judgement:
minal Appeal No. 131 of 1967.
Appeal from the judgment and order dated January 9, 1967 of the Judicial Commissioner 's Court Tripura, Agartala in Criminal Appeal Case No. 8 of 1963.
M. K. Ramamurthi, J. Ramamurthi and Vineet Kumar, for the appellant.
H. R. Khanna and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Dua, J.
Pursuant to a complaint by Shri Joy Shanker Bhattacharyya, the appellant Sushil Kumar Gupta was tried in the court of Assistant Sessions Judge, Tripura on the following charges "(1) That you in between the month of September, 1958 and July, 1959 at Agarwala P. section Kotwali being a servant viz. Secretary in the employment of the Tripura Central Marketing Co operative Society Ltd., and in such capacity entrusted with certain property to wit a total sum of Rs. 18,200 being the fund of the Society committed criminal breach of trust in respect of the said property and thereby committed an offence punishable under section 408 of the Indian Penal Code and within the cognizance of this Court.
Secondly : that you in between the period of September, 1958 and July, 1959 at the same place being a Secretary in the employment of the Tripura Central Marketing Co operative Society Ltd., wilfully and with intent to defaud, falsified certain books and other relevant papers to wit cash book etc., which belonged to the said society, your employer and thereby committed an offence punishable under section 477 A of the Indian Penal Code and within the cognizance of this Court.
" As the appellant was tried jointly along with five others who have been acquitted and as if was argued on behalf of the appellant that in view of the acquittal of his co accused the appellant 772 also should have been acquitted, the charges against them may also be reproduced : "That Sushil Kumar Gupta, Secretary of the Tripura Central Marketing Co operative Society Ltd., in between the period of September, 1958 and July, 1959 at Agartala p.s.
Kotwali committed the offence of criminal breach of trust in respect of Rs. 18, 200 and that you the aforesaid persons at the same place and time abetted the said Shri.
Sushil Kumar Gupta in the commission of the same offence of criminal breach of trust in respect of the said amount which was committed in consequence of your abetment and that you have thereby committed an offence punishable under section 109, I.P.C. read with section 408, I.P.C. and within my cognizance.
Secondly : that Shri Sushil Kumar Gupta, Secretary of the Tripura Central Marketing Co operative Society Ltd. in between the period of September, 1958 and July, 1959 at Agartala p.s.
Kotwali committed the offence of falsification of accounts and that you the aforesaid persons at the same place and time abetted the said Shri Sushil Kumar Gupta in the commission of the same offence of falsification of account which was committed in consequence of your abetment and that you have thereby committed an offence punishable u/s 109, I.P.C. read with section 477 A of the I.P.C. and within my cognizance.
" The trial court acquitted all the six accused persons.
An appeal against the acquittal of all of them was preferred under section 417 (3), Cr.
P.C. in the court of the Judicial Commissioner, Tripura.
That court allowed the appeal against section K. Gupta only and dismissed it as against the others.
section K. Gupta was held guilty of the offence of criminal breach of trust under section 408, I.P.C. and also of the offence of falsification of accounts under section 477 A, I.P.C. regarding the sum of Rs. 18,200.
He was sentenced under each count to undergo rigorous imprisonment for one year, the sentences to be concurrent.
The convict section K. Gupta has appealed to this Court on certificate granted under article 134(1)(c) of the Constitution. 'Me order granting the certificate does not disclose on its face what exactly the difficulty of the court of the Judicial Commissioner is and precisely what question of outstanding difficulty this Court is desired to settle.
On behalf of the appellant his learned advocate Shri Ramamurthy, however, addressed elaborate arguments questioning the order of the learned Judicial Commissioner allowing 773 the appeal against the appellant section K. Gupta 's acquittal.
His, challenge was based on three main contentions.
The fourth point that the learned Judicial Commissioner erred in law in considering exhibit P 59 to be admissible in evidence, in disagreement with the trial court, according to which it was hit by section 24, Indian Evidence Act, was not allowed to be argued in this Court because this ground was not taken in the grounds of appeal.
The first contention seriously pressed on behalf of the appellant is that in view of the acquittal of his co accused who were tried along with him the court of the Judicial Commissioner was wrong in law in holding that there was falsification of accounts and embezzlement of the funds of the Tripura Central Marketing Co operative Society.
This submission is unacceptable.
The acquittal of the other co accused as affirmed by the learned Judicial Commissioner is not based on the finding that there was no falsification of accounts and no embezzlement of the funds of the Society.
section K. Gupta, appellant, it may be pointed out was the Secretary of the Society since April 13, 1957 when the first general meeting of the Society was held and was in that capacity entrusted with its funds.
He worked as such till August 10, 1960.
He was accordingly responsible for the cash and maintenance of current accounts of the Society during the period in question.
Turning to the Bye laws of the Society, bye law No. 41 prescribes the duties of the Secretary.
According to this bye law the Secretary has inter alia : "(3) To make disbursement and to obtain vouchers and to receive payments and pass receipts, under the general or special orders of the Board of Directors on this behalf from time to time.
(4) To keep all accounts and registers required by the rules.
(13) To countersign cash book in token of the balance being correct and to produce the cash balance.
whenever called upon to do so by the Chairman or any person authorised to do so.
In the absence of the Secretary the Board of Directors may authorise the Manager to perform the duties of the Secretary.
The Board of Directors may also authorise the Manager to perform any of the duties of the Secretary to facilitate, the working of the Society.
Receipts passed on behalf of the Society shall be, signed by the Secretary.
Share certificates and other 774 documents shall be signed by the Secretary and one member of Board of Directors jointly.
" Byelaw 42 contains directions I regarding advances against proof goods and clause (1) of this byelaw provides : "(1) The Board of Directors shall, at the beginning of the session, fix the amount of advance, indicating the percentage of the market price of produce or goods pledged with the society, that may be granted to a member.
Such limits may be fixed for different com modities and varied from time to time according to fluctuation in markets or otherwise.
It shall also be competent for the Board of Directors to call on a borrower at any time before the due date to repay a portion of the loan or advance issued or to produce additional security for the outstanding loan or advance within a time fixed by them, if in their opinion, there is fall or likely to be a fall in the market value of the produce or goods pledged.
" Under byelaw 44 loans may be granted to members in suitable cases on such terms and conditions as regards individual and maximum limits, repayment of loan,, rate of interest thereon etc., as may be fixed by the Board of Directors from time to time.
According to the learned judicial Commissioner "the overall picture" emerging .from the evidence on the record, to quote his own words, it "(1) A sum of Rs. 18,200/ was said to have been disbursed in 1958 and 1959.
(2) It was said to have been repaid in the last week of June, 1959 towards the end of the co operative year of 1959 and long after the maximum period of 6 months allowed by rule 42 (4) of the byelaws.
(3) The same amount was again said to have been ,disbursed in a few days in the first week of July commencing with the next cooperative year (1959 60).
(4) Except the 2nd and 4th respondents, the others were not members of the Co operative Society and in this regard the 1st respondent disregarded sub rule (1) ,of r. 42 of the byelaws.
(5) The 1st respondent did not obtain any general or special orders of the Board of Directors to make the disbursements and violated sub rule (1) of r. 42 of Ext.
P 41. 775 (6) Ext.
P 56 and P 59 show that the alleged collections of the monies in June 1959 was false and that the accounts were got up.
(7) The fact that a discount of Rs. 10/ was paid to cash a cheque on 29 6 1959 shows that the society had no funds on that day.
(8) None of the alleged loanees was a Jute grower and no jute was deposited in the godowns of the society before the advances were made and in this regard the mandatory provisions of sub r.
(2) of r. 42 were also disregarded by the 1st respondent.
(9) A number of adjustments were made in the Accounts to show that the sum of Rs. 18,200/ was disbursed.
(10) The three persons to whom ultimately the amounts were said to have been disbursed are interested in the 1st respondent.
The 4th respondent C. C. Das Gupta is a relation of the 1st respondent and proved by P. Ws 1, 6 and 8 and as admitted by the 4th respondent himself in Ext.
The 3rd respondent Sudhir Ranjan Roy is a servant of D.W. I who is a co Director of the Match Factory and friend of the 1st respondent.
The 3rd respondent Haradhan Deb was appointed by the 1st respondent in the C.M.S.
The 3rd respondent was also an employee of the C.T.S. of which the 1st respondent was a Director.
" On the basis of these observations the appellant was held to ,have committed criminal breach of trust and to have either misappropriated or misapplied the funds of the Society dishonestly to benefit himself of his relations and friends.
Counsel failed to point out any legal infirmity in the final conclusion drawn in the impugned order from the overall picture.
Indeed, counsel, after a faint attempt to find fault with this conclusion felt constrained to admit that the money had been advanced against the rules of the Society and also to the persons not entitled to it, his only contention in support of the appeal being that it did not constitute a criminal offence and that in any event the Board of Directors of the Society having ratified the advances, the foundation for the criminal charge must be deemed to have disappeared.
