a comprehensive legis lation with its established unitary agencies in the Centre and the States to provide for the prevention.
abatement and control of pollution of rivers and streams, for maintaining or restoring wholesomeness of water courses and for control ling the existing and new discharges of domestic and indus trial wastes, which is a matter of grave national concern, the manner in which some of the Boards are functioning leaves much to be desired.
This is an instance where due to the sheer negligence on the part of the legal advisors in drafting the complaint a large business house is allowed to escape the consequences of the breaches committed by it of the provisions of the Act with impunity, It was expected that the Board and its legal advisors should have drafted the complaint with greater circumspection not to leave any technical flaw which would invalidate the initiation of the prosecution allowing the respondents to escape the conse quences of the breaches committed by them of the provisions of the Act with impunity.
As already stated, prior to the commencement 806 of the Act the Company owned an industrial unit styled as Messrs Modi Distillery which was discharging its trade effluents into the Kali River through the Kadrabad Drain and therefore the matter fell within the ambit of section 26 of the Act.
section 26 provides that where immediately before the com mencement of the Act any person was discharging any sewage or trade effluent into a stream, the provisions of section 25 shall, so far as may be, apply to such person as they apply in relation to a person referred to in that section.
section 25(1) creates an absolute prohibition against bringing into use any new or altered outlet for the discharge of sewage or trade ' effluent into a stream without the consent of the Board.
On a combined reading of sections 25(1) and 26 it was mandatory for the Company viz.
Messrs Modi Industries Limit ed to make an application to the Board under sub section
(2) of section 25 read with section Z6 in the prescribed form containing the prescribed particulars for grant of consent for the dis charge of its trade effluents into the said stream, subject to such conditions as it may impose.
Along with the com plaint the appellant has placed on record several documents showing that the rejection of the application was in the public interest as it was incomplete in many respects.
These documents also reveal that the Company did not have proper arrangements for treatment of the highly polluted trade effluents discharged by it and although the appellant re peatedly by its letter required the Company to obtain the consent of the Board, the Company was intentionally and deliberately avoiding compliance of the requirements of sections 25(1) and 26 of the Act.
The contravention of these provi sions is an offence punishable under section 44.
The other ten persons arrayed by name as accused in the complaint are respondents nos.
2 11, the Chairman, Vice Chairman, Managing Director and members of the Board of Directors of Messrs Modi Industries Limited.
It cannot be doubted that in such capacity they were in charge of and responsible for the conduct of the business of the Company and were therefore deemed to be guilty of the said offence and liable to be proceeded against and punished under section 47 of the Act.
It would be a travesty of justice if the big business house of Messrs Modi Industries Limited is allowed to defeat the prosecution launched and avoid facing the trial on a techni cal flaw which is not incurable for their alleged deliberate and wilful breach of the provisions contained in sections 25(1) and 26 made punishable under section 44 read with section 47 of the Act.
Faced with the difficulty of refuting the gravamen of the offence set out in the complaint, Shri Ram Jethmalani, learned counsel appearing for the respondents drew our attention to the counteraffidavit of Virendra Prasad, Manag er (Personnel & Administration), Modi Distillery dated January 13, 1986 and the two supplementary 807 affidavits dated August 25, 1986 and November 17, 1986 tending to show that Messrs Modi Industries Limited, the company owning the industrial unit, have taken effective steps to set up an effluents treatment plant by entering into an agreement dated December 23, 1985 with Messrs Chemi cal Consultants & Engineers, Ahmadnagar who would set it up in collaboration with Sulzer Bros. Limited, Switzerland by employment of the technical knowhow which would be able to recover methane gas upto 70% and also bring down BOD reduc tion upto 90%.
Further, it is averred that the company sought and obtained the approval of the Board subject to a time schedule for erection and installation of the plant by the end of June 1987.
It is also averred that since the Government of India has turned down the application of the respondents for subsidy for installation of the said plant insofar as the year 1985 86 was concerned, they are trying other sources of finance and that in the meanwhile pending the installation and commissioning of the plant based on the Sulzer 's process are treating the effluents by alternative methods in order to reduce the extent of BOD discharge.
