judgement:
N: Criminal Appeal No. 584 of 1976.
Appeal From the Judgment and order dated the 22nd November, 1976 of the Punjab & Haryana High Court in Criminal Appeal No. 501 of 1973.
Prem Malhotra for the Appellants.
R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by TULZAPURKAR, J.
The three appellants alongwith one Ram Kishan (since acquitted) were tried for offences under sections 302 and 323 read with section 34 I.P.C. as also under sections 218 and 342 I.P.C. before the learned Sessions Judge, Karnal in Sessions Case No. 3 of 1973 but the learned Sessions Judge on an appreciation of the evidence led by the prosecution as well as by the defence acquitted them of all the charges on the ground that the prosecution had failed to prove the offences charged.
The State of Haryana preferred an appeal being Criminal Appeal No. 501 of 1973 to the High Court challenging the said acquittal and the High Court by its judgment and order dated 22nd November, 1976 allowed the State appeal so far as the three appellants before us are concerned, but confirmed the acquittal of Ram Kishan.
The High Court convicted the appellants under section 302 259 read with section 34 I.P.C. and sentenced each of them to suffer imprisonment for life and further convicted the first two appellants (Ram Chander and Chand Ram) under section 218 I.P.C. and sentenced them to suffer rigorous imprisonment for two years each; the substantive sentences were directed to run concurrently.
In other words, so far as the three appellants are concerned, their acquittal has been reversed and the question in this appeal is whether the High Court is right in that behalf.
The prosecution case against the three appellants and Ram Kishan may briefly be stated as follows.
Ram Chander (appellant No 1) had been posted as a Station House officer, Police Station, Sadar Panipat a few days before the occurrence, while appellants Nos 2 and 3 (Chand Ram and Baljeet Singh) and Ram Kishan were working as Assistant Sub Inspector, Head Constable and Constable respectively under him at that Police Station.
According to the prosecution on the evening of September 6, 1972, appellant No. 1 summoned some persons suspected of having committed a theft to the Police Station; Banta (P.W.7) on being summoned through appellant No. 3 held reached the Police Station at about 4/5 p.m. while Vir Singh (P.W.6) and one Sukha Singh were personally brought by appellant No. l to the Police Station at about 7 p.m.; at about 10 p.m. appellants Nos. 2 and 3 and Ram Kishan went to the house of Balwant Singh, the deceased, and proclaimed that Balwant Singh was wanted by the appellant No. I at the Police Station whereupon Joginder Singh (P.W.4) his brother and other members of his family requested that Balwant Singh should not be taken to the police station at that odd hour and that they themselves would produce him before the S.H.O. on the following morning but their request went unheeded and reluctantly Balwant Singh and his servant Harnam Singh (PW5) went with the police party in a tempo driven by Som Nath (P.W.14) to the police station while Joginder Singh (PW4), Amarjeet Singh (P.W.12) another brother of Balwant Singh and two others followed the police party on their bicycles; on the way the police party told them (the witnesses) to go back, but Joginder Singh and his companions did not listen and followed the police party right up to the Police Station.
Joginder Singh (P.W.4) approached appellant No. I and enquired from him about the matter for which the deceased Balwant Singh had been summoned but appellant No. l told him to go back and to make inquiries about the matter on the following morning.
According to the prosecution further, within their sight Balwant Singh deceased and Harnam Singh 260 (P.W.5) were taken in a room of the police station where Moharrir A Head Constable (Balwant Singh PW 15) used to sit, and while Joginder Singh (P.W. 4) and his companions were standing just outside the police station they heard the cries of Balwant Singh deceased who was saying that he was innocent and should not be beaten.
In short, according to the prosecution, Balwant Singh was tortured to death by the three appellants and Ram Kishan while he was in police custody on the night between 6th and 7th September, 1972.
In the morning at about 6.30 (on September 7, 1972) Vir Singh (PW6) who came out of the police station told Joginder Singh (PW4) and his companions, who were still waiting outside the police station, that the three appellants and Ram Kishan had continuously beaten Balwant Singh inside the police station for the whole night and that he was not sure whether Balwant Singh was alive or not and that the appellants were conspiring to some how or other dispose of the dead body.
At the instance of Joginder Singh (PW4), Amarjit Singh (P.W.12) went to the Sub Divisional Magistrate 's Court, Panipat and got an application (exhibit PM) drafted and presented it to the Sub Divisional Magistrate, who marked it to the Station House officer, Sadar Panipat (appellant No. I) for report.
Harnam Kaur (P.W.13) mother of Balwant Singh deceased, after waiting in vain for her sons to come back till 11 a.m. herself went to the police station Panipat and met Joginder Singh (PW4) and others outside the police station and after hearing about the beating of Balwant Singh in the custody of the police station, at the instance of Joginder Singh (PW4), she sent a telegram (exhibit PL) to the Superintendent of Police Karnal to the effect that Station House officer, Sadar Panipat and five constables and Havildar Baljeet Singh raided her house on the previous night and took her son Balwant Singh and servant Harnam Singh (PW5) to the police station, that Balwant Singh had been beaten ruthlessly and taken to an unknown place and that his life was in danger and she prayed for an early action to save the precious life of Balwant Singh.