We are unable to agree.
The offence of criminal breach of trust is committed when a person who is entrusted in any manner with property or With dominion over it, dishonestly misappropriates it, or converts it to his own use, or dishonestly uses it or disposes it of in violation 776 of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do.
The appellant 's manner of dealing with the money entrusted to his custody clearly constitutes criminal breach of trust.
Counsel was not able to point out any provision which empowers the Directors to prescribe the mode of making advances, which violates or is in breach of, or contrary to the Byelaws.
If the Directors, possess no authority to give any directions contrary to the byelaws they can scarcely claim or assume power to ratify violation of the Byelaws in the matter of dealing with the trust money.
Our attention was not drawn to any over riding provision conferring power on the Board of Directors to ratify use of the trust money contrary to the directions contained in the Byelaws.
Exhibit P 27, the resolution of the Board of Directors dated January 10, 1960, on which reliance in support of ' the argument was placed, merely states "investments made by the Secretary uptodate are hereby approved" without pointing out the provisions under which such approval could validate breaches of the Byelaws.
Incidentally it may be mentioned that the learned Judicial Commissioner also entertained some suspicion about the manner in which the meeting, in which this resolution was passed, was held.
This contention of the counsel must, therefore, be repelled.
In the last submission the counsel made a grievance against the joint trial of several accused persons on several items of embezzlement.
According to him there was a misjoinder of charges which vitiated the trial.
In our opinion, charges under section 408 and section 477 A, Indian Penal Code, could, in the circumstances of this case, be tried together and the joint trial of all the accused was proper and lawful.
Our attention was not drawn to any provision of law against the legality of the joint trial.
In any event no failure of justice in consequence of the joinder of charges was pointed out, with the result that the question of misjoinder of charges must be held to be of little consequence at the stage of appeal.
Before closing we may point out, as has repeatedly been said by this Court, that there is normally no right of appeal to this Court in criminal matters except in cases provided :by article 134 ( 1 ) (a) and (b) of the Constitution.
Clause (c) of this Article empowers the High Court to certify cases to be fit for appeal to this Court.
The word "certify" is a strong word; it postulates exercise of judicial discretion by the High Court and the certificate should ordinarily show on the face of it that the discretion was invoked and properly exercised.
This Court should be in a position to know that the High Court has not acted mechanically 777 but has applied its mind.
A certificate under this clause is impermissible on questions of fact and when a case does not disclose a substantial question of law or principle then the certificate granted by the High Court is liable to be revoked by this Court, though such prima facie non disclosure would not by itself automatically invalidate the certificate.
In the case in hand no substantial question of law or principle was made out at the bar and the certificate was clearly misconceived though it vaguely states that several questions of law are involved.
The appeal fails and is dismissed.
V.P.S. Appeal dismissed.

summary/full:
The appellant, who was the Secretary of a Cooperative Society and was responsible for the cash and maintenance, of the accounts of the Society, was charged with the offenses of criminal breach of trust and falsification of accounts under sections 408 and 477 A, I.P.C. He was tried along with 5 others who were charged with the offence of abetment of the offenses.
The, trial court acquitted all of them, but the appellate court (the Court of Judicial Commissioner) convicted the appellant and acquitted the.
others.
The appellate Court held that the appellant had advanced money against the rules of the Society and also to various persons not entitled to it, that the appellant had thereby committed criminal breach of trust and either misappropriated or misapplied the funds of the Society dishonestly to benefit himself or his relations and friends.
The 'appellate Court certified that the case was a fit one for appeal to this Court under article 134(1) (c), but, the order granting the certificate did not disclose on its face what exactly was the difficulty of the appellate Court and what question of outstanding difficulty this Court was to settle.
In appeal to this Court, HELD : (1) The acquittal of the co accused was not based on the finding that there was no falsification of accounts or embezzlement.
Therefore, the appellant could not contend that no offence was committed because of the acquittal of the co accused.
[773 G D] (2) On the finding of the appellate court, it was not a mere civil liability of the appellant.
The appellant 's manner of dealing with the money entrusted to his custody constituted criminal breach of trust.
The Directors had no authority under the bye laws to give any directions contrary to the bye laws and so, could not ratify the violation of the bye laws.
Any resolution ratifying the use of trust money contrary to the directions contained in the bye laws would not validate the breach of the bye laws.
[775G; 776 A C] (3) There was no misjoinder of charges and no prejudice was caused to the appellant.
[776 F] (4) The appellate Court should not have granted the certificate, under article 134(1)(c) in the present case.
The word 'certify ' in the Article 771 postulates the exercise.
of judicial discretion by the appellate Court and the certificate should ordinarily show on the face of it that the discretion was invoked and properly exercised.
This Court should be in a position to know that the appellate Court has not acted mechanically but has applied its mind.
A certificate under this clause is impermissible on questions of fact.
When the case does not disclose a substantial question of law or principle the certificate.
granted by the appellate Court is liable to be revoked by this Court, though such_ prima facie non disclosure would not by itself automatically invalidate the certificate [777 A C]


judgement:
Appeal No. 1946 of 1966.
Appeal by special leave from the judgment and order dated December 6, 1965 of the Punjab High Court in Civil Writ No. 1523 of 1962.
V. C. Mahajan, for the appellant.
Abad Behari, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by Shah, J.
On May 9, 1958 Khillu and two others sold a plot of land in village Majesar, Tehsil.
Ballabhgarh, District Gurgaon to Surinder Kumar and Virender Kumar (who will hereinafter be referred to as "the defendants").
On January 9, 1959 Ramjilal and Khazan hereinafter called the "plaintiffs" filed a suit in the Civil Court to pre empt the sale.
On November 16, 1961 the Government of Punjab issued in exercise of the power conferred by sub section (2) of Section 8 of the Punjab Pre emption Act, 1913 a notification declaring "that no rights of pre emption shall exist with respect to urban or village immovable property or agri cultural land when purchased by any person for setting up or extension of any industry in the State with the permission of the Director of Industries, Punjab.
" The plaintiffs contended that the notification issued by the Government did (not prejudicially affect their claim to pre empt the sale.
By order dated February 16, 1962 the Civil Court passed a decree for pre emption conditionally on payment of the amount for which the property was sold.
The Civil Court found that the defendants had failed to establish that they intended to establish a factory on the land in question.
5 52 The defendants appealed to the Court of the Senior Subordinate Judge against the decree of the Trial Court.
Thereafter the Government of Punjab issued another notification on September 3, 1962, that the Governor of Punjab was Pleased to order that "no right of pre emption shall exist with respect to the sale of land, described in the Schedule to this Notification made on the 9th May, 1958, in favour of Messrs. Surinder Kumar and Virender Kumar, opposite Railway Station, Faridabad, for the establishment of a factory for manufacture of cork products".
In the Schedule was described the property sold to the defendants by Khillu and two others.
The plaintiffs then moved a petition in the High Court of Punjab challenging the validity of the notification dated September 3, 1962, among others on the ground that in issuing the order the Government acted mala fide.
A Division Bench of the High Court referred the case for hearing before a full bench of the Court.
The full bench held that in a suit for pre emption the claimant must prove that his right to pre empt subsisted till the date of the decree of the first Court and that loss of the right after the date of the decree "by his own act or by an act beyond his control" did not affect his claim in the suit.
Accordingly the notification under s: 8 (2) of the Punjab Pre emption Act, 1913 extinguishing the right of pre emption in the property issued during the pendency of the appeal against the decree of the Trial Court did not disentitle the plaintiffs to maintain their claim of pre emotion already exercised, and in respect of which a decree was granted to them.
The High Court also held that section 8(2) of Punjab Act 1 of 1913 did not offend article 14 of the Constitution, but the notification dated September 3, 1962, was issued mala fide, and was on that account liable to be struck down as invalid.
" With special leave, the State of Punjab has appealed to this Court.
It was urged, that section 8 (2) infringes the guarantee of equality under article 14 of the Constitution.
In terms, section 8(2) provides "The State Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales, no right of pre emption or only such limited right as the State Government may specify shall exist.
,, The High Court was of the view that section 8 must be read in the light of the scheme of the Act and especially section 9 which excludes fro the operation of the Act sales made by Or to Government, or to any local authority, or to any company under the provision of Part VII of the Land Acquisition Act, 1894, or in respect any sale sanctioned by the Deputy Commissioner under section 3 (2) of 553 the Punjab Alienation of Land Act, 1900.
The power conferred by section 8(2) to declare by notification that to certain sales the Act will not apply is independent of the exemption which is statutorily prescribed by section 9.
Exercise of the power under section 8 (2) is apparently not restricted to transactions of the nature specified in section 9, but for the purpose of the present case we do not feel called upon to decide whether sub section
(2) of section 8 invests the State Government with "arbitrary, unguided and uncanalised power " so as to infringe the guarantee of article 14 of the Constitution, for, in our view the plea that the order was issued mala fide raised by the plaintiffs and upheld by the High Court must be decided in their favour.
