judgement:
Civil Appeal No. 2005 of 1978 Appeal under section 123 of the Jammu and Kashmir Representation of People Act, 1957 from the Judgment and Order dated the 6th September 1979 of the Jammu and Kashmir High Court in Election Petition No. 3 of 1977 D. V. Patel, Vineet Kumar and A. Srivastava for the Appellant.
Z. A. Shah, M. Veerappa, J. R. Das and R. N. Nath for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
This appeal is filed under section 123 of the Jammu and Kashmir Representation of the People Act, 1957 (hereinafter referred to as 'the Act ') by the appellant against the judgment of the High Court of Jammu & Kashmir in Election Petition No. 3 of 1977 dismissing an election petition filed by him on the ground that he had not complied with section 89(3) of the Act.
At the general election held in the year 1977 to elect members to the Legislative Assembly of the State of Jammu & Kashmir, the appellant and the respondent were candidates for the seat to be filled from the Handwara Assembly Constituency.
The respondent was declared as the successful candidate by the Returning Officer.
Thereafter the appellant filed an election petition before the High Court of Jammu & Kashmir challenging the validity of the respondent 's election on various grounds.
The respondent raised two preliminary objections to the election petition (1) that the petition had not been presented in accordance with sub section (1) of section 89 of the Act and (2) that the copy of the election petition had not been attested by the appellant under his own signature to be a true copy of the petition as required by section 89(3) of the Act.
The respondent contended that the petition was liable to be dismissed in view of section 94 of the Act which provided that the High Court should dismiss an election petition which did not comply with the provisions of section 89 or section 90 or section 125 of the Act.
We are not concerned with the first ground as it has been held by the High Court that the petition had been validly presented in accordance with section 89(1) of the Act.
The appellant while admitting that the copies of the election petition had not been attested by him under his own signature to be true copies of the petition pleaded that section 89(3) of the Act had been substantially complied with as the copies of the election petition had been signed by his advocate and that they had been authenticated to be true copies of the petition.
On the basis of the above pleadings, the High Court raised 1181 two preliminary issues one relating to the validity of the presentation of the election petition and the other relating to the effect of the absence of attestation of the copies of the election petition by the appellant.
After recording the evidence led by the parties on the preliminary issues and hearing the counsel for the parties, the High Court disposed of the petition by the judgment under appeal.
In the course of its judgment while the High Court upheld the case of the appellant that the petition had been validly presented under section 89(1) of the Act came to the conclusion that the petition was liable to be dismissed as required by section 94 of the Act on the ground that section 89(3) of the Act had not been complied with by the appellant.
Accordingly, the petition was dismissed.
Hence this appeal.
Section 89(3) of the Act reads: "Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition." Section 94(1) of the Act provides: "The High Court shall dismiss an election petition which does not comply with the provisions of section 89 or section 90 or section 125".
Section 89(3) and section 94(1) of the Act correspond to section 81(3) and section 86(1) respectively of the Representation of the People Act, 1951 (Act No. 43 of 1951) (hereinafter referred to as 'the Central Act ').
There is no difference between the language of section 89(3) of the Act and the language of section 81(3) of the Central Act.
The language of section 94(1) of the Act and the language of section 86(1) of the Central Act are similar except with regard to the numbers of sections referred to therein.
Whereas in Section 94 of the Act, the High Court is required to dismiss an election petition which does not comply with the provisions of section 89 or section 90 or section 125 of the Act, section 86(1) of the Central Act requires the High Court to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Central Act.
The topics dealt with by sections 89, 90 and 125 of the Act are the same as the topics dealt with by sections 81, 82 and 117 of the Central Act.
Section 89 of the Act and section 81 of the Central Act deal with presentation of election petitions.
Section 90 of the Act and section 82 of the Central Act deal with the parties to the petition and section 125 of the Act and section 117 of the Central Act deal with security for costs.
1182 It is admitted that neither of the two copies of the election petition which had been filed along with it had been signed by the appellant.
Both the copies contained identical endorsements at the foot which read: "Attested true copy, Piyare Lal Handoo, Advocate".
The advocate had presented the election petition alongwith his Vakalatnama.
The crucial part of section 89(3) of the Act with which we are concerned provides that "every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition" and the critical words in this part are "under his own signature".
The case of the respondent is that the requirement of section 89(3) of the Act that the copy of the election petition should be attested by the petitioner under his own signature is a mandatory one.
It is his further case that the language of section 89(3) of the Act does not permit of any other mode of compliance and, therefore, the attestation made by the counsel for the petitioner filing the election petition is no compliance with that provision.
It is, therefore, contended by him that the petition is liable to be dismissed as required by section 94 of the Act.
On the other hand, the appellant 's case is that since the copies of the petition had been signed by his advocate who had been empowered to act for him in the case it should be treated as substantial compliance with section 89(3) of the Act which having regard to its object must be considered to be directory.
The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted.
Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word 'shall ' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision.
In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted.
If the object of a law is to be defeated by non compliance with it, it has to be regarded as mandatory.
But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of 1183 that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one.
Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one.
A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened.
Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.
We shall now proceed to deal with some of the decisions cited before us at the hearing of the appeal.
In one of the connected appeals which was disposed of by this Court by its common Judgment in K. Kamaraja Nadar vs Kunju Thevar & Ors.,(1) the person who had filed the election petition had deposited in the Government Treasury a sum of Rs. 1,000/ towards security under section 117 of the Central Act for the costs in favour of the Election Commission instead of in favour of the Secretary to the Election Commission as required by that section as it stood then.
It was contended that section 117 of the Central Act had been contravened thereby and that the petition was liable to be dismissed under section 90(3) (since repealed) of the Central Act which required the Election Tribunal to dismiss an election petition which did not comply with sections 81, 82 and 117 of the Central Act notwithstanding that it had not been dismissed by the Election Commission under section 85 (since repealed) of the Central Act.
Without going into the relationship between the Election Commission on the one hand and the Secretary to the Election Commission on the other for the purpose of examining the correctness of the said contention, this Court proceeded to negative it with the following observations vide at page 606 : 1184 "It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of section 117 and would involve a dismissal of the petition under section 85 or section 90(3).
The above illustration is sufficient to demonstrate that the words "in favour of the Secretary to the Election Commission" used in section 117 are directory and not mandatory in their character.
What is of the essence of the provision contained in section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else.
" It is seen from the above decision that this Court regarded the words "in favour of the Secretary to the Election Commission" used in section 117 of the Central Act directory as the essence of section 117 of the Central Act was that the petitioner should deposit the amount by way of security for the costs of the petition and that the said amount should be at the disposal and control of the Election Commission to be used by it in the manner authorised by law.
As the amount was in fact at the disposal of the Election Commission, the Court held that section 117 of the Central Act had been complied with by the petitioner in that election petition as there was nothing else in the relative provisions which precluded the Court from taking that view.
In Ch.
Subbarao vs Member, Election Tribunal, Hyderabad(1) the question of non compliance with section 81(3) of the Central Act directly arose for consideration.
The facts of that case were these: The petitioner had filed alongwith the election petition sufficient number of copies as required by section 81(3) of the Central Act.
The election petition was type written and the copies which accompanied the petition were carbon copies of the type script.
Each 1185 of the copies bore the signature of the petitioner.
The petitioner had not, however, inserted the words 'true copy" before or above his signature.
Without going into the question whether section 81(3) of the Central Act or any portion of it was merely directory, this Court held that the signatures in original found on the copies were intended to authenticate the documents to which they were appended and that in the circumstances of that case, the absence of the words "true copy" above the signature of the election petitioner in the copies was not fatal.
The Court held that there was substantial compliance with the requirement of section 81(3) of the Central Act.
In Jagat Kishore Prasad Narain Singh vs Rajendra Kumar Poddar & Ors.(1) this Court dismissed an election petition on the ground of non compliance with section 81(3) of the Central Act as the copies furnished to the contesting respondents were not true copies as there was divergence between the allegations made in the petition and the allegations made in the copies.
This decision has no bearing on the question involved in this case.
In Satya Narain vs Dhuju Ram & Ors.(2) this Court held that the first part of section 81(3) of the Central Act which required that the election petition should be accompanied by as many copies thereof as there were respondents mentioned in the petition was mandatory in character and non compliance with it was fatal to the petition in view of section 86(1) of the Central Act.
The Court was not concerned in that case with the second part of section 81(3) of the Central Act.
In Kamalam (M.) vs Dr. V. A. Syed Mohammed,(3) the signature of the election petitioner by way of authentication appeared at the foot of the copy of the affidavit but there was no such signature separately appended at the foot of the copy of the election petition.