They are diluting the effluents by mixing fresh water to the extent of 13 to 15 times the amount of effluent discharged in order to reduce the extent of pollution.
In view of the subsequent events the learned counsel submits that this was a fit case for dropping the proceedings.
The averments made by the respondents in the various affidavits have been controverted by the affidavit in rejoinder sworn by Chandra Bhal Singh, Law Officer of the appellant Board showing that there is little or no progress in the matter of establish ment of the effluents treatment plant.
We need not enter into this controversy.
These are all matters to be dealt with by the learned Chief Judicial Magistrate.
The result therefore is that the appeal succeeds and is allowed.
The judgment and order passed by the High Court are set aside and that of the learned Chief Judicial Magistrate directing issue of process to the respondents are restored.
The learned Magistrate shall proceed with the trial as expeditiously as possible in accordance with law.
P.S.S. Appeal allowed.

summary/full:
The respondent distillery, an industrial unit of M/s. Modi Industries Ltd., at Modi Nagar manufacturing industrial alcohol has been discharging its highly noxious and polluted trade effluents into the river through a local drain.
It applied to the Pollution Control Board under sections 25(1) and 26 of the Act on March 27, 1981 for consent of the Board to discharge its trade effluents into the stream.
The Board found the application incomplete in many respects, and called upon the respondents to rectify the discrepancies.
As there was no response from the respondents, the appellant Board refused to grant the consent prayed for in the public interest and thereafter issued notice under section 20 of the Act directing the Company to furnish certain information regard ing the particulars and names of the Managing Director, Directors and other persons responsible for the conduct of the Company.
This was followed by various reminders.
Finding no response from the respondents, the Board on October 21, 1983 lodged a complaint against the respondents under section 44 of the Act in the Court of the Chief Judicial Magistrate, Gaziabad.
Instead of launching a prosecution against M/s. Modi Industries Ltd., the Board impleaded the industrial unit as respondent No. 1 and the Chairman.
Vice Chairman, Managing Director and members of the Board of Directors of the Company as respondent Nos. 2 to 11.
The Judicial Magistrate directed the issue of process.
799 The respondents preferred a revision under section 397 of the Code of Criminal Procedure, 1973 before the High Court in which an application was filed under section 482 of the Code for quashing the proceedings.
The Single Judge of the High Court quashed the proceedings on the ground that there could be no vicarious liability saddled on the Chairman, Vice Chairman, Managing Director and other members of the Board of Direc tors of the Company under section 47 of the Act unless there was a prosecution of the Company.
Allowing the appeal, HELD: A combined reading of the provisions contained in subss.
(1) and (2) of section 47 of the makes it apparent that the officials of the Company owning the respondent industrial unit could be prosecuted as having been in charge of and responsible to the Company for the business of that unit and could be deemed to be guilty of the offence with which they were charged.
[804DE] The industrial unit owned by the Company was discharging its trade effluents into the river prior to the commencement of the Act.
It was, therefore, mandatory for the Company to make an application to the Board under section 25(2) read with section 26 of the Act for grant of consent for the discharge of its trade effluents into the stream.
The application made by the industrial unit having been found incomplete in many re spects was rejected by the Board in public interest.
There after the Company which did not have proper arrangements for treatment of the highly polluted trade effluents discharged by it, had been in spite of repeated letters from the Board intentionally and deliberately avoiding compliance with the requirements of sections 25(1) and 26 rendering themselves pun ishable under section 44 of the Act.
The Chairman.
ViceChairman, Managing Director and members of the Board of Directors of the Company in such capacity were incharge of and responsi ble for the conduct of the business of the Company and were, therefore, deemed to be guilty of the said offence and liable to be proceeded against and punished under section 47 of the Act.
[805H 806F] The vicarious liability of these officials of the Compa ny is to be viewed not in isolation but in the conspectus of facts and events and not in vacuum.
The technical flaw in the complaint lodged by the appellant Board had occurred due to the recalcitrant attitude of the industrial unit, which in spite of more than one notice being issued had deliber ately failed to furnish information called for regarding the particulars and 800 names of the Managing Director, Directors and other persons responsible for the conduct of the Company.
