judgement:
N: Criminal Appeal No. 754 Of 1983 From the judgment and Order dated 5 7 1983 of the High ( 'court of Delhi in Crl.
(Main) No. 499 of 1983.
AND Writ Petition (Cd.) No. 1265 of 1982.
(Under Article 32 of the Constitution of India) Mukul Mudgal for the Appellant in Crl.
Appeal No. 754 of 1983 R.K. Jain , R.P. Singh , Suman Kapoor , D.S.Mehra and Miss 746 Sangeeta Aggarwal for the Petitioner in W.P. No. 1266 of 1982.
M.S. Gujarat , G.D. Gupta , R.N. Poodar and Miss Halida khatun , for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD , C.J.
We have before us an appeal and a writ petition , which are filed by two persons sentenced to life imprisonment for the offence of murder.
They contend that they are entitled to the benefit of Section 428 Or the Code of Criminal Procedure , that is to say , that the period of detention undergone by them prior to their conviction as undertrial prisoners must be off against the sentence of life imprisonment imposed upon them.
The appellant , Bhagirath , filed a petition in the Delhi High Court asking that his case be referred for the e orders of the Delhi Administration under paragraph 516 B of the Punjab Jail Manual since , though sentenced to life imprisonment , ha had undergone a period of detention in Jail amounting to 14 years together with the remissions earned by him.
A learned Single Judge of the High Court rejected that petition on the ground that , in computing the period of 14 years , the period sent by the convict in the jail as an under trial prisoner cannot be taken into account because , section 428 of the Code which allows such a set off applies only when an accused has been sentenced to imprisonment for a term ' , and the sentence of life imprisonment is not an imprisonment `for a term '.
In coming to the conclusion that section 428 has no application to cases which an accused is sentenced to life imprisonment , the learned Judge relied upon a judgment of this Court in Kartar Singh vs State of Haryana.
( ') The Petitioner in the companion writ petition , Rakesh Kaushik , has a somewhat similar grievance , though he has needlessly introduced extraneous matters in his pleadings.
One of his contentions is that the remissions earned by him as a convict must be taken (1) ; 747 into account while computing the period of 14 years under para graph 516 B of the Punjab jail Manual.
He contends also , that in any case , he ought to be given the benefit of sections 432 and 433 of the Code because , his case merits a favourable consideration by the Delhi Administration.
In support of his case , he relies upon an order dated March 3 , 1982 passed by this Court in Sukhlal Hansda vs State of West Bengal.
(1) According to the counter affidavit filed by the Deputy Secretary (Home) of the Delhi Administration , the petitioner 's case cannot be considered for petitioner 's release because he has not yet undergone 14 years of imprisonment , inclusive of remissions earned by him.
First , We would prefer to interpret section 428 of the Code of the Criminal Procedure on its own terms , that is , divorced from considerations arising under the Punjab Jail Manual or any other Jail Manual.
The Provisions of Jail Manuals vary from State to State.
Therefore , questions arising under those Manuals cannot be mixed up with questions arising under the Code , which is the law of the land.
Section 428 of the Code reads thus: "Period of detention undergone by the undergone by the accused to be set off against the sentence of imprisonment , Where an accused person has , on conviction , been sentenced to imprisonment for a term , not being imprisonment in default of payment of fine , the period of detention , if any undergone by him during the investigation , inquiry or trial of the same case and before the date of such conviction , Shall be set off against the term of imprisonment imposed on him on such conviction , and the liability of such person to undergo imprisonment on such conviction shall be restricted to the reminder , if any , of the trem of imprisonment imposed on him.
" The neat and , we believe , the simple question for decision is whether imprisonment for life is imprisonment "for a terms".
The reason why it is urged that imprisonment for life is not imprisonment for a term is that the latter expression comprehends only imprisonments for a fixed , certain and ascertainable period of time like six months , two years , five years and so on.
Since the sentence (1) Writ Petitions (Cod.) Nos.
1128 26 of 1982 748 of life imprisonment , as held by this Court in Gopal Vinayak Godse vs The Stale of Maharashtra , (1) is a sentence for life and nothing less and since , the term of life is itself Uncertain , the sentence of life imprisonment is for an uncertain term , that is to say , that it is not imprisonment for a term So goes the argument.
So does it go but it fails to carry much conviction.
Life is uncertain.
In more ways than one.
Who knows what good may come tomorrow and how many good tomorrows there are still to go ? But , philosophical digressions apart , especially optimistic , the fact that the term of life is of an uncertain duration does not justify the conclusion that the sentence of imprisonment for life is not for a term.
The relevant question and , the only one , to ask under section 428 is: Has this person been sentenced to imprisonment for a term ? For the sake of convenience , the question may be split into two parts.
One , has this person been sentenced to imprisonment ? And , two , is the imprisonment to which he has been sentenced an imprisonment for a term ? There can possibly be no dispute that a person sentenced to life imprisonment is sentenced to imprisonment.
Then , what is the term to which he is sentenced ? The obvious answer to that question is that term to which he has been sentenced is the term of his life.
Therefore , a person who is sentenced to life imprisonment is sentenced to imprisonment for term.
We see but little warrant for qualifying the word 'term ' by the adjective 'fixed ' which is not to be round in section 428.
The assumption that the word 'term ' implies a concept of ascertainability or conveys a sence of certainty ii contrary to the letter of the laws , as we find it in that section Even the marginal note to the section does not bear out that assumption.
It rather belies it.
And , marginal notes are now legislative and not editorial exercises.
The marginal note of section 428 shows that the object of the Legislature in enacting the particular provision was to provide that 'the period of detention undergone by the accused ' should 'be set off against the sentence of imprisonment ' imposed upon him.
There are no words of limitation either in the section or in its marginal note which would justify restricting the plain and natural meaning of the word 'term so as to comprehend only sentences which are imposed for a fixed or ascertainable period.
To say that a sentence of life imprisonment imposed upon an (1) ; , 444.
749 accused is a sentence for the term of his life does offence neither to grammar nor to the common understanding of the word 'term '.
To say otherwise offend not only against the language of the statute but against the spirit of the law , that is to say , the object with which the law was passed.
A large number of cases in which the accused suffer long undertrial detentions are cases punishable with imprisonment for life.
Usually ' those who are liable to be sentenced to imprisonment for life are not enlarged on bail.
To deny the benefit of section 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified.
Arguments and counter arguments were advanced before us on the basis of provisions contained in sections 53 , 53A(4)(a) and (b) , 57 , 65 and 511 of the Penal Code.
The provision contained in section 57 that imprisonment foF life has to be reckoned as equivalent to imprisonment for twenty years is for the purpose of calculating fractions of terms of punishment.
We cannot press that provision into service for a wider purpose.
Nor , indeed , can we draw sustenance to our conclusion from the provision contained in section 51 I to the effect that whoever attempts to commit an offense punishable with imprisonment for life shall be punished with imprisonment "for a term which may extend to one half of the imprisonment for life".
The argument of Shri Mukul Mudgal that if one half of life imprisonment is "a term" exhypothesi , life imprisonment would be "a term of imprisonment" is attractive but slender.
But , equally , we do not consider that anything contained in the rest of the sections above noted , militates against the view which we have taken.
The modalities for working out the provision contained in section 428 in cases of persons sentenced to imprisonment for life should not present any serious difficulty in practice.
In the first place , by reason of section 433A of the Code of Criminal Procedure where a sentence of imprisonment for life is imposed on a person for an offence for which death is one of the punishments provided by law , or where a sentence of death imposed on a person has been commuted under section 433 to one of imprisonment for life; such person cannot be released from prison unless he has served at least fourteen years of imprisonment.
The only point to note is 750 that while upholding the constitutional validity of section 433A , it was held by this Court in Maru Ram vs Union of India , (1) that the section is prospective in operation , with the result that it cannot apply to cases which were decided by the trial Cout before December 18 , 1978 , being the date on which the section came into force mind is the one arising out of the judgment of this Court in Gopal Vinayak Godsease.
It was held by a Constitution Bench in that case that a prisoner sentenced to life imprisonment is bound to serve the a remainder of his life in prison unless the sentence imposed upon him is commuted or remitted by the appropriate authority.
It was further held that since such a sentence could not be equated with any fixed term , the Rules framed under the Prison Act entitled such a person to earn remissions but that , such remissions were to be taken into account only towards the end of the term.
