judgement:
l. Appeal No. 2095 of 1968.
16 Appeal from the judgment and order dated September 17, 1968 of the Mysore High Court in Writ Petition No. 1889 of 1968.
D. Narsaraju, M. C. Chagla, R. V. Pillai, Subodh Markendya and M. Narayana Reddy, for the appellant.
M. C. Setalvad, B. R. L. Iyengar and section P. Nayar, for respondents Nos. 1 to 3.
M. K. Nambyar, Shivaswamy and R. Gopalakrishnan, for respondent No. 4.
The Judgment of the Court was delivered by Bachawat J.
This appeal raises the question of the legality of the cancellation of the sale to the appellant of the exclusive privilege of retail vend of toddy and arrack for the year 1968 69 in a group of 1168 shops in Raichur and Gulbarga districts under the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967.
On May 10, 1968 the excise commissioner of Mysore published a notice stating that the exclusive privilege would be sold by tender cum auction by the divisional commissioner, Gulbarga on May 28 and inviting tenders by May 27.
On May 27, the appellant made a tender offering Rs. 9,99,999/ towards the monthly rental of the shops and deposited the requisite earnest money amounting to Rs. 1,85,168/ as required by r. 7(f).
Respondent No. 4 K.V. Niranjan made a tender offering Rs. 9,69,999/ towards the monthly rental.
The appellant was the only bidder present at the auction on May 28.
His offer being the highest was accepted by the divisional commissioner, Gulbarga, under r. 17(1).
The appellant deposited another sum of Rs. 8,14,831/ which together with the earnest money made up one month 's rent as required by r. 17(5).
On June 4, the divisional commissioner, Gulbarga, confirmed the sale under r. 17(1).
On June 6, the deputy commissioner, Gulbarga, issued a notice asking the appellant to make deposits according to r. 19 immediately and to obtain licences from the concerned tahsil officers after completing other formalities.
Under r. 19(2) the appellant was required to deposit another one month 's rent within 15 days from the date of the sale.
By June 15, the appellant deposited in all Rs. 39,99,996/ amounting to 4 months ' rent.
By a letter (exhibit B 1) the appellant informed the excise commissioner that he had deposited 4 months ' rent as required by circular No. EXE.
1. 15 7 5 issued by the excise commissioner on December 12, 1967 and asked for permission to obtain licences from the deputy commissioners of Raichur and Gulbarga.
On June 18/19 he applied to the divisional commissioner, Gulbarga, for the issue of licences.
June 19, the divisional commissioner, issued a 17 notice to the appellant stating that as he had not submitted a solvency certificate of his property or the property of his sureties he was required to deposit the balance to make up six months ' rent as required by r. 19 (3 ) (i) and to furnish security for six months rental or sureties as require by r. 19(3) (ii) and (iii) by June 25, and that in default action would be taken under r. 20(2).
A notice to the same effect was given orally on June 19, when he met the divisional commissioner at Bellary.
On June 22, he presented a petition under section 62 to the, state government asking for the issue of licences, as he had complied with the conditions of the circular.
In view of the subsequent writ petition the government did not pass any orders on this petition.
The notice dated.
June 19 was received by the appellant on June, 23.
On June 25, he wrote to the divisional commissioner stating, that he had complied with the conditions of the rules read with the, circular and was entitled to the licences, that he had reason to believe that necessary orders would be passed by the state: government on his petition under section 62 and that if necessary, the terms for compliance with the requirements of r. 19 be extended.
by two months.
On the same date the divisional commissioner, rejected the application for extension of time, and issued a notice to the appellant asking him to show cause before June 26,why in view of the non compliance with the notices dated June 6 and 19, the sale should not be cancelled and the deposits already made should not be forfeited to the government.
The notice was served on his advocate on June 25 at 7.40 p.m.
On June 26, the.
appellant submitted a petition to the divisional commissioner stating that he had complied with the terms of r. 19 and the circular, that abrupt cancellation of the sale would result in irreparable injury and that in any event the time to deposit the balance two, months ' rental be extended for a reasonable time.
By an order dated June 26, (exhibit J), the divisional commissioner rejected the application for extension of time and cancelled the sale starting that (1) the appellant did not "at one& ' apply in writing, for licences in accordance with r. 19(1); (2) though he deposited two months ' rent as required by r. 19 (2), he did not file a statement of his immovable properties in accordance with r. 19(1); and should therefore be, considered as a person of doubtful solvency; (3) he was, therefore, required to deposit another 2 months ' rent under r. 19 (3) (i) and to furnish securities for six months ' rental or surety under r. 1 9 ( 3 ) (ii) and (iii) ; (4) he failed to comply with r. 19 in spite of notices dated June 6 and ' June 19; (5) the circular issued by the excise commissioner was opposed to r. 19 and could not be acted upon; (6) that even under the circular he was required to give two months ' collateral security in addition to 4 months ' cash deposit if he was a person, of doubtful solvency; and (7) that the sale conducting,officer has no power to extend the time for compliance with the formalities. 18 On June 28, the appellant filed writ petition No. 1889 of 1968 against the State of Mysore and others in the High ,Court of Mysore for quashing the order dated June 26, (exhibit Jr) and for the grant of licences to him to vend liquors in the combined groups of shops in Raichur and Gulbarga ,districts and for other reliefs.
The appellant submitted that (1) he had complied with the rules read with the cir cular; (2) he did not file any statement of his immovable properties under r. 19(1) as he had immovable properties in Andhra Pradesh; (3) as there was no inquiry nor, finding by any tahsildar ,that he was of doubtful solvency r. 19(3) was not attracted; (4) ,the divisional commissioner, Gulbarga, was not competent to ask for deposits and security under r. 19(3), nor was he competent to pass an order cancelling the sale; and (5) r. 19(3) was violative of articles 14 and 19 of the Constitution.
On June 28, the High Court admitted the writ petition and ,directed the state government to stay further proceedings and to issue licences to the appellant.
Subsequently the High Court ,confirmed the stay order on condition that the appellant would deposit another two months ' rent.
The appellant deposited about Rs. 20,00,000/ in accordance with the order.
On June 30, the divisional commissioner granted licences to him.
On July 1, he commenced his business in all the 1168 shops.
Thereafter he ,duly deposited about Rs. 30,00,000/ on account of rent for the months of July, August and September.
The state government, the excise commissioner and the divisional commissioner filed separate affidavits disputing the appellant 's contentions.
The rival tenderer, K. V. Niranjan was added as respondent No. 4 in W.P. No. 1889 of 1968 on his own application under an order of the High Court dated July 7.
K. V. Niranjan filed an affidavit stating that the appellant was a benamidar for other persons and the acceptance of his tender was forbidden by r. 12.
K. V. Niranjan also filed W.P. No. 2088 of 1968 for quashing the orders of the divisional commissioner dated May 28, and June 4, whereby the appellant 's tender was accepted and for a mandamus directing the acceptance of his next highest tender under r. 17(4).
The two writ petitions were heard together and were dismissed by the High Court by a common judgment delivered on September 17.
The High Court held that (1) the appellant did not comply with the mandatory requirements of r. 19; (2) r. 19(3) was not ultra vires the rule making power under section 71 nor violative of articles 14 and 19, and the appellant was estopped from challenging it; (3) the circular of the excise commissioner could not modify r. 19; the appellant could not rely on the circular as he came to know of it long after the sale, nor had he complied with its terms by depositing the entire four months rent before 19 June 12;(4) the appellant was a benamidar for other person or persons and in view of r. 12 was incompetent to bid and (5) the, order dated June 26 (exhibit J) was valid.
On these findings the High Court dismissed W.P. No. 1889 of 1968.
With regard to W.P. No. 2085 of 1968 the High Court said that as the sale to the appellant had been cancelled by exhibit J, it was not necessary to set aside the order accepting and confirming his bid.
The High Court held that under r. 17 (4) it was not obligatory on the officer conducting the sale to accept the next highest offer of respondent No. 4.
The High Court, however, said "in the circumstances of the case, it is necessary to observe that the authorities concerned will consider the advisability of accepting the bid of the fourth respondent, subject to his complying with all the requirements of the Act and the Rules.
" With these observations the High Court dismissed W.P. No. 2085 of 1968.
By a telegram dated September 18, the excise commissioner instructed the divisional commissioner, Gulbarga, to direct the tahsildars of Raichur and Gulbarga to issue licences to respondent No. 4 on his complying with certain conditions.
On the same date licences were issued to respondent No. 4.
On September 19, the High Court dismissed an application for stay of operation of its order dated September 17, and on the same day granted to the appellant a certificate under article 1 3 3 ( 1 ) (b) of the Constitution.
On September 25, the appellant filed a stay application in this Court.
On September 27, the Court passed an order restraining the respondents from forfeiting the deposits made by the appellant.
It is convenient at this stage to refer to the relevant provisions of the Mysore Excise Act, 1965 and the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967.
Section 3(1) of the Act provides that the excise commissioner, "shall be the chief controlling authority in all matters connected with the administration of this Act." Section 15(1) provides that "no intoxicant shall be sold except under the authority and subject to the terms and conditions of a licence granted in that behalf." Under section 15 (2) a licence for sale can be granted (a) by the deputy commissioner if the sale is within a district or (b) by the excise commissioner if the sale is in more than one districts Section 17 ( 1 ) (b) empowers the state government to lease to any person, on such conditions and for such period as it thinks fit the exclusive or other right of selling by the wholesale or by retail any Indian liquors within any specified area.
Contravention of the Act or any Rules made thereunder is punishable under section 32.
Section 71 empowers the state government to make rules.
Rule 3 of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 provides that the right of retail vend of liquors shall 20 be disposed of by tender or by auction or by tender cum auction.
