judgement:
: Criminal Appeal Nos. 4 & 5 of 1979.
From the Judgment and Order dated 21.3.1978 of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978.
S.K. Kulkarani and P.C. Kapur (NP) for the Appellant.
Arun Jetley, Additional Solicitor General, Ms. Indu Malhotra, M.N. Shroff, P. Parmeshwaran, Ms. A. Subhashini, Ms. Ayesha Karim and P.K. Mullick for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J.
These criminal appeals by special leave granted under Article 136 of the Constitution of India are preferred by the appellant questioning the correctness of the judgment of the Gujarat High Court in Criminal Revision Application Nos. 98 and 97 of 1978 whereby the High Court set aside the judgment and orders dated 2.1.1978 of the Sessions Judge, Kutch at Bhuj made in Criminal Revision Application Nos. 46 and 45 of 1976 confirming the orders dated 19.6.76 passed by the Judicial Magistrate, First Class, Kutch in Application Exh.
Nos. 94 and 98 in Criminal Case Nos. 929 and 930 of 1973 respectively.
The factual matrix that have relevance to the questions, raised and canvassed at the hearing may be briefly stated.
A raid conducted by the officers of the Customs Department in the business cum residential premises of the appellant on 17.9.1971 resulted in the seizure of some gold Lagadis bearing foreign marks, primary gold, gold ornaments and silver bricks, coins etc.
to the value of about Rs.8,48,422.
During the said raid a sum of Rs.79,000 was also seized.
In respect of this incident, the Assistant Collector of Customs filed two separate complaints on 26.11.1973 against the appellant in the court of the Judicial Magistrage, First Class, Anjar, being criminal cases Nos. 929 and 930 of 1973 for offences punishable (1) under the 715 provisions of the and (2) under the Gold Control Act 1968.
After examination of the prosecution as well as the defence witnesses and recording of the statements of the appellants under Section 342 of the old Code of Criminal Procedure (hereinafter referred to as the Code ') arguments were advanced on behalf of the appellant/accused.
The prosecution at this stage before commencing its arguments filed two applications both the cases under Section 540 of the old Code (corresponding to Section 311 of the new Code) requesting the Trial Court to recall Mr. Mirchandani (the Seizing Officer) for further examination and to issue summons to two more witnesses, namely, Mr. K.K. Das, Assistant Collector of Customs and the Deputy Chief Officer (Assayer) of Mint Master, Bombay for examination either as prosecution witnesses or as court witnesses as cotemplated under the said provision.
The learned Judicial Magistrate passed two orders rejecting the applications which orders, on revision by the respondents were confirmed by the session 's Judge on being aggrieved by the said revisional orders, the Union of India (the first respondent herein) preferred two Criminal Revision Applications Nos.
97 and 98 of 1978.
The second respondent, namely, the State of Gujarat also preferred two other Criminal Revision Application Nos. 124 and 125 of 1978.
The High Court by its Common Judgment, though heavily criticised the conduct of the prosecution for its deplorable and lethargic attitude in not carefully and promptly conducting the proceedings allowed all the Criminal Revisions for the reasons assigned therein holding thus: "In view of what has been stated above, I accept the four petitions filed in this court by the Union of India, and the State of Gujarat, and direct the Union of India to examine the aforesaid three witnesses within a period of fortnight after the receipt of the order of this court to the trial court.
After the Union of India examines the aforesaid three witnesses as aforesaid, it will be open to the accused to cross examine all the witnesses examined by the Union of India before the learned Magistrate.
Feeling aggrieved by the judgment of the High Court, these two appeals are preferred by the appellant.
In this context, it is pertinent to note that the appellant has not directed any appeal against the judgment of the High Court in allowing the two other Revision Application Nos. 124 and 126 of 1978 filed by the Gujarat Government which were also allowed by the High Court.
716 The learned counsel appearing on behalf of the appellant vigorously challenged the legality of the impugned judgment inter alia contending that the High Court has gravely erred in allowing the second revision petitions filed by the respondent by ignorning the weighty reasons given by the Trial Magistrate and the Section Judge (before whom the first revision was filed) and thereby in permitting the respondent the Union of India to examine the three witnesses as prayed by it, notwithstanding that the case was pending before the Trial Court for considerable length of time and the defence argument was concluded and that the High Court, by the impugned order has permitted the prosecution to bolster up its case by filling up the lacuna and plugging the loopholes which if carried out would be detrimental and prejudicial to the appellant.
The next legal submission made on behalf of the appellant is that the entertainment of the second revision by the High Court is in violation of sub sections (2) and (3) of Section 397 of the new Code since the order passed by the Magistrate was an interlocutory order and that even assuming that it was not so, the second revision by the same affected party is not entertainable.
Before adverting to the arguments advanced on behalf of the appellant, we would examine in general the scope and intent of Section 540 of the old Code (corresponding to Section 311 of the new Code).
Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading "Miscellaneous '.
But the present corresponding Sections 311 of the new Code is found among other Sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials '.
Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be ' before the word 'essential ' occurring in the old Section.
This section is manifestly in two parts.
Whereas the word 'used ' in the first part is 'may ' the word used in the second part is 'shall '.
In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it 'at any stage of enquiry ' trial or other proceedings ' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re examine any person already examined.
717 The second part which is mandatory imposes an obligation on the Court (1) to summon and examine, or (2) to recall and re examine any such person if his evidence appears to be essential to the just decision of the case.
The very usage of the words such as 'any court ', 'at any stage ', or 'of any enquiry, trial or other proceedings ', 'any person ' and 'any such person ' clearly spells out that this section is expressed in the widest possible terms and do not limit the discretion of the Court in any way.
However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judically with circumpection and consistently with the provisions of the Code.
The second part of the Section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case.
It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue.
But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides.
Nonetheless if either of the parties with holds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.
In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done.
In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any 718 Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re examine any person in attendance though not summoned as a witness or recall and re examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
There are various other provisions in the new Code corresponding to the provision of the old Code empowering the court specified therein to recall any witness or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions.