Under section 432 of the Code of Criminal Procedure , the appropriate Government has the power to remit the whole or any part of the punishment to which a person has been sentenced.
Under section 433 of the Code , the appropriate Government has the power , inter alia , to commute the sentence of imprisonment for life to imprisonment for a term not exceeding fourteen years to fine.
The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under section 432 or section 433 of the Code.
In the absence of such order , passed generally or specially , and apart from the provisions , if any of the relevant Jail Maunal , imprisonment for life would mean , according to the rule in Gopal Vinayak Godse , imprisonment for the remainder of life.
The two cases before us were referred to a larger Bench because of the doubt entertained as regards the correctness of the decision in Kartar Singh , especially because of the apparently conflicting view taken by another Bench of this Court in Sukhlal Hansda vs State of West Bengal.
Both of those decisions were rendered by a three judge Bench.
In Kartar Singh , persons who were sentenced to life imprisonment challenged an order passed (1) [l981] 1 S.C.R , 1196.
751 by the Government of Haryana , denying to them the benefit of the period of undertrial detention under section 428 of the Code.
It was held by this Court that the Penal Code and the Criminal Procedure Code make a clear distinction between 'imprisonment for life ' and 'imprisonment for a term ' and , in fact , the two expressions are used in contradistinction with each other in one and the same section , the former meaning imprisonment for the remainder of the natural life of the convict and the latter meaning imprisonment for a definite or fixed period.
The Court proceeded to hold that an order of remission passed by the appropriate authority merely affects the execution of the sentence passed by the Court , without interfering with the sentence passed or recorded by the Court.
Therefore , section 428 which opens with the words "where an accused person has , on conviction , been sentenced to imprisonment for a term" , would come into play in cases where 'imprisonment for a term ' is awarded on conviction by a court and not where the sentence imposed upon an accused becomes a sentence for a term by reason of the remission granted by the appropriate authority.
Finally , according to the Court , 'the question is not whether the beneficent provision should be extended to life convicts on a priori reasoning or equitable consideration but whether on true construction , the section comprises life convicts within its purview".
The Court found support to its view in the objects and reasons for introducing section 428 in the Code , as set out in the Report of the Joint Committee.
We have considered with great care the reasoning upon which the decision in Kartar Singh proceeds.
With respect , we are unable to agree with the decision.
We have already discussed why 'imprisonment for life is imprisonment for a term , within the meaning of section 428.
We would like to add that we find it difficult to agree that the expressions 'imprisonment for life ' and imprisonment for a term ' are used either in the Penal Code or in the Criminal Procedure Code in contra distinction with each other.
Sections 304 , 305 , 307 and 391 of the penal Code undoubtedly provide that persons quilty of the respective offences shall be punished with imprisonment for life or with imprisonment for a term not exceeding a certain number of years.
But , that is the only manner in which the Legislature could have expressed its intention that persons who are guilty of those offences shall be punished with either of the sentences mentioned in the respective sections.
The 752 circumstance on which the learned judges have placed reliance in Kartar Singh , do not afford any evidence , intrinsic or otherwise ' of the use of the two expressions in contra distinction with each other.
Two or more expressions are often used in the same section in order to exhaust the alternatives which are available to the Legislature.
That does not mean that there is , necessarily , an antithesis between those expressions.
The reasoning in Kartar Singh that an order of remission does not interfere with the sentence recorded by the court but merely affects the execution of the sentence , stands answered by the interpretation which we have put upon the language of section 428 that persons sentenced to imprisonment for life are sentenced to imprisonment for a term.
It is not because of remission that a sentence of life imprisonment becomes an imprisonment for a term.
We have also already answered the last of the reasons given in Kartar Singh that the question is not whether the beneficent provision contained in section 428 should be extended to life convicts on equitable considerations.
We enter a most respectful caveat.
Equity sustains law and the twain must meet.
They cannot run in parallel streams.
Equitable considerations must have an important place in the construction of beneficent provisions , particularly in the field of criminal law.
To exclude such considerations is to denude law 's benevolence Or its true and lasting content.
Lastly , the view expressed by the Joint Committee in its Report does not yield to the inference that the "mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life".
As we have indicated earlier , graver the crime , longer the sentence and , longer the sentence , greater the need for set offs and remissions.
Punishments are no longer retributory.
They are reformative.
The order passed by this Court in Sukhlal Hansda related to the cases of 24 prisoners who were sentenced to life imprisonment.
Most of those prisoners had undergone imprisonment for a period which , after taking account the remissions earned by them , exceeded fourteen years.
It was held by this Court that , for the purpose of considering whether the cases of those prisoners should be examined for premature release under the relevant provisions of the West Bengal Jail Manual , there was no reason why the period of 753 imprisonment undergone by them as undertrial prisoners should not be taken into account.
The Court directed that the cases of the prisoners should be considered by the State Government , both for the purpose of setting off the period of detention undergone by them as undertrial prisoners and for taking into account the remissions earned by them.
The order passed by the Court does not discuss the point which arises before us though , the observations made therein are consistent more with the view which we have taken than with the view taken in Kartar Singh.
For these reasons , we allow the appeal and the writ petition and direct that , the period of detention undergone by the two accused before us as undertrial prisoners , shall be set off against the sentence of life imprisonment imposed upon them , subject to the provision contained in section 433A and , provided that order have been passed by the appropriate authority under section 432 or section 433 of the Code of Criminal procedure.
N.V.K. Petion and Appeal allowed.

summary/full:
The appellant filed a writ petition in the High Court , contending that his case be referred for the order of the State Administration under Paragraph 516 of the Punjab Jail Manual , on the , ground that though sentenced to life imprisonment , he had under gone a period of detention in Jail amounting to 14 years together with the remission earned by him and that he should be released.
The aforesaid petition was rejected by a Single Judge following the decision of this Court in Kartar Singh vs State of Haryana ; , on the ground.
That in computing: the period of 14 years , the period spent by the convict in the jail as an undertrial prisoner cannot be taken into account because section 428 of the Code of Criminal Procedure which allowed such a set off applied only when an accused had sentenced to imprisonment for a term , ' and that the sentence of life imprisonment was not an 'imprisonment for a term '.
In the companion writ petition , the petitioner contended that the remis 744 sions earned by him as a convict must be taken into account while computing the period of 14 years under paragraph 516 B of the Punjab Jail Manual , and that in any case , ht ought to be given the benefit of sections 432 and 433 of the Code of Criminal Procedure because , his case merits a favorable consideration by the State Administration.
Allowing the Appeal and Writ Petition , ^ HELD: 1.
The period of detention undergone by the two accused as undertrial prisoners , shall be set off against the sentence of life imprisonment imposed upon them , subject to the provision contained in section 433A and , provided that orders have been passed by the appropriate authority under section 432 or section 433 of the Code of Criminal Procedure.
[753C D] 2.
The fact that the term of life is of an uncertain duration does not justify the conclusion that the sentence of imprisonment for life.
is not for a term .
[752C] 3 There can possibly be no dispute that a person sentenced to life imprisonment is sentenced to imprisonment.
The term to which such person has been sentenced b the term of his life Therefore a person who is sentenced to life imprisonment , is sentenced to imprisonment for a term.
[752C] 4.
Under section 432 of the Code of Criminal Procedure , the appropriate Government has the power to remit the whole or any part of the punishment to which a person has been sentenced.
Under section 433 of the Code , the appropriate Government has the power to commute the sentence of imprisonment for life to imprisonment for a term not exceeding fourteen year or to fine.
The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under r section 432 or section 433 of the Code.
In the absence of such an order passed generally or specially , and apart from the provisions if any , of the relevant Jail Manual , imprisonment for life would mean imprisonment for remainder of life.
[750D F] 5.
The assumption that the word term ' implies a concept of ascertainability or conveys a sense of certainty is contrary to the letter of the law , as found in section 428.
Even the marginal note to the section does not bear out that assumption.
It rather belies it.
[748F] 6.
Marginal notes are now legislative and not editorial exercises.
The marginal note of section 428 shows that the object of the Legislature in enacting the particular provision was to provide that 'the period of detention undergone by the accused ' should be 'set off against the sentence of imprisonment ' imposed upon him.
There are no words of limitation either in the section or in its marginal note which would justify restricting the plain and natural meaning of 745 the word 'term ' so as to comprehend only sentences which are imposed for a fixed or ascertainable period.
[748F G] 7.