The High Court on a review of the evidence found it proved, that, although at some stages reference to the pre emption suit filed by the plaintiffs appeared in the history of the case, the defendants did not disclose the fact that a decree had been passed in favour of the plaintiffs in the suit, nor did any authority (except the Tehsildar) try to find out whether a decree had been passed in that suit; that it was never brought to the notice of any authority by the defendants that the finding of the Trial Court was against them and it was because they had failed to prove that they intended to set up a factory, no authority ever tried to learn anything about that finding; that only a few days after the filing of the appeal by the defendants against the decree of the Trial Court an affidavit was filed by one of the defendants that they intended to put up a factory on the land in question; that the District Inspector of Industries at Gurgaon made a report in favour of the defendants, only on the basis that they had started building the boundary wall; that the Tehsildar made a report adverse to the defendants, and pointed out that they had only constructed a small room in the middle of the land and not a factory building; that the move of the defendants was to stultify and defeat that decree; that the Deputy Commissioner first ordered that a copy of the report of the Tahsildar be forwarded to the Government,but two days later the Deputy Commissioner changed his mind when the defendants approached him and on the mere statement of the defendants that they intended to set up a factory in the land in question, heproceeded to recommend that "exemption notification under section 8(2) of the Act" be issued in favour of the defendants and that this was followed up by the higher authorities; that the report of the Tahsildar which had material bearing on the decision to be taken in the matter of issue of the impugned notification was suppressed and for this suppression there was no explanation "on the side of the State"; that although in the note dated March 14, 1962 of the Joint Director of Industries, it was directed that the defendants were to sign an agreement that the exemption to be granted to them would not be "misutilised" and the land would "not be sold for money making", and although in the Revenue Department 's note of August 14, 1962, it was 5 5 4 stated that the Director of Industries be asked to obtain such an undertaking before the issue of the notification, no such agreement or undertaking was obtained from the defendants and all that was done was that on November 8, 1962 (a day before the date of the notification and some days before its publication) another affidavit was obtained from the defendants that the land had been purchased for establishing a factory and "they solemnly undertook not to misuse or abuse the land", and declared and undertook that the land shall be used only for industrial purposes, but there was "no manner of contract by them whereby they would have to surrender back the land in the event of their not using it for the purpose of establishing a factory".
The High Court also observed that there was no allegation that any superior officer "in the Revenue Department such as the Secretary or the Deputy Secretary had acted in a mala fide manner in the issue of the impugned notification".
But it was pressed before the Court that the notification was not really the act of one single person finally approving that the notification be issued : it was the result of a process of formal or informal inquiries and reports and consideration of various authorities at various stages leading up to the recommendations based on material collected which went to form the basis of the judgment whether or not such a notification should issue in any particular case.
Approving of the process, the High Court observed that on a consideration of all the circumstances the impugned notification must be held to have been issued mala fide.
The High Court concluded "The reason in the circumstances of this case is simple.
In the first place, the report of the Tahsildar was a crucial and vital document in this case, which would substantially and materially.
affect the approach of the higher authorities in the conclusion to issue or not to issue the Notification.
In this respect what happened before the Deputy Commissioner (Collector) had also the same bearing.
It should have been disclosed what orders the Deputy Commissioner (Collector) passed first and what was the order which he passed two days later.
An endeavour should have been made by somebody to find out what was the finding given by the Trial Court in the decision of that suit.
This was not done even after the matter was pointed out by the Tahsildar.
In other words, either deliberately or by sheer avoidance no effort was made to find out what finding the Trial ,Court had given in the matter .
In spite of it having been pointed out that before the issue of the notification an agreement be obtained from respondents 5 5 5 2 and 3 (the defendants) against misuse and misutilisation of the land for the purpose other than that for which it was being exempted from the right of pre emption of the, petitioners and for not making it an otherwise profiteering transaction, no such agreement, binding in law, was obtained from these respondents '(the defendants), but instead the matter was slurred over by obtaining a second affidavit from the two respondents (the defendants).
It is thus apparent that at the final stages, when the question for consideration was whether or not the impugned notification should be issued, whether all the circumstances were present which justified the issue of such a notification and whether all the obligations that were required to be taken by respondents 2 and 3 (the defendants) had been taken before its issue, were matters which either could not 'be considered because substantial material collected was withheld or clear directions were completely ignored. .
In the circumstances of the case, to my mind, the impugned notification cannot be held to have been issued in good faith and has to be held to have been issued mala fide.
" This is a finding based on appreciation of evidence, and no case is made on which may justify us in interfering with that finding.
It appears that the subordinate authorities withheld very important facts which had bearing on the issue of the notification by the State Government excluding the land, sold under the sale deed dated May 9, 1958 executed by Khillu from the operation of the Punjab Pre emption Act 1 of 1913 even after a decree was passed by the Civil Court granting pre emption.
Counsel for the State of Punjab contended that the, plea that the action of the State was not bona fide established, cannot be said to be unless the party alleging that case names the officer or officers guilty of conduct which justifies an inference that the official act was done for a collateral purpose, and since no such attempt was made and the High Court did not find that any named officer or officers was or were responsible for that official act, the plea that it was bona fide must fail.
We do not think that the law casts any such burden upon the party challenging the validity of the action taken by the State Government.
The State Government has undoubtedly to act through its officers.
What matters were considered, what matters were placed before the final authority, and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all within the knowledge of the State Government, and it would be placing an intolerable burden in proof of a just claims to require a party alleging mala fides of, State action to aver in his petition and to prove by positive 556 evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose.
The facts in the present case are eloquent.
A sale deed was executed in favour of the defendants.
The plaintiffs who claimed that they had a right to pre empt the sale filed a suit against the defendants and obtained a decree.
On the finding of the, High Court it is clear that except disclosing that the defendants intended to construct a factory, nothing more was said.
The State Government still proceeded to issue, in exercise of the power under section 8 (2) of the Punjab Pre emption Act, a notification to exclude from the operation of the Act the land so as to defeat the right of preemption exercised by the plaintiffs in respect of which a decree was passed by the Civil Court.
The State Government has filed no affidavit explaining the circumstances in which the order came to be passed : they have merely offered "comments" on the petition filed by the plaintiffs.
In our _judgment, the conclusion of the High Court was home out by evidence and no ground is made out calling for our interference with that conclusion in this appeal with special leave.
The appeal therefore fails and is dismissed with costs.
G.C. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
Surinder Kumar and Virender Kumar (defendants in the suit) purchased on May 9, 1958 a plot of land in District Gurgaon.
On January 9, 1959 the plaintiffs filed a suit in the Civil Court to pre empt the sale.
On November 16, 1961 the Government of Punjab issued in exercise of the power conferred by section 8(2) of the Punjab Pre emption Act, 1913, a notification declaring "that no right of pre emption shall exist with respect to urban of village immovable property or agricultural land when purchased by any person for setting up or expansion of any industry in the State with the permission of the Director of Industries, Punjab.
" By order dated February 16.
1962 the Civil Court passed a decree for preemption conditionally on payment of the amount for which the property was sold.
The Civil Court found that the defendants had failed to establish that they intended to establish a factory on the land in question.
The defendants appealed to the Court of the Senior Subordinate Judge against the decree of the Trial Court.
Thereafter the Government of Punjab issued another notification on September 3,1962, that the Governor of Punjab was pleased to order that "no right of pre emption shall exist with respect to the sale of land, described in the Schedule to this Notification made on the 9th May, 1958, in favour of Messrs. Surinder Kumar and Virender Kumar, opposite Railway Station, Faridabad for the establishment of a factory for manufacture of cork products".
In the Schedule was described the property aforesaid purchased by the defendants.
The plaintiffs then moved a petition in the High Court chal lenging the validity of the Notification dated September 3, 1962 among others On the ground that in issuing the order the Government acted mala fide.
The High Court held that the notification extinguishing the right of pre emption in the property,issued during the pendency of the appeal did not disentitle the plaintiffs to maintain their claim of preemption already exercised and in respect of which a decree was granted to them.
The notification dated September 3, 1962 was held to have been issued mala fide and on that account invalid though section 8(2) of the Punjab Act 1 of 1913 was held not offend article 14 of the Constitution.
With special leave the State of Punjab appealed to this Court, HELD : The High Court rightly held on the facts that the impugned notification was issued mala fide.
The plaintiffs who claimed that they bad a right to pre empt the sale filed a suit against the defendants and obtained a decree.
On the finding of the High Court it was clear that except disclosing that the defendants intended to construct a factory, nothing more was said.
The State Government still proceeded to exclude from the operation of the Act the land so as to defeat the right of preemption exercised by the plaintiffs in respect of which a decree was passed 551 by the Civil Court.
The State Government had not in their affidavit satisfactorily explained the circumstances in which the order was passed.
The conclusion of the High Court was borne out by the evidence and no ground was made out calling for interference in this appeal by special leave.