A Judge under Section 236 (Section 310 old Code) or a Magistrate under Section 248(3) (Section 251 A(13) and 255 A old Code) is empowered to take evidence in respect of the previous convictions of the accused person concerned if he is charged with the previous conviction under sub section (7) of Section 211 and if he does not admit the previous conviction.
Under Section 367 (Section 375 old Code) if, when sentence of death passed by the Court of Sessions is submitted for confirmation to the High Court under Section 366(1) (Section 374 of the old Code), the High Court thinks that a further enquiry should be made into or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted person, it may make such inquiry or take such evidence itself or direct it to be made or taken by the Court of Session.
Under Section 391 (Section 428 of old Code) the Appellate Court while dealing with any appeal under Chapter XXIX, if thinks additional evidence to be necessary, may after recording its reasons either take such evidence itself or direct it to be taken by a subordinate Court as the case may be.
Under Section 463(2) (Section 533 old Code) if any Court of Appeal, Reference and Revision before which confession or other statement of an accused recorded or purporting to be recorded under Section 164 or Section 281 (Section 364 of the old Code) is tendered, or has been received in evidence, finds that any of the provisions of either such sections have not been complied with by the Magistrate recording the statement, the Court may notwithstanding anything contained in Section 91 of the Indian Evidence Act take evidence in regard to such non compliance and may, if satisfied that 719 such non compliance has not injured the accused in his defence on the merits and that he duly made the statement recorded, admit such evidence.
Analogous to the above provisions of the Code of Criminal Procedure there are various provisions in the civil Procedure Code also enabling the civil Court to summon witnesses and examine them in the interest of justice.
Under Order X Rule 2 of the Civil Procedure Code, the Court at the first hearing of the suit or at any subsequent hearing may examine any party appearing in person or present in Court or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied.
Under Order X Rule 14 the Court may of its own motion summon as a witness any person including the party to the suit for examination and the said Rule is under the caption "Court may of its own accord summon as witnesses strangers to suit" and Order XVIII Rule 17 empowers the Court to recall any witness who has been examined and may subject to Law of Evidence for the time being in force put such questions to him as it thinks fit.
The powers of the Court under this Rule 17 are discretionary and very wide.
Besides the above specific provisions under the Cr.
P.C. and C.P.C. empowering the criminal and civil courts as the case may be, to summon and examine witnesses, a Judge in order to discover or to obtain proof of relevant facts is empowered under Section 165 of the Indian Evidence Act to exercise all the privileges and powers subject to the proviso to that section which power he has under the Evidence Act.
Section 540 of the old Code (Section 311 of the new Code) and Section 165 of the Evidence Act may be said to be complementary to each other and as observed by this Court in Jamatraj Kewalji Govani vs State of Maharashtra, ; "these two sections between them confer jurisdiction on the Judge to act in aid of justice.
" The second part of Section 540 as pointed out albeit imposes upon the Court an obligation of summoning or recalling and re examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case.
Though any party to the proceedings points out the desirability some evidence being taken, then the Court has to exercise its power under this provision either discetionary or mandatory depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the 720 requirements of justice.
In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps vs section, , which reads thus: ". . it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly . . . . . . . . . . . . . .
Counsel seek only for their client 's success; but the judge must watch that justice triumphs.
" The law is clearly expounded in the case of Jamatraj Kewalji Govani (referred to above) wherein Hidayatullah, J as he then was, while speaking for the Bench about the unfettered discretionary power of the court as envisaged under Section 540 of the Code has stated thus: "It is difficult to limit the power under our Code to cases which involve something arising ex improviso which no human ingenuity could foresee, in the course of the defence.
Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation.
Cases that go far are of course not quite right.
Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides . . . . . . . . . . . . . . . . . . . . . . .
It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it.
In other words, where the court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case.
If the court has acted without the requirements of a just decision, the 721 action is open to criticism but if the court 's action is supportable as being in aid of a just decision the action cannot be regarded as exceeding the jurisdiction.
" The next important question is whether Section 540 gives the court carte blanche drawing no underlying principle in the exercise of the extra ordinary power and whether the said Section is unguided, uncontrolled and uncanalised.
Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means.
Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results.
Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
Fazal Ali, J in Rameshwar Dayal vs State of U.P., ; while expressing his views about the careful exercise of its power by the court has stated: "It is true that under Section 540 of the Criminal Procedure Code the High Court has got very wide powers to examine any witness it likes for the just decision of the case, but this power has to be exercised sparingly and only when the ends of justice so demand.
The higher the power the more careful should be its exercise . . . .
The words, "Just decision of the case" would become meaningless and without any significance if a decision is to be arrived at without a sense of justice and fair play.
" In State of West Bengal vs Tulsidas Mundhra, at 207, it has observed: 722 "It would be noticed that this section confers on criminal Courts very wide powers.
It is no doubt for the Court to consider whether its power under this section should be exercised or not.
But if it is satisfied that the evidence of any person not examined or further evidence of any person already examined is essential to the just decision of the case, it is its duty to take such evidence.
The exercise of the power conferred by section 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case.
" At the risk of repetition it may be said that Section 540 allows the court to invoke its inherent power at any stage, as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition.
Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced and until then the court has power to use this section.
The answer to the question like the one that has arisen in the present case is whether the court would be justified in exercising its power under Section 540 is found in Kewalji 's case (albeit).
In that case the appellant was prosecuted on two counts under Section 135(a) and (b) of the .
The appellant did not lead any evidence on his behalf but filed a written statement, claiming inter alia that no offence had been disclosed against him, since no witness had deposed that the contraband had been seized from him under the Act in the reasonable belief that they were smuggled goods.
The day after the statement was filed, the prosecution applied for examination of the customs officer who was incharge of the search as a court witness in the interest of justice.
The Magistrate ordered the examination of the officer under Section 540 of the Code rejecting the objections raised by the appellant.
Though an opportunity was given to the appellant to lead defence evidence, the appellant stated that he had nothing further to add and no evidence to lead.
The Trial Court convicted the appellant who being aggrieved by the judgment of the Trial Court preferred an appeal to the High Court which dismissed the appeal.
Before this Court it was contended that the evidence of the officer was improperly received.