At about 7 or 7.30 p.m. On September 7, 1972, Joginder Singh (PW4) contacted Dy.
S.P. Iqbal Singh (PW16) and narrated to him all that had happened and Iqbal Singh assured him that justice would be done in the case.
By this time it had become that Balwant Singh had succumbed to the injuries received by him and therefore Joginder Singh requested the Dy.
S.P. to have the autopsy on the dead body done by Chief Medical officer Karnal instead of by the local Medical officer.
261 Meanwhile, as per the direction of the Sub Divisional Magistrate, endorsed on exhibit PM (Amarjit Singh 's application), appellant No. 1 submitted his report (exhibit DE) on September 9, 1972, stating his version as to what had transpired, which substantially became the defence version at the trial.
In his report it was stated that on September 7, 1972 at about 5.30 a.m.
Bhim Singh (D.W.2) reported that at night two thieves entered his residential Kotha for committing theft which he noticed on returning from the field and on finding the thieves there he raised an alarm "thief, thief".
Both the thieves opened an attack on him with lathis which they were carrying but many persons of the village also gathered there carrying lathis; that one of the thieves who was a Sikh succeeded in running away while the other was knocked down by the people who gave him many lathi blows.
Later on he was found to be Balwant Singh; consequently a case under section 458 IPC had been registered at the police station Sadar Panipat on the information given by Bhim Singh (DW2) and that during this operation currency notes worth Rs. 2260/ alongwith one gold ring belonging to Bhim Singh had been stolen; the investigation was still in hand and the search for the second accused was being made.
Appellant No. I denied that Balwant Singh deceased and Harnam Singh (PW5) had been asked to attend the police station.
The appellants also pleaded that they were falsely implicated in this case by the complainant and others who were not merely related to and interested in the deceased but were inimical to them, being people of shady character and were aggrieved by the appellant No. l ' s strict surveillance over their illegal activities.
Appellant No. 1 and Ram Kishan also Raised pleas of alibi suggesting that on the night in question they were not at police station Sadar Panipat but were away on duty elsewhere and examined defence witnesses to support their case.
It may be stated that as desired by the deceased 's relatives the autopsy on the dead body of Balwant Singh was performed by Dr. P.N. Kapila (P.W. l), Chief Medical officer, Karnal on September 8,1972, who noticed as many as 33 external injuries and four internal injuries and opined that the cause of death was shock as a result of multiple injuries which were all ante mortem and were sufficient in the ordinary course of nature to cause death collectively.
It was not disputed that Balwant Singh 's death was homicidal and those responsible for assault on him would be guilty of murder.
Main question was whether the prosecution discharged the onus of proving convincingly that the appellants were involved in such assault ? 262 In view of the aforementioned rival versions put forward by the prosecution and the defence, three main questions arose for determination: (a) whether deceased Balwant Singh was taken to the Police Station Sadar Panipat by the appellants Nos. 2 and 3 and Ram Kishan in the tempo driven by Som Nath (P.W.14) on the night between 6th and 7th September, 1972 ? (b) what transpired at the Police Station, that is to say, whether deceased Balwant Singh was given a beating by the three appellants and Ram Kishan while he was allegedly in their custody ? and (c) whether the appellants particularly appellant No. I created false evidence by preparing documents in connection with the theft said to have been committed in the house of Bhim Singh (DW2) with a view to escape from legal punishment in connection with the murder of Balwant Singh ? on the first two points the prosecution mainly relied upon the evidence of Som Nath(P.W.14),the driver of the tempo, Vir Singh (PW6), Banta Singh (PW7), Harnam Singh (PW5), Joginder Singh (PW4) and Amarjeet Singh (PW12), out of whom Banta Singh and Harnam Singh were said to be 'stamped witnesses ' as they had injuries on .
their persons allegedly suffered by them at the time of causing injuries to deceased Balwant Singh.
On analysing the entire material on record the learned Sessions Judge came to the conclusion that the prosecution story was highly improbable and that the evidence of the aforesaid witnesses was not reliable.
The pleas of alibi were accepted and the defence version of theft at the house of DW Bhim Singh involving deceased Balwant Singh was held to be true.
Leaving aside the defence case, it must be observed that he dealt with the prosecution evidence quite elaborately and gave substantial reasons for rejecting the same.
As regards Som Nath (P.W. 14), aged about 18 years, who is alleged to have brought Harnam Singh and Balwant Singh in his tempo to the Police Station in the company of the police officials, the learned Judge found that though the witness asserted that he was driving the tempo for the last about 5 years, he was not in possession of any licence till the date of his evidence, that it was surprising how he could remember the date 6th of September, 1972 as the date on which he brought Balwant Singh in his tempo to the police station when he could not remember other dates of other occasions when his tempo had been requisitioned by the police and who were the police officials who had travelled in his tempo on those occasions and that his statement had been recorded by the police as late as on 17th September, 1972 though he was shown to have remained in 263 Panipat throughout.