Having wilfully failed to furnish the requisite information to the Board, it is not open to the respondents 2 to 11 to seek the Court 's assistance to derive advantage from the lapse committed by their own industrial unit.
Furthermore, the legal infirmity is of such a nature which could be easily cured by having the matter remitted to the trial court with a direction to call upon the appellant to make the formal amendments to the averments in the complaint so as to make the controlling company of the industrial unit figure as the concerned accused.
[805BC, 804G, EF, H 805A] The Board and its legal advisors should have drafted the complaint with greater circumspection not to leave any technical flaw which would invalidate the initiation of the prosecution allowing a large business house to escape the consequences of the breaches committed by it of the provi sions of the Act with impunity.
[805GH]


judgement:
(Civil) No. 1615 of 1986.
(Under Article 32 of the Constitution of India).
R.P. Gupta for the Petitioner.
C.V. Subba Rao for the Respondents.
1140 The Order of the Court was delivered by B.C. RAY, J.
The petitioner who was appointed as a constable in the Haryana Police Force on November 7, 1979 has challenged in this writ petition the order dated August 24, 1982 issued by the Commandant, 2nd Bn.
Haryana Armed Police, Madhuban on the ground that the impugned order of removal from service was in effect a penal order and as such the same being made without complying with the requirements of Article 311(2) as well as the Rule 16.24(ix)(b) of the Punjab Police Rules, 1934 is wholly arbitrary, illegal and unwarranted and so the impugned order is liable to be quashed and set aside and the petitioner to be reinstated in service.
The facts of the case in a nutshell are that the petitioner was enrolled as a constable in the Haryana Police Service in November, 1979 and he had been discharging his duties attached to his office duly and properly.
The peti tioner was a member of an unregistered Haryana Police Asso ciation.
The said association had been convassing for im provement in the Service conditions of the police personnel serving with the Haryana Police and on several occasions made representations for improvement of the service condi tions of the members of the police service.
As a part of its campaign for improvement in service conditions, the associa tion in the month of July gave a call to all its members to participate in "a nontaking of food campaign" which was to take place on 15th August, 1982.
On that day the petitioner and other police personnel numbering about 16,000 consisting of constables and head constables of Haryana Police Force attended to their duties but they did not take their food in the Mess.
The protest undertaken by the Haryana police constables/ head constables was a symbolic and peaceful one and no incident whatsoever had occurred on that day.
The respondents, however issued order of dismissal/removal against 425 policemen under rule 12.21 of the said rules without serving on them any charge sheet and without giving them any opportunity of hearing against the charges, prior to the passing of the said order of dismissal/removal from service.
About 154 of such policemen challenged the order of their dismissal/removal from service in writ petition Nos. 9345 to 9498 of 1983 before this Court and the Constitution Bench of this Court after hearing, set aside the said order of dismissal from service and directed reinstatement in service without any break in their service.
The petitioner because of his activities in the Associa tion was served with the impugned order of removal from service without being given any opportunity of hearing and without being asked to show cause against the purported order of dismissal from service.
The 1141 petitioner has challenged the validity of this impugned order in this writ petition.
A return has been filed on behalf of the respondents sworn by one Raj K. Vashishta, IPS, Commandant 2nd Bn.
Haryana Armed Police, Madhuban District, Karnal wherein in paragraph.
2 it has been stated that the impugned order is not an order of dismissal from service and in fact this is an order of discharge made under rule 12.21 of the Punjab Police Rules, 1934 as applicable in Haryana.
It has been further stated in paragraph 3 of the said affidavit that the petitioner deliberately suppressed the facts that: (i) That for his absence from duty, without leave for more than 24 hours with effect from 25.10.80 he had been awarded 5 days P.D. (ii) Again he had been warned for absence without leave for five hours on 21.4.81.
(iii) Notwithstanding the warnings and punishments awarded for absence from duty in 1980, and again in 1981, the petitioner did not show any improvements in his performance and conduct and again absented from duty on 15th August, 1982.
It has also been stated that a recruit constable who within a span of three years of his enrolment repeatedly absents from duty and does not improve himself in spite of warnings, is not likely to prove an efficient police offi cer.