The respondent by way of preliminary objection to the election petition contended that since the copy of the election petition had not been attested by the petitioner under her own signature to be a true copy, there was no compliance with section 81(3) of the Central Act and hence the petition was liable to be dismissed.
The High Court accepted the said contention and dismissed the petition.
In appeal, 1186 this Court held that section 81(3) of the Central Act had been complied with for the following reasons: "Now, it is true that no signature was appended by the appellant on the copy of the election petition proper and the signature was placed only at the foot of the copy of the affidavit, but that, in our opinion, was sufficient compliance with the requirement of the last part of sub section (3) of section 81.
The copy of the affidavit was, for reasons already discussed, part of the copy of the election petition and when the appellant put his signature at the foot of the copy of the affidavit it was tantamount to appending signature on the copy of the election petition.
The law does not require that the authenticating signature must be made by the petitioner at any particular place in the copy of the election petition.
It may be at the top of the copy or in the middle or at the end.
The place of the signature is immaterial so long as it appears that it is intended to authenticate the copy.
When original signature is made by the petitioner on the copy of the election petition, it can safely be presumed, as pointed out by this Court in Ch.
Subbarao 's case (supra), that the signature is made by the petitioner by way of authenticating the document to be a true copy of the election petition.
Now, here the appellant placed her signature in original at the foot of the copy of the affidavit and the copy of the affidavit was part of a composite document, namely, copy of the election petition, and hence the signature of the appellant must be regarded as having been appended on the copy of the election petition.
In fact, the copy of the affidavit constituted the end portion of the copy of the election petition and the signature placed by the appellant at the foot of the copy of the affidavit was, therefore, clearly referable to the entire copy preceding it and it authenticated the whole of the copy of the election petition to be a true copy.
We cannot, in the circumstances, accept the contention of the respondent that the copy of the election petition was not attested by the appellant under her own signature to be a true copy of the petition.
The requirement of the last part of sub section (3) of section 81 was complied with by the appellant inasmuch as the copy of the election petition was authenticated to be a true copy by the appellant by placing her signature at the foot of the copy of the affidavit which 1187 formed part of the copy of the election petition.
The High Court was clearly in error in dismissing the election petition under sub section
(1) of sec. 86.
" It is seen from the above decision that this Court held that the second part of section 81(3) of the Central Act had been complied with after holding that the copy of the petition and the affidavit filed alongwith it as required by law constituted one single document and the signature in original of the petitioner at the foot of the affidavit satisfied the requirements of section 81(3) of the Central Act.
In none of the decisions of this Court referred to above it has been held that the absence of the signature of the election petitioner on the copies of the petition was not a material defect.
It was argued by the learned counsel for the appellant that the object of enacting sub section (3) of section 89 of the Act which was merely procedural in character being that the respondents should be able to secure copies of the election petition as early as possible to enable them to file their statement of objections to it early, it would be sufficient compliance with the said provision if the true copies are filed alongwith it and since in the instant case, there had been no allegation that the copies which were filed were not exact copies of the original election petition, the petition should have been disposed of on its merits instead of dismissing it under section 94 of the Act.
He contended that the attestation made by the advocate on the copies was sufficient to assure the respondent that the copy served on him was in reality a true copy of the election petition.
He also contended that if a suit instituted in a civil court was not to be dismissed on the ground that the copy of the plaint was not authenticated to be a true copy by the plantiff under his own signature, there was no justification for treating the second part of section 89 of the Act as mandatory.
It is true that section 89(3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice.
But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.
A rule of limitation, for example, which is generally considered as procedural in character is strictly enforced by courts since the rule lays down that no court shall entertain a suit, an appeal or an application which is barred by time.
1188 An election to a Legislative Assembly can be called in question only by filing an election petition and not otherwise.
The right to challenge the election by filing an election petition is a statutory right and not a common law right.
A successful candidate is entitled to enjoy the privileges attached to the membership of the Legislative Assembly unless his right to do so is successfully challenged in an election petition filed within the prescribed period and in accordance with law.
Section 89(3) of the Act consists of two parts.
The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
The first part of section 89(3) of the Act has been held to be a mandatory requirement by this Court in the case of Satya Narain (supra) as this Court was of the view that the copies of the election petition should be filed alongwith it in order to prevent the delay in the disposal of the election petitions.
The question whether a provision of law is mandatory or not, as observed already, depends upon its language, the context in which it is enacted and its object.
Sub section (3) of section 89 of the Act provides that a copy of the petition shall be attested by the petitioner "under his own signature" to be a true copy of the petition.
The emphasis in the above provision appears to be on the words "under his own signature".
We do not find the same expression used in section 91(1)(c) of the Act which provides that an election petition shall be signed by the petitioner and verified in the manner laid down in the Jammu and Kashmir Code of Civil Procedure (Act X of 1977), for the verification of pleadings.
Sub section (3) of section 89 of the Act was inserted by Jammu and Kashmir Act I of 1962.
Section 94 of the Act which requires the High Court to dismiss an election petition when the petitioner has not complied with the provisions of section 89 was enacted in the place of the former section 94 of the Act by Jammu and Kashmir Act XI of 1967 by the Legislature with the full knowledge of the requirements of section 89(3) of the Act.
The object of requiring the copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition appears to be that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of the contents of the original petition after it is filed into court.
We have no doubt 1189 that the records and documents in the custody of courts are taken due care of by the courts and the courts would not by themselves give any scope for tampering with them.
But still experience shows that allegations are sometimes made that records in the court have been tampered with notwithstanding the care and caution taken by courts.
Such allegations may not always be without basis.
It is probably to obviate any scope for such an allegation being made or to protect the interest of the respondent, the Legislature thought of enacting sub section (3) of section 89 of the Act so that the respondent may rely on the copy served on him when he finds that the original document in the court contains allegations different from those in the copy in his custody.
A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself.
The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature.
If the requirement of the second part of section 89(3) that copy of the petition should contain the signature of the petitioner himself is not one of substance, there was no need to enact it as the first part of sub section (3) of section 89 of the Act would have been sufficient for it provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the word "copies" mentioned therein can only mean "true copies".
The importance of the provision contained in section 94 of the Act which makes it obligatory on the part of the High Court to dismiss a petition when it is established that section 89 of the Act had not been complied with also cannot be over looked in this context.
We are, therefore, of the view that the requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non compliance with that requirement should result in the dismissal of the petition as provided in section 94 of the Act.
The High Court was, therefore, right in dismissing the petition on the above ground.
For the foregoing reasons, the appeal fails and is hereby dismissed with costs.
S.R. Appeal dismissed.

summary/full:
Section 89(3) of the Jammu & Kashmir Representation of the People Act, 1957 reads: "Every election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition".
Under Section 94(1) of the Act, "The High Court shall dismiss an election petition which does not comply with the provisions of Section 89 or Section 90 or Section 125".
Sections 89(3) and 94(1) of the Act are in pari materia with sections 81(3) and 86(1) of the Central Act 43 of 1951.
In the election petition filed by the appellant in the J & K High Court challenging the verdict of the Returning Officer declaring the respondent as a successful candidate from the Handwara Constituency to the State Legislature, both the copies of the election petition contained the endorsement "Attested true copy.
Piare Lal Handoo, Advocate".
The question arose whether it was a sufficient compliance within the provisions of Section 89(3) of the Act.
Dismissing the appeal, the Court ^ HELD: 1.
The requirement in Section 89(3) of J & K Representation of People Act, 1957 that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non compliance with that requirement should result in the dismissal of the petition as provided in Section 94(1) of the Act.
[1189 F G] 2.
The object of requiring a copy of an election petition to be attested by the petitioner under his own signature to be a true copy of the petition is that the petitioner should take full responsibility for its contents and that the respondent or respondents should have in their possession a copy of the petition duly attested under the signature of the petitioner to be the true copy of the petition at the earliest possible opportunity to prevent any unauthorised alteration or tampering of contents of the original petition after it is filed into Court.
No doubt, the records and documents in the custody of Courts are taken due care of by the Courts and the Courts would not by themselves give 1178 any scope for tampering with them.
Still allegations not always without basis are sometimes made that records in the Court have been tampered with, notwithstanding the care and caution taken by Courts.
To obviate any scope for such an allegation being made or to protect the interest of the respondent, the Legislature thought of enacting sub section (3) of Section 89 of the Act so that the respondent may rely on the copy served on him when he finds that the original document in the Court contains allegations different from those in the copy in his custody.