That contention has been repelled by this court observing "This power is exercisable at any time and the Code of Criminal Procedure clearly so states" and thereafter concluded "it cannot be said that the Court had exceeded its jurisdiction in acting the second part of Section 540 of the Code of Criminal Procedure.
" Gajendragadkar, J. speaking for the Bench in Tulsidas Mundhra 723 (cited supra) has pointed out as follows: "Section 540 in terms applies at any stage of any enquiry, trial or other proceeding under this Code.
This section is wide enough to include a proceeding under section 207 A and so, it would be unreasonable to contend that the scheme of section 207 A makes section 540 inapplicable to the proceeding governed by section 207 A.
The power of the Court under section 540 can be exercised as much in regard to cases governed by section 207 A as in regard to other proceedings governed by the other relevant provisions of the Code." (It may be noted that section 207 A of the old Code in Chapter XVIII under the caption "Enquiry into cases triable by the court of Session or the High Court" dealt with the procedures to be adopted in proceedings instituted on police report and this provision is omitted in the new Code.) This Court in Kewalji 's case (albeit) held that Chapter XXI of Cr.
P.C. (old) under the heading "Of the Trail of Warrant cases by Magistrates" does not restrict the powers of criminal court under Section 540.
In Masalti vs State of U.P., ; wherein the defence did not opt to examine some witnesses who have been left out by the prosecution on the bona fide belief that those witnesses had been won over and the court also after due deliberation refused to exercise its power under Section 540; this Court while examining a submission that the Trial Court should have exercised its power under Section 540 and examined those witnesses expressed its opinion that "that is one aspect of the matter which we have to take into account" that is in considering whether the accused were prejudiced or not.
It has been held by this Court in Rajeswar Prasad Mora vs State of West Bengal & Anr.,[1966] 1 SCR 178 while dealing with the ample power and jurisdiction of the court in taking additional evidence as follows: "Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here.
We do not propose to do what the Legislature 724 has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances.
It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it.
The power must be exercised sparingly and only in suitable cases.
Once such action is justified, there is no restriction on the kind of evidence which may be received.
It may be formal or substantial.
" The above view has been reiterated in R.B. Mithani vs Maharashtra, AIR 1971 S.C. 1630.
The principle of law that emerges from the views expressed by this court in the above decisions is that the Criminal Court has ample power to summon any person as a witness or recall and re examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command and examination of any person which would depend on the facts and circumstances of each case.
What falls for determination now is whether the person indicated should be given an opportunity to rebut the evidence of the witness or witnesses summoned and examined under Section 540.
This question came for determination in Rameshwar Dayal 's case and this court answered that question thus: "It was argued by counsel for the State that there is no provision in the Criminal Procedure Code which requires the court to allow the appellant an opportunity to rebut the evidence of witnesses recommended under Section 540 Cr.
This argument, in our opinion, is based on a serious misconception of the correct approach to the cardinal principles of criminal justice.
Section 540 itself incorporates a rule of natural justice.
The accused is presumed to be innocent until he is proved guilty.
It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence.
The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by 725 the accused and a refusal of the same amounts not only to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous maxim audi alteram partem . . . . . . . . . . . . . .
A careful perusal of this provision manifestly reveals that the statute has armed the Court with all the powers to do full justice between the parties as full justice cannot be done until both the parties are properly heard the condition of giving an opportunity to the accused to rebut any fresh evidence sought to be adduced against him either at the trial or the appellate stage appears to us to be implicit under Section 540 of the Cr.
P.C." See also Kewalji 's case (cited above).
This was the view taken by various High Court such as in Channu Lal vs R., AIR 1949 All. 692; Rengaswami Naicker vs Muruga Naicker, AIR 1954 Mad. 169; Shugan Chand vs Emperor, AIR 1925 Lah 531 and The Queen vs Assanoolah, 13 SWR (Crl.
The views expressed in the above judgments of the various High Courts have been approved by this Court in Rameshwar Dayal 's case.
We are in full agreement with the above view of Fazal Ali, J and hold that whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interest of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him.
With this legal background let us now turn to the challenge posed by the appellant in these appeals.
The Trial Court and the First Revision Court rejected the request of the prosecution on three grounds, namely, first that the prosecution has attempted to fabricate evidence at a belated stage to fill up the lacuna in the prosecution case and secondly that the request of the prosecution for taking additional evidence was after the closure of the defence and thirdly a substantial prejudice would be caused to the appellant if the prosecution is allowed to adduce fresh evidence.
As pointed out by the High Court in its impugned order, gold, silver ornaments of the value of Rs.8,48,482 and currency notes of Rs.79,000 have been seized from the premises, searched on the strength of the search warrant issued by Shri K.K. Das.
What the appellant now contends is that the order of the High Court permitting the prosecution to recall one of the witnesses already examined and to summon two other new witnesses to prove 726 the foreign makings on the legadis is in violation of the principle underlying Section 540.
We waded through the entire records inclusive of the copies of depositions, search warrant and the application filed by the prosecution under Section 540 which are available in the file, forwarded by the High Court though those documents are not annexed with the SLP.
The prosecution filed the petition for examination of the three witnesses stating that foreign ingots (lagadis) have been sized from the possession of the appellant and that warrant for search of the premises of the appellant/accused was issued in this regard by the Assistant Collector of Customs, namely Shri K.K. Das and hence fresh evidence is necessary for a just decision of the case.
After perusing the depositions of the witnesses already examined that are found on the file, we think that the appellant/accused cannot be said to be prejudiced in any way by examination of these three witnesses.
PW 2 who was then working as Superintendent of Customs in the office of the Assistant Collector of Customs at Adipur during the relevant period has stated that Shri K.K. Das who was the then Assistant Collector of Customs issued the warrant dated 7.9.1971 authorising Shri Mirchandani, Superintendent of Customs, Adipur to search for the prohibited and dutiable goods and documents in the premises mentioned in the warrant.
It is elicited from the same witness in the cross examination that the gold ornaments were seized since the sizing authority doubted that they are smuggled gold and procured by contriving the Gold Control Act.
It is seen from the evidence of PW 3 that he and others inclusive of Superintendent Mirchandani went to the house of the appellant and they seized the gold ornaments Dhalia, that is, primary gold under Panchnama and search list Exts.