[554 E; 556 B C] The contention on behalf of the State that the party alleging that the action of the State was not bona fide must name the officer or officers guilty of conduct which justifies an inference that the official act was done for a collateral purpose, could not be accepted.
It would be placing an intolerable burden of proof of a just claim to require a party alleging mala fides of State action to aver in his petition and to prove by positive evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose.
[5.55 F H] [The impugned notification having been held invalid the question whether section 8(2) of the Punjab Pre emption Act was ultra vires article 14 of the Constitution did not survive for consideration.] [553 B]


judgement:
Appeal No. 1943 of 1966.
Appeal from the judgment and decree dated March 7, 1962 of the Calcutta High Court in Appeal from Original Decree No. 173 of 1956.
section V. Gupte and D. N. Mukherjee, for the appellants.
Purushottam Chatterjee, P. K. Chatterjee and Rathin Das, for respondent No. 2.
The Judgment of the Court was delivered by Shah, J.
One Sashi Bhusan was possessed of a piece of land at Mouza Behala District 24 Parganas admeasuring 98 acres.
The land devolved on the death of Sashi Bhusan in 1920 upon his daughter Sarala.
Under the Dayabhaga system of law; Sarala inherited the property of her father as a limited owner.
Sarala married Kunja Behari.
The latter died in 1937 leaving him surviving Sarala, two sons Tulsi and Gobinda, and four daughters were married during the life time of Kunja Behari.
Kunja Behari left no estate except a residential house constructed on the land at Mauza Behala.
Kunja Behari was ailing for about one year before his death in 1937.
He was in an humble walk of life, and was apparently not profitably employed during his life time.
At the time of his death the two sons Tulsi and Gobinda were minors.
On October 22, 1941, Sarala executed a deed, Ext.
E, agree ing to sell a part of the land (.90 acres) for Rs. 1,100/ to Chapalabala wife of Sakha Nath Ghosh.
It was recited in the agreement of sale that Sarala had agreed to sell 90 acres of land possessed by her 'on account of financial need and to pay off certain debts".
Sarala acknowledged receipt of Rs. 101/ as earnest money.
It appears that Sarala was for some time thereafter disinclined to carry out the bargain.
However on March 13, 1942 she executed a deed, Ext.
C, conveying the land agreed to be sold for a consideration of Rs. 1,500/ to Chapalabala and Banikana.
It was recited in the deed : "Now on account of financial needs and to meet certain debts and out of other legal necessity, I announced to sell 90 acre land at rent of Rs. 23/ per annum free from defects and encumbrances leaving a 605 portion of homestead land measuring.
08 acre.
" It was also recited in the deed that Rs. 101/ were paid on the date of the agreement of sale, that Sarala had received Rs. 899/ before the date of sale, and Rs. 500/ were paid to her in the presence of the Sub Registrar.
An endorsement of payment of Rs. 500/ before the Sub Registrar was made by that Officer.
The thumb mark of Sarala was attested by Abinash Chandra Chakravarty and the deed was attested by four persons including her son Gobinda.
On the date of the sale the rent in respect of the land was in arrears.
It also appears that before the date of sale Mangala had been given in marriage and the youngest daughter Radha remained to be married.
Sarala had also to provide for food and clothing for at least five persons.
Sarala had only a residential house and the land in dispute and she had no source of income.
Sarala died on April 12, 1950.
On January 24, 1953 Tulsi and Gobinda sons of Sarala filed a suit in the Court of the Subordinate Judge, 24 Parganas, for a decree declaring that the sale deed dated March 13, 1942, executed by Sarala was not binding upon the plaintiffs, because it was executed without legal necessity.
The suit was resisted by Chapalabala and Banikana (defendants 1 & 2) and by alianees of the land from them.
The Trial Court held that the sale deed was supported by legal necessity.
The learned Judge observed that Sarala was in " strained financial circumstances", and she executed the sale deed to meet expenses for maintaining herself and her family, and for payment of debts.
She had, to meet municipal taxes, rent for the land, and expenses for the marriage of her daughter Radha.
The learned Judge observed that the plea that execution of the sale deed was obtained by fraud, misrepresentation and undue influence was not seriously pressed "inasmuch as there was no evidence worth the name adduced" to support that case.
Against the decree dismissing the suit the plaintiffs appealed to the High Court.
the view of the High Court there was "no such serious and sufficient pressure on the estate" of Sarala as to compel her to sell her property, and the case of the plaintiffs that she was induced to do so "by persuasion and undue influence" of Sakha Nath Ghosh husband of defendant I must be accepted.
The High Court also observed that it was doubtful whether even full consideration for the sale was paid.
The High Court held that the defendants ' case of legal necessity was not proved and on that account the sale deed executed by Sarala was not binding upon the plaintiffs.
But because one Dhiren Chandra an intermediate transferee was not made party to the suit and Dhiren Chandra had obtained a fresh settlement the High Court was of the opinion that the decree of the Trial Court in respect of 10 cotta has out of the land sold by Sarala could not be reversed.
The High Court accordingly modified the decree passed by the Trial Court and allowed the appeal in part, and dismissed the plaintiffs ' suit against defendants 4, 5, 6 and 16 in respect of 10 cottahas of land in the northern part of the land.
The plaintiffs were given by the decree opportunity to amend the plaint by making a claim for actual possession which was, not till then claimed in the plaint.
Accordingly the suit was decreed in respect of the remaining defendants in respect of the portion of the land not covered by 10 cottahs in posses sion of defendants 4, 5, 6 and 16.
With certificate granted by the High Court, the heirs of original defendants 2 and 3 have appealed to this Court.
In the plaint it was averred in paragraphs that Sarala was "illiterate and unpractical in worldly matters", that "she was a simple and pardanashin lady", that Sakha Nath Ghosh husband of Chapalabala was an "officer" of one of the partner of the famous Roy family and was "shrewd and cunning", that Sarala called him "Dharamapita", and ustd to "depend upon him in many affairs" and used to be guided by his instructions, and on that account the said Sakha Nath and the husband of Banikana in collusion with the scribe made fraudulent representation and exercised undue influence over Sarala and got the sale deed executed in their favour.
This plea was denied by the contesting defendants.
At the trial no issue was raised and no evidence was led in support of that plea.
It was conceded that the plea of fraud and undue influence could not be supported.
The Trial Court observed : "Though it was also tried to be said that there was fraud, misrepresentation and undue influence exercised for the execution and registration of the Kobala (sale deed) yet that branch of argument was not seriously pressed inasmuch as there was no evidence worth the name adduced to show that there was really any fraud practised for the execution and registration of the kobala in favour of defendants 1 and 2 (Chapalabala and Banikana) by Sarala Bala Dasi." The High Court without adverting to this state of the record observed that the case of the plaintiffs that Sarala was induced to sell the land because of persuasion and undue influence of Sakha Nath Ghosh must be accepted.
The High Court also observed that it was doubtful whether full consideration for the sale was paid, and that since Sakha Nath Ghosh was "a rent collector under one of Roy Babus of Behala, in order to grab the 607 valuable property belonging to Sarala he had induced Sarala to enter into a transaction of sale".
These observations of the High Court are not supported by any evidence, and they seriously vitiate the appreciation of the evidence on record.
In the sale deed it was expressly recited that Rs. 101/ were paid at the time of the agreement of sale.
That recital was supported by the recital in Ext.
E in the agreement of sale.
It was also recited in the sale deed, Ext.
C, that Rs. 899/ were received before the date of the sale, and Rs. 500/ were received before the Sub Registrar.
Payment of Rs. 500/ is supported by the endorsement on the sale deed itself.
It is true that apart from the recital about the payment of Rs. 899/ there is no other documentary evidence to prove that payment.
The burden of proving that the consideration was not received by the vendor, however, lay upon the plaintiffs and no serious attempt was made to discharge that burden.
The plaintiffs set up the case that Rs. 500/were taken back from Sarala after she left the Sub Registrar 's office.
The High Court disbelieved this part of the case about repayment of the amount of Rs. 500/ by Sarala received by her before the Sub Registrar.
The High Court observed that about the payment of the balance of the consideration, namely Rs. 899/ , "there was no evidence at all on the side of the defendants that the same was paid".
In our judgment, the High Court misconceived the nature of the onus which lay upon the plaintiffs to prove that the consideration which it was recited in the deed was received by Sarala was not in fact received by her and a false recital was made.
The recitals in the deed are supported by the testimony of Sailendra Nath Nandi who said that the entire consideration was received by Sarala.
We are unable to accept the view of the High Court that the sale deed was not supported by full consideration.
The agreement of sale and the sale deed were attested by Gobinda son of Sarala.
Before us it was contended that Gobinda was at the date of the agreement of sale, and at the date of the sale deed, a minor and his attestation was of no value.
But on this part of the case there is no reliable evidence.
Jogindra Nath Mondal who wrote the two deeds was examined on behalf of the defendants.
He deposed that Ext.
E the agreement of sale was read over and the contents were explained to Sarala after it was written, and she understood the implications of the deed and also received Rs. 101/ .