For these reasons the learned Judge was not prepared to accept Som Nath 's evidence and if that be so the very A basis of the prosecution story that deceased Balwant Singh was taken to the police station on the night in question, was kept in custody there and was assaulted by the appellants, would fall to the ground.
As regards the other prosecution witnesses mentioned above, the learned Judge referred to the admitted position that each one of them had past antecedents and history of shady character to his credit and being inimical towards the police attached to Panipat Police Station had shown anxiety to involve the Police officials in the case.
With this background he examined their evidence with great care and caution and came lo the conclusion that none of them was worth relying upon and their evidence hopelessly fell short of connecting any of the appellants with the offences charged.
The learned Judge further pointed out That in exhibit PM dt.
7th September, 1972, the earliest application made by Amarjeet Singh (P.W. 12) to the Sub Divisional Magistrate, the names of appellant No. I (Ram Chander) and Ram Kishan had not been mentioned at all and this fact assumed importance especially when it was immediately after getting information about the assault on Balwant Singh from Vir Singh (PW 6) in the morning at 6.30 a.m.
Amarjit Singh made that application as directed by Joginder Singh (PW 4).
The learned Judge further pointed out that in the telegram exhibit PL sent by Harnam Kaur (PW 13), to the Superintendent of Police, Karnal, it was stated that S.H.O Sadar Panipat alongwith five constables and Hawaldar Baljeet Singh had taken away her son Balwant Singh and servant Harnam Singh to the police station whereas it was never the case of the prosecution that S.H.O. Ram Chander (appellant No. 1) was among those police officials who had gone to the Dera of Balwant Singh.
In view of these facts and the other material on record the learned Judge came to the conclusion that exhibit PG, the regular First Information Report lodged by Joginder Singh as late as on 9th September, 1972 had been got drafted after holding deliberations and consultations in which detailed allegations were made against the appellants mentioning even the sections of the Penal Code.
One more crucial circumstance was referred to by the learned Sessions Judge and that was that Joginder Singh (PW 4), Amarjeet Singh (PW 12) had claimed that they had not allowed the dead body of Balwant Singh to be taken away from the police station and that it was brought out in the morning in the immediate presence of hundreds of persons and if that were so there should have been no dearth of independent persons, who could have been examined for 264 substantiating the prosecution case that at some stage of the other the dead body of Balwant Singh was at the police station but nothing of the kind was done.
What is more, Amarjit Singh (P.W. 12) had stated before the Dy.
S.P. Iqbal Singh (PW 16), with which portion he was confronted, that he had seen the dead body of Balwant Singh for the first time at the morgue.
The learned Sessions Judge, therefore, concluded that there was no satisfactory proof that the deadbody of Balwant Singh had ever remained in the police station of Sadar Panipat either during the night intervening between 6th and 7th September, 1972 or any time subsequently and prior to its post mortem.
As regards the two injured witnesses Banta Singh and Harnam Singh, the learned Sessions Judge pointed out that neither in exhibit PM dt.
7th September 1972 the fact that Banta Singh too had received injuries while at police station was mentioned and further, since Dr. R. section Naiyar, who had examined Banta Singh 's injuries had stated that Banta Singh could have received those injuries within 3 to 7 days of his examination, which was done on 13th September, 1972, it could not be pin pointed with certainty that he had received those injuries during the night of the occurrence.
As regards injuries on Harnam Singh, the learned Judge observed that the possibility of Harnam Singh being the other thief alongwith Balwant Singh during the theft that occurred on the night in question at the house of Bhim Singh (D.W. 2) and he being the thief who had escaped on that occasion with minor injuries at the hands of the villagers could not be ruled out.
It was for this state of evidence and for the reasons indicated above that the learned Sessions Judge acquitted the appellants of the charge of murder.
Consequently, the other charge under section 218 also failed.
When the matter was taken in appeal by the State, we are surprised to find that the High Court reversed the acquittal without dealing with or discussing any of the aforesaid reasons given by the learned Sessions Judge for acquitting the appellants.
The High Court, it appears, was principally influenced by the nature of injuries that were noticed by the doctor on the dead body of Balwant Singh at the time of autopsy and in its view some of the injuries which were on the soles and buttocks of the deceased convinced it that the deceased was given a sound beating while he was in police custody.
This is what the High Court has observed in that behalf: "Injuries Nos.
21 ', 22, 23, 25, 29, 30 and 31 were on the soles and the buttocks of the deceased.
Such injuries 265 are sustained by a person when he is subjected to third degree methods by the police.
The reason is obvious.
Injuries inflicted on the soles, unless given continuously for a longer period, do not leave behind tell tale marks.
This consideration apart, we have to see in the light of the two versions before us the probability of the circumstances under which the injuries were sustained by the deceased; assuming while not admitting, that the deceased did go to commit a burglary at the house of Bhim Singh, D.W. 2, and he was knocked down by his co villagers, it would be wholly improbable on the part of such villagers to aim their blows at the soles of a fallen thief.