24 and 25.
Therefore, the appellant 's grievance that he has been taken by surprise on the request of the prosecution for taking fresh evidence; that the evidence sought to be obtained is only for filling up the lacuna and the judgment, impugned is prejudicial to him cannot be countenanced.
Of the three witnesses, permitted to be summoned and examined on the side of the Union of India, the Mint Master is only an assayer.
In our considered opinion, the facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court.
In the light of the proposition of law which we have derived in the preceding portion of the judgment there is no illegality in summoning the witnesses after the closure of the defence arguments.
It is seen from the order of the Trial Court that the argument of the prosecution has not yet begun.
Since we feel that any further observation of ours in justification of this order may prejudice the defence of the appellant 727 before the Trial Court, we are not inclined to discuss the evidence any further.
A decision of this Court in Mir Mohd. Omar and Other vs State of West Bengal, was relied upon to show that after the examination of the accused under Section 313 of the new Code (corresponding to Section 342 of the old Code) the prosecution should not move the Trial Judge for recalling a witness already examined, but the observation made in that decision has no application to the present case because in that case the said observation was made in a different context by this court while examining the plea of the prosecution in making corrections of the evidence already recorded under Section 272 of the Code and that decision does not deal with the ambit of Section 540 of the Code.
The other contention raised on behalf of the appellant is that the order of the Magistrate rejecting the application of the prosecution under Section 540 is not a revisable order under Section 397(1) as it being an interlocutory order and even if it is not so, the second revision by the same party i.e. Union of India is not entertainable in view of the statutory bar under Section 397(3) of the new Code as the Union of India has already availed the revision under Section 397(2) before the Session Judge.
We may straightaway reject this plea on the simple ground that the prosecution in the present case was launched under the old Code and as such the only provision of the old Code have to be applied as per Section 484 of the new Code.
The fervent plea of the appellant is though the prosecution was instituted under the old Code he should not be denied the benefit and advantage of Section 397(2) and (3) of the new Code.
We are afraid that we could accede to this inexorable request of the appellant for two reasons, namely, that the appellant has not challenged the maintainability of the second revision, filed and heard after the commencement of the new Code before the High Court, claiming advantage of Section 397(3) of the new Code and secondly he participated in the revision proceedings throughout under the old Code.
Having failed in the revision he has no justification to raise this point before this Court, especially when the proceedings under the old Code are saved by Section 484 of the new Code.
As far as the question whether an order under Section 540 of the old Code is an inerlocutory order or a final order, need not be gone into as that question does not arise in these proceedings.
We would like to point out before parting with this judgment that though the High Court by its impugned judgment directed the Union of India to 728 examine the three witnesses, in fact it has allowed all the four revision applications inclusive of the revision application Nos. 124 and 125 of 1978 filed by the State of Gujarat seeking the same prayer as that of the Union of India.
The appellant as we have pointed out in the prefatory portion of this judgment that that part of the judgment of the High Court allowing the two revisions filed by the State Government remains unchallenged.
Further we would like to point out that the High Court in its concluding paragraph of its judgment instead of using the words "I . direct" ought to have used the word "I . . permit".
For all the reasons stated above we hold that the judgment of the High Court does not suffer from any illegality or perversity calling for an interference at the hands of this Court and as such the appeals are liable to be dismissed as devoid of any merit.
However, we direct the Trial Court to afford a fair opportunity to the appellant/accused to cross examine the witnesses sought to be examined by the Union of India and also to lead rebuttal evidence if the appellant so desires.
Accordingly these two appeals are dismissed.
Y.L. Appeals dismissed.

summary/full:
Appellant 's business and residential premises were raided by the Customs Department as a result whereof gold ingots with foreign marks, gold ornaments, silver bricks, coins and a cash of Rs.79,000 was seized.
The Assistant Collector of Customs filed two separate complaints relating to the said incident against the appellant before the Judicial magistrate, one for violating the provisions of and the other under the Gold Control Act, 1968.
In the trial, after the close of evidence by both sides, prosecution as also defence, arguments were advanced on behalf of the accused appellant.
The prosecution at that stage before commencing its arguments filed two applications in both the cases, under Section 540 of the Old Code (corresponding to section 311 of the new Code) requesting the trial court to recall one witness viz., the Seizing officer, and issue summons to two more witnesses for examination either as prosecution witnesses or as court witnesses.
The trial magistrate rejected both the application and the revision petitions preferred by the respondents against that order failed before the Sessions Judge.
The Union of India thereupon preferred two revision applications before the High Court.
The State of Gujarat also preferred separate revision applications before the High Court.
The High Court allowed the revision petitions and directed examination of the three witnesses sought to be summoned.
Being aggrieved the appellant has filed these appeals after obtaining special leave against the decision of the High Court, in the revision applications filed by the Union of India.
No appeal has been filed against the order passed by the High Court in the revision applications filed before it, by the State of Gujarat.
The main contention of the appellant is that the High Court erred in allowing the second revision application in view of the provisions of section 397(3) of the new Code thus permitting the prosecution to fill up the lacuna and plug the loopholes in its case which is prejudicial to the appellant.
713 Dismissing the appeals, this Court, HELD: Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means.
The aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capricicously or arbitrarily.
Due care should be taken by the court while exercising power under this section and it must not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties.
[721B E] Whenever any additional evidence is examined or fresh evidence is admitted against the accused, it is absolutely necessary in the interests of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him.
[725E] The Criminal court has ample power to summon any person as a witness or recall and re examine any such person even if the evidence on both sides is closed and the jurisdiction of the court and must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.
[724C D] The facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court.
[726G] Jamatraj Kewalji Govni vs State of Maharashtra, ; ; Rameshwar Dayal vs State of U.P., ; ; State of West Bengal vs Tulsidas Mundhra, at 207; Masalti vs State of U.P., AIR 1965 S.C.202; Rajeshwar Prasad Misra vs State of West Bengal and Anr.
, ; R.B. Mithani vs 714 Maharashtra, AIR 1971 S.C. 1630; Channu Lal vs R., AIR 1949 All 692; Rengaswami Naicker vs Muruga Naicker, AIR 1954 Mad 169; Shugan Chand vs Emperor, AIR 1925 Lah 531 and The Queen vs Assanoolah, 13 SWR (Crl.) 15, referred to.