A respondent would not have the same degree of assurance if a copy served on him is one attested by any person other than the petitioner himself.
The attestation by the advocate for the petitioner cannot be treated as the equivalent of attestation by the petitioner under his own signature.
If the requirement of the second part of section 89(3) that copy of the petition should contain the signature of the petitioner himself is not one of substance, there was no need to enact it as the first part of sub section (3) of section 89 of the Act would have been sufficient for it provides that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the word "copies" mentioned therein can only mean "true copies".
The importance of the provision contained in section 94 of the Act which makes it obligatory on the part of the High Court to dismiss a petition when it is established that section 89 of the Act had not been complied with also cannot be overlooked in this context.
[1188 G H, 1189 A E] 3.
It is true that section 89(3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice.
But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.
A rule of limitation, for example, which is generally considered as procedural in character is strictly enforced by courts since the rule lays down that no court shall entertain a suit, an appeal or an application which is barred by time.
[1187 F H] An election to a Legislative Assembly can be called in question only by filing an election petition and not otherwise.
The right to challenge the election by filing an election petition is a statutory right and not a common law right.
A successful candidate is entitled to enjoy the privileges attached to the membership of the Legislative Assembly unless his right to do so is successfully challenged in an election petition filed within the prescribed period and in accordance with law.
Section 89(3) of the Act consists of two parts.
The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition.
The copies of the election petition should be filed alongwith it in order to prevent the delay in the disposal of the election petitions.
Sub section (3) of section 89 of the Act provides that a copy of the petition shall be attested by the petitioner "under his own signature".
But the same expression is not to be found in Section 91(1)(c) of the Act which provides that an election petition shall be signed by the petitioner and verified in the manner laid down in the Jammu and Kashmir Code of Civil Procedure (Act X of 1977), for the verification of 1179 pleadings.
Sub section (3) of section 89 of the Act was inserted by Jammu and Kashmir Act I of 1962.
Section 94 of the Act which requires the High Court to dismiss an election petition when the petitioner has not complied with the provisions of section 89 was enacted in the place of former section 94 of the Act by Jammu and Kashmir Act XI of 1957 by the Legislature with the full knowledge of the requirements of section 89(3) of the Act.
[1188 A G] Satya Narain vs Dhuja Ram and Ors., ; ; applied. 4.
The question whether a provision of law is mandatory or not, depends upon its language, the context in which it is enacted and its object.
The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter substantial compliance may be sufficient to achieve the object regarding which the rule is enacted.
Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory are as follows: The fact that the statute uses the word 'shall ' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision.
In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted.
If the object of a law is to be defeated by non compliance with it, it has to be regarded as mandatory.
But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one.
Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one.
A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened.
Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.
[1182 E H, 1183 A C, 1188 D] K. Kamaraja Nadar vs Kunju Thevar and Ors.
, Subbarao vs Member, Election Tribunal Hyderabad, ; , Kamalam (M.) vs Dr. V. A. Syed Mohd., ; at p. 452; referred to.
Satya Narain vs Dhuja Ram and Ors., ; ; applied.
Jagat Kishore Prasad Narain Singh vs Rajendra Kumar Poddar and Ors., [1971] 1 SCR 821; held inapplicable.


judgement:
Civil Appeal No. 2601 of 1969.
Appeal by Special Leave from the Judgment dated 21 8 1069 of the Allahabad High Court in Second Appeal No. 2693/63.
W.S. Barlingay and R.C. Kohli for the Appellant.
S.L. Aneja and K.L. Taneja for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment, dated August 21, 1969, of the High Court of Allahabad, affirming on second appeal the judgment of the Civil Judge, Dehra Dun.
It arises out of these facts: Umrao Singh, respondent herein, who died during the pendency of proceedings in this Court and is substituted by his legal representatives, instituted a suit on September 26, 1961 against Ram Deo, appellant herein, for damages and for eviction from House No. 122B, Choharpur, District Dehra Dun.
Umrao Singh was the landlord of the suit premises.
Ram Deo was occupying the premises at a monthly rent of Rs. 25.
On June 13, 1960, a sum of Rs. 600 was due to the respondent from the appellant as arrears of rent and an agreement was executed between the parties on that date, according to which the tenant had to pay Rs. 50 every month to the respondent, to wit Rs. 25 towards liquidation of the compounded arrears of rent, and Rs. 25 per month towards the current rent falling due.
The appellant fell in arrears again.
Thereupon, the respondent served a notice of demand upon the plaintiff on August 21, 1961, requiring him to pay Rs. 380 as the arrears of rent (Rs. 5 being balance due from the period April 10, 1960 to May 9, 1960 and Rs. 370 for the period from May 10, 1960 to August 9, 1961) within one month from the receipt of the notice.
The tenant appellant pleaded that the parties had acted upon the said agreement dated June 12, 1960, and on settlement of accounts in April 1961, a sum of Rs. 305 was alleged to be due to the respondent.
Thereafter the appellant made another payment of Rs. 50 to the respondent on June 6, 1961.
On September 27, 1961 appellant tendered to the respondent a sum of Rs. 200.
The respondent did not 69 accept this tender, and instead, instituted the suit for damages and eviction of the appellant from the said premises.
The tenant further pleaded that the arrears of rent due at the date of notice was Rs. 75 only which did not exceed three months ' rent, that the rest of the amount (Rs. 75) demanded represented only past arrears covered by the agreement in respect of which the landlord had waived his right of ejectment.
The trial court held that from exhibit A 2, it was clear that only three months ' rent was in arrears and therefore, no ground for eviction had been made out under Section 3(a) of the U.P. (Temporary) Control of Rent and Eviction Act No. III of 1947 (hereinafter referred to as the Act).
With this reasoning, the trial court dismissed the respondent 's petition for eviction.
On appeal, the Additional Civil Judge, Dehra Dun, by his judgment dated May 29, 1963, reversed the finding of the Munsif and held that the rent which was in arrears upto June 13, 1960 and which was the subject matter of the agreement of that date, did not lose its character as "arrears of rent" merely because there was an agreement to pay the same in instalments.
On these premises, he allowed the appeal and directed eviction of the tenant.
The tenant carried a further appeal to the High Court.
The High Court affirmed the finding of the Civil Judge and dismissed the appeal.
Hence this appeal by the tenant.
Dr. Barlingay, learned counsel for the appellant has advanced two contentions.
First, that out of the amount of Rs. 150 due to the respondent at the date of the notice, Rs. 75 was due under the agreement dated June 12, 1960, and that amount could not be treated as arrears, of rent and tacked on to three months current rent in arrears, for the purpose of clause (a) of Section 3(1) of the Act.
It is argued that the liability to pay the past amount of Rs. 75 arises out of the aforesaid agreement which furnished an independent cause of action different from that founded on the rent note or the lease of the premises.
Second, that Section 114 of the Transfer of Property Act will be applicable to the situation because this is a matter on which the Rent Act is silent.
Since the tenant has cleared all the arrears of rent on the first hearing of the suit, he could not be evicted in view of the provisions contained in Section 114 of the Transfer of Property Act.
In reply, Mr. Aneja submits that the pre agreement arrears of rent did not lose their original character as arrears of rent, merely because the landlord had agreed to allow the tenant to clear them in instal 70 ments.
It is emphasised that what was intended to be an accommodation could not be turned into a handicap for the landlord.
It is argued that since on the date of the demand notice served upon the appellant, the latter was admittedly liable to pay Rs. 150; Rs. 75 towards the rent of 3 months prior to August 12, 1961 and Rs. 75 towards the rent of three months preceding the demand notice, he was in arrears of rent for a period of "more than three months" within the meaning of clause (a) of Section 3 of the Act, and, as such, was liable to be evicted.
We will now deal with the first contention canvassed by Dr. Barlingay.
The material part of Section 3 of the Act reads as follows: "3(1).
Subject to any order passed under sub section (3) no suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grouds: (a) That the tenant is in arears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a notice of demand.
(b) to (g). . . . ." In order to make out a ground for eviction under clause (a) of Section 3(1) the landlord must establish three facts: (i) that the tenant is in arrears of rent; (ii) that such arrears are of rent for more than three months, and (iii) the tenant has failed to pay the same to the landlord within one month of the service upon him of a notice of demand.
If any one of these factual ingredients is not established, no order of eviction can be passed under this Clause.
In the present case, there is no dispute that at the date of the notice, the tenant owed an amount of Rs. 150 to the landlord, out of which Rs. 75 represented three months ' rent preceding the notice.