The auction is conducted by the deputy commissioner or the divisional commissioner under r. 5 and the tender has to be made to them under r. 7 (1).
The tenderer is required by r. 7 (f ) to deposit as, earnest money an amount equal to 1/4 of the shop rental of the previous year of the shop or groups of shops.
The appellant complied with the requirement of r. 7 (f ).
Rule 10 requires an intending bidder or tenderer to furnish a certificate of his solvency or two sureties having similar certificates or bank guarantee or cash deposit to cover four times the earnest money fixed under rule 7(f).
It is not disputed that the appellant made sufficient cash deposits in compliance with r. 10.
Rule 12 read & : "Benami bids not allowed.
No person except a power of attorney holder shall be entitled to bid for another person.
" The sale to the appellant was not cancelled on the ground that he bid for another person.
Rule 17 regulates the procedure at sales.
Rule 17(1) empowers, the officer conducting the auction to accept the highest offer.
The acceptance is subject to the condition of confirmation by the deputy commissioner or by the divisional commissioner.
The confirmation is effective unless revised by the excise commissioner or the government.
Rule 17(2) empowers the excise commissioner or the government to revise the order of confirmation.
Rule 17(4) provides that if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re sell the shop.
Rule 17 (5) requires the person whose bid is accepted to make a further deposit which together with the earnest money would make up one month 's rent.
The appellant made the deposit required by r. 17(5).
His bid was accepted and was later confirmed by the divisional commissioner.
Neither the excise commissioner nor the state government passed any order under r. 17(2) revising the decision confirming the acceptance of his bid.
Rule 19 provides as follows : "19 Successful bidder to apply for licence: Every person to whom the right of retail vend of liquors is sold or whose tender in respect thereof has been accepted under these rules and who has made deposits as hereinbefore provided shall (1) at once apply in writing for licence for such shop confirmed in his name and within a week thereafter furnish to the Tahsildar the, details of boundaries of the site selected by him for the location of the shop and a statement in the prescribed form annexed to the notification showing details of the immovable property possessed by him or in which he has an interest together with accurate and full details of encumbrances, if any, thereon; 22 (5) The purchaser shall get the bond and the mortgage deed registered under the Indian at his expense.
(6) The purchaser or his surety shall produce an encumbrance certificate in cases where immovable property is mortgaged to the Governor of Mysore.
" It is not alleged that the appellant did not furnish the details of the shop sites as required by r. 19 sub.
r. (1) within 15 days of the date of the confirmation of the sale.
The appellant made a deposit of two months rent as required by r. 19 sub r.
The appellant did not furnish a statement of immovable properties under r. 19 sub r.
(1) nor did not he furnish security or sureties under r. 19 sub r.
It is also alleged that he did not apply for licences at once as required by r. 19 sub r.
Rule 20(2) provides : "On failure to comply with the provisions of rr.
17 and 19 the deposits already made shall be forfeited and the right of retail vend of liquors in such shop or groups disposed of in such manner under these rules, as the Excise Commissioner may direct".
No order was passed by the excise commissioner under r. 20(2).
In our opinion, the provision of r. 19sub.
r.(1) requiring the successful bidder to furnish a statement of his properties to the Tahsildar and the provisions of r. 19 sub rr.
(3) and (4) do not apply where the shops in respect of which the right of retail vend is sold is situated in more than one tahsil.
The opening part of r. 19 sub r.(1) requires the purchaser to furnish to "the tahsildar" the location of the shops and the boundaries of the shop sites.
The expression "the tahsildar" is not defined, but it is reasonable to think that the details regarding the shops should be furnished to the tahsildar within whose tahsil the shops are situated.
If the shops are situated in more than one tahsil, the details can be furnished to several tahsildars.
But it is not possible to give effect to the last part of sub rule (1) and the provisions of sub rr.
(3) and (4) in cases where the shops are situated in more than one tahsil.
The statement of immovable properties under the last part of sub r.
(1 ) can be furnished to, only one tahsildar so that he can peruse the same and on such perusal or on independent inquiry ascertain under sub r.
(3) whether or not the purchaser is of doubtful solvency and satisfy himself under sub r.
(4)whether or not the value of the immovable properties tendered as security is adequate.
Sub rr.
(3) and (4) do not contemplate findings by more than one tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more tahsildars.
In our opinion, the last part of sub r.
(1) and the provisions of sub rr.
(3) and (4) do not apply where the shops are situated in two or more tahsils.
23 The right of retail vend sold to the appellant is in respect of shops situated in 19 Tahsils in the districts of Raichur and Gulbarga Consequently, those provisions were not attracted to this sale and the appellant was not required to comply with those provisions.
The divisional commissioner, Gulbarga, could not record a finding under r. 19 sub r.
(3) that the purchaser was of doubtful solvency.
Even a tahsildar could not record such a finding without making an independent inquiry where no statement regarding.
immovable properties was furnished under sub rule (1).
No independent inquiry under sub r.
(3) was made by any tahsildar For this reason also the appellant cannot be regarded as a person of doubtful solvency and he was therefore not required to comply with the provisions of sub r.
The appellant has so far deposited about Rs. 90,00,000/ and it is impossible to believe that he is a person of doubtful, solvency.
The remaining charge is that the appellant did not "at once" ' apply for licences.
Rule 20(2) provides for the forfeiture of the deposits on failure to comply with the provisions of r. 19.
Under the Mysore Excise Licences (General Conditions) Rules, 1967 a licensee is required to commence his business on July 1.
The purpose of the Act and the Rules is achieved if the application for licence is made within sufficient time so as to enable the issue of licences before July 1.
Having regard to the object of the Act and the Rules the expression "at once" in r. 19 sub.
(1) means within a reasonable time before July 1.
It could not have, been intended that the deposits would be forfeited where the purchaser applies for licence within a reasonable time.
The appellant sufficiently complied with r. 19 sub r.
(1) by applying under exhibit B, to the excise commissioner for permission to obtain licences and by applying to the divisional commissioner on June 18 for the issue of licences.
The divisional commissioner, Gulbarga was not competent to pass the impugned order (Ex, J) cancelling the sale.
Only the excise commissioner or the state government could under r. 17(2) revise his previous order confirming the sale and on such revision cancel the sale.
The divisional commissioner, Gulbarga was not authorised by r. 17(2) to revise his own order or to cancel it.
In hi ,, notice dated June 19, the divisional commissioner, Gulbarga, stated that he would take action under r. 20(2).
In his notice dated June 25, he asked the appellant to show cause why the sale should not be cancelled and why the deposits already made should not be forfeited to the government.
But he did not pass any order forfeiting the deposits.
Nor was he competent to pass any order under r. 20(2).
Only the excise commissioner could pass such an order.
24 It follows that the High Court was in error in holding that the appellant committed breaches of r. 19.
The finding of the divisional commissioner, Gulbarga, that the appellant committed such breaches is erroneous, nor was he competent to record the finding or to pass an order cancelling the sale.
In view of this conclusion it is not necessary to consider whether r. 19 sub r.
(3) offends articles 14 and 19 of the Constitution and we express no opinion on the question.
We cannot agree with the proposition that the appellant is estopped from challenging the constitutionality and vires of the sub rule.
It is true that .r.
24 provides that the purchaser shall be bound by all the rules.
But if r. 19 sub r.
(3) offends articles 14 and 19 it is non est and there can be no question of the appellant being bound by a rule which does not exist.
Though we express no opinion on the vires ,of the sub rule, we must observe that r. 19 is clumsily drafted, its import is not clear, its tight time schedule works hardship and its ,procedure is cumbersome.
The government should immediately ,consider the question of re drafting r. 19.
It may be noted that Mr. Narasaraju conceded that r. 19 is not beyond the rule making powers of the state government.
The appellant relied on the circular No. EXE.1.1575/67 (exhibit E) dated December 12, 1967.
Exhibit E is a letter from 'the excise commissioner to the deputy commissioner, Bangalore, ,,on the subject of securities to be furnished by the excise contractors.
The letter stated that the procedure of r. 19 was number some and not clear, that several deputy commissioners sought clarifications on 'the subject and that the state government had been moved to clarify and simplify the matter.
The excise commissioner directed that pending receipt of the government order the following procedure should be followed : In addition to obtaining two months ' cash deposits, (1) two months cash security might be accepted and in the absence of cash security four months ' collateral security might be insisted; (2) if the deputy commissioner/tahsildar was doubtful about the solvency of the contractor he could insist on six months ' collateral security and (3) while accepting the collateral securities care should be taken to see that "the contractor executed the necessary mortgage bond.
Admittedly, similar instructions were issued to other deputy commissioners and were enforced in several districts.
There is a dispute on the ,question whether the circular was sent to the districts of Gulbarga and Raichur.
In so far as the circular attempted to modify r. 19 it was in effective.
The excise commissioner, had no power to abrogate or modify a rule framed under section 71.
On behalf of the appellant it was argued that as the chief controlling authority the ,excise commissioner could frame regulations under section 3 read with r. 24 and could issue general instructions on the subject of taking 25 security in cases not covered by r. 19.
We express no opinion on this question, as the government has already withdrawn the circular.
But we must observe that relying on this circular the appellant deposited two months ' rent as required by the circular in addition to the two months ' rent as required by r. 19 sub r.
(2) and that such deposits were duly made within 15 days from the date of the sale.
However, it is not necessary for the appellant to rely on the terms of the circular.
He has complied with the provisions of r. 19 and the sale in his favour cannot be cancelled.
On behalf of respondent No. 4 it is argued that the appellant bought the right of retail vend as benamidar for some other person, that his benami bid was opposed to r. 12 and could not be accepted and that as the sale of liquor by the real buyer without a licence in his favour was illegal in view of sections 15 and 26, the appellant was not entitled to any relief in view of the decision in Venkata Subbayya vs Attar Sheik Mastan(1).