They would much rather break the shin bones of the thief instead of particularly aiming their blows at that part of the body where injuries do not leave any mark.
When we asked the learned counsel for the respondents to explain these injuries, the only explanation which he could put forth was that the deceased could have sustained them by jumping on to the ground.
We are unable to accept this explanation because nature has endowed the human sole with more elasticity than which he is required for jumping about.
If a person falls from a height, it is more probably for him to sustain fractures of his ankles and shin bones instead of getting redness on the soles.
Furthermore, the presence of the contusions on both the soles unmistakably points out to the infliction of injuries thereupon with the help of a small rule which the police men usually carry.
We are accordingly convinced that the deceased was given these injuries while he was in custody.
In fact the deceased was brutally basted, his tongue was caught in between the teeth, there was bleeding from the right nostril, mouth and left ear.
There was seminal discharge from the urethra on the posterior surface of the trunk and back of neck.
Human beings possessed with the spirit of the devil alone could have caused.
such injuries.
" The High Court has further gone on to observe that its conclusion mentioned in the above quoted portion was strengthened by the fact that when Chand Ram (appellant No. 2) prepared the inquest report he made a deliberate effort to minimise the number of injuries sustained by the deceased, for, in column No. 10 of the inquest 266 report injuries on S different parts of the body were mentioned A without giving the actual number of injuries in those parts, while according to doctor 's post mortem report there were 33 external injuries.
In our view the High Court was clearly in error in solely relying upon the nature of some of the injuries that were found on the dead body of Balwant Singh for drawing the conclusion that the deceased must have been assaulted by the appellant in custody.
In doing so, the High Court has unfortunately indulged in conjectures and surmises.
In the first place there were only two injuries, namely, injury No. 22 and 23 which could properly be regarded as injuries on the soles of the two feet of the deceased, which may be indicative of the Police using third degree methods but the injuries on the buttocks could not be indicative of user of third degree methods, for, once a thief is caught by villagers for the purpose of giving a sound beating he may as well fall flat on the ground and the villagers could give beating on his buttocks.
Moreover, apart from these injuries on the soles and the buttocks there were other injuries on several other parts of the body, such as fore head, shoulders, neck, arms, legs, knees, scalp, etc.
The impact of these injuries cannot be ignored and these injuries could not be regarded as being necessarily consistent with the assault on the deceased only in police custody.
It is thus not possible to agree with the High Court 's view which has been expressed thus: "Furthermore, the presence of the contusions on both the soles unmistakably points out to the infarction of injuries thereupon with the help of a small rule which the policemen usually carry.
We are accordingly convinced that the deceased was given these injuries while he was in custody.
" The criticism made against appellant No. 2 that he made a deliberate attempt to minimise the injuries sustained by the deceased while writing Col. No. 10 of the inquest report also cannot be accepted.
It is quite possible that he may not have noticed all the injuries or even after noticing them he may not have mentioned in detail all the injuries that were present on the dead body of Balwant Singh at the time of the inquest.
In any event it cannot be forgotten that the appellant No. 2 has broadly indicated 5 parts of the body on which it has been stated several injuries were noticed.
The only fault on the part of appellant No. 2 is that the actual number of injuries were not mentioned but from this alone it will be difficult to impute the motive that he had deliberately done so with a view to minimise the number of injuries sustained by the deceased.
267 Apart from these aspects of the High Court 's reasoning, its duty while dealing with the appeal against acquittal was quite clear it should have dealt with each one of the reasons which prompted the trial Court to record the acquittal and should have pointed out how, if at all, these reasons were wrong or incorrect.
Without undertaking such exercise the High Court could not reverse the acquittal.
We therefore, allow the appeal, set aside the conviction recorded by the High Court and restore the appellants ' acquittal in respect of the charges levelled against them, their bail bonds are cancelled.
H.L C. Appeal allowed.

summary/full:
The appellants were tried along with one other person for offences under sections 302 and 323 read with section 34, I.P.C., as also under sections 218 and 302, I.P.C., on allegations that they had taken one Balwant Singh into custody, tortured him to death and thereafter created false evidence with a view to escape from legal punishment in connection with the murder of Balwant Singh.
The Sessions Judge acquitted all the accused after coming to the conclusion that the prosecution story was highly improbable.
He dealt with the prosecution evidence elaborately and gave substantial reasons for rejecting the same.
In the appeal preferred by the State, the High Court reversed the acquittal and convicted and sentenced the appellants without dealing with or discussing the reasons given by the Sessions Judge for acquitting them.
The High Court was principally influenced by the nature of injuries that had been noticed on the dead body at the time of autopsy.
Based on the injuries found on the soles and buttocks of the deceased the High Court came to the conclusion that the deceased had been given a sound bearing while he was in police custody.
The High Court mentioned that its conclusion had been strengthened by the fact that appellant No. 2 had, while preparing the inquest report, made a deliberate effort to minimise the number of injuries sustained by the deceased inasmuch as in column No. 10 thereof, injuries on file different parts of the body had been mentioned without giving the actual number of injuries in those parts, while according to the doctor 's post mortem report there were 33 external injuries.