Mir Mohd. Omar and Others vs State of West Bengal, , distinguished.


judgement:
ivil Appeal No. 2597 of 1983.
From the Judgment and Order dated the 27th October, 1980 of the Allahabad High Court in Second Appeal No. 567 of 1973.
K.V. Vishwanathan, S.R. Setia, K.V. Venkataraman and C.S. Vaidyanathan for the Appellants.
Yogeshwar Prasad, P.K. Bajaj, Ms. Rachna Gupta, Ms. Rani Chhabra for the Respondents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
This appeal is from the Judgment of the Allahabad High Court dated 27.10.1980 in Second Appeal No. 567 of 1973 allowing the appeal and decreeing the suit of the first respondent for specific performance of contract dated 5.4.1966, wherein it was stipulated that the defendant No. 1 (second respondent) had executed a fictitious sale deed dated 2.9.1966 for Rs.1,000 in favour of defendant No. 2 Kalawati, in respect of half of the suit chak and another sale deed dated 21.12.1966 for Rs.2,000 in favour of defendant No.3 Mithilesh Kumari.
Accordingly the plaintiff (first respondent) prayed for directing the defendants 2 & 3 (appellants herein) to execute the required sale deed in case it was not possible for the court to get it executed by defendant No. 1.
The first respondent Feteh Bahadur sued the second respondent 703 Jang Bahadur and the appellants in O.S. No. 278 of 1970, for specific performance of his contract whereunder the second respondent Jang Bahadur had agreed to sell his chak No. 249 admeasuring 10 bighas, 12 biswas and 10 biswansis to the first respondent of Rs. 5,000 out of which Rs. 4,000 were paid and the balance Rs. 1,000 to be paid within 5 years whereafter second respondent Jang Bahadur was to execute a sale deed in favour of the first respondent Fateh Bahadur.
The Court of Munsif, Fatehpur decrced the suit only for recovery of Rs. 4,850 plus pendent lite and future interest on Rs. 4,000.
Fateh Bahadur 's apeal therefrom having been dismissed by the Civil Judge he preferred second appeal No. 567 of 1973 in the High Court of Judicature at Allahabad, contending that the transfers in favour of defendant NOs.
2 & 3, the appellants herein, by Jang Bahadur were in contravention of the provision of Section 168 A of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act No. 1 of 1951) hereinafter referred to as `the Act ', and thus were void and that the view taken by the lower court that the title of Jang Bahadur came to an end since void transfers were made in favour of appellants Kalawati and Mithlesh Kumari, and thus, Jang Bahadur was no longer the holder of any title which could be conveyed to Fateh Bahadur was erroneous in law.
Reliance was placed on a decision of the High Court in Parmanand vs Board of Revenue, U.P., Allahabad reported in The defendants 2 & 3 who are appellants herein, contended that the two transfers made by Jang Bahadur in their favour were not hit by the provision of Section 168 A of the Act inasmuch as the transfers were of a portion of the shares of Jang Bahadur in the plot in dispute.
It was urged that for a transfer being hit by provision of Section 168 A of the Act the same should be in respect of a specific piece of land and not a share in a holding.
Reliance was placed on a decision of the same High Court in Bibhuti vs Kashi Ram, 1977 AWC 491.
It was not disputed that the area of land transferred under the two sale deeds in favour of appellants Kalawati and Mithlesh Kumari amounted to fragments under the Act.
The High Court considered the question as to whether a transfer which had been made not of the entire share of a holder in a holding but of a fragment would be hit by the provisions of Section 168 A of the Act and took the view that the two transfers made in favour of Kalawati and Mithlesh Kumari were clearly hit by the provisions of Section 168 A of the Act in view of the provisions of sub clause (2) of that section and that the benefit of Kalawati and Mithlesh Kumari only if the sale deeds executed in their favour could be looked into and as those sale deeds were void in the 704 eye of law it would be presumed as if no legal transfer took place in their favour and there being no legal transfer no question of applicability of Section 43 of the Transfer of Property Act arose.
As Jang Bahadur executed the agreement of sale in favour of Fateh Bahadur and as the sale deeds in favour of Kalawati and Mithlesh Kumar were held to have been void, Fateh Bahadur, according to the High Court, was entitled to a decree of specific performance against Kalawati and Mithlesh Kumari on payment of Rs. 1,000 within a period 2 months from the date of receipt of the record in the trial court failing which the court would execute the sale deed in favour of the plaintiff.
The appeal was accordingly allowed and the suit decreed as above.
Mr. K.V. Vishwanathan, the learned counsel for the appellants submits that the sale made by Jang Bahadur to the 2nd appellant Kalawati on 2.9.1966 being hit by the provisions of Section 168 A of the Act the subject matter of transfer i.e. 5 bighas, 6 biswas and 5 biswansis of Plot No. 249 in village Kichakpur got vested in the Government and the interest of Jang Bahadur in that part of the holding stood extinguished on the date of transfer i.e. 2.9.1966; that the sale made to Kalawati being void, Jang Bahadur was left only with 5 bighas, 6 biswas and 5 biswansis in Plot No. 249 of village Kichakpur.
Jang Bahadur having transferred that whole or entire portion to the first appellants Mithlesh Kumari by sale deed dated 21.12.1966 such transfer being a transfer of the whole area of the Bhumidhar it would be covered by the proviso under Section 168 A and as such, the sale would not be hit by the provisions of Section 168 ; that Sections 166, 167,168, 168 A and 189 (aa) form a scheme and if the sale is hit by the provision of 168 A, the result would be that on the date of sale, the interest of the vendor in the subject matter of sale would stand extinguished under Section 189 (aa) and hence 189 (aa) is the provision which extinguishes the right of the vendor in that part of the holding which he contracted to sell in violation of Section 168 A and that the interest of the transferee would stand extinguished under Sections 167 & 168 when the Gaon Sabha or the landholder ejects the transferee from the premises.