The onus is upon the respondent to prove that the appellant made a benami purchase.
It appears that the appellant is a retired inspector drawing a pension of about Rs. 75/ per month.
He is not an income tax or a wealth tax assessee, He does not own any property in Mysore State.
The appellant says that he owns immovable properties in Andhra Pradesh but he did not file the title deeds in respect of them.
However, the appellant was in possession of a large amount of ready cash.
Before June 25, he deposited about Rs. 40 lakhs and thereafter deposited about Rs. 50 lakhs.
There can be no doubt that the appellant has the backing of powerful financiers.
There is no specific charge that some named person is the real purchaser.
From the materials on the record it is not possible to record a finding that the appellant is a benamidar and that that some other person is the real purchaser.
The purchase is not illegal merely because the appellant obtained the necessary funds from some financiers.
The government never alleged that the appellant 's bid was a benami bid and opposed to r. 12.
His bid was accepted and such acceptance was subsequently confirmed.
Under r. 17(1) the confirmation is effective until revised by the appropriate authority.
It is neither alleged nor proved that sonic person other than the appellant had been managing the shops and selling liquor in contravention of section 15.
Respondent No.4 has failed to establish contravention of either r. 12 or section 15.
The High Court was in error in holding that the appellants bid was opposed to r. 12.
Having regard to the fact that the appellant had already deposited about Rs. 40 lakhs the divisional commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale.
(1) A.I.R. 1949 Mad. 252.
Sup CI/69 3 26 For the reasons already given ,the order of cancellation (Ex.J) is invalid.
The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant.
Some complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the, writ petitions by the High Court.
Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops.
In order to give effect to our order for the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No. 4 should be cancelled.
We can give this direction as respondent No. 4 is a party to this appeal.
While holding that r. 17 sub r.
(4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisibility of accepting his bid.
This observation is not in accordance with law and has given rise to unnecessary complications.
Rule 17(4) provides that "if the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re sell the shop.
" The sub rule cannot be invoked if the officer conducting the sale has accepted the highest offer.
In the present case, the officer accepted the appellant 's highest offer and later confirmed it.
The confirmation is still effective under r. 17(1).
If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under r. 17(4).
In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules.
It follows that the bid of respondent No. 4 could not be accepted under r. 17(4) after the disposal of the writ petitions on September 19.
It is rather surprising that the Government acted so hastily and issued licences to respondent No. 4 on or about September 18.
It is not quite clear how licences in respect of 1168 shops could be issued on a single day.
The effect of this precipitate action on, the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Court 's order.
There is ground for suspecting that the government was favouring respondent No. 4.
In the result the appeal is allowed with costs in this Court and in the High Court.
The order passed by the High Court is set aside.
Writ Petition No. 1889 of 1968 is allowed.
The order dated June 26, 1968 (exhibit J) is set aside.
Respondents 1 and 2 ;ire directed to grant immediately licences to the appellant to vend liquors in the combined groups of shops in Raichur and 27 Gulbarga districts for the remaining period of the year 1968 1969.
Respondents 1 and 2 are also directed to cancel forthwith the licences issued to respondent No. 4 in respect of the aforesaid groups of shops.
Y.P. Appeal allowed.

summary/full:
The appellant was the highest bidder for the exclusive privilege of retail vend of toddy and arrack for the year 1968 69, in a group of 1168 shops situated in 19 tehsils in the districts of Raichur and Gulbarga.
He made the deposits of money required under rr. 7(f) 'and 10 of the Mysore Excise (Disposal of Privileges of Retail Vend of Liquors) Rules, 1967 made under section 71 of the Mysore Excise Act, 1965.
The highest bid of the appellant was accepted and confirmed by the Divisional Commissioner of Gulbarga under r. 17(1) on June 4, 1968.
Thereafter, the appellant made further deposits required by rr.
17(5) and 19(2).
In all he deposited about Rs. 40 lakhs by June 15.
On June 18 he applied to the Divisional Commissioner for the issue licence.
He however, did not comply with r. 19(1) and (3) which required that a statement of immovable Properties should be furnished and that he should furnish security or sureties, respectively.
The Divisional Commissioner Gulbarga issued a notice to the appellant to show cause why the sale should not be cancelled and the deposits already made forfeited under r. 20(2).
The appellant prayed for two months time for compliance with the requirements of r. 19, but the Divisional Commissioner rejected the application and cancelled the sale.
He did not pass any order forfeiting the deposits.
The appellant filed a writ petition in the High Court for quashing the order and under directions of the Court deposited another Rs. 50 lakhs.
The 4th respondent, who was the next highest bidder applied to be made a party to the petition and contended that the appellant was a benamidar for other persons and so acceptance of his tender was forbidden by r. 12.
The High Court dismissed the writ petition holding (1) that the appellant did not comply with the mandatory requirements of r. 19 in that he did not furnish the statements and apply 'at once ' for licences as required by r. 19(1); (2) the appellant was a benamidar; and (3) the authorities should consider the advisability of accepting the bid of the 4th respondent.
On the very next day after the judgment of the High Court, the respondent State issued licences in respect of 1168 shops to the 4th respondent.
In appeal to this Court.
HELD : The licences issued to the 4th respondent should be cancelled and a writ of mandamus should issue for the grant of licences to the appellant.
[26 A] 15 (1)(a) The opening part of r. 19(4) requires the purchaser to furnish to 'the tehsildar ' the location of shops and the boundaries of the shop sites that is to the tahsildar within whose tehsil the shops are situated.
If the shops are situated in more than one tehsil, the details can be fur nished to the several tahsildars, but in such a case it is not possible to give effect to the last part of the sub rule and also to the provisions of sub rr.
(3) and (4).
The statement of immovable properties under the last part of sub r.
(1) can be furnished to only one tahsildar so that he can peruse the same; and on such perusal or on independent inquiry ascertain under sub r.
(3) whether or not purchaser is of doubtful solvency and satisfy himself under sub r.
(4) whether or not the value of the immovable property tendered as security is adequate.
Sub rr.
(3) and (4) do not contemplate findings by more than one tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more tahsildars.
The last part of sub r.
(1) and sub rr.
(3) and (4) do not apply where the shops are situated in two or more tahsils.
Consequently, those provisions were not attracted to the sale in the present case and the appellant was not required to comply with those provisions.
[22 E] (b) In the absence of 'an independent enquiry under sub r.
(3), the appellant could not be regarded as a person of doubtful solvency.
(c) Under the Mysore Excise Licences (General Conditions) Rules, 1967, a licencee is required to commence his business on July 1.
The expression 'at once ' in r. 19(1), means within a reasonable time before July 1.
In the present case, the appellant sufficiently complied with subrule.
[23 D E] (d) Under r. 17(2) it is only the excise commissioner or the State Government that could revise the order of the divisional commissioner confirming a sale and the divisional commissioner himself was not authorised to revise his, own order or cancel it.
[23 G] Therefore, the High Court was in error in holding that the appellant committed breaches of r. 19.
[Rule 19 is clumsily drafted, its import is not clear, its tight time schedule works hard ship and its procedure is cumbersome.
The Government should immediately consider the question of redrafting the rule.] [24 C D] (2) The appellant was a retired inspector drawing a pension of about Rs. 75 per month and, is not an income tax or wealth tax assessee.
He evidently has the backing of powerful financiers, but the purchase is not illegal merely because the appellant obtained necessary funds from some financiers.
The onus of proving that appellant was a benamidar was on the 4th respondent and from the materials on record it is not possible to hold that he is a benamidar for some other person.
[25 D] (3) Under r. 17(4), it is only when the highest bid is rejected that the next highest bid may be considered.
Where there is an acceptance of the highest offer and 'if for some reason it is revised, r. 17(4) cannot be invoked.
In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules.
Therefore, the High Court erred in observing that the 'authorities should consider the advisability of accepting the 4th respondents bid.
[26 E]


judgement:
iminal Appeal No.138 of 1966.
Appeal by special leave from the judgment and order dated March 22, 1966 of the Allahabad High Court, Lucknow Bench in Criminal Appeal No. 82 of 1965.
S.P. Sinha and M. I. Khowaja, for the appellant.
O.P. Rana, for the respondent.
The Judgment of the Court was delivered by Shah, J.
The appellant Healy was an employee of the NorthEastern Railway and was posted in March 1959 as a platform Inspector at Gorakhpur Railway Station.
The appellant told Ghammoo a sweeper working under him that unless he was paid a bribe of Rs. 15 Ghammoo would be marked absent.
Ghammoo 950 at first demurred but later agreed to pay the amount demanded and to give a bottle of liquor, and thereafter made a report to the R.S.O., Special Police Establishment at Gorakhpur about the demand made by the appellant.
Arrangements were made to set a trap.
On March 27, 1959, Ghammoo went.t to the office of the appellant and paid Rs. 15 in currency notes which had been duly marked by the Special Police Establishment Officers and half a bottle of liquor.
The appellant.
after receiving the currency notes assured Ghammoo that he "would not be harassed any more." Thereafter the police officers and the witnesses who were watching the appellant rushed into his office and recovered the currency notes and the bottle of liquor from him.
The appellant was prosecuted for offences under section 161 I.P. Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947, after obtaining the sanction of the Deputy Chief Commercial Superintendent.
It was discovered during the course of the trial that the Deputy Chief Commercial Superintendent was not competent to sanction the prosecution of the appellant.
The Special Judge, at the request of the public prosecutor, by order dated May 27, 1960, quashed the proceeding.
Thereafter a fresh sanction was obtained from the Chief Commercial Superintendent, North Eastern Railway, Gorakhpur and the proceeding was again started against the appellant on a charge for offences under section 161 I.P. Code and section 5(1)(d) read with s, 5(2) of the Prevention of Corruption Act, 1947.