To say that a sentence of life imprisonment imposed upon an accused is a sentence for the term of his life does offence neither to grammar nor to the common understanding of the word 'term .
To say otherwise would offend not only against the language of the statute but against the spirit of the law , that is to say , the object with which the law was passed.
A large number of cases in which the accused suffer long undertrial detentions are cases punishable with imprisonment for life.
Usually , those who are liable to be sentenced to imprisonment for life are not enlarged on bail.
To deny the benefit of section 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified.
[748H; 748A B] 8.
Equity sustains law and the twain must meet.
They cannot run in parallel streams.
Equitable considerations must have an important place in the construction of beneficient provisions , particularly in the field of criminal law.
To exclude such considerations is to denude law s benevolence of its true and lasting content.
[752F] 9.
Graver the crime , longer the sentences , greater the need for set offs and remissions.
Punishments are no longer retributory.
They are reformative.
[752F] Kartar Singh vs State of Haryana ; over ruled , Sukhlal Hansda vs State of West Bengal Writ Petitions (Crl.) 1128 29 of 1982 , Gopal Vinayak Godse vs The Slate of Maharashtra [l961] 3 SCR 440 , 444 & Maru Ram vs Union of India [1981] I SCR 1196 referred.


judgement:
N: Criminal Appeal No. 324 Of 1985 From the judgment and order dated 7.7.
1984 of the High Court of Rajasthan in Crl.
Appln.
No. 758 of 1983.
Sobhag Mal Jain and S.K. Jain for the Appellant.
A.N. Mulla, Surya Kant and B. Sharma for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
Special leave granted.
Unusual though it may appear to be, under a compelling necessity in the interest of justice, we would depart from the ordinary response of this Court to matters involving bail.
Ordinarily, this Court is loathe to interfere with the orders granting or refusing bail but it cannot be an insurmountable obstacle in the way of rectifying an order which tends to disclose miscarriage of justice.
An incident occurred on August 23, 1983 in which one Bhanwaria, son of the present appellant received fatal injuries resulting in his death.
An information was lodged with the Police Station, Khedapa, District Jodhpur, Rajasthan State about the occurrence on August 24, 1983 around 11.30 A.M.
At that time Bhanwaria was alive and the offence was registered under Sec.
307, 447 read with Sec. 149 under Sec. 148, 379 and 327 of the Indian Penal Code.
When the hospital authority sent the message 784 that Bhawaria, the victim of assault, who was admitted in the hospital for treatment has succumbed to his injuries, the Investigating Officer also added an offence under Sec.
30 ' IPC.
Soon thereafter on September 29, 1983, the second respondent Chandan Singh s/o Shri Ranjit Singh ( 'respondent ' for short) appeared before the learned Sessions Judge, Jodhpur and moved an application under Sec.
438, Cr. P. C. for granting him anticipatory bail.
The public prosecutor appearing for the State opposed the application for grant of anticipatory bail.
The learned Judge by his order dated September 30, 1983 accepted the application and granted anticipatory bail to the respondent observing that the dispute is with regard to the right to cultivate a certain field from which when deceased Bhanwaria was coming out, the respondent fired at him and caused the injuries which proved fatal.
The learned Judge further observed that keeping in view some decisions referred to by him, he was of the opinion that the application tor anticipatory bail should be granted.
The learned Judge then ordered that if the 1) accused is taken into custody by the police, he must be released on bail on his furnishing security in the amount of Rs. 5,000 on condition that he will assist in investigation and will not interfere in the investigation and will not go out of India. ' The present appellant moved the High Court of Rajasthan questioning the correctness of this order and for cancellation of the anticipatory bail.
A learned Single Judge of the High Court negatived the contention that the petitioner had no locus standi to move the High Court for cancellation of anticipatory bail.
On merits, the learned Judge after referring to several decisions observed that while dealing with an application for cancellation of bail warranting interference with the discretionary order passed by the learned Sessions Judge granting bail, the considerations which should weigh with the court were whether: (1) the accused would be readily available during the trial; (2) he is not likely to abuse the discretion granted his favour 'by tampering with the prosecution witnesses, concluded that the respondent and his father are influential persons and hold important posts in the Panchayat or Zila Parishad furnished no ground for cancelling bail and that it is not necessary to examine whether anticipatory bail ought to have been granted, but what must be considered is whether a case tor cancellation of the same is made out.
The learned Judge then held that 785 such grounds are not shown to exist and accordingly rejected the application.
Hence this appeal by special leave.
Relevant considerations governing the court 's decision in granting anticipatory bail under Sec.
438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his 13 appeal is pending before the higher court and bail is sought during the pendency of the appeal.
Three situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other.
This is necessary to be stated because the learned Judge.
in the High Court unfortunately fell into an error in mixing Up all the considerations, as if all the three become relevant in the present situation.
The decision of the Constitutional Bench in Shri Gurbaksh Singh Sibbia & Ors.
vs State of Punjab(1) clearly lays down that 'the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and there fore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest. ' Unlike a post arrest order of bail, it is a pre arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
direction under Sec.
438 is intended to confer conditional immunity from the touch as envisaged by Sec. 46 (1) or confinement.
In para 31, Chandrachud, CJ clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation, Says the learned Chief Justice that 'in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the appellant on bail in the event of his arrest ' would generally be made.
It was observed that 'it cannot be laid down as an inexorable rule that anticipa (1) ; 786 tory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. ' Some of the relevant considerations which govern the discretion, noticed therein are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant 's presence not being secured at the trial, a reasonable apprehension.
that witnesses will be tampered with and "the larger interests of the public or the State", are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. ' caution was voiced that 'in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, and more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it.
Having noticed the relevant considerations which should weigh with the court in the matter of granting or refusing to grant anticipatory bail, let us first look at the order made by the learned Sessions Judge.
The incident in which Bhanwaria was injured with fire arm occurred on August 23, 1983 in respect of which the first information report was lodged on August 24, 1983, in which it was in clear and unambiguous terms alleged that the respondent was at the relevant time armed with a gun and fired towards Bhanwaria who suffered injuries by gun shot The incident occurred as stated earlier around 4.00 P. M.
On August 23, 1983 and this information is lodged with the Police Station at a distance of 30 k.m.
from the scene of occurrence on August 24, 1983 at 11.30 a.m.
Amongst others, the offence registered was under Sec.
307 IPC i.e. attempt to commit murder.
The first information report thus discloses use of fire arm with which the respondent attempted to commit murder of Bhanwaria.
Surprisingly, the Investigating Officer had not arrested him till September 29, 1983 when he moved an application for anticipatory bail under Sec.438 of the Code of Criminal Procedure presumably after coming to know that injured Bhanwaria has succumbed to his injuries and the offence would one of murder 787 punishable under Sec.
302 IPC.
This conduct of the Investigating Officer left us guessing.
Some light is shed by some averments from the affidavit filed in the High Court and extracted by the learned Judge in his judgment.
It is stated that the respondent is the Sarpanch of Vil.
Danwara and is an influential person and that his father Ranjit Singh is ex M.L.A. and is at present Pradhan of the Panchayat Samiti.
Are these relevant considerations for not cancelling anticipatory bail when it appears to have been granted by a clear misconception of the relevant considerations governing of anticipatory bail ? The answer is emphatically in the negative in view of the extracted observations from the decision of the Constitution Bench in Gurbaksh Singh Sibbia 's case.
The accusation against the respondent is that he has committed an offence of murder punishable under Sec.
302 IPC.
Surprisingly, when anticipatory bail was granted on September 30, 1983, there is not a whisper of it in the order of the learned Sessions Judge, Jodhpur.
When a person is accused of a offence of murder by the use of a fire arm, the Court has to be careful and circumspect in entertaining an application for anticipatory bail.
Relevant considerations are conspicuous by silence in the order of the learned Sessions Judge.
Could it be said in this case that the accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive ? Could it be said that the object being to injure and humiliate the respondent by having him arrested ? What prompted the learned Sessions Judge to grant anticipatory bail left us guessing and we arc none the wiser by the discussion in the order of the learned Single Judge declining to interfere.
Mr. Mulla, learned counsel who appeared for the respondent urged that the order of the learned Sessions Judge is not of anticipatory bail under Sec.
438 but it is an order made after looking into the papers of investigation and therefore, it is an order of bail under Section 439 of the Code of Criminal Procedure.
We remain unconvinced because the order of the learned Sessions Judge clearly directs that if the respondent is taken into custody by the police, he must be released on bail on his furnishing security in the amount mentioned by him.