There is also no dispute that the balance of Rs. 75 due from the tenant related to the period prior to the agreement, dated June 12, 1960, and under the agreement, the tenant was bound to pay the same in three monthly instalments, which he had, in breach of the agreement, failed to pay.
Controversy centres round the question, whether this balance of Rs. 75 could also be treated as "arrears of rent" and tacked on to the arrears of rent relating to the three months preceding the notice for the purpose of clause (a) of Section 3(1) of the Act.
In our opinion, the answer to this question must be in the negative.
As a result of the aforesaid 71 agreement, the pre agreement arrears lost their original character as "arrears of rent" and assumed the character of a consolidated debt which, under the terms of the agreement, was payable by the debtor (appellant) in monthly instalments.
The agreement had in respect of the past arrears, brought into being a new cause of action and created a liability against the tenant, independent and distinct from that founded on the rent note or the lease of the premises.
Consequently if the appellant, in breach of the agreement, defaulted to pay any instalment, the remedy of the respondent (creditor) would be to file a suit for the recovery of the amount due on the basis of the agreement, dated June 12, 1960.
Thus, the arrears of three instalments due under the agreement had ceased to be "arrears of rent" and could not be tacked on to the arrears of three months rent due at the date of the notice, for the purposes of clause (a) of Section 3(1).
The proposition can be tested by taking an example.
Supposing, the appellant had defaulted to pay four monthly instalments of Rs. 25 each in accordance with the aforesaid agreement, but had regularly paid the rent as it fell due every month for the post agreement period.
Will the respondent in such a situation be entitled to sue for the eviction of the tenant on the ground that he has committed four successive breaches and defaults under the said agreement ? The answer is an obvious 'No '.
The respondent 's remedy in such a situation, will only be to sue for the recovery of the amounts due on the foot of the aforesaid agreement.
In the light of the above discussion the conclusion is inescapable that for the purposes of clause (a) of Section 3(1) the appellant was in arrears of rent for three months, only.
In other words, he was not in "arrears of rent for more than three months" within the meaning of clause (a) and, as such, was not liable to be evicted under that clause.
The High Court and the first appellate court were in error in holding to the contrary.
In the view we take, it is not necessary to deal with the second contention canvassed by Dr. Barlingay.
In the result, we allow this appeal, set aside the decree of the High Court and dismiss the respondent 's suit.
In the circumstances of the case however, we leave the parties to pay and bear their own costs in this Court.
P.B.R. Appeal allowed.

dataset_name: IN-Abs

summary/full:
In respect of arrears of rent the respondent landlord and the appellant who was his tenant entered into an agreement on June 13, 1960 that the tenant would pay every month Rs. 50/ representing Rs. 25/ as arrears of rent and Rs. 25/ towards the current rent.
For sometime the appellant made the payments in accordance with the agreement but thereafter fell in arrears.
The respondent served a notice of demand upon the appellant on August 21, 1961.
Eventually the respondent instituted a suit for damages and eviction of the appellant from the premises.
The appellant pleaded that the arrears of rent due at the date of notice were Rs. 75/ only which did not exceed three months rent and that the balance of the amount demanded represented only past arrears covered by the agreement in respect of which the landlord had waived his right of ejectment.
Dismissing the suit the trial court held that only three months rent was in arrears and no ground for eviction had been made out under section 3(1)(a) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947.
On appeal the Civil Judge was of the view that the rent in arrears on the date of agreement did not lose its character as "arrears of rent" merely because there was an agreement to pay it in instalments.
The High Court affirmed the finding of the Civil Judge.
In appeal to this Court it was contended on behalf of the appellant that out of Rs. 150/ due to the respondent on the date of his notice only Rs. 75/ was due towards the arrears of rent for three months preceding the notice while the balance of Rs 75/ was a distinct liability under the agreement and therefore, could not be treated and tacked on as arrears of rent to the rent due for the three months preceding the date of notice, for the purpose of section 3(1) (a) of the Act.
Allowing the appeal and accepting the appellant 's contention, ^ HELD: 1.
The appellant was not in "arrears of rent for more than three months" within the meaning of section 3(1)(a) of the Act and therefore was not liable to be evicted under the clause.
[71 F] 2.
As a result of the agreement dated June 13, 1960 the pre agreement arrears lost their original character of "arrears of rent" and assumed the character of a consolidated debt, which under the terms of the agreement, was payable by the debtor (appellant) in monthly instalments.
The agreement 68 brought into being a new cause of action and created a liability against the tenant, independent and distinct from that founded on the rent note or the lease of the premises.
The arrears of three instalments due under the agreement had ceased to be "arrears of rent" and could not be tacked on to the rent due for three months preceding the date of notice, for the purpose of the section.[71 A B]


judgement:
: Special Leave Petition (Criminal) No. 2076 of 1978.
From the Judgment and Order dated 17 3 1978 of the Punjab and Haryana High Court in Criminal Revision No. 181/77) R.L. Kohli, S.K. Sabharwal and Subhash Chander for the Petitioner.
46 R.N. Sachthey for Respondent No. 1.
Prem Malhotra for Respondent No. 2.
The Order of the Court was delivered by KRISHNA IYER, J.
What constrains us to explain at some length our reasons for rejection of leave to appeal in this case is the desideratum that every executive challenge to justice in action is a call to the court to strengthen public confidence by infusing functional freshness into the relevant law sufficient to overpower the apprehended evil.
The house of the petitioner is said to have been burgled and he alleges that he lost many valuables.
The police, on information being laid, searched and recovered the property.
Eventually, charges were framed by the trial court against one Hussan Lal, a jeweller, and one Madan Lal, an alleged collaborator (respondents Nos. 2 and 3 in this petition) under section 411 I.P.C. and one Ashok Kumar under section 380, I.P.C.
During the pendency of the criminal case, the Assistant Public Prosecutor applied for withdrawal from prosecution under section 321, Cr.
P.C. on the ground that on fresh investigation by a senior officer the alleged search and seizure were discovered to be a frame up by the concerned police officer in order to pressurise the accused Hussan Lal to withdraw a certain civil litigation.
On the court requiring a fuller application the Assistant Public Prosecutor made a fresh and more detailed petition for withdrawal which was eventually granted by the trial court, despite the petitioner 's remonstrance that the withdrawal was prompted by the political influence wielded by Hussan Lal leading to instructions from high quarters to the Assistant Public Prosecutor to withdraw from the case concerning that accused.
It was alleged that in carrying out the instructions the Assistant Public Prosecutor did not apply an independent mind.
The court nevertheless accepted the request of the Assistant Public Prosecutor and directed acquittal of Hussan Lal, while continuing the case against the remaining two accused.
The order was unsuccessfully assailed in revision before the High Court by the petitioner.
Undaunted by that dismissal, he has moved this court under article 136 of the Constitution.
In view of the startling disclosures on either side we have listened at some length to the oral submissions in supplementation of the affidavits in the record.
The three focal points of arguments are whether (i) a case which pends in court can be subject to a second police investigation without the judge even knowing about it, (ii) political considerations of the Executive vitiate the motion for withdrawal of pending proceeding, and (iii) the District Magistrate 's order to withdraw from a case communicated to the Public Prosecutor and carried out by him, is compliance with section 494.
47 When a crime is committed in this country, the assessment of guilt and the award of punishment or, alternatively, the discharge or acquittal of the accused are part of the criminal justice process administered by the courts of the land.
It is not the function of the executive to administer criminal justice and in our system, judges are not fungible, as Justice Dougles in Chandler,(1) asserted: Judges are not fungible; they cover the constitutional spectrum; and a particular judge 's emphasis may make a world of difference when it comes to rulings on evidence.
the temper of the courtroom, the tolerance for a proffered defense, and the like.
Lawyers recognize this when they, talk about 'shopping ' for a judge; Senators recognize this when they are asked to give their 'advice and consent ' to judicial appointments; laymen recognize this when they appraise the quality and image of the judiciary in their own community.
" When a case is pending in a criminal court its procedure and progress are governed by the Criminal Procedure Code or other relevant statute To intercept and recall an enquiry or trial in a court, save in the manner and to the extent provided for in the law, is itself a violation of the law.
Whatever needs to be done must be done in accordance with the law.
The function of administering justice, under our constitutional order, belongs to those entrusted with judicial power.
One of the few exceptions to the uninterrupted flow of the court 's process is section 321, Cr.
But even here it is the Public Prosecutor, and not any executive authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the court.
We repeat for emphasis.
To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and to the extent provided for in the Code itself, is lawlessness.