The appellant was convicted by the Special Judge and was sentenced to suffer rigorous imprisonment for two years on each count, the sentences to run concurrently.
The order was confirmed in appeal by the High Court of Allahabad.
The appellant has appealed to this Court with special leave.
The evidence of Ghammoo, and J.K. Mehta and V.P. Chaturvedi officers of the Special Police Establishment, and two panchas Krishna Lal and Gandhi Singh was accepted by the Special Judge and by the High Court, the Special Judge held that the appellant had under a threat compelled Ghammoo to give him Rs. 15 and half a bottle of liquor.
The marked currency notes were found on the person of the appellant when the police officers rushed into his office immediately after he received the currency notes from Ghammoo.
The story of the appellant that Ghammoo had been instrumental in filing a false prosecution due to enmity was discarded.
His story that the currency notes and the bottle of liquor were brought by Ghammoo voluntarily and had been placed on his table without any demand by him was also rejected.
There is therefore clear evidence to establish the case for the prosecution that the appellant received a bribe from Ghammoo as a motive for forbearing to show in the exercise of his official functions disfavour against Ghammoo.
951 Counsel for the appellant, however, raised three contentions in support of the appeal: (1 ) The trial by the Special Judge was without jurisdiction because the appellant had been previously tried and had been acquitted in respect of the same offence.
In support of this contention counsel contended that the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant under the Prevention of Corruption Act was a valid sanction, and the order passed by the Special Judge on May 27, 1960, quashing the proceeding at the request of the public prosecutor amounted in law to an order of acquittal and the ,appellant could not again be tried for the same offence.
By virtue of section 6(c) of the Prevention of Corruption Act, 1947, a Court may take cognizance of an offence punishable under section 161 I.P. Code or under section 5 (2) of the Prevention of Corruption Act in the case of a public servant not employed in connection with the affairs of the Union or the affairs of a State, only with the previous sanction of the authority competent to remove him from office.
Cognizance was taken of the offences for which the appellant was tried at the first trial with the sanction of the Deputy Chief Commercial Superintendent, North Eastern Railway, Gorakhpur.
On May 27, 1960, the public prosecutor applied for withdrawal of the case of the prosecution on the ground that the sanction was ineffective.
The Special Judge granted the request and ordered that the proceeding be quashed.
Thereafter a fresh sanction was obtained from the Chief Commercial Superintendent, North Eastern Railway, Gorakhpur.
It is contended that the Deputy Chief Commercial Superintendent was competent to sanction the prosecution of the appellant and the order quashing the trial operated as an order of acquittal.
The appellant was appointed by the Traffic Manager of the O.T. Railway in 1947.
After the amalgamation of that Railway with the North Eastern Railway the office of Traffic Manager was abolished and the powers of that Office were thereafter exercisable by the Chief Commercial Superintendent of the North Eastern Railway.
Under r. 1705 cl.
(c) of the Indian Railway Establishment Code no railway servant is liable to be removed or dismissed by an authority lower than that by which he was appointed to the: post held by him substantively.
This rule in substance gives effect to article 311 (1 ) of the Constitution.
Since the appellant was appointed by the Traffic Manager of the O.T. Railway, after amalgamation of that Railway, the power to remove the appellant could be exercised by the Chief Commercial Superintendent.
Counsel for the appellant urged that under cl.
(i) of r. 1704 of the Indian Railway Establishment Code, the authorities specified in column 3 of Sch.
I appended to the Rules in Ch.
XVII of the State Railway Establishment Code Vol. 1, may impose the penalties specified in column 4 upon the classes of railway servants shown in column 952 2 of that Schedule, and Sch.
I which occurs in Appendix III confers upon the Deputy Heads of Department "full powers" of removal from service.
Consequently, it was said, the Deputy Chief Commercial Superintendent had the power to remove the appellant from service, and was competent to grant sanction under section 6 of the Prevention of Corruption Act for the prosecution of the appellant, and that the order passed by the Special Judge quashing the proceeding on May 27, 1960, amounted to an order of acquittal.
But r. 1704 is subject to the provisions of r. 1705, and by r. 1705 it is expressly provided that a railway servant shall not be removed or dismissed by an authority lower than that by which he was appointed to the post head by him substantively.
The powers exercisable under r. 1704(i) being subject to cl.
(c) of r. 1705, and also to the provisions of article 311 of the Constitution, the Deputy Chief Commercial Superintendent could not remove the appellant from service.
It follows therefore that the Deputy Chief Commercial Superintendent had no power to grant sanction for prosecution of the appellant, since he was an officer inferior in rank to the Officer who had appointed the appellant as a railway servant.
The Court may take cognizance of an offence against a public servant for the offences set out in section 6 of the Prevention of Corruption Act only after the previous sanction of the specified authority is obtained.
The Special Judge who had taken cognizance of the.case on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case, and an order of acquittal passed by a Court which had no jurisdiction does not bar a retrial for the same offence.
It is unnecessary, therefore, to consider whether the order quashing the proceeding amounted to an order of acquittal.
(2) The facts necessary to ,appreciate the second contention about the irregularity of the procedure followed by the Special Judge are these: J.K. Mehta and V.P. Chaturvedi were examined as witnesses for the prosecution before Mr. Fakhrul Hasan, Special Judge.
Their evidence was recorded in accordance with section 356 Code of Criminal Procedure under supervision of the Special Judge, and record of the evidence was made in Hindi and an English memorandum of the evidence was also maintained by the Special Judge.
The statements of the witnesses were read over to them 'and were signed by them in acknowledgment of their correctness.
But Mr. Fakhrul Hasan died before he could append his signature thereto.
Before the successor of Mr. Fakhrul Hasan, J.K. Mehta and V.P. Chaturvedi were recalled and their evidence which was previously recorded was read over to them.
They confirmed its correctness.
The Special Judge 'also offered to counsel for the appellant opportunity to cross examine the witnesses, but the offer was declined.
No objection was raised to the reading over of the evidence to the witnesses.
It was not suggested 953 that the witnesses should be re examined.
The Special Judge thereafter subscribed his signature to the record of the statements of the witnesses, and to the English memoranda of evidence.
There is no suggestion of injustice actual or possible arising from the failure to comply strictly with the statute: it is contended that failure to observe the letter of the law invalidated the trial.
Section 356( 1 ) of the Code of Criminal Procedure provides: "In all other trials before Courts of Session and Magistrate . the evidence of each witness shall be taken down in writing in the ,language of the Court, either by the Magistrate or Sessions Judge with his own hand or from his dictation in open Court or m his presence and hearing and under his personal direction and superintendence, and the evidence so taken down shall be signed by the Magistrate or Sessions Judge ,and shall form part of the record." Evidence of the witnesses was recorded in the presence and hearing and the personal direction and superintendence of Mr. Fakhrul Hasan.
Mr. Fakhrul Hasan died before he could subscribe his signature.
It is true that the Legislature has enacted that "the evidence so taken down shall be signed by the Magistrate or Sessions Judge".
As observed by Lord Campbell in the case of the Liverpool Borough Bank vs Turner(1): "No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience.
It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.
. . in each case you must look to the subject matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act, and, upon a review of the case in that aspect, decide whether the matter is what is called imperative or only directory.
" Section 356 deals with the mode of recording evidence.
The object of the section is to maintain a correct record of the testimony of the witnesses.
The section occurs in Ch.
XXV of the Code, 'and deals with the mode of taking and recording evidence in inquiries and trials.
To ensure a fair trial it is provided that the evidence shall be recorded in the presence of the accused, or where his presence is dispensed with in the presence of his lawyer, (1) ; 954 (section 353 ): in cases tried before the Court of Session, or Magistrates other than Presidency Magistrates, the evidence shall be taken down in writing in the language of the Court either in his own hand by the presiding officer or under his direction in open Court, or in his presence and hearing and under his personal supervision, and shall be signed by him, (section 356): the evidence shall after it is completed be read over to each witness, in the presence of the accused or his lawyer, and it may, if necessary, be corrected, Is. [360(1)]: if the evidence is taken down in 'a language different from the language in which it is given, and the witness does not understand the language in which it is taken down, it shall be interpreted to him Is.[360(3)]: if the accused does not understand the language in which the evidence is given, it shall be interpreted in the language understood by him: and the statement of the accused shall be recorded in the form of questions and answers, Is.
[364(1)], whereas the evidence of witnesses shall unless otherwise directed be taken in narrative form.
Compliance with the provisions is insisted upon in the larger interest of justice, but every departure from the strict letter of the law will not affect the validity of the trial.
The object of the provisions being to ensure that a correct record is maintained of what is said in Court ' by witnesses, so that it may be available at a later stage of the trial and in 'appeal, if the Court is satisfied that in a given case the record notwithstanding any departure from the provisions is correct the irregularity may be ignored if no injustice has resulted therefrom.
A rule relating to.the appending of the signature of the Judge on the record of the evidence does not go to the root of the trial.
Section 537 Code of Criminal Procedure is intended to meet situations in which the strict letter of the law is not complied with.
The section, insofar as it is material, provides: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction, shall be reversed or altered under Ch.
XXVII or on appeal or revision on account (a) of any error, omission, or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceeding before or during trial or in any inquiry or other proceeding under this Code, or Explanation.
In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice.
the Court shall have regard to the fact whether the objection could and 955 should have been raised at an earlier stage in the proceedings.
" There was irregularity in maintaining the record of the evidence at the trial, because the evidence was recorded before one Judge and another Judge subscribed his signature to the record of that evidence.
There was, therefore, no strict compliance with the provisions of section 356(1) Code of Criminal Procedure.
But no ground for holding that the trial is vitiated is made out merely because instead of the Judge who heard the evidence, his successor had signed the record.