Allowing the appeal, ^ HELD: The duty of the High Court while dealing with the appeal against acquittal was quite clear.
It should have dealt with each one of the reasons which prompted the trial court to record the acquittal and should have pointed out how, if at all, those reasons were wrong or incorrect.
Without undertaking such exercise the High Court could not reverse the acquittal.
[267 A B] The High Court was clearly in error in solely relying upon the nature of some of the injuries for drawing the conclusion that the deceased must have 258 been assaulted by the appellant in custody.
In doing so, the High Court indulged in conjectures and surmises.
There were only two injuries which could properly be regarded as injuries on the soles of the two feet of the deceased which may be indicative of the police using third degree methods but the injuries on the buttocks could not be indicative of user of third degree methods.
Apart from injuries on the soles and the buttocks, there were other injuries on several other parts of the body which could not be regarded as being necessarily consistent with the assault on the deceased only in police custody.
The criticism made against appellant No. 2 that he made deliberate attempt to minimise the injuries sustained by the deceased while writing column No. 10 of the inquest report also cannot be accepted.
rt is quite possible that he may not have noticed all the injuries or, even after noticing them, he may not have mentioned in detail all the injuries that were present on the dead body at the time of the inquest.
In any event it cannot be forgotten that he has broadly indicated five parts of the body on which it has been stated several injuries were noticed.
His only fault is that the actual number of injuries were not mentioned but from this alone it will be difficult to impute the motive that he had deliberately done so with a view to minimise the number of injuries sustained by the deceased.
[266 B H]


judgement:
Civil Appeal No. 5992 of 1983 Appeal from the Judgment and order dated the 7th December, 1982 of the Kerala High Court in Election Petition No. 8 of 1982 M.M. Abdul Khader and E.M.S. Anam for the Appellant.
P. Govinden Nair and N. Sudhakaran for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal under Section 116A of the Representation of People Act, 1951 (hereinafter referred to as 'the Act ') is directed against the decision of the Kerala High Court dismissing the election petition of the appellant whereby he challenged the election of respondent No. 1 as a member of the Kerala Legislative Assembly from Constituency No. 125 Eravipuram in the Quilon district of that State.
Election was held on 19.5.82 and the result was declared on the following day.
There were eight candidates in all but the main contest was between the appellant and the respondent No. 1.
The appellant polled 37, 073 while respondent No. 1 polled 37, 862.
There was, therefore, an excess of 789 votes.
All the remaining candidates together polled about 2,000 votes.
164 Challenge to the election was laid on two grounds: namely, commission of corrupt practices within the meaning of sub sections 2, 4 and 7 of Section 123 of the Act and several irregularities in the course of counting leading to wrong conclusion regarding the result.
The returned candidate joined issue and denied these allegations.
The learned Election Judge in the High Court came to hold that the appellant had failed to bring home the charges of corrupt practices.
He also did not accept the plea of irregularities in counting of ballot papers.
A request made to him for recount was rejected and on these conclusions he held that the election petition was liable to be dismissed.
Appellant 's counsel conceded that the allegations of corrupt practices covered by sub section 2 of Section 123 of the Act would not be pressed.
He also fairly accepted the position that the evidence relating to obtaining or procuring of assistance for the furtherance of the prospects of respondent No. 1 's election from government servants was inadequate as found by the High Court.
Two grounds were, therefore, pressed in support of the appeal, namely, the allegations of corrupt practice within the Section 123(4) of the Act and the allegations of irregularities in the matter of counting of ballot papers.
Section 123(4) provides: "123.
The following shall be deemed to be corrupt practices for the purposes of this Act: (4) The publication by a candidate or his agent or by any other person (with the consent of a candidate or his election agent), of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or withdrawal, of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidates election.
" Admittedly Azeez was the election agent of respondent No. 1.
In paragraphs 4 to 8 of the election petition, it had been alleged that election agent Azeez published a statement dated 13.5.82 in the form of a hand bill making false but serious allegations against the appellant touching his personal character and conduct.
It was alleged that the appellant had caused the murder of one Omana, a 165 lady worker supporting the respondent No. 1 because she refused to support his campaign.
A meeting was held on 14.5.82 at a place known Tatamala Junction to condemn and condole the said death.
It was represented that the death was caused on the ground that the said helpless lady was not prepared to work for him.
Azeez along with other election workers carried wide scale propaganda with loud speakers.
At the said meeting there were many speakers including Azeez and the respondent No. 1 who spoke in the same strain as the contents of the hand bill.
This was done with a view to affecting the prospects of the appellant 's election.
Similar propaganda was said to have been made by them until canvassing stopped.
The respondent No.1 denied these allegations in the written statement.
According to the appellant the corrupt practices within the meaning of Section 123(4) of the Act related to distribution of the hand bill in question, namely, at two places being Mayyanana.
and Thrikkovil Battom areas and the speeches were made at the public meeting held at Tatamala Junction.