In his cross examination he stated that he had written down the deed according to what was said to him by Sarala, Gobinda and by Sakha Nath Ghosh and thereafter Sarala executed the deed.
There is no reason to disbelieve the testimony of this witness.
Abinash Chandra 608 Chakravarty who attested the sale deed Ext.
C and the agreement of sale Ext.
E could not be examined for he had died before the date of the trial.
Attestation by him of the two deeds has significance.
Gobinda Chandra Debnath a witness examined on behalf of the plaintiffs stated that the family of the plaintiffs had confidence in Abinash Chandra Chakravarty as he was "the friend and well wisher of the family".
There is no ground for believing that Abinash Chandra Chakravarty who was present at the time of the execution and had attested the two deeds misused the confidence reposed in him and was guilty of being a party to the bringing into existence a deed containing false recitals to defraud Sarala and her sons.
Legal necessity to support the sale must however be established by the alienees.
Sarala owned the land in dispute as a limited ,owner.
She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate.
In adjusting whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular insistance must be consi dered.
Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient.
The onus of providing legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquires about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity.
Recitals in a deed of legal necessity do not by themselves prove legal necessity.
The recitals are, however, admissible in ;evidence, their value varying according to the circumstances in which the transaction was entered into.
The recitals may be used to corroborate other evidence of the existence of legal necessity.
The, weight to be attached to the recitals varies according to the circumstances.
Where the evidence which could be brought before the Court and is within the special knowledge of the person who seeks to set aside the sale is withheld, such evidence being normally not available to the alienee, the recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence in his possession.
Kunja Behari husband of Sarala had died in 1937 after a protracted illness : there is no reliable evidence that he left any property except the residential house, built on a part of the land which Sarala had inherited from her father.
Sarala had two sons 609 who were then minors and two daughters who were yet to be married.
There were five members in the ' family to be fed and clothed, and the marriage expenses of two daughters had to be met.
The case that Tulsi the eldest son obtained gainful employment shortly after his father 's death and before the sale deed was executed was rightly disbelieved by the Trial Court.
The story that Gobinda had taken to hawking vegetables has also been rightly disbelieved by the Trial Court.
Sarala had to meet several obligations : she had to pay the annual rent accruing due.
in respect of the land in dispute and also to pay municipal taxes :she had to feed and clothe herself and her children and to perform the marriage of her daughter Radha.
She had no other property and she had no income.
The recitals in the deed about the existence of pressure upon the estate are therefore amply corroborated by the circumstances.
Mr. Purshottam Chatterjee appearing on behalf of the plain tiff 's contended that there was evidence only of the debts amounting to 75/ , Rs. 25/ as rent for the land payable to the head lessor and Rs. 50/ expenditure incurred for the marriage of the daughter Mangala.
Counsel relied upon the recitals made in a. plaint filed in a suit for recovery of rent by the landlord against Sarala after the sale deed in which the rent for the years 1941, 1942 and 1943 was claimed.
Counsel also relied upon the evidence that in the community to which Sarala belonged, the marriage of a daughter only costs Rs. 50/ .
That evidence, in our judgment, is wholly unreliable.
In any event apart from the obligation to pay rent and to meet the expenses of marriage of her daughter Mangala various other obligations had to be met.
The argument that Sarala belonged to a community in which the male members used to be employed as "household servants" and that Tulsi and Gobinda were so employed is also not supported by any reliable evidence.
In our judgment, the High Court ignored the strong inference which arose out of these Circumstances and especially out of the participation by Gobinda in the execution of the agreement of sale and the sale deed.
In our view the case of the defendants 1 and 2 that the sale, deed was supported by legal necessity of Sarala was amply made out and the Trial Court was right in holding that the sale deed was executed for legal necessity.
From the attestation by Gobinda one of the sons of the agreement of sale and the sale deed and the recitals in those deeds, viewed in the light of the other evidence, we are of the opinion that the level necessity set up by the defendants 1 and 2 is amply proved.
It was urged before us that because the 10th defendant died before the certificate was given by the High Court for appeal to, 610 this Court, and the heirs of the 10th defendant were not brought on the record, the appeal abates in its entirety.
There is, however, no clear evidence whether the 10th defendant died before or after the judgment of the High Court.
Again, the plaintiffs had in the suit only claimed a relief for declaration that the alienation in favour of defendants 1 and 2, i.e. Chapalabala and Banikana made on March 13, 1942, was without legal necessity and was not binding upon them, and for a declaration of their title to the disputed land.
The alienees from defendants 1 and 2 were, it is true, impleaded as parties, but no relief was claimed against them.
Nor was any averment made in the plaint about the reasons for and the circumstances in which they were so impleaded.
Since the plaintiffs only claimed relief against defendants 1 and 2, and that relief cannot be granted to the plaintiffs, we think, the circumstance that the heirs of the 10th defendant are not impleaded in this appeal does not affect the right of the defendants to claim that the appeal must be dismissed.
The appeal is therefore allowed and the suit filed by the plaintiffs is dismissed with costs throughout.
Y.P. Appeal allowed.

summary/full:
section a Hindu female governed by Dayabhaga system of law, executed a sale deed.
It was recited in the agreement that she agreed to sell "on account of financial need and to pay off certain debts".
After her death her sons filed a suit for a declaration that the sale deed was not binding on them as it was executed without legal necessity.
The Trial Court held that the sale deed was supported by legal necessity.
The Court also observed that the contention that there was fraud, misrepresentation and undue influence was not seriously pressed as there was no evidence adduced to prove the same.
The High Court, in appeal, reversed the decree holding that the defendants ' case of legal necessity was not proved and on that account the sale deed was not binding upon the plaintiffs.
, The High Court, without adverting to the record, observed that the case of the plaintiffs that s was induced to execute the sale deed because of persuation and undue influence had to be accepted.
In appeal by cer tificate, this Court.
HELD : (i) The Appellants defendants had amply made out that the sale deed was supported by legal necessity.
The observations of the High 'Court were not supported by any evidence and they seriously vitiated the appreciation of the evidence on record.
(ii) Legal necessity does not mean actual compulsion : it means pressure upon the estate which in law may be regarded as serious and sufficient.
The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and confide enquiries about the existence of the necessities and that he did all that was reasonable to satisfy himself as to the existence of the necessity.
[608 D] Recitals in a deed, of legal necessity, do not by themselves prove legal necessity.
The recitals are, however, admissible in evidence, their value.
varying according to the circumstances in which the transaction was entered into.
Where the evidence which could be brought before the Court and is within the special knowledge of the per son who seeks to set aside the sale is withheld, such evidence being normally not available to the alience, the, recitals go to his aid with greater force, and the Court may be justified in appropriate cases in raising an inference against the party seeking to set aside the sale on the ground of absence of legal necessity wholly or partially when he withholds evidence, in his possession.
In the present case the recitals in the deed about the existence of pressure upon the estate are amply corroborated by the circumstances.
[608 F] (iii) Since the plaintiffs only claimed relief against defendants 1 & 2 for declaration that the alienation in their favour was not binding on the plaintiffs and that relief cannot be granted to the plaintiffs, the circum 604 stance that the heirs of the 10th defendant are not impleaded in their appeal does not affect the right of the defendants to claim the appeal must be dismissed.
[610 C]


judgement:
minal Appeals 233 to 235 of 1966, and 9 to 11 of 1967.
Appeals from the judgment and order dated April 13, 1966 of the Madras High Court in Writ Petitions Nos.
390 of 1965 etc.
933 M.C. Chagla, Amjad Nainar and R. Gopalakrishnan, for the appellant (in Cr.
Nos. 233 to 235 of 1966) and respondent No. 1 (in Cr.
Nos. 9 to 11 of 1967).
section Govind Swaminathan, Advocate General for the State of Tamil Nadu, A. V. Rangam, K. section Ramaswami Thevar, N. section Sivan, for the respondents (in Cr.
Nos. 233 to 235 of 1966) and the appellants (in Cr.
Nos. 9 to 11 of 1967).
The Judgment of the Court was delivered by Mitter, J.
These six appeals arise out of certificates granted by the High Court of Madras arising out of two Writ Petitions and a petition under sections 435 and 439 of the Code of Criminal Procedure filed in that court by P. Sirajuddin, the appellant in the first set of appeals.
It is not necessary to give an outline of these Petitions as the salient features thereof appear sufficiently from the judgment of the High Court and the substance thereof is dealt with hereafter.
The facts are as follows.
The appellant was the Chief Engineer, Highways and Rural Works, Madras having risen from the status of a District Board Engineer in which capacity he joined service in the year 1935.
He attained the age of 55 years on March 14, 1964 on which date he was asked to hand over charge of his office to one Shiv Shankar Mudaliar, Superintending Engineer, Madras.
He expected to be retained in service up to the age of 58, a privilege said to be normally accorded to persons physically and otherwise fit for public service.