In Abdul Rahman vs King Emperor(1), at the trial of a person accused of a charge for abetment of forgery the deposition of witnesses were read over to them while the case otherwise proceeded, and the evidence of some other witnesses was handed over to them to read to themselves.
There was violation of section 360 Code of Criminal Procedure which provided that deposition of each witness should be read over to him in the ' presence of the accused or his pleader.
An objection was raised as to the validity of the order of conviction on the ground that the requirements of section 360 of the Code of Criminal Procedure were not complied with.
No inaccuracy in the deposition was suggested, but only failure to comply with the strict requirements of section 360 was made the ground on which the trial was contended to be vitiated.
The Judicial Committee observed that there had been no actual or possible failure of justice.
According to the Judicial Committee reading over of the depositions of the witnesses while the case was otherwise proceeding was not a violation of section 360 of the Code, and that giving of depositions to witnesses to read to themselves was rightly treated by the High Court as an irregularity curable under section 537 of the Code of Criminal Procedure.
Failure to record the evidence of witnesses J.K. Mehta and V.P. Chaturvedi again in the presence and under the superintendence of the Judge who signed may be a regrettable irregularity, but it does not vitiate the trial.
Counsel for the appellant, however, invited our attention to the judgment of the Privy Council in Nazir Ahmad vs The King Emperor(2), and contended that where the Legislature has prescribed a method in respect of a certain thing, it means that that is the only method in which the thing must be done or not at all.
Counsel said that the method of recording the evidence and of maintaining the record is prescribed by section 356 of the Code of Criminal Procedure and no substitute is permissible.
In our judgment, the principle of Nazir Ahmed 's case(2) has no application here.
That was a case in which the appellant who was charged with dacoity and murder was convicted on the strength (1) L.R. 54 I.A. 96.
(2) L.R. 63 I.A. 372.
956 of a confession said to have been made by him to a magistrate of the class entitled to proceed under the provisions of section 164 of the Code of Criminal Procedure relating to the recording of Confessions.
The confession was not recorded according to the procedure prescribed by section 164 of the Code of Criminal procedure and the record of the confession was not therefore available as evidence.
The Magistrate however appeared as 'a witness and gave oral evidence about the making of the confession.
The Judicial Committee held that the oral evidence of the Magistrate of the alleged confession was inadmissible.
According to the Judicial Committee the effect of sections 164 and 364 of the Code of Criminal Procedure, construed together, is to prescribe the mode in which confessions are to be dealt with by magistrates when made during an investigation.
The rule that where a power is given to do a certain thing in a certain way the thing must be done in that way, to the exclusion of all other methods of performance, or not at all, was applicable to a magistrate, who is a judicial officer, acting under section 164.
In that case, in the view of the Judicial Committee, the only manner in which a judicial confession could be recorded is the one prescribed by section 164 of the Code of Criminal Procedure and if it is not so corded no evidence of the making of that confession was admissible.
The reasons for that view were explained by the Judicial Committee.
A judicial confession in a trial is of greater sanctity because it is recorded before an independent Judicial Officer after taking full precautions to ensure that the accused making the confession is free from all police or other influence and after the accused has had sufficient opportunity of considering whether he should or should not make confession and that there is no compulsion upon the accused to make a confession.
The law requires that the accused must be explained that he is not bound to make the confession.
A confession obtained in such circumstances has great probative value in considering its voluntary character.
Section 164 prescribes stringent rules as to the manner in which the confession has to be recorded.
If the rules are not complied with, there is no guarantee that the confession has been voluntarily made.
It is in the context of these provisions that the Judicial Committee held that confession which is not recorded in the manner prescribed by section 164 of the Code of Criminal Procedure cannot be deposed to by a Magistrate as if it was an extra judicial confession.
The Judicial Committee observed that when the Legislature has prescribed the method of recording the confessions under section 164 and section 364 it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves.
They further observed: "As 'a matter of good sense, the position of accused persons and the position of magistracy are both to be 957 considered.
An examination of the Code shows how carefully and precisely defined is the procedure regulating what may be asked of or done in the matter of examination of, accused persons, and as to how the results are to be recorded and what use is to be made of such records.
Nor is this surprising in a jurisdiction where it is not permissible for an accused person to give evidence on oath.
So with regard to the magistracy: it is for obvious reasons most undesirable that magistrates and judges should be in the position of witnesses in so ,far as it can be avoided.
Sometimes it cannot be avoided, as under section 533; but where matter can be made of record and therefore admissible as such there are the strongest reasons of policy for supposing that the Legislature designed that it should be made available in that form and no other.
In their Lordships ' view, it would be particularly unfortunate if magistrates were ,asked at all generally to act rather as police officers the as judicial persons, to be by reason of their position freed from the disability that attaches to police officers under section 162 of the Code; and to be at the same time freed, notwithstanding their position as magistrates, from any obligation to make records under section 164." No such considerations apply to the record of evidence of witnesses given in open court made in the presence and under the personal supervision of a Judge and in the presence of the accused, and his lawyer.
(3) It was then urged that the investigation was made by an officer who had no 'authority to investigate the offence.
After Ghammoo made his complaint sanction of the Additional District Magistrate (Judicial) was obtained for investigation of the case by a police officer below the rank of a Deputy Superintendent of Police.
Section 5A(1 )(d) of the Prevention of Corruption Act, 1947, provides: "No police officer below the rank of a Deputy Superintendent of Police shall investigate any offence punishable under section 161, section 165 or section 165A of the I.P.C. or under section 5 of this Act without order of a Presidency Magistrate or a Magistrate of the First Class, as the case may be, or to make any arrest therefore without a warrant . " The Legislature has provided that ordinarily investigation of a case against a public servant should be made by an officer not below the rank of a Deputy Superintendent of Police in connection with the charge of bribery and related offences.
But the Legis 958 lature has expressly provided that an Officer below the rank of a Deputy Superintendent of Police may investigate those offences with the order of a Presidency Magistrate or a Magistrate of the First Class.
In the present case the order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained authorising an Officer below the rank of a Deputy Superintendent of Police to investigate the offence.
No objection is raised to the regularity of the proceeding before the Additional District Magistrate, nor is there any ground that for an oblique motive, services of an officer below the rank of a Deputy Superintendent of Police were used in making the investigation against the appellant.
The third contention must also fail.
The appeal fails and is dismissed.
R.K.P. section Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant, who was a Platform Inspector employed by the North Eastern Railway was prosecuted for offences under section 161 I.P.C. and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 for accepting a bribe from another subordinate railway employee.
The prosecution was commenced after obtaining the sanction of the Deputy Chief Commercial Superintendent but it was discovered during the trial that this officer was not competent to sanction the appellant 's prosecution.
The trial Judge, at the request of the Public Prosecutor, quashed the proceedings.
Thereafter.
sanction was obtained from the Chief Commercial Superintendent and in fresh proceedings for the same offences, the appellant was convicted and the order of conviction was confirmed in appeal by the High Court.
In appeal to this Court it was contended on behalf of the appellant: (i) that in view of the provisions of cl.
(i) of r. 1704 of the Indian Railway Establishment Code, the Deputy Chief Commercial Superintendent had the power to remove the appellant from service, and was competent to grant sanction under section 6(c) of the Prevention of Corruption Act for his prosecution; the sanction given by the Deputy Chief Commercial Superintendent for prosecuting the appellant was therefore valid and the order passed by the Special Judge quashing the proceeding amounted in law to an order of acquittal so that the appellant could not again be tried for the same offence; (ii) that in relation to the evidence of two witnesses for the prosecution, the provisions of section 356 Cr.
P.C. had not been complied with in that, the evidence of these witnesses was recorded in the presence of one trial Judge and the record of the evidence had been signed by his successor in office, after the death of the former; and (iii) that the investigation was made by an officer who.
in view of the provisions of section 5A(1)(d) of the Prevention of Corruption Act, 1947 had no authority to investigate the offence as he was a Police Officer below the rank of a Deputy Superintendent of Police.
949 HELD: Dismissing the appeal, (i) The powers exercisable under r. 1704 (i) being subject to cl.
(c) of r. 1705 of the Indian Railway Establishment Code and also to the provisions of article 311 of the Constitution in the present case the Deputy Chief Commercial Superintendent could not remove the appellant from service and, therefore had no power to sanction his prosecution.
the trial judge who had taken cognizance of the case on a sanction given by the Deputy Chief Commercial Superintendent was incompetent to try the case, and an order of acquittal passed by a court which had no jurisdiction did not bar a retrial for the same offence.
[952 C E] (ii) There was irregularity in maintaining the record of the evidence at the trial because the evidence was recorded before one Judge and another Judge.
subscribed his signature to the record of that evidence, and on that account there was nOn compliance with the provisions of section 356(1) Cr.P.C., but this was an irregularity curable under section 537 Cr.
P.C. and did not vitiate the trial.
[955 B. E] The object of the provisions in the Code relating to the recording of evidence is to ensure that a correct record is maintained of what is said in court by witnesses, and the record may be available at a later stage of the trial and in appeal.
If the court is satisfied that in a given case the record notwithstanding any departure from the provisions relating to maintenance of the record is correct the irregularity may be ignored if no injustice has resulted therefrom.
[954 D] Liverpool Borough Bank vs Turner, ; , referred to.
Abdul Rahman vs King Emperor, L.R. 54 I.A. 96, distinguished.
(iii) By section 5A(1)(d) the legislature has expressly provided that an officer below the rank of a Deputy Superintendent of Police may conduct the investigation with the order of a Presidency Magistrate or a Magistrate of the First Class.
In the present case such are order of the Additional District Magistrate who held the office of a First Class Magistrate was obtained and there was compliance with the provisions of section 5A(1)(d).
[957 H]


judgement:
minal Appeal No. 190 of 1966.