The even course of criminal justice cannot be thwarted by the Executive, however high the accused, however sure Government feels a case is false, however unpalatable the continuance of the prosecution to the powers that be who wish to scuttle court justice because of hubris, affection or other noble or ignoble consideration.
Justicing, under our constitutional order, belongs to the judges.
Among the very few exceptions to this uninterrupted flow of the court process is section 494, Cr.
Even here, the Public Prosecutor not any executive authority is entrusted by the Code with a limited power to withdraw from a prosecution, with the (1) Chandler vs Judicial Council of the Tenth Circuit of the U.S. , 1970.
48 court 's consent whereupon the case comes to a close.
What the law has ignited, the law alone shall extinguish.
Although skeletal, the conditions for such withdrawal are implicit in the provision, besides the general principles which have been evolved through precedents.
Once a prosecution is launched, its relentless course cannot be halted except on sound considerations germane to public justice.
All public power is a public trust, and the Public Prosecutor cannot act save in discharge of that public trust, a public trust geared to public justice.
The consent of the court under section 321 as a condition for withdrawal is imposed as a check on the exercise.
of that power.
Consent will be given only if public justice in the larger sense is promoted rather than subverted by such withdrawal.
That is the essence of the nolle prosequi jurisprudence.
We wish to stress, since impermissible influences occasionally infiltrate into this forbidden ground, that court justice is out of bounds for masters and minions elsewhere.
We do not truncate the amplitude of the public policy behind section 494 Cr.
P.C. but warn off tempting, adulteration of this policy, taking the public prosecutor for granted.
Maybe, the executive, for plural concerns and diverse reasons, may rightfully desire a criminal case to be scotched.
The fact that broader considerations of public peace, larger considerations of public justice and even deeper considerations of promotion of long lasting security in a locality, of order in a disorderly situation or harmony in a factious milieu, or halting a false and vexatious prosecution in a court, persuades the Executive, pro bono pulico, sacrifice a pending case for a wider benefit, is not ruled out although the power must be sparingly exercised and the statutory agency to be satisfied is the public prosecutor, not the District Magistrate or Minister.
The concurrence of the court is necessary.
The subsequent discovery of a hoax behind the prosecution or false basis for the criminal proceeding as is alleged in this case, may well be a relevant ground for withdrawal.
For the court should not be misused to continue a case conclusively proved to be a counterfeit.
This statement of the law is not exhaustive but is enough for the present purpose and, indeed, is well grounded on precedents.
The promotion of law and order is an aspect of public justice.
Grounds of public policy may call for withdrawal of the prosecution.
A prosecution discovered to be false and vexatious cannot be allowed to proceed.
The grounds cover a large canvas.
But the power must be cautiously exercised, and the statutory agency to be satisfied is the Public Prosecutor in the first instance, not the District Magistrate or other executive authority.
Finally, the consent of the court is impera 49 tive.
The law was explained by this Court in M. N. Sankaranarayana Nair vs P. V. Bala Krishina & Ors.(1) "A reading of Sec.
494 would show that it is the public prosecutor who is in charge of the case that must ask for permission of the Court to withdraw from the prosecution of any person either generally or in respect of one or more of the offences for which he is tried.
This permission can be sought by him at any stage either during the enquiry or after committal or even before the judgment is pronounced.
The section does not, however, indicate the reasons which should weigh with the Public Prosecutor to move the Court for permission nor the grounds on which the Court will grant or refuse permission.
Though the Section is in general terms and does not circumscribe the powers of the Public Prosecutor to seek permission to withdraw from the prosecution the essential consideration which is implicit in the grant of the power is that it should be in the interest of administration of justice which may be either that it will not be able to produce sufficient information before prosecuting agency would falsify the prosecution evidence or any other similar circumstances which it is difficult to predicate as they are dependent entirely on the facts and circumstances of each case.
Nonetheless it is the duty of the Court also to see in furtherance of justice that the permission is not sought on grounds extraneous to the interest of justice or that offences which are offences against the State go unpunished merely because the Government as a matter of general policy or expediency unconnected with its duty to prosecutor offenders under the law directs the Public Prosecutor to withdraw from the prosecution and the Public Prosecutor merely does so at its behest.
" The position was confirmed in Bansi Lal vs Chandan Lal(2) and Balwant Singh & Ors.
vs Bihar(3).
The law is thus well settled and its application is all that calls for caution.
In the special situation of this case, two principles must be hammered home.
The decision to withdraw must be of the Public Prosecutor, not of other authorities, even of those whose displeasure may affect his continuance in office.
(1) ; (2) A.I.R. 1976 S.C. 370.
(3) ; 50 The court is monitor, not servitor, and must check to see if the essentials of the law are not breached, without, of course, crippling or usurping the power of the public prosecutor.
The two matters which are significant are (a) whether the considerations are germane, and (b) whether the actual decision was made or only obeyed by the Public Prosecutor.
In the setting of the present facts, the enquiry must be whether the considerations on which withdrawal was sought by the Assistant Public Prosecutor were germane and pertinent, and whether the actual decision to withdraw was made by the Assistant Public Prosecutor or was the result of blind compliance with executive authority.
If it appears from the material before the Court that germane or relevant considerations did not prompt the motion for withdrawal but it was the pressure of political influence, the Court will withhold its consent.
The functionary clothed by the Code with the power to withdraw from the prosecution is the Public Prosecutor.
The Public Prosecutor is not the executive, nor a flunkey of political power.
Invested by the statute with a discretion to withdraw or not to withdraw, it is for him to apply an independent mind and exercise his discretion.
In doing so, he acts as a limb of the judicative process, not as an extension of the executive.
In the present case, it appears that when the court commenced proceedings, the accused Hussan Lal complained to higher police officers that the concerned Assistant Sub Inspector had initiated the case merely for the purpose of putting pressure on him to compromise a suit against a close relative.
The allegations were enquired into by a senior officer and the District Magistrate, on the basis of the material coming to light, directed disciplinary action against the Assistant Sub Inspector and instructed the Assistant Public Prosecutor to withdraw from the case against Hussan Lal.
We find no evidence to support the allegations of political influence.
At the same time, it is necessary to point out that the District Magistrate acted illegally in directing the Assistant Public Prosecutor to withdraw.
It has been alleged that the second investigation of the case on the executive side, which led to the discovery that the earlier investigation was motivated, was vitiated by the omission to question the first informant.
That was a matter for the Assistant Public Prosecutor to consider when deciding whether or not to withdraw from the prosecution.
On the principal question arising in this case, the record shows that the Public Prosecutor applied his mind to the disclosures emerging from the second enquiry, and he found that "even the recovery wit 51 nesses Sarvashri Mato Ram and Phool Singh did not support that they had witnessed the recovery or any disclosure statement was made in their presence by Madan Lal accused.
" He found that Phool Singh at the relevant time was bed ridden and had since expired.
He also discovered that Mato Ram had stated that nothing had happened in his presence but his signatures were obtained by the Investigating Officer.
It is abundantly clear that the Assistant Public Prosecutor made an independent decision on the material before him and did not act in blind compliance with the instructions of the District Magistrate.
We cannot dispose of this petition without drawing attention to the very disturbing presence of the District Magistrate in the withdrawal proceedings.
The jurisprudence of genuflexion is alien to our system and the law expects every repository of power to do his duty by the Constitution and the laws, regardless of commands, directives, threats and temptations.
The Code is the master for the criminal process.
Any authority who coerces or orders or pressurises a functionary like a public prosecutor, in the exclusive province of his discretion violates the rule of law and any public prosecutor who bends before such command betrays the authority of his office.
May be, Government or the District Magistrate will consider that a prosecution or class of prosecutions deserves to be withdrawn on grounds of policy or reasons of public interest relevant to law and justice in their larger connotation and request the public prosecutor to consider whether the case or cases may not be withdrawn.
Thereupon, the Prosecutor will give due weight to the material placed, the policy behind the recommendation and the responsbile position of Government which, in the last analysis, has to maintain public order and promote public justice.
But the decision to withdraw must be his.
The District Magistrate who is an Executive Officer is not the Public Prosecutor and cannot dictate to him either.
Maybe, the officer had not apprised himself of the autonomous position of the Public Prosecutor or of the impropriety of his intrusion into the Public Prosecutor 's discretion by making an order of withdrawal.
Similar mistakes are becoming commoner at various levels and that is why we have had to make the position of law perfectly clear.
We emphasise that the rule of law warns off the executive authorities from the justicing process in the matter of withdrawal of cases.