The learned Judge himself styled the order as one under Sec.
438 of the Code of Criminal Procedure.
If there was any doubt about this aspect? the penultimate para of the judge 788 ment of the learned Single Judge of the High Court dispels the same when it recites that no order for cancelling bail can be made when the learned Additional Sessions Judge No. 1, Jodhpur has granted anticipatory bail to the respondent by his order dated September 30, 1983.
Mr. Mulla then attempted to urge that on merits a good case for granting bail is made out.
We are not inclined to examine this contention because neither the learned Sessions Judge nor the learned Single Judge of the High Court has examined the case from that angle.
The only question which we were called upon to decide is whether: the learned Sessions Judge was justified in granting anticipatory bail in the facts and circumstances of this case ? Unquestionably, no case was made out for granting anticipatory bail in this case.
Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail.
Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature.
This case amply illustrates that the power was exercised sub silentio as to reasons or on irrelevant or considerations not germane to the determination.
This Court, to avoid miscarriage of justice, must interfere.
The High Court referred to two decisions of the Rajasthan High Court on the question of locus standi of the present appellant but once that was conceded and not questioned before us, we need not refer to them.
The learned Judge then referred to the decision in Gurbax Singh sibba 's case, but failed to take note of the relevant observations which we have extracted herein before.
Reference to the decision in Gurcharan Singh & Ors.
vs State (Delhi Administration)(1) by the High Court is hardly apposite because the controversy centered round the power of the High Court to deal with the application for cancellation of bail under Section 439(2? of the Code of Criminal Procedure and on merits this Court held that the High Court was not justified in cancelling the bail The Court was not concerned with examining the relevant considerations for granting or refusing to grant anticipatory hail in that case.
The deision in (1) 789 State vs Capt.
Jagjit singh(1) would be of n assistance as the provision of anticipatory bail come to be introduced in the Code of 1973.
Similarly the decision in Delhi Admn.
vs Sanjay Gandhi(2) is of no assistance because the court was concerned with the question of cancellation of bail already granted long back in the facts and circumstances of the case on account of events subsequent to the order granting bail.
The High Court lastly referred to Bhagirath Singh Judeja vs State of Gujrat (3) because that was the case in which accusation was for an offence under Sec.
307 IPC and the learned Sessions Judge had granted bail which order was quashed by the High Court.
As stated earlier, by reference to these decisions not of topical interest bearing on the question of grant or refusal of anticipatory bail the High Court unfortunately missed crux of the matter.
Before we conclude this judgment, it must be made distinctly clear that some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that to when the investigation is in progress.
In fact, the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under Sec.
307 IPC punishable with imprisonment for life.
And as soon as the victim of the assault succumbed to his injuries and an offence under Sec.
302 was registered, promptly an application for anticipatory bail was made and granted.
If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken.
Therefore, we have no option but to cancel the order granting anticipatory bail.
By our setting aside the order granting anticipator bail, respondent should in no way be prejudiced.
If consequent upon the setting aside of the order granting anticipatory bail, the respondent is arrested which must ordinarily follow, it is open to him, if he is so advised, to move an application for being enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders, the judgment of the learned Single Judge of the High Court and this judgment.
(1) ; (2) ; (3) [1984] 1 S.C.C.284.
790 Accordingly this appeal is allowed and the order dated September 30, 1983 granting anticipatory bail to the respondent Chandan Singh s/o Ranjit Singh is quashed and set aside and the bond furnished by him is cancelled.
We order accordingly.

dataset_name: IN-Abs

summary/full:
The respondent was not arrested till September 29 , 1983 , when he appeared before the Sessions Judge , and moved an application under s.438 Cr.
P.C. for anticipatory bail , and by order dated September 30 , 1983 it was granted with a direction that if the respondent was taken into custody by the police he must be released on bail on his furnishing security in the amount of Rs. 5,000 on condition that he will assist in the investigation and will not go out of India.
The appellant moved the High Court questioning the correctness of the order granting anticipatory bail and for cancellation of the same.
A Single judge held that he had locus standi to move the High Court for cancellation of the anticipatory bail but on merits held that no grounds were made out for its cancellation , and accordingly rejected the application.
The Appellant appealed to this Court.
Allowing the Appeal , ^ HELD: 1.
Relevant considerations governing the Court 's decision in granting anticipatory bail under s.438 are materially different from those when an application for bail by a person who is arrested in the course of an investigation as also by a person who is convicted and his appeal is pending before the 781 higher court and bail is sought t during the pendently of the appeal.
In the instant case, the High Court unfortunately fell into error in mixing up all the consideration , as if all the three become relevant in the present situation.
[785B C] 2.
The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and, therefore means release from the custody of the place, the latter is granted in anticipa tion of arrest and`is, therefore, effective at the very moment of arrest.
Unlike a post arrest order of bail, it is a pre arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
A direction under s.438 is intended to confer conditional immunity from the touch as envisaged by s.46(1) or confinement.
[78D E] 3.
In regared to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made.
It cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears (1) to be actuated by malafides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.
Some of the relevant considerations which govern the discretion of the Court while deciding an application for anticipatory bail are the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State " In the evaluation of the consideration whether the applicant is likely to abscond.
there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it.
[785G H; 786A D] 4.
The incident in which Bhanwaria was injured with fire arm occurred on August 23,1983 in respect of which the First Information Report was lodged on August 24, 1983 and it was in clear and unambiguous terms alleged that the respondent was at the relevant time armed with a gun and fired towards Bhanwaria who suffered injuries by the gunshot.
Amongst others the offence registered was under s.307 I.P.C. that is attempt to commit murder.
The first information report thus discloses use of fire arm with which the respondent attempted to commit murder of Bhanwaria.
Surprisingly, the Investigating Officer had not arrested him till September 29, 1983 when he moved an application for anticipatory bail under s.438 Cr.
P.C. presumably after coming to know that injured has succumbed to his injuries and the offence would be one of murder punishable under s.302 I.P.C.
This conduct of the Investigating Officer leaves the Court guessing.
The affidavit led in the High Court states that the Respon 782 dent is the Sarpanch of the village and is an influential person and that his father is Ex M.L.A. and is at present Pradhan of the Panchayat Samiti.
They are not relevant considerations for cancelling anticipatory bail, when it appears to have been granted by a clear misconception of the relevant considerations governing the grant of anticipatory bail, [786F H; 787A B] 5.
The accusation against the respondent is that he has committed an offence of murder punishable under s.302 I.P.C. Surprisingly, when anticipatory bail was granted on September 30, 1983 there is not a whisper of it in the order of the learned Session Judge.
When a person is accused of an offence of murder by the use of a fire arm the Court has to be careful and circumspect in entertaining an application for anticipatory bail.
Relevant considerations are conspicuous by silence in the order of the Session Judge, In the instant case, it cannot be said that the accusation does not appear to stem from motives of furthering the ends of Justice but from some ulterior motive and the object was to injure and humiliate the respondent by having him arrested.
What prompted the Sessions Judge to grant anticipatory bail leaves the Court guessing and the Court is none the wiser by the order of the High Court declining to interfere.
[787D F] 6.
The order of the Session Judge clearly directs that if the respondent is taken into custody by the police, he must be released on bail on his furnishing security in the amount mentioned by him.
The order is styled as one under s.438 Cr.
P.C. [787H] 7.
Unquestionably, no case was made out for granting anticipatory bail in this case.
Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail.
Anticipatory bail to some extent intrudes in the sphere of investigation of the crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature.
In the instant case, the power was exercised sub silentio as to reasons or on irrelevant or considerations not germane to the determination.
This Court, to avoid miscarriage of justice, must interfere .
[787D E] 8.
Some very compelling circumstances must be made out for granting bail to a person accused of committing murder and that too when the investigation is in progress.
In the instant case the Investigating Officer did not even attempt to arrest the appellant though the initial accusation was under s.307 I.P.C. punishable with imprisonment for life and as 50 n as the victim of the assault succumbed to his injuries and offence under s.302 was registered, promptly an application for anticipatory bail was made and granted.
If such an order is allowed to stand, faith of public in administration of justice is likely to be considerably shaken Therefore, the order granting anticipatory bail is cancelled.
[789D F] 9.
Settling aside the order granting anticipatory bail should in no way prejudice the respondent.