Appeal by special leave from the judgment and order dated February 4, 1966 of the Patna High Court in Government Appeal No. 14 of 1963.
B.P. Singh and S.N. Prasad, for the appellant.
A.S.R. Chari and U.P. Singh, for the respondent.
The Judgment of the Court was delivered by Mitter, J.
The main question involved in this appeal is, whether the statement of the appellant recorded by a village Mukhiya before he was handed over to the police is admissible in evidence; and if so, whether the court could reject a part thereof and rely on the remainder along with other evidence adduced to hold him guilty of an offence he was charged with.
The evidence against the appellant was all circumstantial and there can be no doubt that if the statement before the Mukhiya is to be left out of consideration, the appellant cannot be held guilty.
The appellant who was a student of a school in Jhajha was charged with the murder of a fellow student of the same school and robbing him of the sum of Rs. 34 On October 12, 1961.
The Additional Sessions Judge, Santal Parganas acquitted the appellant of both the charges but, in appeal, the High Court found him guilty of the charge of murder and sentenced him to imprisonment for life.
The appellant has come up to this Court by special leave.
The case of the prosecution leading to the discovery of the murder and arrest of the appellant is as follows.
When the Barauni Sealdah passenger reached Madhupur station at about 3.52 p.m. on 12th October 1961 the dead body of a person was discovered in the lavatory of a first class compartment of that train.
One Anil Kumar Roy who wanted to board the said compartment at Jasidih station (in between Jhajha and Madhupur) could not get the door opened and had to board another compartment.
The dead body was found with the neck cut and besmeared with blood.
Blood was coming out from the veins of the neck and there was plenty of it on the floor of the lavatory.
The clothes of the deceased and his belongings like a comb, handkerchief were also blood stained and there were finger marks in the lavatory.
Photographs of the deceased were taken and later the body was identified as that of Jai Prakash Dubey, a student of class X B Science of Jhajha High School.
The post mortem report showed that there were no less than six incised injuries caused by some sharp cutting weapon.
The injuries were homicidal and death was caused by bleeding and shock 1035 The appellant was noticed by one Ram Kishore Pandey (P.W. 17) washing blood stained clothes with soap in the river patro about one hour before sunset on 12th October 1961.
Pandey noticed that the left hand of the appellant was cut and he questioned the appellant as to how he had got ' his clothes bloodstained.
The appellant 's version was that when he was coming from the side of Gangamarni a cow boy had assaulted him and cut his finger with glass and snatched away his money.
Reaching his house in village Saptar, Pandey mentioned this to Shiv Shankar Pandey, P.W. 25.
Shiv Shankar Pandey learnt from his eider brother, Basdeo that a murder had been committed in the Barauni train and the murderer was missing.
They suspected that the appellant might be the murderer and decided to go and search for him.
All the three along with Pathal Turi and one, Ayodhya Turi, two chowkidars went to the bank of that river but could not find the appellant.
There they were told by Jaganath Mahto and Rameshwar Mahto (P.Ws. 19 and 20) that they had noticed a man with wet clothes asking the way to Deoghar.
Proceeding further, this group of persons found the appellant about a mile from Titithapur going behind a bullock cart.
On being accosted the appellant said that he was going to village Roshan to his sister 's place and that he had not committed any murder.
The appellant was then wearing a pair of trousers and a shirt and had with him some books.
an exercise book, a chhura (knife) besides a pair of trousers and a shirt which were both wet.
They apprehended the appellant and took him to village Saptar.
They called on the Sarpanch of the village who directed them to take the appellant to the Mukhiya not making any enquiry himself The Mukhiya 's place in Lorajore was at a distance of about a mile from Saptar.
The party reached there at about 9 O ' clock at night and stayed there for 2 or 3 hours.
At about midnight on 12th October 1961 the Mukhiya took down the statement (exhibit 6) of the appellant and directed the party to take the appellant to the police station.
The party reached Madhupur police station at about 5 a.m. on October 13, 1961.
Brij Bihari Pathak, Sub Inspector of Police (P.W. 39) seized the articles which the appellant had with him in the presence of two witnesses and prepared a seizure list.
The articles seized from the accused included a shirt, a pair of trousers, a leather belt, a pair of shoes, 4 bloodstained copy books, two books, pages of one being blood stained.
He also prepared an injury report of the appellant and sent him to a doctor for examination.
The officer in charge of the Railway Police Station Madhupur, Gorakh Prasad Singh (P.W. 511) proceeded with the investigation, took charge of various articles found in the compartment of the Barauni passenger, received the post mortem report, examined witnesses and sent all the material exhibits to the Chemical Examiner for examination and report.
The report of the Chemical Examiner showed that among the 1036 articles found with the appellant Nishi Kant Jha and sent up for examination the following were stained with human blood: (1) leather belt cutting (2) cuttings of underwear, trousers and shirt (3) pair of chappal (4) portion of a shoe (5) one big knife and (6) several books, papers and an exercise book.
The report also showed that sample of blood found on the deceased was of the same group as that of the appellant.
The appellant pleaded not guilty.
Before taking a note of his statement under section 342 of the Code of Criminal Procedure, it will be useful to reproduce his statement exhibit 6 recorded by Mukhiya at Lorajore before he was handed over to the police.
The statement reads: "I am Nishi Kant Jha, son of Nilkanth Jha, resident of Baburpur, P.S. Jasidih sub division Deoghar, District Santhai Parganas.
To day 12 10 61 at about 12 midnight, chowkidars Pathal Turi and Ayodhya Turi of village Saptar and Sheo Shankar Pandey, Ram Kishore Pandey and Basudeo Pandey of the same village arrested me and brought me.
My statement is that when I boarded the first class compartment in Barauni passenger at Jhajha, an unknown person was sitting in it when the train reached near Simultala and when it stopped there, Lal Mohan Sharma, resident of Deoghar, P.S. Deoghar, district Dumka entered into that compartment.
I had been knowing him from before.
When the train stopped at the Jasidih station and when I went to get down, Lal Mohan Sharma who had boarded the train at Simultala, did not allow me to get down at the Jasidih station.
When the train moved ahead of Jasidih station, in the meanwhile Lal Mohan Sharma took that outsider into the lavatory and began to beat him.
At this I caught hold of his hand, as a result of which my left fore finger got injured with knife.
Thereupon he asked me to be careful.
Then, on being afraid, I sat quietly in that very compartment.
He further said that I should not open the door and window of the compartment and if would do so I would be inviting death.
At that very time, he killed him.
When the train was reaching near Mathurapur, he jumped down from the running train and fled away.
Lal Mohan Sharma fled away.
also jumped down on the other side of Patro river near Madhupur and fled away in order to save my life, because I apprehended that I would be the only person who would be arrested.
Thereafter, I came to the village Ratu Bahiar lying by the side of Patro river and afterwards I took my clothes to Patro river and washed them with a soap.
Mean 1037 while a bullock cart was going to Deoghar.
Therefore I sat on that very bullock cart and started for Deoghar.
After I had covered about a mile, Pathal Turi, Shanker Pandey, Ram Kishore Pandey, Ayodhya Turi, the chowkidar and Rameshwar Mahto got me down from the bullock cart and brought before you.
I know their names after enquiring the same from them.
" At the end of the statement there was an endorsement reading: "On my understanding my statement, I affix my signature.
" The signature appearing thereunder was admitted by the appellant to be his beating date 12th October 1961.
From the said statement the following emerge: (1 ) The appellant had boarded a first class compartment in Barauni passenger at Jhajha already occupied by a person not known to him.
(2) When the train reached Simultala one Lal Mohan Sharma, resident of Deoghar entered that compartment (3 ) When the train proceeded further and stopped at Jasidih station, the appellant wanted to get down but was prevented from doing so by Lal Mohan.
(4) After the train moved out of Jasidih Lal Mohan caught hold of the first occupant of the compartment and took him into the lavatory and started beating him.
(5) The appellant wanted to prevent this and in trying to catch hold of the assailant 's hand he was injured by a knife.
Thereafter he took no further steps to prevent the commission of the crime.
(6) Lal Mohan Sharma threatened him with death in case he wanted to open the door or the window of the compartment and killed the stranger.
(7) When the train was reaching Mathurapur Lal Mohan jumped out of it and ran away.
(8) The appellant also jumped out of the train after it had crossed the river Patro near Madhupur and fled away to save his life because he was apprehensive of being arrested as the only person left in the compartment.
(9) He went to the village Ratu Bahiar near the river Patro and washed his clothes in the river with a soap.
(10) Thereafter he took a tide in a bullock cart going to Deoghar but after covering a mile or so he was apprehended by Pathal Turi, Shanker Pandey, Ram Kishore Pandey, Ayodhya Turi, the chowkidar and Rameshwar Mahto.
1038 On the face of it the statement goes to show that the appellant was present in the compartment when the murder was committed by Lal Mohan Sharma, that he did not know the victim, that the murder was committed after the train had left Jasidih station, that he himself was prevented from getting out of the train at Jasidih, that he suffered an injury on his left fore finger from the knife of the assailant and that he jumped out of the train near the river Patro.
He did not mention having been accosted by Ram Kishore Pandey while he was washing his clothes in the river nor did he make any statement to the effect that he had received the injury as a result of a scuffle with a cow boy.
At the trial evidence was adduced by the Headmaster of the school that Jai Prakash Dubey, the victim, was an old student while the appellant had joined that school in the month of March 1961.
They belonged to the same standard but were not in the same section inasmuch as one was in the arts section while the other was in the science section.
The headmaster deposed to the fact that both of them used to play football and that no enmity was known to exist between the two.
In his statement under section 342 Cr.
P.C. the appellant said that he could not identify the photographs of the victim as those of Jai Prakash Dubey and that he did not know Jai Prakash Dubey.