It appears that on March 1, 1964 a copy of a petition concerning him and dated February 28, 1964 addressed to the Minister, Public Works by one Rangaswami Nadar was received by the Chief Minister of the State.
It is said that apart therefrom allegations about want of rectitude of the appellant had already reached the Government.
The Chief Minister asked the Director of Vigilance and Anti Corruption to make confidential enquiries.
On March 10, 1964 Government received a note from the said officer which cast serious aspersions on the appellant 's reputation and mentioned quite a few instances of his lack of probity.
The endorsement of the Chief Minister on the note read: Secretary, P.W.D.
I had this (petition already mentioned) from the Director of Vigilance.
This may be immediately looked into.
I have asked the Director to pursue the investigation further.
" Thereupon the Chief Secretary orally ordered a full fledged enquiry in the matter and the Deputy Superintendent of Police, Vigilance and Anti Corruption one G. _K. Ranganathan, was asked to make a personal enquiry and report under the supervision of 93 4 R. N. Krishnaswamy.
The Director of Vigilance registered an enquiry numbering 8/HD/64 on 15th April, 1964.
That the enquiry was taken up with great keenness appears from a note of Ranganathan to the effect he would require the assistance of two Inspectors to assist him.
There can be no doubt that the enquiry launched by the Vigilance and Anti Corruption Department was a very thorough and searching one.
A very large number of persons were examined by the Vigilance and Anti Corruption officers including 18 public servants who spoke to matters touching the allegations against the appellant.
Statements in writing signed by the makers were taken from no less than nine public servants regarding the above and two of them, namely, section Sivasubrahmanyam and section Chidambaram were given certificates assuring them immunity from prosecution for the part played by them.
in rendering aid to the appellant in the commission of his malpractices.
These two persons occupied the position of an Assistant Engineer and a Junior Engineer and were subordinates of the appellant.
On June 27, 1964 a first information report was lodged in the Directorate of Vigilance and Anti Corruption, Madras and the case recorded as 3/AC/64.
The offences to be investigated into were under sections 161 and 165 of the Indian Penal Code and section 5 (1) (a) and (d) of the Prevention of Corruption Act.
The complaint was made by Ranganathan, Deputy Superintendent of Police, Vigilance and Anti Corruption Department to the Additional Superintendent of Police in the same department.
It is pertinent to note that the Directorate of Vigilance and Anti Corruption which had been set up under a Government order dated 8th April 1964 was declared to be a 'police station ' under clause (s) of sub section (1) of section 4 of the Code of Criminal Procedure by a notification dated May 25.
1964 and by another notification of the same date the Governor of Madras conferred upon the Director and the Superintendents of Police of the said Directorate all the ordinary powers of a Magistrate of the First Class under section 5 A of the Prevention of Corruption Act within the limits of the whole of .he
State of Madras except the Presidency Town.
The complaint by Ranganathan to the Additional Superintendent of Police, Vigilance and Anti Corruption, gave details of various malpractices with which the appellant was charged.
He was inter alia said to have obtained various articles of furniture with the help of Sivasubrahmanyam and Chidambaram mentioned above by paying only a small fraction of the cost and asking them to adjust the balance by manipulations of the muster rolls claims.
He was also said to have got his residence whitewashed in a similar manner.
It was also alleged against him that he had constructed a bungalow by diverting building materials allotted for the construction of 'the Cauveri bridge at Tiruchinapalli.
The complaint wound up with a paragraph to the effect that a criminal case would be registered against him as a regular investigation alone would facilitate the collection 9 3 5 of additional evidence by way of recovery of valuable things which he had obtained from his subordinates by various illegal means and in addition more incriminating evidence was likely to be ,forthcoming during the investigation.
Sanction to prosecute the appellant was obtained on September 27, 1964 and a charge sheet was filed against the appellant in the court of the Special Judge, Madras on October 5, 1964 numbered as C.C. No. 10 of 1964.
No less than 47 witnesses had been examined during the investigation following the first information report and at least nine of them had been previously examined at what was termed as a "preliminary or detailed enquiry".
No less than 19 malpractices were alleged against him in different paragraphs of the charge sheet and the appellant was charged with having obtained for himself or for members of his family various valuable things from his subordinates by corrupt and illegal means and by abusing his position as a public servant.
charges were for offences already mentioned.
In the enquiry the appellant was supplied with copies of re cords on which the prosecution proposed to rely including the statements recorded by the investigating officer which according 'IO the appellant showed prima facie that a number of public servants who had given the statements were themselves responsible for commission of various offences including falsification of accounts and forgery of public records.
Before the Special Judge the appellant moved an application for discharge under section 251 A of the Code of Criminal Procedure on the ground that the charges against him were groundless.
In that application he also complained : (a) that the instances alleged against him related mostly to his personal matters unconnected with his official functions; (b) that none of the items referred to in the charge had been handed over to or delivered to him for the purpose of securing an advantage in order to attract section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, and (c) that on the admitted statements of the public servants they were liable to be charged with various offences and he had been greatly prejudiced by discriminatory treatment.
While holding that there was no basis of charging thee appellant under section 165 I.P.C. or under section 5(2) read with section 5(1)(b) of the Prevention of Corruption Act, the Judge held that a charge could be framed against him under section 5(2) read with section 5(1)(d) of the Act.
He observed that the "investigating officers evidently felt that ,if they arraigned the subordinate officers along with the appellant the case may fail for lack of evidence.
" 9 3 6 Against that order dated January 16, 1965 the Public Pro secutor Preferred Cr.
R.C. 294 of 1965 and the appellant preferred Cr.
M.P. 934 of 1965 under section 561 A of the Code, for quashing the proceedings and discharging him as the charge was groundless.
The appellant filed.
two writ petitions before the High Court, namely, one for a writ of mandamus directing the forbearing from prosecution of C.C. No. 10 of 1964 and a second for a writ of certicrari to quash the order of the Special Judge mentioned above.
There was a petition under sections 435/439 of the Criminal Procedure Code for revision of the order of the Special Judge and one under section 561 A of the Code for quashing his said order.
The High Court dealt with all the Writ Petitions and the different allied matters together.
Broadly speaking, it was urged before the High Court: 1.There had been such a violent departure from the provisions of the Code in the matter of investigation and cognizance of offences as to amount to denial of justice and to call for interference by the issue of prerogative writs.
The investigation and prosecution were wholly mala fide and had been set afoot by his immediate junior officer , one Sivasankar Mudaliar, Superintending Engineer, Madras who was related to the Chief Minister of the State.
The appellant 's case was being discriminated from those of others who though equally guilty according to the prosecution case were not only not being proceeded against but were promised absolution from all evil consequences of their misdeeds because of their aid to the prosecution.
In his petition for the issue of a writ of mandamus 'by the High , Court the appellant stated that it was only by perusing copies of the statements furnished to him under section 173(4) Cr.
P.C. that he found that 18 public servants had stated having given him valuables without any or adequate consideration and that it was at his instance that they had committed offences of criminal conspiracy under section 120 B I.P.C. and criminal breach of trust of Government moneys under section 409 I.P.C. besides falsification of accounts etc.
His positive case was that the Director of Vigilance and Anti Corruption had obtained signed statements which were confessional and self incriminatory from persons who were going to be called .as witnesses by giving them assurances of immunity.
These assurances were not only directed towards immunising them from prosecutions but ;Also any departmental action likely to affect adversely the makers of the statements.
The case of discrimination was based mainly on the above averments that the Directorate had single him out leaving others who were equally guilty.
According 93 7 to the appellant this also showed mala fides and malice directed towards him.
Another main argument which ' was canvassed before the High Court related to the applicability of sections 162 and 163 of the Criminal Procedure Code and the effect of the violation thereof, if any.
For the appellant, it was argued that the taking of signed statements from persons who were eventually going to be examined in the criminal proceedings by giving them assurances of immunity and thereafter relying on their subsequent unsigned statements those under section 161(3) of the Code for the purpose of section 173 amounted to a fraud on the procedure established by law.
It was contended that as the statements recorded under section 161 were the material on which the Special Judge had to consider whether the charge was groundless under section 251 A of the Code, the illegality "corroding the foundation vitiated the enquiry and necessitated the discharge of the appellant.
" The High Court examined the case made out in the affidavits of the appellant and the counter affidavits on behalf of the State.
It expressed great dissatisfaction at the variance in the attitude of the State in the different affidavits in that whereas in the first counter affidavit there was no contradiction of the appellant 's averment that assurances of immunity had been given to all the 18 persons examined before the lodging of the first information report, the plea put forward in a subsequent affidavit was that such assurance had been given only to two persons, namely, the two subordinates of the appellant and only after signed statements had been given by them.
The Court was however not satisfied that a direction was called for for the prosecution of the subordinate officers also.
Further the High Court was not impressed with the plea of hostile discrimination against the appellant observing that although the "policy of not securing judicial pardon to accomplices by bringing them as approvers but retaining them at the sole discretion of the prosecution might be open to question" "that cannot by itself invalidate the arraignment of the persons actually put up for trial" specially where the person charged was in a position to wield influence and power over those asked by him to aid him in commission of misconduct.