It has further been averred in the said affidavit that the petitioner was discharged because the appointing author ity (Superintendent of Police) was of considered opinion on due assessment of his conduct and performance that he was unlikely to prove an efficient police officer.
These aver ments have been verified as correct according to the infor mation derived from the official records and believed by the deponent to be true.
There is no dispute that the petitioner was enrolled as a constable with effect from November 7, 1979 and he was on probation which is for a period of three years.
It is also well settled that a probationer has no right to the post and if he is found by the concerned authorities to be unsuitable for the post during the probation period his service may be done away with.
But nonetheless such a probationer has a right to have an opportunity of hearing against the order of dismissal removal from service if the same is made in effect by way of 1142 punishment or the same casts a stigma on the service career of the petitioner.
In other words if the order of dismissal/removal from the service is not one simpliciter on the ground that his service is no longer required but in substance and in effect the same is made by way of punish ment, the probationer like the petitioner who has no right to the post is to be given an opportunity of hearing.
If such an order of dismissal/removal from service is made without following the procedure envisaged in Article 311(2) of the Constitution of India as well as rule 16.24(ix)(b) of the Punjab Police Rules, 1934 the same will be illegal and bad and liable to be quashed.
This position has been well settled by this Court in the case of P.L. Dhingra vs Union of India, AIR 1958 (SC) 36 wherein it has been observed as under: " . .
Passing on to Article 311 we find that it gives a two fold protection to persons who come within the article, namely, (1) against dismissal or removal by an authority subordinate to that by which they were ap pointed and (2) against dismissal or removal or reduction in rank without giving them a reasonable opportunity of showing cause against the action proposed to be taken in regard to them.
Incidentally it will be noted that the word "removed" has been added after the word "dismissed" in both Clauses (1) and (2) of article 311.
Upon article 311 two questions arise, namely, (a) who are entitled to the protection and (b) what are the ambit and scope of the protection?" " . .
Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punish ment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto.
But if the servant has no right to the post, as where he is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment.
One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain 1143 whether the servant, but for such termination, had the right to hold the post.
If he had a right to the ' post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of article 311." " . .
But even if the Government has, by contract or under the rules, the right to terminate the employment without going through the procedure prescribed for inflicting the punishment of dismissal or removal or reduc tion in rank, the Government may, neverthe less, choose to punish the servant and if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punish ment and the requirements of article 311 must be complied with.
" In the case of Samsher Singh vs State of Punjab and Anr., AIR 1974 (SC) 2 192 it has been observed as under: "No abstract proposition can be laid down that where the services of a probationer are termi nated without saying anything more in the order of termination than that the services are terminated it can never amount to a pun ishment in the facts and circumstances of the case.
If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.
" It has been further observed that the form of the order may be innocuous but if the order is really by way of pun ishment then the protection under Article 311(2) will come into play and the probationer will be entitled to have an opportunity of hearing before the impugned order of dismiss al/removal from service is made.
The substance of the order and not the form could be decisive.
In a later decision of this Court i.e. Anoop Jaiswal vs Government of India and Anr., AIR 1984 (SC) 636 following the aforesaid two decisions this Court has observed that: 1144 "The form of the order is not decisive as to whether the order is by way of punishment and that even an innocuously worded order termi nating the service may in the facts and cir cumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of article 311(2).
Where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true charac ter of the order.
If the Court holds that the order though in the form is merely a determi nation of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights con ferred by law upon the employee." In the instant case it is clear and evident from the averments made in paragraph 3, sub para (i) to (iii) and paragraph (v) of the counter affidavit that the impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after consider ing the service conduct of the petitioner.
There is no doubt that the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punish ment, the petitioner is entitled to the protection afforded by the provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24(IX)(b) of the Punjab Police Rules, 1934.
The petitioner has not been served with any charges of misconduct in discharge of his duties as a police constable nor has he ever been asked to show cause against the said charges.
The order of removal from service was made because of his union activities namely participat ing in the call for expressing the protest of the associa tion for improvement in service conditions by abstaining from taking meals in the Mess on 15th August, 1982 although the petitioner like other members of the association per formed his duties on that day and did not abstain from duty.