He did not board a first class compartment of Barauni passenger at Jhajha, that he did not jump off the train when it was nearing Madhupur.
He admitted having washed his blood stained clothes in the river Patro near the village of Ratu Bahiar and that a person had enquired of him the reason for his clothes being stained with blood.
He did not admit that he had told anyone that while coming from the side of Gangamarni he had been assaulted by some herdsman and cut his finger with glass and said that his reply to the query was that he had an altercation with a herdsman on his asking about the way when the latter wanted to assault him with a sharp edged knife and on his catching hold of it he had cut his hand.
He denied having enquired of anybody about the way leading to Deoghar and he also denied that he was arrested while he was a mile ahead of village Titithapur following a bullock ' cart.
He admitted having held in his hand clothes which had been washed in the river and blood stained 'books and copy books, pages of some of the books being blood stained.
He did not admit that he had with him a knife when he was arrested.
He admitted having been taken to the house of the Mukhiya, Sudama Raut but his version was that when he reached there they all began to beat him and told him that he must make a statement as suggested by them.
With regard to exhibit 6 his version was that it was not his statement but that he had been made to put his signature on a piece of ' blank paper which was later made use of as his statement.
He denied that the writing of the 1039 endorsement ascribed to him was his.
His account of the activities.
on that day was 'as follows.
He had boarded a third class compartment in Toofan Express on 12th October 1961 intending to pay a visit to his father 's sister 's daughter at Roshan and thereafter going to his native place.
He had reached Madhupur at about 12.30 p.m. and left for Roshan.
He had lost his way after some distance and enquired of some herdsmen about the way to the village.
, These herdsmen started to abuse him for having lost his way.
On his remonstration, a scuffle took place.
At this point of time another herdsman appeared with a lathi which was shining like glass and wanted to assault him with this.
On his catching hold of the lathi he got his hand cut which was bleeding.
His clothes and books also got stained with blood whereupon the herdsman ran away.
He purchased a soap and went to wash his clothes in Patro river and take his bath.
People who met him there had asked.
him about his injury and he had given them the version just now mentioned.
Thereafter when he was nearing the village, Roshan a number of persons came and apprehended him on a charge of murder.
They took him to the Mukhiya 's house at 8.30 p.m. in the night and kept him there assaulting him with lathis and slaps.
The Mukhiya had asked him to confess his guilt and give a statement and on his refusing to do so, he was again assaulted and threatened with death.
Through fear he had affixed his signature on a blank paper.
On the evidence the High Court found that the train had left Jasidih at 3.23 p.m. its next halt being Madhupur where it reached at 3.52 p.m.
The door of a first class compartment was found closed at Jasidih and could not be opened.
In the view of the High Court the murder was committed in the lavatory of the first class compartment between Jasidih and Madhupur.
On a close scrutiny of the evidence adduced, the High Court found the following incriminating circumstances against the appellant : (a) Only about two hours after the murder i.e. between 5 to 6 p.m. he was seen washing his blood stained ,,clothes on the bank of the river Patro.
(b) At the time of his apprehension by Ram Kishore Pandey and others he was holding blood stained exercise books, and other books some of the pages being blood stained.
(c) He also had with him at that time a knife 'the length of the blade and the handle of which was about 9".
(d) According to the medical evidence the injuries.
of the victim could have been caused by that knife ,which was in the possession of the, appellant .
One of the horizontal '.
incised inJuries i.e. injury No. 6, was 5" x 2" x '3/4 ' '.
6 Sup.
CI/69 15 1040 (e) The left hand of the respondent was noticed with a cut injury at the bank of the said river.
The marks of other injuries on the body of the appellant were compatible with a scuffle with the victim in the compartment of the train.
(f) The explanation of the appellant with regard to the possession of blood stained clothes and articles and the injury on his body,was not acceptable.
In the light of the above incriminating circumstances culled from the evidence, the acceptance of the statement of the appellant in exhibit 6 that he had travelled together with an unknown person, later identified as the victim Jai Prakash Dubey in the same compartment would be conclusive to prove the guilt of the appellant if his further statement in exhibit 6 about the part played by Lal Mohan Sharma be rejected.
The appellant had admitted his presence on the scene of the murder, but it was his version that the crime was committed by someone else while he himself was a helpless spectator.
When the assailant jumped off the train he followed suit being apprehensive of arrest on the charge of murdering the unknown person.
He had done so near the river Patro.
Some portions of the statement were not found to be acceptable.
It is not possible to believe that if Lal Mohan Sharma wanted to commit the murder he would prevent the appellant from getting off the train at Jasidih so as to have a witness who knew his name and address and testify to his commission of the crime.
Lal Mohan Sharma was not in the train at Jhajha and no details were given about any quarrel between him and the victim which might lead the former to make the attack on Jai Prakash.
Apparently there was no motive for Lal Mohan Sharma 's commission of the crime.
Again it is not possible to believe that Lal Mohan Sharma should not have tried to do away with the appellant also.
The version of the appellant receiving the injury on his left hand in the railway compartment was also unbelievable.
So was his story of a scuffle with the herdsman and cutting his hand as a result thereof.
The cause for the herdsmen abusing the appellant and his remonstrance followed by an attack on his person all appear to be imaginary.
The only incised injury which the appellant had suffered was skin deep and it is impossible to accept the story that the bleeding was so profuse as to have necessitated his washing his shirt and trousers in the river.
Nor does such an injury account for the other articles like his belt, shoes and books being stained with blood which was sought to be removed by washing.
The contention urged on behalf of the appellant that the statement was not voluntarily made and as such could not be admitted in evidence was rightly rejected by the High Court,.
The High.
1041 Court noted that no suggestion had been made to any one of the persons who had taken the appellant to the Mukhiya and had been tendered for cross examination that any of them had assaulted the appellant nor was any suggestion made that the appellant had been coerced or threatened with dire consequences if he did not make the statement.
The appellant 's own version that he was made to give his signature on a blank ' piece of paper cuts at the root of his case that he made a statement as a result of a threat or assault, for in that case, all that was necessary was to get his signature.
A point was sought to be made by counsel for the appellant ,that the footprints and finger prints in the lavatory of the first class compartment taken at Madhupur station were found to be different from those of the appellant and that this went to show that the appellant could not have been the murderer.
The High Court turned down this contention on the ground that before the police took charge of the situation many people had entered the compartment of the train and the above difference therefore was not a factor on which any reliance could be placed.
The High Court found that the appellant 's version that he did not know the victim unacceptable.
His version in exhibit 6 as to how he came to sustain his cut injury was entirely different from that given in his statement under section 342.
The High Court also could not accept his version that he had lost his way to his sister 's village at Roshan and that he had suffered an injury in the way suggested by him in his statement under section 342.
But however grave the incriminating circumstances against the appellant as summarised by the High Court may be, they were not enough to fasten the guilt on the accused unless a portion of his statement exhibit 6 is pieced together with them.
It is only this statement which contains an admission that he was travelling by the Barauni passenger in a compartment where he saw a murder committed and that he had jumped out of the train near the river Patro before getting to Madhupur and the entire evidence minus the unacceptable portion of exhibit 6 lead to the irresistible conclusion of the appellants guilt.
It was contended before us by learned counsel for the appellant that if the statement is to be considered at all, it must be taken as a whole and the Court could not act upon one portion of it while rejecting the other.
Counsel sought to rely on three judgments of this Court in aid of his contention that a statement which contains any admission or confession must be considered as a whole and the Court is not free to accept one part while rejecting the rest.
In our view, the proposition stated so widely cannot be accepted.
As Taylor puts it in his Law of Evidence (11th edition) article 725 at page 502 that with regard to the general law of admissions, the first important rule is that 1042 "the whole statement containing.
admissions must be taken together; for though some part of it may be favourable to the party, and the object is only to ascertain what he has conceded against himself, and what may therefore be presumed to be true, yet, unless the whole is received, the true meaning of the part, which is evidence against him, cannot be ascertained.
But though the whole of what he said at the same time, and relating to the same subject, must be given in evidence, it does not follow that all the parts of the 'statement should be regarded as equally deserving of credit; but the jury must consider, under the circumstances, how much of the entire statement they deem wo rthy of belief, including as well the facts asserted by the party in his own favour as those making against him.
" With regard to criminal cases, ,Taylor states: "In the proof of confessions as in the case of admissions in civil causes the whole of what the prisoner said on the subject at the time of making the confession should be taken together.
But if, after the entire statement of the prisoner has been given in evidence, the prosecutor can contradict any part of it, he is at liberty to do so; and then the whole testimony is left to the jury for their consideration, precisely as in other cases where one part of the evidence is contradictory to another.
Even without such contradiction it is not to be supposed that all the parts of a confession are entitled to equal credit.
The jury may believe that part which charges the prisoner, and reject that which is in his favour, if they see sufficient grounds for so doing.
If what he said in his own favour is not contradicted by evidence offered by the prosecutor, nor is improbable in itself, it will be naturally believed by the jury; but they are not bound to give weight to it on that account, being at liberty to judge of it, like other evidence, by all the circumstances of the case.
" In Roscoe 's book on Criminal Evidence (16th Edition, page 52).
the statement of law is much to the same effect.
Roscoe also cites a decision in Rex vs Clewes(x) where the confession of the prisoner charged with murder 'that he was present at the murder but that it was committed by another person and that he took no part in it, was left to be considered by the jury with a direction that the jury might, if they thought proper, believe one part of it (1) 4 Car. &.P, 221. 1043 and disbelieve another.
According to Archbold 's Criminal Pleading, Evidence and Practice (Thirty sixth Edition, page 423): "In all cases the whole of the confession should be given in evidence; for it is a general rule that the whole of the account which a party gives of a transaction must be taken together; and his admission of a fact disadvantageous to himself shall not be received, without 'receiving at the same time his contemporaneous assertion of a fact favourable to him, not merely as evidence that had made such assertion, but admissible evidence of the matter thus alleged by him in his discharge .