Although not of the view that the record before it established a case of mala fide or hostile discrimination against the appellant which called for the quashing of the proceedings, the High Court took the view that the investigation of the case under Chapter XIV of the Code should be held to have commenced when Ranganathan, the Deputy Superintendent of Police, started the enquiry on 15th April 1964 on the reasoning that though "an enquiry may start with shadowy beginnings and vague rumours, once a police officer forms a definite opinion that there are grounds for investigating a L1OSup.
CI(NP)70 15 938 crime, an investigation under the Code has started".
According to the High Court (a) "substantial information and evidence had been gathered before the so called first information report was registered".
(b) the police officer who had conducted the enquiry prior to 27th June 1964 was a person competent to enter upon investigation; (c) admittedly there had been an earlier probe by the, Vigilance Department prior to 10th March 1964 on the basis whereof he was not re employed; (d) there was definite information to the Government contained in the report dated 13th March 1964 relating to corrupt activities of the appellant; and (e) the "delay on the part of the investigating officer in registering the first information report may be an irregularity, but certainly the statements recorded subsequent to the receipt of definite information of the commission of an offence in gathering evidence of the offence would nonetheless be statements recorded during investigation and hit by section 162 of the Criminal Procedure Code.
" With regard to the disregard of the provisions of sections 162 and 163 of the Code, the High Court observed that the result of taking his signature to a statement would be to tie a witness down to the statement or at least to give him the impression that he would not be free to make a different statement at the trial but the statement of a witness at the trial would not become inadmissible by reason of his having signed a statement before going into the witness box.
Reference was made to several decisions bearing on section 162 of the Code and in particular to Zahiruddin vs King Emperor(1) that the evidence of a witness who had previously signed a statement in writing did not become inadmissible or vitiate the whole proceeding although the value of the evidence would be seriously impaired thereby.
The court seems to have been of the view that it was the duty of the Magistrate or the presiding Judge on discovering that a witness had while giving evidence, made material use of a statement given by him to the police to disregard the evidence of that witness as inadmissible.
The High Court 's definite conclusion was that there had been a deliberate violation of the provisions of the Code (1) 74 I.A. 65, 74.
939 and a departure from a recognised and lawful procedure, for investigation.
With regard to the propriety of taking self incriminatory statements even when there had been no assurance of immunity from prosecution, the High Court observed that as the learned Advocate General for the State had stated that the record of manipulations in the muster rolls by the subordinate officers of the appellant had to be disregarded as not proper material for consideration as the "Special Judge had not considered these vitiating features in regard to the documents placed before him while ordering the framing of charges against the appellant" it was unnecessary to examine the question at length.
The High Court found partly in favour of the appellant and held that the order of the Special Judge directing the framing of a charge on consideration of the statements before him under section 173(4) of the Code without reference to the illegalities in the investigation should be quashed.
The High Court further directed the Special Judge to take up the matter once again and consider the case excluding from consideration all statements recorded under sections 161(3) and 164 which were found vitiated in the light of the observations made by it.
A direction was also given to exclude portions of the statements which were self incriminatory and confessional in character of the maker even if the same did not otherwise violate the provisions of sections 162 and 163 of the Code.
In our view the procedure adopted against the appellant be fore the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one 's sense of justice and fairplay.
No doubt when allegations about dishonesty of a person of the appellant 's rank were brought to the notice of the Chief Minister it was his duty to direct an enquiry into the matter.
The Chief Minister in our view pursued the right course.
The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister.
The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have influenced him and we are of the same view.
Before a public servant, whatever be his status, is publicly charged with acts, of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer.
The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable 940 harm not only to the officer in particular but to the department he belonged to, in general.
If the, Government had set up a Vigilance and Anti Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner.
the enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction.
The means adopted no less than the end to be achieved must be impeccable.
In ordinary depart mental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for some one in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved.
It is only thereafter that a charged sheet is submitted and a full scale enquiry is launched.
When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evi dence of guilt of the officer.
Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.
The Code of Criminal Procedure is an enactment designed inter alia to ensure a fair investigation 'of the allegations against a person charged with criminal misconduct.
Chapter XIV of the Code gives special powers to the police to investigate into cases whether cognizable or non cognizable in the manner provided therein.
Section 160 empowers a police officer making an investigation to require the attendance before himself of any person who appears to be acquainted with the circumstances of the case.
Section 161 (1 ) gives him the right to examine orally any person supposed to be acquainted with the facts and circumstances of the case.
Although bound to answer question put to him sub section
(2) of the section exempts a person from answering any question which would have a tendency to expose him to a penal charge or to a penalty for forfeiture.
Under sub s.(3) the police officer is empowered to reduce into writing any statement made to him in the course of such examination.
Section 162(1) expressly lays down that such a statement made in the course of an investigation if reduced into writing is not to be signed by the maker thereof and no part of such statement except as expressly provided is to be used 941 for any purpose at any enquiry or trial in respect of any, such offence under investigation at the time when the statement was made.
The only exceptions to these are cases when the statement falls under section 32 cl.(1) of the Evidence Act and to statements which are covered by section 27 of that Act.
The obvious idea behind this provision is that an over zealous police officer may not misuse his position by getting a statement in writing signed by the maker which would tend to pin him down to the statement but leave him free to speak out freely when called to give evidence in court.
In order that statements made in the course of such investigations be recorded without any pressure or inducement by an investigating officer section, 163(1) lays down an embargo on the investigating authorities using any inducement, threat or promise to the maker which might influence his mind and lead him to suppose that thereby he would gain any advantage or avoid any evil in reference to his conduct as disclosed in the proceedings.
It is to be noted that whereas the other sections hereinbefore referred to contain guidelines for the police officers in making investigation, this section expressly provides that any person in authority even if he is not a police officer must guide himself accordingly, in case where a crime is.
being investigated under this Chapter of the Code.
All this is however subject to the provisions of sub s.(2) which allows a person to make any statement against his own interest by way of confession if he does so of his own free will.
Even then the law enjoins by section 164 that such a statement or con fession can only be recorded by a Magistrate of the Class mentioned therein and even such a Magistrate must explain to the person making the confession before recording the same, that he is not bound to make it and if he does so it may be used as evidence against him.
Further the Magistrate must make sure that the person was making the confession voluntarily and not acting under any pressure from an outside source.
All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case : however serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating into the 'crime before the lodging of a charge sheet.
Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it.
Section 169 of the Code empowers a notice officer making investigation to release an accused person from custody if there is no sufficient evidence or reasonable ground of suspicion to justify the forwarding of him to a Magistrate by taking a bond from him with or without sureties, Section 173 enjoins upon a police officer 942 to complete the investigation without unnecessary delay a IInd forward to a Magistrate empowered to take cognizance of the offence a report in the form prescribed by Government setting forth inter alia the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and to communicate to the State Government the action taken by him to the person, if any, by whom information relating to the commission of the offence was first given.
When a report has been made under this section it is the duty of the officer in charge of the police station to furnish to the accused before the commencement of the enquiry or trial a copy of the report above mentioned and of the first information report under section 154 and of all other documents or relevant extracts on which the prosecution proposes to rely including the statements and confessions, if any, recorded under section 164 and the statements recorded under sub s.(3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses.
In our view the enquiring officer pursued the investigation with such zeal and vigour that he even enquired into and took down statements of persons who were supposed to have provided the appellant with articles of food worth trifling sums of money long before the launching of the enquiry.
The whole course of investigation as disclosed in the affidavits is suggestive of some predetermination of the guilt of the appellant.
The enquiring Officer was a high ranking police officer ' and it is surprising that simply because he was technically not exercising powers under Chapter XIV of the Criminal Procedure Code in that a formal first information report had not been lodged he overlooked or deliberately overstepped the limits of investigation contained in the said Chapter.
He recorded self incriminating ' statements of a number of persons and not only secured their signatures thereto obviously with the idea of pinning them down to those but went to the length of providing certificates of immunity to at least two of them from the evil effects of their own misdeeds as recorded.
It was said that the certificates were given after the statements had been signed.
It is difficult to believe that the statements could have been made before the grant of oral assurances regarding the issue of written certificates.
There can be very little doubt that the persons who were given such immunity had made the statements incriminating themselves and the appellant under inducement, threat or promise as mentioned in section 24 of the Indian Evidence Act.
It is no doubt the duty of the State to track down and punish all delinquent officers but it is certainly not in accordance with justice and fairplay that their conviction should be sought for by such questionable means.
943 The office of the Directorate of Vigilance and Anti Corrup tion Department, Madras became a police station for the purpose of the Criminal Procedure Code under sub cl.
(s) of sub section
(1) of section 4 of the Code by a notification dated 25th May, 1.964.
Prior to that it was only functioning under a Memorandum No. 1356/ 64 2 dated 8th April 1964 when it was set up to ensure the maintenance of the highest standard of integrity and probity in public servants.