According to counsel, harmoniously construing Sections 168 and 189(aa), it would be amply clear that while 189(aa) extinguishes the interest of the vendor on that part of the property which he contracted to sell in violation of 168 A on the date of transfer itself, the interest of the transferee would be extinguished on ejectment from the suit premises; and the High Court erred in directing the appellants to specifically execute the sale deed in favour of the first respondent.
Ms. Rachna Gupta, the learned counsel for the first respondent.
705 submits that as the sale deeds in favour of the two appellants have been held to be void the High Court rightly decreed the suit for specific performance against them on payment of the balance or Rs.1,000 and that he having been in possession of the land and the second respondent 's fragmented sales having been found to be void, even if the land would vest in the State, the first respondent would not be divested automatically and the State has to seek possession in accordance with the law.
The only question that falls for determination is what would be the effect of the two fragmented sales in favour of the appellants.
In other words, whether as a result of the two sales the entire holding of the bhumidhar Jang Bahadur would vest in the State or only the half in the first sale would vest in the State and the remaining half would thereafter constitute the whole in the hand of the bhumidhar Jang Bahadur and the second sale being of the whole of his remnant holding would be valid so as to convey and transfer right to the vendee Mithlesh Kumari.
There is no dispute that the land of 10 bighas, 12 biswas and 10 biswansis was itself a fragment as defined in clause 8(a) of Section 3 of the Act being less than 3.125 acres.
There is also no dispute that the suit land is in a consolidated area and that the appellants were not tenure holders.
It would, therefore, follow that the two halves sold to the appellants were fragments of a fragment.
The Act was passed as it was considered expedient to provide for the abolition of the Zamindari system which involved intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquistion of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
The original Act did not define fragment.
The definition of `fragment ' was added by Section 2 of the U.P. Act XVIII of 1956 with a view to prevent fragmentation and promote consolidation of holdings in order to avoid uneconomic units.
Sections 152 to 175 of the Act dealt with transfer.
Section 152 provided: "The interest of a bhumidhar with tranferable rights shall subject to the conditions hereinafter contained, be transferable.
(2) Except otherwise expressly permitted by this Act or 706 any other law for the time being in force, the interest of a bhumidhar with non transferable rights shall not be transferable.
(3) A bhumidhar referred to in sub section (2) may, in such circumstances as may be prescribed, mortgage, without possessions his interest in his holding, as security for a loan taken from the State Government by way of taqavi, or from a cooperative society or from the State Bank of India, or from any other bank, which is a scheduled bank within the meaning of clause (e) of Section 2 of the , or from the Uttar Pradesh State, Agro Industrial Corporation Limited, and may also transfer by way of gift, the interest in his holding, except the part thereof which has been so mortgaged, to a recognised educational institution for any purpose connected with instructions in agriculture, horticulture and animal husbandry.
" The interests of sirdar or asami were originally not transferable as Section 153 said: "Except as expressly permitted by this Act, the interest of a sirdar and asami shall not be transferable.
" Sections 154 to 170 dealt with transfer of land by bhumidhar.
Section 166 originally provided that any transfer made by or an behalf of a sirdar or asami in contravention of the provisions of that chapter was to be void.
Section 166 has undergone amendments.
The section was substituted by the present section by U.P. Act No. XX of 1982 with effect from 3.6.1981.
The present section says: "Every transfer made in contravention of the provisions of this Act shall be void.
" What was the position in 1966 on the dates of the instant sales has to be known and correctly applied.
Section 167 earlier provided for the consequences of void transfers in the following language: 167.
(1) Where a sirdar or asami has made any transfer in contravention of the provision of this Act, the transferee and every person who may have thus obtained possession of the whole or part of the holding shall be liable to ejectment on the suit of the Gaon Sabha or the landholder, as the case may be.
(2) A decree for ejectment under sub section (1) may direct the ejectment of the sirdar or asami from the whole or part of the holding as the Court may, having regard to 707 the circumstances of the case, direct." This section was also substituted by the same Act No. XX of 1982 with effect from 3.6.1981.
Section 167 now says: "167.(1) the following consequences shall ensue in respect of every transfer which is void by virtue of Section 166, namely (a) the subject matter of transfer shall with effect from the date of transfer, be deemed to have vested in the State Government free from all encumbrances; (b) the trees, crops and wells existing on the land on the date of transfer shall, with effect from the said date, be deemed to have vested in the State Government free from all encumbrances; (c) the transferee may remove other movable property or the materials of any immovable property existing on such land on the date of transfer within such time as may be prescribed.
(2) Where any land or other property has vested in the State Government under sub section (1), it shall be lawful for the Collector to take over possession over such land or other property and to direct that any person occupying such land or property be evicted therefrom.
For the purposes of taking over such possession or evicting such unauthorised occupants, the Collector may use or cause to be used such force as may be necessary.
" The position before the amendment has been shown to us to enable us to apply the relevant law to the facts of the case.
Section 168 which dealt with consequences of ejectment under Section 167 has been omitted by U.P. Act No. VIII of 1977 with effect from 28.1.1977.
What was the provision in 1966 is not clear to us.
We are told that the section stood as follows in 1966: "section 168.
Consequences of ejectment under section 167.
All the rights and interests of the sirdar and asami upon ejectment in a suit under section 167 in the holding (or part thereof) or in any improvement made therein or to get compensation for such improvements shall be extinguished.
" But we have not been shown the enactment.
708 Section 168 A was added by Section 9 of U.P. Act XVIII of 1956, subject to the saving contained in Section 23 thereof.
This section now says: "168 A. Transfer of fragments.
Notwithstanding the provisions of any law for the time being in force, no person shall transfer whether by sale, gift or exchange any fragment situate in a consolidated area except where the transfer is in favour of tenure holder who has a plot contiguous to the fragment or where the transfer is not in favour of any such tenure holder the whole or so much of the plot in which person has bhumidhari rights, which pertains to the fragment is thereby transferred.
(2) The transfer of any land contrary to the provisions of sub section (1) shall be void.
(3) When a bhumidhar has made any transfer in contravention of the provisions of sub section (1) the provisions of Section 167 shall mutatis mutandis apply." Section 168 A has undergone amendment by Section 2 of U.P. Act XXVIII of 1961 when for the words "whole of the plot to which the fragment pertains is hereby transferred", the present words "the whole or so much of the plot in which the person has bhumidhari rights which pertains to the fragment is hereby transferrd" were substituted.