It si open to him to move an application for being 783 enlarged on bail and the Court would consider the same on merits wholly uninfluenced by the earlier orders, the judgment of the learned Single Judge of the High Court and this Judgment.
[789G H] Shri Gurbaksh Singh Sibbia and Ors.
vs State of Punjab, ; , relied upon.
Gurcharan Singh and Ors.
State(Delhi Administration), ; , State vs Capt.
Jagjit Singh, ; , Delhi Admn.
vs Sanjay Gandhi, ; and Bhagirath Singh Judeja vs State of Gujarat, [1984] I S.C.C. 284, referred to


judgement:
Civil Appeal No. 360 of 1985.
From the Judgment and Order dated 23.5.1984 of the Allahabad High Court in W.P. No. 4230 of 1984.
Shakeel Ahmed Syed for the Appellant.
I.S. Sawhney for the Respondents.
908 The Judgment of the Court was delivered by RANGANATH MISRA, J.
The appellant, who filed a writ application before the Allahabad High Court assailing the revisional order of the District Judge of Aligarh, is in appeal by special leave.
One Manzoor Hussain was admittedly the tenant of a premises located at Aligarh.
He died in 1969 leaving behind a widow and three sons Mohd.
Azeem (the appellant), Mohd. Naim, Mohd. Nadeem and a daughter Nuzhat.
The widow and the sons and the daughter of Manzoor continued to live in the tenanted premises on payment of rent.
It is the case of the appellant that being the eldest member of the family he was paying that rent.
The Rent Control Inspector submitted a report on June 22, 1983, that Naim, appellant 's brother, had built a house four or five years before in Amir Nisan, a part of the city of Aligarh and, therefore, the tenancy must be deemed to have terminated in view of the provisions containd in section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 ( 'Act ' for short).
When notice was issued from the Court of the Rent Control and Eviction Officer, Aligarh, respondent 2 herein, the appellant entered contest by filing an affidavit to the affect that he has been living with 13 members of his family in the premises and rent was being collected from him following the death of his father Manzoor Hussain.
Merely y because Naim had built a house in 1980, the tenancy in favour of the other heirs of Manzoor Hussain would not terminate and in such circumstances the premises cannot be held to become vacant and available for allotment to some other person.
The Prescribed Authority did not accept the contention of the appellant and held that the house in question must be deemed to have become vacant when Naim, who was a member of the family, had built a house.
Appellant carried a revision before the District Judge, respondent 1, which was dismissed.
The revisional authority placed reliance on a Full Bench decision of the Allahabad High Court in the case of Smt.
Rama Devi Shakya and Anr.
vs The Additional District Judge, Lucknow & Anr(1).
The Full Bench had held; (1) 1981 Allahabad Rent Cases 305.
909 "Where one of the co tenants builds or otherwise acquires another residential building within the meaning of sub section
(3) of section 12, the tenant, namely, the entire set of co tenants shall be deemed to have ceased to occupy the building under his sub tenant.
It cannot be that the share belonging to the co tenant in default alone shall fall vacant.
" The writ application filed by the appellant before the High Court was summarily dismissed as the Court was of the view that it was not a fit case for interference under article 226 of the Constitution.
At the hearing the decision of the Full Bench of the Allahabad High Court In Rama Devi 's case was placed before us.
An attempt was made on the appellant 's side to show that the interpretation put on section 12 (3) of the Act was erroneous and a wrong conclusion had been reached Counsel for respondent 3 appointed by the Supreme Court Legal Aid Committee supported the judgment and relied upon its conclusion for upholding the decision of the learned District Judge.
Reference to some of the provisions of the Act becomes necessary before we proceed to make an analysis of the full Bench decision.
Chapter III of the Act makes provision for regulation of letting.
Section 11 provides that "no person shall let any building except in pursuance of an allotment order issued under section 16".
Section 12 makes provision for deemed vacancies of buildings in certain cases.
Sub section
(3) of section 12 is relevant for the disposal for the appeal.
That sub section runs thus: "In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy :. " As the words "tenant" and "family" occur in sub section
(3), reference to the definitions of these two terms is also relevant.
910 'Tenant ' and family have been defined in clauses (a) and (g) respectively of section 3. 'Tenant ' according to the definition in relation to a building means: a person by whom its rent is payable, and on the tenant 's death (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non residential building, his heirs.
" 'Family ' in relation to a landlord or tenant of a building, means: "his or her (i) spouse; (ii) male lineal descendants: (iii) such parents, grand parents and any unmarried or widowed of divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building.
" There is no dispute that along with Manzoor his wife, his three sons and the daughter were living in the disputed premises.
After Manzoor 's death, the widow, the three sons and the daughter continued to live in that house.
There is reference to payment of rent in the order of the Prescribed Authority and in the petition for Special Leave an assertion has been made that it was the appellant who had been paying the rent after the death of Manzoor.
This plea has not been controverted.
In the setting of things, the appellant being the eldest son, was naturally expected to pay the rent.
There is material on record to show that Azeem and Naim were already married and have been living along with their wives in the house along with other members of the family.
As the definition of 'tenant ' indicates, on a tenant 's death his heirs as normally resided with him would also be tenant qua residential buildings.
Therefore, the widow, all the three sons and unmarried daughter became tenants when the Act came into force notwithstanding the fact that Manzoor had died in 1969.
We may now revert to section 12(3) of the Act.
Admittedly we are concerned with a residential building.
It is the case of the Prescribed Authority and there is no dispute about it, that Naim has built a house in the same city some time in 1980.
Naim 's building a house and moving into it cannot wipe out the interest of the widow, other two sons, including the appellant and the daughter, if in their own right they were tenants by satisfying the requirements of the definition.
The words 'if the tenant or any 911 member of his family ' obviously mean, in the facts of the case, Naim and the members of his family and do not relate to the widow, other two sons and the daughter of Manzoor.
If everyone 's interest was to be wiped out, section 3 had to provide differently and instead of 'he shall be deemed to have ceased to occupy the building under his tenancy ' as occurring in sub section
(3) reference would have been made to all the tenants.
The ratio of the Full Bench decision to which we shall presently advert and which has been relied upon by the Prescribed Authority and the learned District Judge, is bound to lead to situations which could never have been contemplated by the legislature.
For instance, if Naim or Nadeem found inconvenient to live with the other members of family when Manzoor died and he moved into another house with a view to living separately and the fact of such a move on his part brought about cessation of tenancy and the house Manzoor lived in was deemed to have become vacant, the widow, the other sons and the daughter of Manzoor would immediately find themselves in a very helpless condition.
Or for instance, if one of the sons got an employment in a Factory located within the same city and for convenience moved into a Factory quarter for residence, the same result would ensue to the miserable plight of the other members.
Or consider the case of a divorced daughter of the tenant living with him, when she builds or acquires a separate premises with funds provided by her ex husband.
No sooner she moves into her house, the father 's tenancy come 's to an end.
Or take the case of an expanding family.
Several sons come of age are married and many children are born to them.
The accommodation becomes insufficient and one or two of the sons move into a separate house to ease the situation.
If in such premises, father 's tenancy terminates and the daughter which he and members of his family reside is deemed to have become vacant, the family would be visited with hardship knowing no bounds.
Take the unhappy and miserable lot of a couple whose infirm son, suffering from a serious malady highly contagious, is shifted to an independent residence for exclusion.
Would that too lead to termination of tenancy qua the main residential premises ? In an Act intended to stabilise letting, rent and eviction by regulation, the legislature could not have evinced such intention.
912 It is true that the legislative purpose behind section 12 appears to be in keeping with the scheme of the Act making available as much accommodation as possible for allotment to needy persons.
That being the purpose, the legislature could not have intended to render persons rehabilitated in tenanted premises homeless.
In our view, when the Act defines tenant ' and 'family ' reference to personal law is irrelevant and the concept of joint tenancy is foreign.
Now a reference to the Full Bench decision.
The following questions had been referred to the Full Bench for decision: 1. (a) Whether the view expressed in Budh Sen vs Sheel Chandra Agarwal.
1977 AWC 553, and Ramesh Chand Bose vs Gopeshwar Prasad Sharma, 1976 AWC 301, to the effect that the heirs of a tenant are tenants in common and not joint tenants, is consistent with the view expressed by the Supreme Court in Badri Narain vs Rameshwar Dayal, ; ? (b) Do such heirs of a tenant become tenants in common inter se but remain joint tenants qua the landlord ? (c) What is the effect of one such heirs acquiring another building as mentioned in section 12(3) of U.P. Act No, 13 of 1972 ? 2.