If the investigation had been taken up after May 25, 1964 it would have been one under Chapter XIV of the Code without any doubt.
Although we are not disposed to concur with the view that the investigation under Chapter XIV of the Code started as early as 15th April 1964 we are of opinion that there was no warrant for the Vigilance and Anti Corruption Department which was in the charge of one of the highest police officers of the State to disregard the provisions of sections 162 and 163 of the Code of Criminal Procedure.
The investigation was of a type more I thorough and elaborate than is usually 'to be found : as noticed already it was in charge of a senior police officer who had the I assistance of two police inspectors in the matter.
No blame attaches to them for making enquiries of a large number of persons but the whole course of investigation is suggestive of guidance by someone who was intimately familiar with the affairs of the appellant and his department 'and throwing out scents which the investigating officers were only too keen to pick up and follow.
The appellant may have been guilty of all the charges levelled against him but we cannot approve of the manner in which the investigation against him was conducted and an attempt made to lay a guideline for the persons who were to be cited as prosecution witnesses in their evidence at the trial.
To say the least it would be surprising to find so many persons giving confessional and self incriminatory statements unless they had been assured of immunity from the evil effects thereof whether oral or in writing.
There can be no excuse for the Directorate of Vigilance and Anti Corruption for proceeding in the manner adopted in the Preliminary enquiry before the lodging of the first information report.
As soon as it became clear to them and according to the High Court it was before March 13, 1964 in which we concur that the appellant appeared to be guilty of serious misconduct.
it was their duty to lodge such a report and proceed further in the investigation according to Chapter XIV of the Code.
Their omission to do so cannot but Prejudice the appellant and the State ought not to be allowed to take shelter behind the, plea that although the steps taken in the preliminary enquiry were grossly irregular and unfair, the accused cannot complain because there was no infraction of the rules of the 'Evidence Act or the provisions of the Code, 944 In our view the granting of amnesty to two persons who are sure to be examined as witnesses for the prosecution was highly irregular and unfortunate.
It was rightly pointed out by the High Court "Neither the Criminal Procedure Code nor the Prevention of Corruption Act recognises the immunity from prosecution given under these assurances and that the grant of pardon was not in the discretion of police authorities.
" We are not impressed by the argument that the appellant was singled out from a number of persons who had aided the appellant in the commission of various acts of misconduct and that they were really in the position of accomplices.
It was pointed out by the High Court that the prosecution may have felt that "if the subordinate officers were joined along with the appellant as accused the whole case may fall for lack of evidence".
In our view, if it be a fact that it was the appellant who was the head of the department actively responsible for directing the commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that unless the subordinates were also joined as co accused with him the case should not be allowed to proceed.
It was contended before us by the learned Advocate General for the State of Madras that both the High Court and the Special Judge had gone wrong in the interpretation of s.5(1)(b) of the Prevention of Corruption Act.
Having heard counsel on both sides, we find ourselves unable to sustain the view of the High Court on this point.
Omitting the portions of the section which are not relevant it reads : "5(1) A public servant is said to commit the offence of criminal misconduct (a) . . (b) if he habitually accepts or obtains. for himself . any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person (whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him,or) having any connection with the official functions of himself, or The portion of the sub section within brackets in our view qualifies,, 94 5 the expression "any person" in the same way as the portion reading "having any connection with the official function of himself".
So read ,,any person having any connection with the official functions of himself" would include any subordinate of the person who accepts the valuable thing.
The words "of himself" do not refer to the person in the expression "any person" but refers to the pronoun "he" at the beginning of the sub section.
A subordinate of the public servant would have connection with his official fun ctions.
In our view the sub section aims at folding within its ambit not only outsiders "who are likely to be concerned in any proceeding or business transacted or about to be transacted" by the public officer but also any subordinate or any other person who is connected with the official functions of the public servant.
In the result all the appeals are dismissed.
Although we do not endorse the view of the High Court with regard to the date of the commencement of the investigation so far as Chapter XIV of the Code of Criminal Procedure is concerned, we do hold that serious irregularities were committed in the so called "full fledged enquiry" to the prejudice of the appellant.
We do not however feel that there is any need to modify the directions given by the High Court to the Special Judge who will follow the directions of the High Court in addition to the modification indicated by us.
V.P.S. Appeal 's dismissed.

summary/full:
On March 1, 1964, the Chief Minister of the State received a petition containing allegations of corruption against the appellant (a Superintending Engineer) and the Chief Minister asked the Director of Vigilance and Anti Corruption to make enquiries.
On March 10, 1964, the Director submitted a note containing serious aspersions on the appellant and the Chief Minister ordered further investigation.
The Director of Vigilance registered an inquiry on 15th April, 1964, and a Deputy Superintendent of Police of the Vigilance Department was asked to make the inquiry.
The Deputy Superintendent of Police made a thorough and searching inquiry.
He examined a large number of persons including 18 public servants and even enquired into and took down statements of persons who were supposed to have provided the appellant with articles of food worth trifling sums of money, a long time before.
He recorded self incriminating statements of a number of persons and secured their signatures thereto.
With respect to two officers, who were the subordinates of the appellant, he even gave certificates of immunity from any action that might be taken against them for the part played by them in aiding the appellant.
On June 27, 1964, he lodged a first information report, with respect to offences under sections 161 and 165 I.P.C., and section 5(1)(a) and (d) of the Prevention of Corruption Act, 1947.
He investigated into the offences there after, and filed the charge sheet before the Special Judge.
The appellant made an application for discharge under section 251 A, Cr.
P.C., on the grounds of discrimination between him and other officers who were given pardon and, gross irregularities in the investigation.
The Special Judge held, that though there was no basis for charging the appellant under section 165, I.P.C., or under section 5(2), read with section 5(1)(b).
of the Prevention of Corruption Act, a charge could be framed against him under section 5(2) read with section 5(1)(d).
The appellant thereafter moved the High Court, The High Court held : (1) that the investigation started on 15th April 1964 when the Director of Vigilance registered an inquiry (2) that the taking of signed and self incriminating statements from various witnesses was in violation of sections 161 to 164 Cr.
P.C.; (3) that the Special Judge erred in directing the framing of the charge without excluding those statements from consideration; and (4) that the Special Judge should take up the matter once again after excluding from consideration those statements.
In appeal to this Court, HELD : (1) Though technically investigation did not commence on 15th April 1964 but started only after the formal first information report was lodged on,.
June 27, 1964, there were serious irregularities during the 93 2 inquiry and investigation which caused prejudice to the appellant.
The directions given by the High Court were, however, sufficient in the circumstances of the case.
[945 D] The Directorate of Vigilance and Anti Corruption became a police station for the purposes of the Criminal Procedure Code only by a notification dated 25th May 1964.
Therefore, the inquiry before that date was not an investigation under Ch.
XIV of the Code, but there was no warrant for the Vigilance Department, which was in the charge of a senior police officer, to disregard the provisions of sections 162 and 163 of the Code.
Under s.161(3) of the Code a police officer is empowered to reduce into writing any statement made to him in the course of investigation and section 162(1) lays down that such a statement is not to be signed by the maker thereof.
Section 163(1) lays an embargo on the investigating authority using any inducement, threat or promise to the maker.
The reason for these provisions is to secure a fair investigation into the facts and circumstances of the case and to see that an of calous police officer may not misuse his position by getting a statement signed by the maker in order to pin him down to it.
Also, immunity from prosecution and the grant of a pardon were not in the discretion of police authorities.
1940 A H; 941 A B, D, F] In the present case.
the officers who were given immunity must have made the self incriminating statements because an oral assurance of immunity was given before they made the statements, that is, the statements were given as a result of an inducement.
There can be no excuse for the Vigilance Department for proceeding in the manner adopted merely because the first information ',report had not been lodged.
As soon as it became clear to them on March 10, 1964, that the appellant appeared to be guilty of serious misconduct, it was their duty to lodge such a report and,proceed further in the investigation according to Ch.
XIV of the Code.
Their omission to do so cannot but prejudice the appellant and the State ought not to be allowed to take shelter behind the plea that although the, steps taken in the enquiry before the first information was lodged were.
grossly irregular and unfair, the appellant could not complain, because.
there was no infraction of the rules after lodging the first information report.
[942 D G; 943 C H] (2) If it be a fact that it was the appellant, who as the head of the department, was actively responsible for directing the commission of offences by his subordinates in a particular manner, he cannot be allowed to take the plea that the subordinates should also be joined as co accused with him.
[944D] (3) Under section 5 (1) (b), a public servant would be guilty of the offence of criminal misconduct if he habitually accepts any valuable thing for inadequate consideration not only from outsiders who are likely to be concerned in any proceeding or business, transacted or about to be transacted by the public officer but also from any subordinate or any other person who is connected with the official functions of the public servant.
Therefore, in this case, a charge could also be framed under section 5(1)(b), if there was material.
[945 A C]