This amendment would not affect the instant case.
Some words between `167 ' and `shall ' were omitted by U.P. Act XIII of 1977, with effect from 28.1.1977.
It may be necessary to know what those were.
Sub section (1) of Section 168 A begins with a non obstante clause and it over rides the provisions of any law for the time being in force.
The expession `no person ' would include the bhumidhar.
The object of the section is to prevent fragmentation of land situated in a consolidated area and transfers that would result in fragmentation or further fragmentation shall be void and to such transfers Section 167 will mutatis mutandis be applicable.
This section comes into play only when a fragment situated in a consolidated area is transferred.
If transfer of a fragment is made in favour of tenure holder who has a plot contiguous to the fragment, the purpose of law is not defeatd inasmuch as it will be consolidated with the contiguous plot of the transferee.
When the land held by a person in a consolidated area is already a fragment then as was provided previous to the amendment in 1961 the whole of the plot to which the fragment pertained was to be 709 transferred.
After the amendment, the invalidity and applicability of Section 167 is limited to a case where the transfer is not in favour of any such tenure holder and to the whole or so much of the plot in which the person has bhumidhari rights which pertains to the fragment is thereby transferred.
If the transferor had bhumidhari rights on the whole of the fragment the whole has to be transferred.
If the person has bhumidhari rights only in a part of the plot that part on which he has bhumidhari rights can be transferred.
The part on which the person has not bhumidhari rights is not covered by the provisions not because that would not result in further fragmentation but because he had transferable bhumidhari rights only on that portion and not on the other portion.
There is no doubt that under sub section (2) transfer of any land countrary to the provisions of sub section (1) shall be void and under sub section (3) the provisions of section 167 shall mutatis mutandis apply.
Section 189 deals with extinction of the interest of a bhumidhar with transferable rights and Section 190 deals with extinction of the interest of a bhumidhar with non transferable rights.
Section 189 earlier provided: "189.
The interest of a bhumidhar in his holding or any part thereof shall be extinguished (a) when he died intestate leaving no heir entitled to inherit in accordance with the provisions of this Act; (b) when the land compromised in the holding has been acquired under any law for the time being in force relating to the acquisition of land, or (c) when he has been deprived of possession and his right to recover possession is barred by limitation" The words "bhumidhar with transferable rights" were substituted in the first sentence by U.P. Act XVIII of 1977 with effect from 28.1.1977.
Clause (aa) was added by Section 50 of U.P. Act XXXVII of 1958, so that the amended section now reads: "189.
Extinction of the interest of a bhumidhar with transferable rights.
The interest of a bhumidhar with transferable rights in his holding or any part thereof shall be extinguished 710 (a) when he dies intestate leaving no heir entitled to inherit in accordance with the provisions of this Act; (aa) when the holding or part thereof has been transferred or let out in contravention of the provisions of this Act; (b) when the land comprised in the holding has been acquired under any law for the time being in force relating to the acquisition of land; or (c) when he has been deprived of possession and this right to recover possession is barred by limitation.
" The substitution of the words "bhumidhar with transferable right" for the word "bhumidhar" would not make any difference when the bhumidhar had transferable rights but would make a difference where the bhumidhar has also lands with non transferable rights.
Thus, under the amended provisions the interest of a bhumidhar with transferable rights in his holding or in part thereof shall be extinguished when the holding or part thereof with bhumidhari rights has been transferred or let out in contravention of the provisions of the Act.
In other words when he had bhumidhari rights on the entire holding and the same is transferred or let out in contravention of the provisions of the Act his interest shall be extinguished.
If he had bhumidhari right only on a part thereof and it has been transferred or let out in contravention of the provisions of the Act his interest in bhumidhari right in that part shall be extinguished.
The reason behind the provisions to make fragmentation is the need to prevent further fragmentation if the bhumidhar with his bhumidhari rights over a fragment tries to transfer the fragment, his right over the fragment is extinguished.
Will the same by the result if instead of transferring the entire fragment he transfers a fragment of a fragment? If only a fragment of a fragment is so transferred would the whole fragment be vested in State? Applying the law to the facts of the case in hand we find that the bhumidhar Jang Bahadur 's land admeasuring 10 bighas, 12 biswas and 10 biswansis was itself admittedly a fragment.
Jang Bahadur entered into an agreement to sell the land on 5.4.1966 and the first respondent Fateh Bahadur on payment of advance of Rs. 4000 is stated to have had possession of the land.
That sale would attract the provisions of Section 168 A if it resulted in transfer of the fragment.
The sales to the appellants.
Kalawati defendant No. 2 was dated 2.9.1966 and to Mith 711 lesh Kumari defendant No. 3 was dated 21.12.1966.
These two sales would be covered by the old provisions of sections 166 and 167, which sections did not deal with the case of bhumidhar but only by sirdar or asami.
But Section 168 A would be attracted and the provisions of Section 167 would mutatis mutandis be applicable.
The High Court did not examine the facts of the case in light of the laws prevailing at the time of the sales.
If the sales were in contravention of the provisions of law so as to entail invalidity of the sale and vesting of the land sold in the State, the question whether in such a case specific performance of the contract would be justified or not would also be germane.
While holding both the sales to the appellants to have been void, the High Court did not take into consideration the exception as to transfer of "the whole or so much of the plot in which the person has bhumidhari rights.
" The High Court also failed to notice and apply clause (aa) of Section 189 which was added by Section 50 of U.P. Act XXXVII of 1958 and was applicable to the case.
Festinatio justitiae est noverea informateeni.
(Hob. 97) Hasty justice is stepmother of misfortune.
Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita judicare vel respondere.
It is unjust to decide or respond to any particular part of a law without examining the whole of the law.
But we are in time constraint.
By consensus with the learned counsel for the parties, we set aside the impugned order and remand this case to the High Court for disposal in accordance with the law applicable to the facts of the case expeditiously.
The appeal is disposed of accordingly.
We leave the parties to bear their own costs.
V.P.R. Appeal disposed of.