Whether the view expressed in Shri Nath Tandon vs Rent Control & Eviction Officer, 1979 All Rent Cases 541, to the effect that a member of the family who acquires another building should both have been wholly dependent on him for section 12(3) to be attracted, is consistent with Explanation (b) to section 12(3) ?" The Full Bench proceeded on the basis that the heirs become joint tenants and answered the main problem by saying that if any member of the family of such joint tenants built or acquired a house in vacant state the tenancy would be deemed to have ceased.
In framing the questions for reference and in answering the referred questions, the definition of 'tenant was lost sight of.
All the heirs as normally reside with the deceased tenant in the 913 building at the time of his death become tenants.
The definition does not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy.
Each heir satisfying the further qualification in section 3(a)(1) of the Act in his own right becomes a tenant and when we come to section 12(3) of the Act, the words "the tenant or any member of his family" will refer to the heir who has become a tenant under the statutory definition and members of his family. 'Family ' having been defined, for convenience if we refer to the facts of the present appeal qua Naim, the definition would cover Naim 's wife, his male lineal descendants, his mother and those who are covered by clause (iii) in the definition of family.
It would not by any stretching embrace the appellant or his brother Nadeem and the sister.
the Full Bench, in our view, fell into an error in working on the basis of joint tenancy running counter to the scheme under the Act.
The conclusion reached by the Full Bench, in our view is, therefore, wholly unsustainable and we cannot extend our agreement to the conclusion that when one of the members of the family built house or moved into a vacant premises (other than the tenanted premises in occupation), there was a deemed cessation of the tenancy and a deemed vacancy occurred of the tenanted premises.
Now coming to the facts of the appeal, when Naim built a house and shifted into it, the tenancy of the appellant and his brother along with their mother and sister did not terminate.
They continued to be tenants in their own right being covered by the definition of 'tenant ' and there is no deemed vacancy as held by the Prescribed Authority, the learned District Judge and the High Court.
The appeal is allowed and the decisions of the different forums referred to above are set aside with costs through out.
Respondent 2 who by making his order of deemed vacancy gave rise to the dispute which ultimately required the appeal to be brought up here, in our opinion, must alone bear the costs.
Hearing fee is assessed at Rs. 2,000.
S.R. Petition allowed.

summary/full:
Under section 12 (3) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction Act, 1972. ' in the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state, or gets vacated residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy: . ". 'Tenant ' ac cording to the definition in clause (a) of section of 3 the Act in relation to a building means: 'a person by whom its rent is payable, and on the tenants ' death (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non residential building, his heirs. ' Under clause (g) of section 3 of the Act, 'Family ' in relation to a land lord or tenant of a building means: "his or her (i) sp (ii) male lineal descendants; (iii) such parents, grand parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a malelineal descendant, as may have been normally residing with him or her, in and includes in relation to a landlord, any family having a legal right of residence in that building." One Manzoor Hussain a tenant of the suit premises located at Aligarh died in 1969, leaving behind a widow and three sons Mohd.
Azeem (the appellant), Mohd. Naim, Mohd. Nadeem and a daughter Nauzhat, who continued to live in the tenanted premises on payment of rent by the appellant.
The Rent Control Inspector submitted a report on June 22, 1983 that Naim, appellants ' brother, had built a house in 1978 or 1979 and, therefore, the tenancy must be deemed to have terminated in view of the provisions contained in section 12 of the Act.
The prescribed Authority ordered the eviction in spite of the contest that under section 12 the right to occupy by other heirs continued.
The revision before the District Judge failed and the writ petition filed in the High Court of Allahabad was dismissed in limine, in view of the Full Bench decision of that High Court in the case of Smt.
Rama Devi Shakya and Anr.
vs The 907 Additional District Judge, Lucknow & Anr., 1981 Allahabad Rent Cases 305.
Hence the appeal by special leave of the Court.
Allowing the petition, the Court, ^ HELD: 1.1 When tho Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 defines "tenant" and "family" reference to personal law is irrelevant and the concept of joint tenancy is foreign, Therefore, when one of the members of the family built a house or moved into a vacant premises (other than the tenanted premises in occupation) it cannot be said that there was a deemed cessation of the tenancy and a deemed vacancy occurred of the tenanted premises.
1.2 It is true that the legislative purpose behind section 12 appears to be in keeping with the scheme of the Act making available as much accommodation as possible for allotment to needy persons.
That being the purpose, the legislature could not have intended to render persons rehabilitated in tenanted premises homeless.
1.3 As the definition of "tenant" in clause (a) of section 3 indicates, on a tenants ' death his heirs as normally resided with him would also be tenants qua residential buildings.
The definition does not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy.
which heir satisfying the further qualification in section 3 (a) (1) of the Act in his not right becomes a tenant and coming the section 12 (3) of the Act, the words "the tenant or any member of his family" will refer to the heir who has become a tenant under the statutory definition and members of his family.
If everyone 's interest was to be wiped out, section 3 had to provide differently and instead of 'he shall be deemed to have ceased to occupy the building under his tenancy ' as occurring in sub section, (3) would have been made to all the tenants in section 12.
Family ' having been defiled, for convenience in the facts of the present appeal qua Naim, the definition Would cover Naim 's wife, his male lineal descendants, his mother and those who are covered by clause (iii) in the definition of family.
It would not by any stretching embrace the appellant or his brother Nadeem and the sister.
Therefore, when Nadeem built a house and shifted to it, the tenancy of the appellant and his brother along with their mother and sister did not terminate.
Rama Devi Shakya and Anr.
vs the Additional District Judge, Lucknow & Anr, 1981 Allahabad Rent Cases 305 overruled.


judgement:
Civil Appeal No. 1365 of 1978 From the Judgment and Order dated 11.8.77 of the Patna High Court in Civil Revision No. 585 of 1976.
B.P. Singh R. Kumar and R. Prakash for the Appellants.
Mrs. Gian Sudha Misra for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
Where a plaintiff in a suit bitterly complains that the defendant would be getting unfair advantage of his own lapse, if we were to interfere with the judgment rendered by the High Court, we put ourselves on caution whether such be the outcome of our setting aside the order under appeal.
Unwittingly, this Court should not be a party to the conferment of an undeserved advantage on a party to a proceeding guilty of a lapse though remediable and even unintentional.
Deeper probing into the facts reveals that the boot is on the other foot in that the respondent plaintiff is wholly to be blamed for the delay.
The facts first.
The respondent plaintiff field a suit for eviction against the appellant defendent on the only ground that the tenant committed default in payment of rent for the period May, 1969 to December, 1971.
The defendant contested the suit inter 829 alia contending that he was not in default.
There followed an application by the respondent landlord for a direction under Sec.
11A of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 ( 'Act ' for short).
Section 11A reads as under: "11A. Deposit of rent by tenants in suits for ejectment If in a suit for recovery of possession of any building the tenant contests the suit, as regards claim for ejectment the landlord may make an application at any stage of the suit for order on the tenant to deposit month by month rent at a rate at which it was last paid and also the arrears of rent, if any and the Court, after giving an opportunity to the par ties to be heard, may make an order for deposit of rent at such rate as may be determined month by month and the arrears of rent, if any and on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of the next following month, the Court shall order the defence against ejectment to be struck out and the tenent to be placed in the same position as if he had not defended the claim to ejectment.
The landlord may also apply for permission to withdraw the deposited rent without prejudice to his right to claim decree for ejectment and the Court may permit him to do so.
The Court may further order recovery of cost of suit and such other compensation as may be determined by it from the tenant.
" The prayer in the application was that the defendant tenant be directed to deposit the rent in arrears upto and inclusive of June 1973 within a period of fifteen days from the date of the order and a further direction be given that he should continue to deposit the rent from month to month.
The learned Judge made an order directing the appellant to deposit rent for the period upon and inclusive of June 1973 at the rate of Rs. 32 per month and there after to continue to deposit the rent from month to month at the rate of Rs. 12.20 per month.
The tenant preferred a revision petition which was dismissed on March 26, 1974.
The such was fixed fore haring on January 28, 1975.
The tenant moved an application for adjournment which was rejected.
Plaintiff 's witnesses were examined and the suit was decreed ex parte on January 30, 1975.