Since we are satisfied that the Public Prosecutor did not yield to the directive of the District Magistrate but made an independent study of informing himself of the materials placed before the court and then sought permission to withdraw from the prosecution, we decline to reverse the order passed by the courts below.
52 This trial court was satisfied that the Assistant Public Prosecutor had not exercised the power of withdrawal for any illegitimate purpose and the High Court endorsed that conclusion.
We are not disposed to interfere with the order of the High Court.
One obvious grievance of the petitioner deserves to be remedied.
He is interested in getting back his stolen goods.
The accused claims no property in the goods.
In the event of the complainant identifying them as his property, the trial court will consider passing appropriate orders for their return to him.
Surely, criminal justice has many dimensions beyond conviction and sentence, acquittal and innocence.
The victim is not to be forgotten but must be restored to the extent possible.
The petition is rejected.
N.K.A. Petition dismissed.

summary/full:
The petitioner alleged that his house had been burgled and that many valuables were lost.
The police recovered the property.
Eventually, charges were also framed by the trial court against two other persons who were said to be collaborators.
During the pendency of the criminal case, the Asstt.
Public Prosecutor applied for withdrawal from prosecution under section 321, Cr.
P.C. on the ground that on fresh investigation by a senior officer the alleged search and seizure were discovered to be a frame up by the concerned police officer in order to pressurise the accused to withdraw a certain civil litigation.
The court required a fuller application, the Assistant Public Prosecutor made a fresh and more detailed petition for withdrawal which was eventually granted by the trial court, despite the petitioner 's remonstrance that the withdrawal was prompted by political influence wielded by the jeweller leading to instructions from high quarters to the Assistant Public Prosecutor to withdraw from the case concerning that accused.
It was alleged that the Assistant Public Prosecutor did not apply an independent mind in carrying out the said instructions.
The trial court nevertheless accepted the request of the Assistant Public Prosecutor and directed acquittal of the jeweller, while continuing the case against the remaining two accused.
The order was unsuccessfully assailed in revision before the High Court by the petitioner.
By special leave to appeal under Article 136 of the Constitution, it was argued on behalf of the petitioner that (i) a case which pends in court cannot be subject to a second police investigation without the judge even knowing about it, (ii) political considerations of the Executive vitiate the motion for withdrawal of pending proceeding, and (iii) the District Magistrate 's order to withdraw from a case communicated to the Public Prosecutor and carried out by him, is compliance with section 494.
Dismissing the petition, ^ HELD: When a crime is committed, the assessment of guilt and the award of punishment or, alternatively, the discharge or acquittal of the accused are part of the criminal justice process administered by the courts of the land.
It is not the function of the executive to administer criminal justice and in our system, judges are not fungible.
[47 A] When a case is pending in a criminal court, its procedure and progress are governed by the Criminal Procedure Code or other relevant statute.
To intercept and recall an enquiry or trial in a court, save in the manner and to the extent provided for in the law, is itself a violation of the law.
Whatever needs to be done must be done in accordance with the law.
The function of administering justice, under our constitutional order, belongs to those entrusted with judicial power.
One of the few exceptions to the uninterrupted flow of the 45 court 's process is section 321, Cr.
But even here it is the Public Prosecutor and not any executive authority, who is entrusted by the Code with the power to withdraw from a prosecution, and that also with the consent of the court.
To interdict, intercept or jettison an enquiry or trial in a court, save in the manner and to the extent provided for in the Code itself, is lawlessness.
The even course of criminal justice cannot be thwarted by the executive, however high the accused, however sure Government feels a case is false, however, unpalatable the continuance of the prosecution to the powers that be who wish to scuttle court justice because of hubris, affection or other noble or ignoble consideration.
Among the very few exception to this uninterrupted flow of the court process is section 494, Cr.
Even here, the Public Prosecutor is entrusted by the Code with a limited power to withdraw from a prosecution with the court 's consent whereupon the case comes to a close.
What the law has ignited, the law alone shall extinguish.
[47 D H, 48 A] The promotion of law and order is an aspect of public justice.
Grounds of public policy may call for withdrawal of a prosecution.
A prosecution discovered to be false and vexatious cannot be allowed to proceed.
But the power must be cautiously exercised, and the statutory agency to be satisfied is the Public Prosecutor in the first instance, not the District Magistrate or other executive authority.
Finally, the consent of the court is imperative.
[48 G H] There was no evidence to support the allegation of political influence.
At the same time, the District Magistrate acted illegally in directing the Assistant Public Prosecutor to withdraw.
It has been alleged that the second investigation of the case on the executive side, which led to the discovery that the earlier investigation was motivated, was vitiated by the omission to question the first informant.
That was a matter for the Assistant Public Prosecutor to consider when deciding whether or not to withdraw from the prosecution.
It is abundantly clear that the Assistant Public Prosecutor made an independent decision on the material before him and did not act in blind compliance with the instructions of the District Magistrate.
[50 F H, 51 A] The rule of law warns off the executive authorities from the justicing process in the matter of withdrawal of cases.
Since the courts were satisfied that the Public Prosecutor did not yield to the directive of the District Magistrate but made an independent study of informing himself of the materials placed before the court and then sought permission to withdraw from the prosecution, this court declined to reverse the order of the courts below.
[51 F H] M.N. Sankaranarayana Nair vs P.V. Bala Krishna & Ors. ; Bansi Lal vs Chandan Lal, AIR 1976 SC 370: Balwant Singh & Ors.
vs Bihar, ; , affirmed.


judgement:
Civil Appeal No. 272 of 1970.
Appeal by Special Leave from the Judgment and Order dated 14 4 1969 of the Mysore High Court in W.P. No. 2889/67.
R. N. Nath and M. Veerappa for the Appellant.
2 M. Natesan and Mrs. section Gopalakrishnan for the Respondent.
The Judgment of the Court was delivered by SARKARIA, J.
Whether a motor vehicle passing through the territory of the State of Mysore on way to its destination in another State is a motor vehicle "kept" in the State of Mysore (now Karnataka) within the contemplation of Section 3(1) of the Mysore Motor Vehicles Taxation Act, 1957 (hereinafter referred to as the Taxation Act), is the short question that falls for consideration in this appeal by special leave directed against a judgment, dated April 14, 1969, of the High Court of Mysore.
The material facts bearing on the question are as follows : The respondent, M/s. T. V. Sundaram Iyengar & Sons.
Pvt. Ltd., whose registered office is in the State of Tamil Nadu, is a dealer in motor vehicles which are manufactured at Bombay.
Some of those vehicles are sold in Mysore State, while others are sold outside Mysore State.
But those vehicles which are sold outside the State of Mysore in other States pass through its territory under temporary registration number plates issued after receipt of token tax by the Bombay Motor Vehicles Authority.
Such vehicles enter the State of Mysore at its border in Belgaum District and go out at its border in Kolar District, thus running through the territory of Mysore State by road over a distance of about 400 miles.
The R.T.O., Belgaum, issued a communication, dated September 27, 1966, to the respondent demanding tax on such vehicles (new cars and chassis) passing through the territory of Mysore.
After exhausting, his remedies under the Taxation Act, the respondent filed a petition under Article 226 of the Constitution, to challenge the validity of the demand notices and the Circular, dated October 10, 1966, issued by the Transport Commissioner, directing recovery of tax at the rates specified in Part of the Schedule to the Taxation Act, in respect of those vehicles which do no more than pass through the State of Mysore to reach their destination.
The Division Bench of the High Court, who heard the writ petition held that such vehicles which merely pass through Mysore State are not those "kept" in the State of Mysore within the meaning of Section 3(2) of the Taxation Act.
and, as such, are not taxable under the Taxation Act.
In the result, the High Court allowed the writ petition and quashed the direction of the Commissioner in paragraph 6 of his Circular of October 10, 1966, for the recovery of the tax in question from the respondent.
Hence.
this appeal by the State.
3 The material part of Section 3 reads as follows : "section 3.
Levy of tax. (1) a tax at the rates specified in part A of the Schedule shall be levied on all motor vehicles suitable for use on roads, kept in the State of Mysore: Provided that in the case of motor vehicles kept by a dealer in or manufacturer of such vehicles for the purpose of trade, the tax shall only be levied and paid by such dealer or manufacturer on vehicles permitted to be used on roads in the manner prescribed by rules made under the . Explanation.
A motor vehicle of which the certificate of registration is current shall, for the purpose of this Act, be deemed to be a vehicle suitable for use on roads.