Exhibit P 1 is a copy of the hand bill.
No steps were taken to summon the original documents from the press where the hand bill is said to have been got printed by Azeez, though the name of the press was borne on the hand bill.
Soon after the hand bill came to be circulated a denial was published by the press to the effect that no such bill was printed and/or published by the press Admittedly the relevant materials if called from the press would have been the best evidence to provide the link between the publication of the objectionable material and the election agent of the respondent No. 1.
When we made a query from counsel for the appellant as to why such steps were not taken and the primary evidence was kept away from the Court, learned counsel indicated to us that the press had come out with a denial closely following the circulation and it was not likely that the press would have caused production of the document.
Since the name of the press was given in the document and appellant proceeded on the footing that the document was printed in the said press, if the press did not comply with the summons, production could have been enforced by law.
Want of proper steps at the right time and negligence or willful default at the trial cannot be answered in the manner appellant 's counsel has contended before us and we must draw adverse inference against the appellant for non production of the relevant material.
Reliance was also placed on a report by P.W.4, a police officer where there was mention of such propaganda being carried on with reference to the death of the 166 lady.
The report did not indicate the source but only stated that the police officer collected the information from the gossips in the locality.
Such a report as rightly held by the High Court was not admissible and it was hearsay of a type to which no credence could attach.
Though counsel was very vehement to press this document into service he was not in a position to cite any legal basis for doing so.
Apart from these two documents which we hold had been rightly ruled out, the other evidence is oral in character and P.Ws. 7, 8,11 and 12 are the witnesses who have been spoken about it.
Admittedly all these witnesses were the workers of the appellant.
There is over whelming material on the record, and even counsel fairly admitted, that the election was fought on party basis and there was sharp division of the electorate on the basis of political parties.
That being the position, workers at the election with party alignment would necessarily be political supporters of the respective candidates and when called as witnesses they would support their stand.
Instances are not uncommon where such witnesses support their respective candidates and their cases even though the same be far from truth.
In such circumstances we do not think on the oral testimony of these four witnesses the charge of publication of objectionable materials can be said to have been established.
Admittedly the meeting at Tatamala Junction was held on the 14.5.82 towards the evening.
It is the case of the appellant that at this meeting the respondent No. 1, his election agent Azeez and several other supporters spoke.
Each one of them referred to the appellant as the person responsible for the murder of the lady.
There is no dispute before us that the picture drawn up as the appellant as the murderer of the lady would very much tarnish his image, personality and character and would have adversely affected the prospects of his winning the election is widely circulated in the constituency before polling.
Three witness as have been examined being P.Ws. 2, 6 and 9 in respect of the Tatamala meeting.
P.W. 2 was the Circle Inspector of Police of the area and stated that he had attended the meeting.
Though the meeting started at 7 p.m. he went to the meeting place at about 9 p.m. and remained there for about an hour.
Thus at about 10 p.m. he left the place but the meeting was still continuing.
He referred to the speech by Azeez but did not indicate as to what exactly he spoke.
In cross examination he admitted that though he maintained a diary, the details of the meeting were not available and he did not report about the meeting to his superior officers.
This evidence does not lend any support to the case sought to be made out by the appellant.
P.W. 6 was a printer and publisher of 167 the newspaper by name Pauramitram.
His evidence is that he was also working as reporter of the paper and had gone to the meeting in such capacity.
On the basis of his jottings he gave a news item which was published in the paper marked Exhibit P 3.
He claims to have left the meeting place at 9.30 p.m. but the meeting was still continuing.
The news item as reported does indicate what Azeez spoke.
The witness also deposed on oath about the speech of Azeez.
The High Court refused to place any reliance on this witness mainly on account of the fact that this paper was not an established newspaper of the area and did not have regular publication.
On the basis of the evidence of R.W. 1 the information officer at the state headquarters, the High Court came to doubt the bona fide of P.W.6 as also his paper.
We have also perused the evidence of P.W.6 and R.W.1 and the observations of the High Court in regard to this aspect.
We are inclined to agree with the High Court that the evidence of the witness is not impressive and we hold the same was rightly rejected by the High Court which had occasion to see him.
The only other witness who has been examined in regard to the meeting is P.W.9.
a person who claims to be independent and unconnected with the lis.
P.W.9 on his own showing had gone to see his father suffering from a heart attack.
He came from a place about 20 kilometres away.
According to him he left father 's place by around 10.30 p.m.
If that be so and he was covering a distance of about 20 kilometres, he would not have reached the meeting place before 11 p.m. when the meeting is said to have concluded.
His evidence that he stayed at the meeting place to listen to the speeches for quite sometime has therefore, to be ruled out as inconsistent with the other evidence.
His evidence too has been rightly rejected by the High Court.
There is total consensus of judicial opinion that a charge of corrupt practice under the Act has to be proved beyond reasonable doubt and standard of proof is the same as in a criminal case.
See Mahant Shree Nath vs Choudhry Ranbir Singh.