On an application moved by the defendant praying for relief under 830 Order IX Rule 13, Code of Civil Procedure the learned Judge set aside the ex parte decree and set down the suit for proceeding further from the stage where it was decreed ex parte.
On January 5, 1976, the respondent landlord moved an application praying that as there was irregularity in depositing the rent for the month of August to October, 1975, defence of the appellant be struck off, the his failure to strictly comply with the order made under Section 1 IA.
After the appellant filed his rejoinder, the learned Judge heard the application and rejected the same on the ground that as the earlier order was made prior to the date on which the suit was decreed exparate, on the setting aside of the exparte decree and revival of the suit, the order giving directions for deposit of future rent does not per se revive and therefore even if there was some default on the part of the tenant in depositing the rent for the months from February to April, 1979, his defence cannot be struck off.
Promptly, the respondent landlord moved a revision petition before the High Court being Civil Revision No. 585 of 1976.A Division Bench of the High Court heard and disposed of the revision petition on August 11, 1977.
The learned Judges of the High Court made the rule absolute and set aside the order of the learned trial Judge refusing to strike off the defence of the appellant and directed the learned Judge to note that the defence of the appellant will be deemed to have been struck off due to non compliance of the order dated April 26, 1973.
Hence this appeal by special leave which is being heard after seven years.
Section 11A, to some extent, can be styled as a check on the tendency of the defendent to protract the litigation by frivolous defences more especially where the duty to pay the rent is unmistakably admitted.
In a suit for eviction, Sec.
11A enables the court to give a direction to pay rent which is claimed to be in arrears as also to compell the defendent who continues to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly.
It also enables the court to deter mine the rate of rent at which the deposit shall be made, wherein a case there is a dispute as to the rate of rent.
It is an undeniable feature of the tenancies in this country that more or less excluding the metropolitan areas, the tenancy is generally oral and no written record is usually available to furnish evidence as to the terms of lease.
Giving a receipt for the rent paid has not still become a part of the culture of a landlord.
Therefore where 831 eviction is sought on the ground of non payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant to pay.
In such a situation, the tenant will be exposed to double jeopardy in that on a prima facie pleading he will be directed to deposit the rent at the rate claimed by the landlord, if the court has no power to determine rate of rent at an interim stage.
Such power is conferred by Sec.
11A on the court.
The court can also determine as to from what date the tenant appears to be in arrears so that an appropriate direction can be given that the rent in arrears may be deposited within the time stipulated by the court as also future rent may be deposited regularly in the court.
It is a whole some provision which would advance justice.
Now where power is conferred on the court to give such directions, a sanction had to be created to guard against the failure to comply with the court 's directions.
This sanction is to be found in the conferment of power on the court to strike off the defence of the tenant if the tenant fails to comply with the order of the court giving directions for deposit.
Such a sanction would again advance justice.
So far there is no dispute.
The contention of the landlord which has found favour with the High Court is that the moment the failure of the tenant to comply with the earlier order is brought to the notice of the court, without anything more the defence has to be struck off.
This view of the court is founded on the use of the expression 'shall ' in that part of section by which power in conferred on the court to strike off the defence.
The relevant part of the expression reads thus: F ". on failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or the rent at such rate for any month by the fifteenth day of next following month, the court shall order the defence against ejectment to be struck off and the tenant be placed in the same position as if he had not defended the claim to ejectment.
" Interpreting this expression 'shall ' as mandatory in the afore mentioned clause, the High Court was of the opinion that as there was default in making the deposit for the month herein before mentioned 832 which would show non compliance with the order dated July 26, 1973 passed under Sec.
11A and therefore 'the tenant will have to bear consequences thereto ' The High Court further observed that 'once a default is found, the courts are powerless; the statutory consequences are bound to follow. ' In the back drop of the rival contentions, the neat question that arises is: whether the use of the word 'shall ' in the expression herein before extracted makes the provision imperative or mandatory or the court still retains the discretion to relieve against the default ? Ordinarily the use of the word 'shall ' prima facie indicates that the provision is imperative in character.
However, by a catena of decisions, it is well established that the court while considering whether the mere use of the word 'shall ' would make the provision imperative, it would ascertain the intenedment of the legislature and the consequences flowing from its own construction of the word 'shall '.
If the use of the word 'shall ' makes the provision imperative, the inevitable consequence that flows from it is that the court would be powerless to grant any relief even where the justice of the case so demands.
If the word 'shall ' is treated as mandatory the net effect would be that even where the default in complying with the direction given by the court is technical, fortuitous, unintended or on account of circumstances beyond the control of the defaulter, yet the court would not be able to grant any relief or assistance to such a person.
Once a default is found to be of a very technical nature in complying with the earlier order, the court must have power to relieve against a drastic consequence all the more so if it is satisfied that there was a formal or technical default in complying with its order.
To illustrate, if the tenant while he has on the way to the court on the 15th day to deposit the rent for the just preceeding month as directed by an order under Sec.
11A, met with an accident on the road and could not reach the court before the court hours were over, should he be penalised by his defence being struck off.
Even if the court is satisfied that he was on the way to the court to make the necessary deposit, that he had the requisite amount with him, and that he started in time to reach the court within the prescribed court hours and yet by circumstances beyond his control, he met with an accident would the court be powerless to grant him relief? This illustration would suffice to 833 the intendment of the legislature that it never used the word 'shall ' to make it so imperative as to render the court powerless.
The statute in which the expression is used is The Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947.
It is a statute enacted with a view to providing a fetter on the right of a landlord to evict tenant at his whim or fancy.
The long title of the Act shows that it was enacted to regulate the letting of buildings 13 and the rent for such buildings and to prevent unreason able eviction of tenants therefrom in the Province of Bihar.
A provision in such a statute primarily enacted for the protection of tenants against unreasonable eviction that the court is required to find out whether the word 'shall ' was used as to make the provision mandatory or imperative.
Obviously if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficient nature of the statute and to protect the harassed tenant obviously it does not require long argument to hold that the expression 'shall ' was used not with a view to making the provision mandatory or imperative but it was to be directory.
Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants.
It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice.
Mrs. Gyan Sudha Misra, learned counsel however contended that where the expression 'may ' and 'shall ' both are used in the same provision the legislative intendment is unmistakable that the provision where the word 'shall ' is used must be held to be mandatory because the previous use of the expression 'may ' shows that the legislature was conscious, which part of the provision is to be directly and which other part to be mandatory.
She relied upon a statement in Maxwell on the Interpretation of Satutes 12th Edn.
Page 282 where in it is stated relying upon the decision is R. vs Inhabitants of Great Bolton(1) that "where the Legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas.
" Obviously where the legislature uses two words 'may ' and 'shall ' in two different parts of the same provision prima facie it would appear that the legislature manifested its intention to make one part directory and another (1) at 74 834 mandatory.
But that by itself is not decisive.
The power of the court still to ascertain the real intention of the Legislature by care fully examining the scope of the statute to find out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same provision.
In Govindlal Chagganlal Patel vs The Agricultural Produce Market Committee Godhra and others(1) Chandrachud, J. speaking for the Court approved the following passage in Crawford on 'Statutory Construction ' (Ed. 1940 article 261, p. 516): "The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed.
The meaning and intention of the legislature must govern and these are to be ascertained, not only from the phrasacology of the provision, but also while considering its nature, its design and the consequences which would follow from construing it the one way or the other.
" Applying this well recognised canon of construction the conclusion is in escapable that the word 'shall ' used in the provision is directory and not mandatory and must be read as 'may '.
This construction also commends to us for the additional reason that where the court fixes a time to do a thing, the court always retains the power to extend the time for doing so.
148 of the Code of Civil Procedure provides that where any period is filed or granted by the court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
The principle of this section must govern in not whittling down the discretion conferred on the court.
The view which we are taking is in accord with the construction put by this court on a provision imparimateria in a similar statute.
In Shyamcharan Sharma vs Dharamdas(2) a question that arose (1) ; (2) ; 835 before this Court was whether the construction put by the High Court on Sec. 13 (1) read with Sec. 13 (6) of the Madhya Pradesh Accommodation Control Act, 1961 accords with the intendment of the Legislature.
The relevant provision provides that on an application, a tenant can be directed by the Court to pay to the landlord an amount calculated at the rate of the rent at which it was paid for the period for which a tenant may have made a default including the period subsequent thereto upto the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay month by month by the of tenth of each succeeding month, the sum equivalent to the rent.