(2) Notwithstanding anything contained in sub section (1), taxes at the rates specified in Part B of the Schedule shall be levied on motor vehicles belonging to or in the possession or control of persons, not ordinarily residing in the State of Mysore and kept in the State of Mysore by such persons for periods shorter than a quarter, but not exceeding thirty days.
(3). . . . . . . . " The appellant State maintains that sub section (2) of the Section was applicable to such vehicles because while passing through the territory of the State they use the roads of the State over a distance of 400 miles during their journey interspersed by halts in the State, and therefore, it can be said that such vehicles are kept for use on roads in the State within the meaning of Section 3(2).
According to the learned counsel for the appellant the test of whether a vehicle is exigible to tax under Section 3(2) is whether it is suitable for use on roads and, in fact, substantially uses the roads in the State of Mysore.
In the present case, the argument proceeds, this test was satisfied because for an appreciable period such vehicles remain in the territory of the State and use its roads, and as such, are taxable under sub section (2) of Section 3.
The contention does not stand a close examination.
Sub section (2) is to be read with sub section (1).
Thus read, it is plain that in order to be taxable under the Section a Motor vehicle must be capable of use on road, and further it must be kept in the State of Mysore, though in the case of vehicles belonging to persons not resident in the State, the duration of such 'keeping ' may be for a 4 period shorter than a quarter but not exceeding thirty days.
In the present case, there is no dispute that the vehicles concerned are capable of use on roads, and in fact, they journey by road through the State.
The problem thus resolves itself into the issue : Whether the motor vehicles of the respondent which merely pass through the State of Mysore are 'kept ' for the duration of their journey in the State of Mysore within the meaning of Section 3(2) ? In our opinion, the High Court has rightly answered this question in the negative.
The word 'kept ' has not been defined in the Taxation Act.
We have, therefore, to interpret it in its ordinary popular sense, consistently with the context.
The word 'kept ' has been repeatedly used in the Section.
In sub section (1), it occurs in association with the phrase "for use on roads".
In that context the ordinary dictionary meaning of the word 'keep in ' is 'to retain ', 'to maintain ' or cause to stay or remain in a place 'to detain ', 'to stay or continue in a specified condition, position etc. ' In association with the use of the vehicle, therefore, the word 'kept ' has an element of stationariness.
It is something different from a mere state of transit or a course of journey through the State.
It is something more than a mere stoppage or halt for rest food or refreshment etc., in the course of transit through the territory of the State.
The unsoundness of the contention of the appellant 's counsel, viz, that a vehicle capable for use on roads, owned by a non resident, remaining for one or two days in the territory of Mysore State in course of transit, will also be exigible to tax under section 3, can be demonstrated by taking an example.
Supposing the respondents take their vehicles (capable for use on road) by rail through the territory of Mysore State to their outside destination, and in the course of that journey, the train halts for a week, in all, at stations in Mysore State, then, if the wide interpretation demanded by the appellant is adopted such vehicles will be exigible to tax.
This indeed will be an absurd result.
Such an interpretation of the word 'kept ' will be wholly beyond the ken of the Legislature.
In the view we take, we can derive support from two decisions of the English Courts.
In Dudley vs Holland,(1) the appellant carried on a garage business adjoining a public road.
He had bought a motor car in the course of 5 his business and was offering for sale in the garage showroom.
He moved that car into the public road in order to allow the showroom to be rearranged.
There was no excise licence in force for the car.
It was found there by a police constable.
The appellant was charged with unlawfully keeping on a public road a mechanically propelled vehicle for which an excise licence was not in force, contrary to Section 7 of the Vehicles (Excise) Act, 1962.
The question for the opinion of the Court was whether the mere presence of a stationary mechanically propelled vehicle on a public road, constitutes "keeping" the vehicle on the road within the meaning of Section 7 of the Vehicles (Excise) Act, 1962.
Lord Parker, C.J., who delivered the leading judgment of the Court, answered this question in the negative, in these terms: "I approach the word 'keeps ' in what seems to me the ordinary meaning of some continuing process; not a mere isolated moment, but a keeping of the car there, at any rate for some interval of time.
It is no doubt a matter of degree and fact in every case.
In my judgment, 'keeping ' means something more than that, both according to its ordinary meaning and when it appears in conjunction with the other word 'uses '.
" The principle is applicable to the present case.
A mere state of running through or even halting of the vehicle in the course of the journey through the State of Mysore for its outside destination, will not be sufficient to constitute 'keeping ' of that vehicle in the State within the meaning of Section 3.
The other case is Biggs vs Mitchell.(1) The ratio of this case has been extracted in words and Phrases Legally Defined, Vol. 3 at page 116.
In Biggs vs Mitchell, the interpretation of the word 'keep ', as used in Section 11 of Statute (1772) 12 Geo.
3 c. 61, came up for consideration.
That Section enacted that no person or persons should have or 'keep ' at any one time, being a dealer or dealers in gunpowder, more than 200 lb. of gunpowder, and not being such more than 50 lb. of gunpowder in any house, mill, etc., occupied by the same person or persons within certain limits.
The question before the Court was whether a person who receives powder in the course of transit, and makes a necessary halt, instead of sending it on immediately, can be said to be "keeping ' the same within the meaning of Section 11.
Crompton, J. answered this question thus: 6 "It seems to me that it is not made out that the mere halting in London, for the purpose of sending from one railway to another, when it is necessary that there should be halting in some place or other, is a 'keeping '. .I think there can be no keeping within section 11, when it is in course of transit." On parity of reasoning, a vehicle in transit through the State of Mysore or even making a necessary halt for a short interval during transit, cannot be said to be a vehicle 'kept ' for use on roads in the State of Mysore.
In the light of all that has been said above, we uphold the interpretation put by the High Court on Section 3 of the Taxation Act, and answer the question posed at the commencement of this judgment in the negative, and dismiss this appeal, leaving the parties to pay and bear their own costs in this Court.
P.B.R. Appeal dismissed.

summary/full:
The respondent bought new cars and chassis manufactured in Bombay and brought them by road.
In the course of their journey from Bombay to Madras the vehicles passed through the territory of the State of Mysore for over 400 miles.
The Road Transport Authorities of the State of Mysore demanded payment of road tax on the vehicles under section 3(2) of the Mysore Motor Vehicles Taxation Act, 1957 which provides that taxes are leviable on motor vehicles belonging to or in the possession or control of persons not ordinarily resident in the State of Mysore and kept in the State for periods shorter than a quarter but not exceeding thirty days.
Allowing the respondent 's writ petition the High Court held that vehicles which passed through the State were not "kept" in the State within the meaning of section 3(2) of the Act and so were not taxable under it.
In appeal to this court it was contended on behalf of the appellant that the vehicles passing through the territory of the State over a distance of 400 miles with halts on the way could be said to have been "kept" for use on loads in the State within the meaning of the section and were therefore taxable.
Dismissing the appeal, ^ HELD : A vehicle in transit through the State of Mysore or even making necessary halt for short intervals during transit cannot be said to be a vehicle kept for use on roads in the State of Mysore.
[6 B C] The word "kept", which has not been defined in the Act, has to be interpreted in its ordinary popular sense consistent with the context.
In association with the use of the vehicle the word "kept" has an element of stationeries which is something different from a state of transit or a course of journey through the State.
A mere state of running through or even halting of the vehicle in the course of the journey through the State for its outside destination, will not be sufficient to constitute "keeping" of that vehicle in the State within the meaning of section 3(2).
[4 C E & 5 E] Dudley vs Holland , Biggs vs Mitchell ; referred to.


judgement:
Civil Appeal No. 2015 of 1972.
From the Judgment and Order dated 18 1 1971 of the Allahabad High Court in Civil Misc.
Writ Petition No. 4632/70.
section T. Desai, B. R. Agrawala and P. C. Gokhale for the Appellant.
V. section Desai, Miss. A. Subhashini, J. Ramamurthy and Miss R. Vaigai for the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
The point raised in this appeal by certificate seems to be covered by two decisions of this Court in favour of the assessee and hence we propose to dispose of the appeal by a short Judgment.
The appellant, a firm, carries on business of manufacturing ice and preservation of potatoes in its cold storage.
It was assessed to income tax for the assessment year 1961 62 by an assessment order dated July 5, 1961 on a total income of Rs. 53,548.
In proceedings started on December 21, 1961 under section 34(1) of the Indian Income Tax Act, 1922, the Income Tax Officer found certain property income and income to the extent of one lakh from potato transactions put through in the name of benami persons by the assessee had escaped assessment and, therefore, by his order dated December 22, 1965 he brought them to tax.