This proposition has even not been disputed by counsel for the appellant.
We, therefore, do not propose to refer to the catena of decisions affirming the aforesaid view.
The High Court applied the right standard in the matter of appreciation of the material placed before it and has come to hold that the allegations of corrupt practice within the meaning of Section 123(4) of the Act has not been proved.
In such a situa 168 tion as pointed out by this Court in the case of Boddepalli Rajagopala Rao vs N.G. Ranga, this Court would not reappreciate the evidence.
Shah, J. as he then was observed thus: "The finding of the learned Trial Judge is based upon appreciation of evidence of the witnesses in the light of probabilities.
A charge of corrupt practice under the Representation of the People Act must be established by clear and cogent evidence.
When the Court of First Instance on a consideration of the evidence of the witnesses has refused to place any reliance upon their testimony the burden lying upon the party setting up a plea of corrupt practice becomes no lighter in appeal.
The charge cannot be held established merely upon suspicion, or preponderance of probabilities.
Unless the appellant establishes that the appreciation of evidence was vitiated by gross misreading or misconception of the evidence or because of failure to consider important pieces of evidence which had a bearing on the charge or because of serious irregularities in procedure which amount to a denial of a fair trial the appellate court will not proceed to reappreciate the evidence on which the findings are recorded by the Court of First Instance on the credibility of witnesses.
" We are in complete agreement with these observations.
Our conclusion, therefore, is that the High Court rightly negatived the challenge to the election of respondent No. 1 on grounds of corrupt practices.
The only other contention canvassed at the hearing is about the irregularities in the counting.
The total rejected ballot papers were within the range of 500 while the difference between the appellant and the respondent No. 1 was about 800.
The details necessary for obtaining a recount were not pleaded in the election petition nor was any cogent material placed before the Court which could bring the matter within the rule indicated by this Court to justify a direction for recount.
That plea, in our opinion, has rightly been negatived by the High Court.
The appeal fails and is dismissed.
Parties shall bear their own costs in this Court.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
In the election held on 19.5.1982 for the election of a member of the Kerala Legislative Assembly from constituency No. 125 Eravipuram in the Quilon District of that State, there were eight candidates in all but the main contest was between the appellant and the respondent No. 1.
The appellant polled 37,073 while the respondent polled 37,862.
There was therefore an excess of 789 votes.
As per the result declared on 20.5.1982, the respondent was declared elected.
The appellant therefore, filed an election petition in the Kerala High Court alleging commission of corrupt practices within the meaning of sub sections 2, 4, and 7 of Section 123 of the Act and several irregularities in the course of counting leading to wrong conclusion regarding the result.
In paragraphs 4 to 8 of the election petition it had been alleged that election agent Azeez published a statement dated 13.5.1982 in the form of a hand bill making false but serious allegations against the appellant touching his personal character and conduct.
It was alleged that the appellant had caused the murder of one Omana, a lady worker supporting Respondent No. 1 because she refused to work for the appellant.
The oral evidence to this effect by PWs 7, 8,11 and 12 who were the workers of the appellants and the plea for nonsummoning the printer with the documents printed by him were not believed by the Election Judge.
The election petition having been dismissed, the petitioner has come in appeal.
Dismissing the appeal, the Court ^ HELD: 1:1.
The High Court rightly negatived the challenge to the election of respondent No. 1 on grounds of corrupt practice.
[168E] 1: 2.
There is a total consensus of judicial opinion that a charge of corrupt practice under the Representation of People Act, 1951 has to be proved beyond reasonable doubt and the standard of proof is the same as in a criminal case.
When the High Court applied the right standard in the matter of appreciation of the material placed before it and has come to hold that the allegations of corrupt practice within the meaning of section 123(4) of the Act has not been proved, the Supreme Court would not re appreciate the evidence.
[167F H, 168A] 163 Mahant Shreenath vs Choudhry Ranbir Singh ; Boddepalli Rajagopala Rao vs N.G. Ranga, A.I.R. ; applied.
Want of proper steps at the right time and negligence or willful default at the trial to cause the summons and production of a document must only lead the Court to draw an adverse inference regarding non production of the relevant material.
[165G H] 1: 4.
Any report of a police officer which indicates that the information was gathered from the gossips in the locality is not admissible and it is hearsay of a type to which no credence could attach.
[166A B] 1: 5.
When an election was fought on party basis and there was sharp division of the electorate on the basis of political parties, workers at the election with party alignment would necessarily be political supporter of the respective candidates and when called as witnesses they would support their stand.
Instances are not uncommon where such witnesses support their respective candidates and their cases even though the same may be far from truth.
In such circumstances on the oral testimony of PWs 7, 8, 11 and 12 who are admittedly workers of the appellant the change of publication of objectionable materials can not be said to have been established.
[166B D]


judgement:
Civil Appeal No. 3338 of 1979 From the Judgment and order dated 22 and 23 11 78 of Gujarat High Court in Spl.
Civil Application No. 577 of 1978.
Anil B. Divan, Ravinder Narain and Ms. Rainu Walia for the appellants.