It cannot be said in the facts and circumstances of the case that the impugned order is an order simpliciter of removal from service of a probationer in accordance with the terms and conditions of the service.
The impugned order undoubted ly, tantamounts to dismissal from service by reason of misconduct of the petitioner in discharge of the official duties aS police constable.
This matter is fully covered by the decision dated October 17, 1984 of the Constitution Bench in Ajit Singh & Ors.
vs State of Haryana & Ors.
, (W.P. Nos. 9345 9498/1983) and we are bound to follow the same.
1145 In the premises aforesaid the writ petition succeeds and is allowed, the impugned order of discharge of the petition er from Haryana Police Force under rule 12.21 of the Punjab Police Rules, 1934 passed by the Commandant, 2nd Bn., Har yana Armed Police is quashed and it is directed that he be reinstated in service with 50% back wages from the date of termination of his service till the date of his reinstate ment.
He would, however, be entitled to his full salary and other allowances admissible with effect from the date of his reinstatement.
It is further directed that there would be no break in continuity of service for purposes of seniority and pensionary benefits.
No costs.
M.L.A. Petition allowed.

summary/full:
The petitioner, a Constable in the Haryana Police Serv ice, was removed from service during the period of proba tion.
However, he was not given any opportunity of hearing against the purported order of dismissal from service.
He challenged the impugned order of removal on the ground that he was removed from service because of his activities in the Haryana Police Association and it was in fact a penal order and as such the same being made without complying with the requirements of Article 311(2) as well as Rule 16.24(ix)(b) of the Punjab Police Rules, 1934, it is wholly arbitrary, illegal and unwarranted.
It was contended on behalf of the respondent that the impugned order is not an order of dismissal from service and in fact this is an order of discharge made under Rule 12.21 of the Rules since the appointing authority was of consid ered opinion on the assessment of his conduct and perform ance that the petitioner was unlikely to prove an efficient police officer.
Allowing the writ petition to this Court, HELD: 1.
(i) The impugned order of removal/dismissal from service was in substance and in effect an order made by way of punishment after considering the service conduct of the petitioner.
It is therefore quashed and it is directed that he be reinstated in service with 50 per cent back wages from the date of termination of his service till the date of his reinstatement.
He would, however, be entitled to his full salary and other allowances admissible w.e.f.
the date of his reinstatement.
There would however be no break in continuity of service for purposes of seniority and pension benefits.
[1144D; 1145A C] 1139 (ii) There is no doubt that the impugned order casts a stigma on the service career of the petitioner and the order being made by way of punishment, the petitioner is entitled to the protection afforded by the provisions of Article 311(2) of the Constitution as well as by the provisions of Rule 16.24(ix)(b) of the Punjab Police Rules 1934.
[1144E] (iii) It cannot be said that the impugned order is an order simpliciter of removal from service of a probationer in accordance with the terms and conditions of service.
The impugned order undoubtedly tantamounts to the dismissal from the service for reasons of misconduct of the petitioner in discharge of the official duties as police constable.
[1144G H] 2.
A probationer has no right to the post and if he is found by the concerned authorities to be unsuitable for the post during the probation period his service may be done away with.
But nonetheless such a probationer has a right to have an opportunity of hearing against the order of dismiss al/removal from the service if the same is made in effect by way of punishment or the same casts a stigma on the service career of the petitioner.
[1141G H; 1142A] In the instant case, the petitioner has not been served with any charges of misconduct in discharge of his duties as a police constable nor has he ever been asked to show cause against the said charges.
The order of removal from service was made because of his union activities namely participat ing in the call for expressing the protest of the Associa tion for improvement in service conditions by abstaining from taking meals in the Mess on 15th August, 1982 although the petitioner like other members of the association per formed his duties on that day and did not abstain from duty.
[1144E G] P.L. Dhingra vs Union of India, AIR 1958 (SC) 36; Samsh er Singh vs State of Punjab and Anr., AIR 1974 (SC) 2192; Anoop Jaiswal vs Government of India & Anr., AIR 1964 (SC) 636 and Alit Singh & Ors.
vs State of Haryana & Ors.
, W.P. No. 9345 94 98/1983, followed.