The said order of the Income Tax Officer was annulled by the Appellate Assistant Commissioner in appeal on May 10, 1967 on the ground that the initiation of reassessment proceedings was not justified.
The Department allowed the matter to rest there and the Assistant Appellate Commissioner 's order became final.
On July 14, 1967 the Income Tax Officer issued a notice under section 148 of the Income Tax Act, 1961 in respect of the self same assessment year after obtaining the sanction from the Commissioner of Income Tax.
Admittedly, while seeking sanction for reopening the assessment under section 147, the Income Tax Officer in his report categorically stated that 238 the assessee had concealed the income of Rs. 1,00,000 from undisclosed source on account of benami storage of potatoes in various names and the same had escaped assessment owing to the failure on the part of the assessee to disclose his income fully and truly.
Pursuant to the notice the appellant filed a return under protest on August 14, 1967.
The appellant challenged the notice by filing a writ petition in the Allahabad High Court, inter alia, on the ground that no reassessment proceedings could be undertaken under section 147 of the 1961 Act inasmuch as in respect of the self same escaped income proceedings under section 34(1) of the 1922 Act had been undertaken and were pending on April 1, 1962, when the 1961 Act came into force and in this behalf reliance was placed on section 297(2) (d) (ii) of the 1961 Act.
The High Court rejected the contention on the ground that in order that section 297 (2) (d) (ii) should apply, the proceedings under section 34 of the 1922 Act must be legal proceedings with jurisdiction which was not the case here.
It is difficult to sustain this decision of the High Court in view of two decisions of this Court in section B. Jain vs Mahendra(1) and Gujar Mal Modi vs C.I.T.(2) where it has been held that section 297 (2) (d) (ii) is concerned with the factual pendency of proceedings under section 34 of the 1922 Act and not with their legality.
It must in fairness be stated that none of these decisions on the proper construction of section 297(2) (d) (ii) had been rendered by this Court when the Allahabad High Court decided the matter.
In section B. Jain vs Mahendra (supra) the Income Tax Officer had issued notice to the respondent assessee on January 5, 1962 under section 34(1) (a) of the 1922 Act to reopen his assessment for the assessment year 1946 47.
The High Court quashed the notice by its order dated March 6, 1963, on the ground that the notice was barred by limitation.
In the meantime the 1961 Act came into force on April 1, 1962, whereafter the Income Tax Officer again issued a notice on March 26, 1963 under section 148 of the 1961 Act.
This Court held that what section 297(2)(d)(ii) of the 1961 Act, required was the factual pendency of a proceeding under section 34 of the repealed Act, on April 1, 1962.
The question whether that proceeding was barred by limitation or not was irrelevant.
Though the earlier proceeding was quashed for the reason that notice on which the proceeding was based was issued beyond time, it could not be said that no proceeding under section 34 of the 1922 Act was either factually or legally pending at the time when the 1961 Act came into force and since the proceedings initiated 239 under section 34(1) (a) of the 1922 Act were pending at the time when 1961 Act came into force, the Income Tax Officer was not competent to issue any fresh notice under section 148 of the 1961 Act.
In Gujar Mal Modi 's case (supra) the notice under section 34(1) (a) of the 1922 Act for reopening the assessment of the deceased assessee was served only on one of the heirs of the deceased assessee.
The Assistant Appellate Commissioner set aside the assessment made pursuant to that notice on the ground that it was necessary to issue notices to all the legal representatives of the deceased assessee.
In the meantime the 1961 Act came into force and, thereafter the Income Tax Officer issued notice under section 148 of that Act to all the heirs of the deceased assessee.
This Court held that since the proceedings under section 34(1) (b) of the 1922 Act were pending on April 1, 1962, the second notice was incompetent.
In other words in both the cases this Court laid emphasis on the factual pendency of the proceedings under section 34 on the relevant date, and not their legality as being material for purposes of section 297(2)(d) (ii) of the 1961 Act.
In the case before us admittedly proceedings under section 34(1) of the 1922 Act in respect of the item of Rs. 1,00,000 (which was said to have escaped assessment) were factually pending on April 1, 1962 and, therefore, the notice under section 148 of the 1961 Act would be incompetent.
An attempt was made by counsel for the Revenue to distinguish the aforesaid decisions on the ground that in the instant case the earlier proceedings under section 34 of the 1922 Act being without jurisdiction, must be regarded as non est inasmuch as the Assistant Appellate Commissioner had annulled the revised assessment made by the Income tax Officer on the ground that the initiation of the proceedings (which was in respect of property income that had escaped assessment) was not justified inasmuch as it was not a case of omission or failure on the part of the assessee to furnish full particulars of the property income.
The submission, in our view, is factually incorrect.
The reassessment order made by the Income Tax Officer on December 22, 1965 clearly shows that he had initiated the proceedings (in respect of property income) under section 34(1) (b) i.e. in consequence of information gathered by him from Assistant Appellate Commissioner 's order for an earlier year and not under section 34(1) (a) on account of any omission or failure on the part of the assessee to make a full disclosure and during the proceedings so initiated he came across the item of Rs. 1,00,000 being the income from undisclosed source which he held had been concealed and was liable to be included under section 34(1) (a).
Therefore, the initiation of the proceedings under section 34 by the Income Tax Officer cannot be regarded as being without jurisdiction and hence 240 non est.
As stated earlier the Department allowed the Assistant Appellate Commissioner 's order whereby the reassessment order was quashed to become final.
Instead of challenging that order a fresh notice under section 148 of the 1922 Act was issued, which, in our view, the Income tax Officer was not entitled to do in view of the fact that proceedings under section 34 of the 1922 Act were factually pending on April 1, 1962 when the new Act came into force.
In the result the order passed by the High Court is set aside and the impugned notice under section 148 of the 1961 Act is quashed.
It is obvious, that if any orders are passed pursuant to the impugned notice, those will be of no avail to the Revenue.
The appeal is allowed but in the circumstances there will be no order as to costs.
S.R. Appeal allowed.

summary/full:
The appellant assessee is a firm carrying on business of manufacturing ice and preservation of potatoes in its cold storage.
By an assessment order dated July 5, 1961 it was assessed to income tax for the assessment year 1961 62 on a total income of Rs. 53,548/ .
The Income Tax Officer, in his proceedings started on December 21, 1961 under section 34(1) of the 1922 Act, found certain property income and income to the extent of one lakh from potato transaction put through in the name of benami persons by the assessee had escaped assessment and therefore, by his order dated December 22, 1965 he brought them to tax.
The said order of the Income Tax Officer was annulled in appeal, on May 10, 1967 on the ground that the initiation of reassessment was not justified.
This order became final as the department did not take further steps.
On July 14, 1967 the Income Tax Officer issued a notice under section 148 of the Income Tax Act, 1961 in respect of the self same assessment year after obtaining the sanction of the Commissioner of Income Tax.
Pursuant to the notice the appellant filed a return under protest on August 14, 1967.
The appellant challenged the said notice by filing a writ petition in the Allahabad High Court, inter alia on the ground that under section 297(2)(d)(ii) of the 1961 Act no reassessment proceedings could be undertaken under section 147 of the 1961 Act inasmuch as in respect of the self same escaped income, proceed ings under section 34(1) of the 1922 Act had been undertaken and were pending on April 1, 1962 when the 1961 Act came into force.
The High Court rejected the contention on the ground that in order that section 297(2)(d)(ii) should apply, proceedings under section 34 of the 1922 Act must be legal proceedings with jurisdiction.
Allowing the appeal by certificate, the Court ^ HELD : The factual pendency of the proceedings under Section 34 of the 1922 Act on the relevant date, and not their legality is material for purposes of section 297(2)(d)(ii) of the 1961 Act.
[238 D E] In the instant case: (a) admittedly proceedings under section 34(1) of the 1922 Act in respect of the item of Rupees one lakh (which was said to have escaped assessment) were factually pending on April 1, 1962 and therefore, the notice under section 148 of the 1961 Act would be incompetent, and [239 C D] 237 (b) The initiation of the proceedings under section 34 by the Income Tax Officer cannot be regarded as being without jurisdiction and hence non est.
The reassessment order made by the Income Tax Officer on December 22, 1965 clearly shows that he had initiated the proceedings (in respect of property income) under section 34(1) (b) i.e., in consequence of information gathered by him from Assistant Appellate Commissioner 's order for earlier year and not under section 34(1)(a).
[239 F H] section B. Jain vs Mahendra, and Gujar Mal Modi vs Commissioner of Income Tax, ; applied.