dataset_name: IN-Abs

summary/full:
The respondent No. 1 sued the second respondent (defendant No. 1) and the appellants (defendant Nos. 2 and 3) for specific performance of a contract whereunder the second respondent had agreed to sell his lands to the first respondent for Rs. 5,000 out of which Rs.4,000 were paid, and the balance Rs.1,000 was to be paid within 5 years whereafter the second respondent was to execute a sale deed in favour of the first respondent.
The Munsif decreed the suit only for recovery of Rs,4,850 plus pendente lite and future interest on Rs.4,000 and this order was confirmed by the Civil Judge by dismissing the appeal of respondent No.1.
A second appeal was preferred to the High Court by respondent N. 1 contending that the transfers in favour of the appellants, by respondent No. 2 were void being in contravention of Section 168 A of the U.P. Zamindari Abolition and Land Reforms Act, 1950.
The appellants contested the appeal contending that for a transfer being hit by Section 168 A of the Act should be in respect of a specific piece of land and not a share in a holding and that the transfers were of a portion of the shares of respondent No. 1 in the disputed plot.
The High Court allowed the appeal holding that the two transfers made were clearly hit by the provisions of Section 168 A(2) of the Act and that the benefit of Section 43 of the Transfer of property Act could not be availed of by the appellants as the sale deeds were void in the eye of law.
700 The appellant in their appeal to this Court contended that the sale made by respondent No. 2 to the 2nd appellant being hit by the provisions of Section 168 A of the Act, the subject matter of transfer got vested in the Government and the interest of respondent No. 2 in that part of the holding stood extinguished on the date of transfer and that the sale being void, he was left only with the subject matter of transfer, and that the respondent No. 2 having transferred that whole portion to the first appellant by sale deed such transfer being a transfer of the whole area it would be covered by the proviso under Section 168 A and as such, the sale would not be hit by the provisions of Section 168 A.
The first respondent contended that as the sale deeds in favour of the two appellants have been held to be void, the High Court rightly decreed the suit; that he having been in possession of the land and the second respondent 's fragmented sales having been found to be void, even if the land would vest in the State, the first respondent would not be divested automatically and the State has to seek possession in accordance with the law.
On the question as to what would be the effect of the two fragmented sales in favour of the appellants, setting aside the order of the High Court and remanding the matter, this Court, HELD: 1.
The U.P. Zamindari Abolition and Land Reforms Act was passed as it was considered expedient to provide for the abolition of the Zamindari system which involved intermediaries between the tiller of the soil and the State in Uttar Pradesh and for the acquisition of their rights, title and interest and to reform the law relating to land tenure consequent upon such abolition and acquisition and to make provision for other matters connected therewith.
[705E F] 2.
The original Act did not define fragment.
The definition of 'fragment ' was added by Section 2 of the U.P. Act XVIII of 1956 with a view to prevent fragmentation and promote consolidation of holdings in order to avoid uneconomic units.
[705F G] 3.
The object of the section 168 A(1) was to prevent fragmentation of land situated in a conolidated area and transfers that would result in fragmentation or further fragmentation shall be void and to such transfers, Section 167 will mutatis mutandis be applicable, when a fragment situated in a consolidated area is transferred.
If transfer of a fragment is made in favour of tenure holder who has a plot contiguous to the fragment, the purpose of law is not defeated inasmuch as it will be 701 consolidated with the contiguous plot of the transferee.
When the land held by a person in a consolidated area is already a fragment then as was provided previous to the amendment in 1961 the whole of the plot to which the fragment pertained was to be transferred.
[708F 709A] 4.
After the amendment, the invalidity and applicability of Section 167 is limited to a case where the transfer is not in favour of any such tenure holder and to the whole or so much of the plot in which the person has bhumidhar rights which pertains to fragment is thereby transferred.
If the transferor has bhumidhari rights on the whole of the fragment the whole has to be transferred.
If the person has bhumidhari rights only in a part of the plot that part on which he has bhumidhari rights can be transferred.
The part on which the person has not bhumidhari rights is not covered by the provisions not because that would not result in further fragmentation but because he had transferable bhumidhari rights only on that portion and not on the other portion.
[709A C] 5.
The substitution of the words "bhumidhar with transferable rights" for the word "bhumidhar" would not make any difference when the bhumidhar had transferable rights but would make a difference where the bhumidhar had also lands with non transferable rights.
[710C D] 6.
Under the amended provisions the interest of a bhumidhar with transferable rights in his holding or in part thereof shall be extinguished when the holding or part thereof with bhumidhar rights has been transferred or let out in contravention of the provisions of the Act.
In other words, when he had bhumidhar rights on the entire holding and the same is transferred or let out in contravention of the provisions of the Act his interest shall be extinguished.
If he had bhumidhari rights only on a part thereof and it has been transferred or let out in contravention of the provisions of the Act his interest in bhumidhari rights in that part shall be extinguished.
The reason behind the provision to make fragmentation is the need to prevent further fragmentation if the bhumidhar with his bhumidhari rights over a fragment tries to transfer the fragment, his right over the fragment is extinguished.
[710D E] 7.
In the instant case, the bhumidhar respondent No. 2 's land measuring 10 bighas, 12 biswas and 10 biswansis was a fragment.
He entered into an agreement to sell the land on 5.4.1966 and the first respondent on payment of advance of Rs.4,000 is stated to have had possession of the land.
That sale would attract the provisions of Section 702 168 A, if it resulted in transfer of the fragment.
The sales to the appellant No. 1 was dated 2.9.1966 and to appellant No. 2 was dated 21.12.1966.
These two sales would be convered by the old provisions of sections 166 and 167, which section did not deal with the case of bhumidhar but only by sirdar or asami.
But section 168 A would be attracted and the provisions of Section 167 would mutatis mutandis be applicable.
[710G 711B] 8.
The High Court did not examine the facts of the case in light of the laws prevailing at the time.
Festination justiate est noverea informateeni.
Hasty justice is step mother of misfortune.
Injustuim est nisitota lege inspecta, de una aliqua ejus particula proposita judicare vel respondere.
It is unjust to decide or respond to any particular part of a law without examining the whole of the law.
[711B, 711D E]