It has been said that if there be no other evidence in the case, or none which is incompatible with the confession, it must be taken as true; but the better opinion seems to be that, as in the case of all other evidence, the whole should be left to the jury, to say whether the facts asserted by the prisoner in his favour be true.
" In this case the appellant 's statement in 'exhibit 6 on which reliance is placed to show that the appellant could not be guilty of the crime was found wholly unacceptable.
His version of Lal Mohan Sharma 's commission of the crime, his being prevented from getting down from the train at Jasidih, Lal Mohan apparently committing the crime forcing the appellant to be a witness to it and the latter 's version of the manner in which he received the injury were unacceptable to the High Court and we see no reason to come to any different conclusion.
The other incriminating circumstances already tabulated, considered along with the appellant 's statement that he was present in the compartment when the murder was committed, that he, jumped from the train near the river, that he gave a different version as to how he had received his injury, his statement that he had lost his way to the village Roshan being unacceptable, all point conclusively to having committed the murder.
There is nothing in the judgments of this Court to which reference was made which.
can help the appellant.
In Hanumant vs The State of Madhya Pradesh(1) the facts were 'as follows.
On a complaint filed by the Assistant Inspector.
General of Police, Anti Corruption Department, two persons by name Nargundkar and.
Patel, were tried for the offence of conspiracy to secure a contract of Seoni Distillery by forging the tender exhibit P 3A and for commission of the offence of forgery of the ,tender and of another document exhibit P 24.
The ' Special Magistrate convicted both the appellants on all the three charges.
The Sessions Judge quashed the conviction of both the appellants under the first Charge of (1) [1952] s.c.
R. 1044 Criminal conspiracy but maintained the convictions and sentences under section 465 I.P.C. on the charges of forging exhibit P 3A and P 24.
Both the appellants went up in revision to the High Court without any success.
Examining the evidence in the appeal by special leave, this Court held that the peculiar features relied on by the courts below in exhibit P 3A should be eliminated from consideration and it was held that there were really no circumstances inconsistent with exhibit P 3A being a genuine document.
In respect of the charge regarding exhibit P 24 the trial Magistrate and the Sessions Judge used the evidence of experts to arrive at the finding that the letter exhibit P 24 was typed on article A which had not reached Nagpur till the end of December 1946 and therefore the letter was antedated.
The High Court although of the view that the evidence of the experts was inadmissible proceeded nevertheless to discuss it and place some reliance on it.
The lower courts held that the evidence of experts was corroborated by the statements of the accused recorded under section 342.
In rejecting this conclusion it was observed by this Court: "If the evidence of the experts is eliminated, there is no material for holding that exhibit P 24 was typed on article A.
The trial Magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on article B must necessarily have been typed on article A.
Such use of the statement of the accused was wholly unwarranted.
It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.
An admission must be used either as a whole or not at all.
If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is.
not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not written on the date it bears . . we hold that there is no evidence whatsoever on the record to prove that this letter exhibit P 24 was antedated and that being so, the charge in respect of forgery of this letter also fails.
" Learned counsel for the appellant sought to rely on the above statement of law in aid of his Contention that the statement in exhibit 6 should either be taken as a whole or rejected altogether.
In our view that was not the ratio decidendi in Hanumant 's case(1).
As was pointed out by this Court, with the elimination of the evidence of the experts, there was no material for holding that exhibit (1) [1952] s.c.
R. 1045 P 24 was typed on article A and consequently the only evidence on the subject being in the statement of the accused a part of it could not be relied on leaving apart the exculpatory part.
This is made more clear in the next case which was cited by learned counsel.
In Palvinder Kaur vs The State of Punjab(x) 'the appellant was tried for offences under sections 302 and 201, Indian Penal Code in connection with the charge of 'murder of her husband.
She was convicted by the Sessions Judge under section 302 but no verdict was recorded regarding the charge under section 201.
On appeal, the High Court acquitted her of the charge of murder but convicted her under section 201 I.P.C. With regard to this, the High Court held that the most important piece of evidence in support thereof was the confession made by the appellant which though retracted was corroborated on this point by independent evidence so as to establish the charge.
This Court held that there was no evidence to establish affirmatively that the death of the appellant 's husband was caused by poisoning and that being so the charge under section 201 I.P.C. also must fail.
According to this Court, the High Court in reaching a contrary conclusion not only acted on suspicions and conjectures but on inadmissible evidence.
,With regard to the alleged confession of the appellant, it was held that the High Court not only was in error in treating the same as evidence in the case but was further in error in accepting a part of it after finding that the rest of it was false.
In that case, the evidence showed that the body of the appellants husband was found in a trunk and discovered in a well and that the accused had taken part in the disposal of the body but there was no evidence to show the cause of his death or the manner and circumstances in which it came about.
Referring to the decision of Hanumant 's case(2) it was reiterated that the Court cannot accept the inculpatory part of a statement and reject the exculpatory part.
The Court also referred to the observations of the Full Bench of the Allahabad.
High Court in Emperor vs Balmakund(3) and fully concurred therein.
In the Allahabad case the question referred to the Full Bench was, whether the court could accept the inculpatory part of a confession which commended belief and reject the exculpatory part which was inherently incredible.
On reference to a large number of authorities cited the Full Bench observed that these authorities actually established no more than this that (a) where there is other evidence, a portion of the confession may in the light of that evidence; be rejected while acting upon the remainder with the other evidence; and (b) where there is no other (1) [1953].S.C.R. 94.
(:2) [1952] S.C.R. Allahabad 1011.
1046 evidence and the exculpatory element is not inherently incredible ;, the court cannot accept the inculpatory element and reject the exculpatory element.
According to the Full Bench of the Allahabad High Court the two rules above stated had been applied during the last one hundred years and the Full Bench answered the reference by holding "where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the court must accept or reject the confession as a whole ,and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently ' incredible.
" Relying on the above statement of the law it was said by this Court in Palvinder Kaur 's case(1) that no use could be made of her statement contained in the alleged confession to prove that the death of her husband was caused by poisoning or as a result of an offence having been committed and once this.
confession was excluded altogether, there remained no evidence for holding that her husband had died as a result of the administration of potassium cyanide.
The last decision of this Court referred to by counsel, viz.
Narain Singh vs The State of Punjab(2) does not add anything which need be taken note of to the propositions of law laid down in the above mentioned case.
In this case the exculpatory part of the statement in exhibit 6 is not only inherently improbable but is contradicted by the other evidence.
According to this statement, the ' injury which the appellant received was caused by the appellant 's attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim.
This was contradicted by the statement of the accused himself under section 342 Cr.
P.C. to the effect that he had recceived the injury in a scuffle with a herdsman.
The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions.
Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the bloodstains being so considerable as to affact the attention of Ram Kishore Pandey, P.W. 17 and asking him about the cause thereof.
The bleeding was nora simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes.
More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner.
According to the postmortem report this knife could have been the cause of the injuries on the victim.
In circumstances like these there (1) [1953] S.C.R.94.
(2) 1047 being enough evidence to reject the.
exculpatory part of the statement of the appellant in exhibit 6 the High Court had acted rightly in accepting the inculpatory part and piecing the same with the other evidence to come to.
the conclusion.
that the appellant was the person responsible for the crime.
The appeal therefore fails and the conviction and sentence are upheld y.p.
Appeal dismissed.

summary/full:
The appellant was charged for the murder of a fellow student in a railway compartment.
The appellant was noticed washing blood stained clothes, and bathing in a river.
He was taken to the village Mukhiya, where he made a statement and signed it.
In this statement, he admitted his presence at the scene of murder but stated that the crime was committed by someone else, that he was injured by the knife of assailant when he tried to prevent the crime, and that when the assailant jumped off the train he 'followed suit being apprehensive of arrest on the charge of murder.
Thereafter, the appellant was handed over to the police.
A blood stained knife, which could be the cause of the victim 's injuries, was found on his person.
Only an incised skin deep injury, which could not account for the profuse blood stains on the clothes was found on him.
In his statement under section 342 C.P.C. the appellant denied all connections with the crime stating that he was injured at another place in a scuffle blood staining his clothes, books etc.
he admitted being taken to the Mukhias house, and stated that he had signed a blank paper there on being assaulted and threatened, but he denied making the statement in writing ascribed to him.
In appeal to this Court, the appellant contended that the statement ' recorded by the village Mukhiya before handing over the appellant to the police was inadmissible in evidence; and if admissible, the statement had to be taken as a whole, and one portion of it could not be acted upon while rejecting the other.
Dismissing the appeal, HELD: (i) The contention that the statement was not voluntarily made and as such could not be admitted in evidence must be rejected.
No suggestion had been made to any one of the persons who had taken the appellant to the Mukhiya and had been tendered for cross examination that any one of them had assaulted the appellant.
nor was any suggestion made that the appellant had been coerced or threatened with dire consequences, if he did not make the statement.
The appellant 's own version that he was made to give his signature on a blank piece of paper cuts at the root of his case that he made a statement as a result of a threat or assault, for in that case, all that was necessary was to get his signature.
[1041 E G] (ii) In the circumstances of this case, the exculpatory part of the statement made before the Mukhiya being not only inherently improbable but also contradicted by the other evidence was rightly rejected and the inculpatory part was rightly accepted.
[1047 D] Rex vs Clewes, ; ; Hanumant vs 'The State of Madhya Pradesh, [1952] S.C.R. 1091; Palvinder Kaur vs The State of Punjab, , Emperor vs Balmakund, I.L.R. 52 All.
1011 and Narain Singh vs The State of Punjab, ; referred to. 1034