It was contended that the provision i i mandatory so that the court has to power to extend the time initially liked by it for making the deposit.
A submission before the court was that the expression used in sub sec.
(1) discloses the legislative intent and the use of the word 'may ' in sub sec.
(6) would not make the provision directory.
The Court, speaking through O. Chinnappa Reddy, J. after ascertaining the intendment of the Legislature held that the court has the jurisdiction to extend time once fixed for deposit or payment of monthly rent falling due after the filing of the suit.
Failure to comply with an earlier direction should not necessarily visit the tenant with the consequence of his defence being struck off because there might be myriad situations in which default may be committed.
The Court should adopt such a construction as would not render the court powerless in a situation in which ends of justice demand relief being granted.
The High Court has adopted such a construction which would defeat the beneficent nature of provision.
The decision of the High Court will have to be set l, aside because it proceeds on the basis that once there is default, the tenant must suffer the consequences of it.
The learned trial Judge had held that once a suit ended in exparte decree the earlier direction for making necessary deposit given under Sec.
it would remain ineffective even if the exparte is, decree is set aside and would not revive was rightly disapproved by the High Court.
To that extent the view of the learned trial Judge was unsustainable.
The learned trial Judge did grant relief to the tenant by refusing to strike off the defence, of course, on an erroneous view 836 of law that the direction did not revive after the setting aside of the ex parte decree.
And the High Court reversed it on another crroneous view of law that the court was powerless to grant any relief once a default is established ? The question then is what relief we should grant ? The tenant has deposited all the arrears.
There was some irregularity in making the deposit but it was not of such a nature as to visit the tenant with the consequence of striking off his defence.
Therefore the Judgment of the High Court directing that the defence be deemed to be struck off is set aside and the order of the learned trial Judge is restored for the reasons herein stated.
This appeal is allowed accordingly and the matter is remitted to the trial court to proceed further with the suit from the stage where the defence of the present appellant was struck off.
The defence will be treated as part of the proceedings and suit shall be proceeded with accordingly.
As the matter is delayed for long, we direct that the suit shall be accorded priority by the trial court and shall be disposed of within a period of six months from the date of this judgment.
Mrs. Misra on behalf of the respondent submitted that the respondent has filed a second suit for eviction on the ground of personal requirement.
If that is pending the same must be heard alongwith the suit from which the present appeal arises.
We leave the parties to bear their respective costs both in the High Court as well as in this Court.
Costs in the trial court will abide the outcome of the suit.

summary/full:
The respondent plaintiff filed a suit for eviction against the appellant defendant on the ground that the tenant committed default in payment of rent.
The defendant contested the suit contending that he was not in default.
An application was filed by the respondent landlord for a direction under Sec.
11A of the (Bihar Buildings Lease, Rent and Eviction) Control Act, 1947 to the defendant tenant to deposit the rent in arrears; and a further direction to deposit the future rent from month to month.
The trial judge ordered the appellant to deposit the rent in arrears at the rate of Rs. 32 per month and thereafter to continue to deposit the rent at the rate of Rs. 12 20 per month.
The defendant preferred a revision petition which was dismissed.
The suit was fixed for hearing.
The tenant moved an application for adjournment which was rejected.
the plaintiff witnesses were examined and the suit was decreed ex parte.
On an application moved by the defendant praying for relief under 826 Order IX Rule 13 CPC, the trial judge set aside the ex parte decree and set down the suit for proceeding further from the stage it was decreed ex parte.
The respondent landlord moved an application contending that as there was irregularity and delay in depositing the rent, the defence of the appellant be struck off for his failure to strictly comply with the order made under Section 11A, but the trial judge rejected it on the ground that the earlier order was made prior to the date on which the suit was decreed ex parte; on the setting aside of the ex parte decree and revival of the suit, the order giving directions for deposit of future rent does not per se revive and therefore even if there was some default on the part of the tenant in depositing the rent, his defence cannot be struck off.
The respondent landlord moved a revision petition before the High Court.
A Division Bench interpreted the expression 'shall ' in Sec.
11A of the Act, as mandatory, and finding that there was default in making the deposit for the months mentioned in the landlords ' application, it could be shown that there was non compliance with the order passed under Sec.
11A, and therefore 'the tenant will have to bear the consequence thereto. ' It further held that 'once a default is found, the courts are powerless; the statutory consequences are bound to follow, ' It made the rule absolute and set aside the order of the trial judge refusing to strike off the defence of the appellant and directed the trial judge to note that the defence of the appellant would be deemed to have been struck off due to non compliance of the order Passed under Section 11A.
Allowing the Appeal to this Court, ^ HELD: 1.
(i) Failure to comply with an earlier direction should not necessarily visit the tenant with the consequence of his defence being struck off because there might be myriad situations in which default may be committed.
The Court should adopt such a construction as would not render the court powerless in a situation in which ends of justice demand relief being granted.
[835 F F] In the instant case, the High Court had adopted a construction of Section 11A of the Act which would defeat the beneficient nature of the pro vision.
The decision of the High Court is set aside because it proceeds on the basis that once there is default, the tenant must suffer the consequences of it.
The trial judge held that once a suit ended in an ex parte decree the earlier direction for making necessary deposit given under Sec.
11A would remain ineffective even if the ex parte degree is set aside and would not revive, was rightly disapproved by the High Court.
The trial judge did grant relief to the tenant by refusing to strike off the defence, but on an erroneous view of the law.
The High Court reversed it on yet another erroneous view of law holding that the court was powerless to grant any relief once a default is established.
[835 F H; 836 A B].
827 (ii) The tenant has deposited all the arrears.
There was some irregularity in making the deposit but it was not of such a nature as to visit the tenant with the consequence of striking off his defence.
The judgment of the High Court directing that the defence be deemed to be struck off is set aside and the order of the trial judge is restored.
[836 C] 2 (i) Section I IA, can he styled as a check on the tendency of the defendant to protract the litigation by frivolous defences more especially where the duty to pay the rent is unmistakably admitted.
[830 F] (ii) In a suit for eviction, Sec.
11A enables the court to give a direction to pay rent which is claimed to be in arrears as also to compel, the defendant who continues to remain in possession during the pendency of the proceedings to perform his obligation to deposit the rent regularly.
It also enables the court to determine the rate of rent at which the deposit shall be made, where in a case there is a dispute as to the rate of rent.
[830 G] (iii) An undeniable feature of the tenancies in this country is that, the tenancy is generally oral and no written record is usually available to furnish evidence as to the terms of lease.
Giving a receipt for the rent paid has not still become a part of the culture of a landlord.
Therefore, where eviction is sought on the ground of non payment of rent, it places a tenant at a comparative disadvantage if the landlord chooses to claim rent at the rate which is beyond the capacity of the tenant to pay.
In such a situation, the tenant will be exposed to double jeopardy in that on a prima face pleading he will be directed to deposit the rent at the rate claimed by the landlord, if the court has no power to determine rate at an interim stage.
Such power is conferred by Section 11A on the Court.
It is whole some provision which would advance justice.
[830 H; 83 1 A C] 3.
Where the legislature uses the two words may and shall in two different parts of the same provision prima facie it would appear that the Legislature manifested its intention to make one part directory and another mandatory.
But that by itself is not decisive.
The power of the court still to ascertain the real intention of the Legislature by carefully examining the scope of the statute to find out whether the provision is directory or mandatory remains un impaired even where both the words are used in the same provision, [833 H; 834 A] In the instant case, if one ascertains the intendment of the legislature, the purpose for which the provision was enacted, the beneficent nature of the statute to protect the harassed tenant, it does not require long argument to hold that the expression 'shill ' was used not with a view to making the provision mandatory or imperative but it to was be directory.
Such a construction would advance the purpose for which the Act was enacted namely the protection of tenants.
It will also not render the court powerless in the face of harsh facts where striking off the defence would be nothing short of miscarriage of justice.
[833 D E] 828 R.V Inhabitants of Great Bolton, (1828) 8B & 71 at 74 Govindlal Chaganlal Patel vs The Agricultural Produce Market Committee, Godhra and others, [1976]1 SCR 451, referred to.
Where the court fixes a time to do thing, the court always retains the power to extend the time for doing so.
148 of the Code of Civil procedure provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by the Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
The principle this section must govern in not whittling down the discretion conferred on the court, by Section 11A of the Act.
[834 F G] Shyamcharan Sharma v Dharamdas, ; , referred to.