M. M. Abdul Khader, G. section Narayan and A. Subhashini for the respondents.
The Judgment of the Court Was delivered by VENKATARAMIAH, J.
This appeal by special leave is filed against the judgment and order dated November 22/23, 1978 of the High Court of Gujarat in Special Civil Application No. 577 of 1978 filed under Article 226 of the Constitution.
Appellant No. I is a company which is engaged in the business of manufacturing different types of glass viz. figured glass wired glass, coloured figured glass, rolled glass and coolex wired glass at Vallabh Vidyanagar in the State of Gujarat from the year 1963.
Appellant No. 2 is the Managing Director of appellant No. t.
The Central Excise Department had levied and collected excise duty 183 On the said goods on the basis that they belonged to the category of sheet glass and were therefore subject to payment of excise duty under Item 23A (1) of the First Schedule to the (hereinafter referred to as 'the Act ').
On February 20, 1976, the appellants applied for the refund of excess duty paid by them from October 1, 1963 upto the date of the application on the ground that the item of glass in question were distinct commercial goods known in the market as figured glass, wired glass, coloured figured glass, rolled glass, coolex figured glass and coolex wired glass and could not be described in common parlance as 'sheet glass ' mentioned in Item 23A and that since they did not fall under any of the Items 1 to 67 in the First Schedule to the Act they could only be subjected to levy of excise duty under the residuary provision Item 68 in that Schedule after it was inserted in it.
Item 23A of the First Schedule to the Act at all material times read as. "23A. Glass and glassware (1) Sheet glass and plate Thirty per cent ad glass valorem (2) Laboratory glassware Ten per cent ad valorem (3) Glass shells, glass Fifteen per cent ad globes and chimneys valorem for lamps and lanterns (4) other glassware inclu Thirty per cent ad ding tableware valorem.
" The relevant part of tariff Item 68 which was introduced from March 1, 1975 read as: .
All other goods not one per cent ad elsewhere specified, valorem manufactured in a factory but excluding (a) alcohol, all sorts, including alcoholic liquors for human consumption.
184 (b) opium, Indian hemp and other narcotic drugs and narcotics; and (c) dutiable goods as defined in sections 2(c) of the Medici nal and Toilet Preparations (Excise Duties) Act, 1955." After holding an enquiry and hearing the appellants, the Assistant Collector of Central Excise, Anand rejected the claim for refund by his order dated September 20, 1976 because he was of the view that the items of goods in respect of which dispute had been raised fell within the purview of tariff Item 23A (1).
Against the said order of the Assistant Collector the appellants filed a writ petition in Special Civil Application No. 1365 of 1976.
On the file of the High Court on September 28, 1976.
The said petition was admitted but when it was taken up for Final hearing it was contended on behalf of the Department that since the appellants had also filed an appeal against the very same order before the Collector of Central Excise they could not pursue the remedy under Article 226 of the Constitution as it stood then.
In view of the above contention the writ petition was withdrawn without prejudice to the remedy by way of appeal.
The appeal was thereafter disposed of by the Collector on July 27, 1977 affirming the order of.
the Assistant Collector.
A revision petition filed by the appellants against the order of the Collector was dismissed by the Government of India by its order dated February 2, 1978.
The said order in revision was challenged before tile High Court by the appellants under Article 226 of the Constitution.
The High Court by its judgment under appeal reversed the decision of the departmental authorities which had, been affirmed by the Central Government and held that the items of glass manufactured by the appellants namely, figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass did not .
fall within the scope of tariff Item 23A(1) of the First Schedule to the Act as it stood at the material time but they came within tariff Item 68 and were liable to bear duty accordingly.
The High Court was, however, of the view that the appellants were only entitled to refund of excess duty paid by them after February 20, 185 1976 on which date they raised the dispute.
Accordingly the High A Court issued a writ quashing the decision of the Department in so far as the classification of the goods was concerned and declaring that they were subject to payment of duty under tariff Item 68 of the First Schedule to the Act aud not under tariff Item 23A(1) thereof.
The Department was further directed to review the relevant assessments accordingly for the period subsequent to February 20, 1976 and to refund any excess duty that might after such review be found to be refundable to the appellants.
The claim of the appellants for refund of excess duty paid during the period prior to February 20, 1976 was, however, rejected.
The appellants have filed this appeal by special leave only as regards the rejection by the High Court of their prayer for refund of excess duty paid by them prior to February 20, 1976.
The Department has not filed any appeal against the judgment of the High Court.
Hence the decision that the goods were taxable under tariff Item 68 and not under tariff Item 23A(1) of the First Schedule to the Act has become final.
Item 23A(1) is also stated to have been since amended suitably so as to bring the items of glass in dispute within its scope.
The question which arise for consideration in this appeal are therefore (I) whether the appellants are entitled to claim refund of excess excise duty which had been paid by them prior of February 20, 1976 and if so, whether they are entitled to claim refund of such duty paid between October l, ;963 and February 20,1976 or during any shorter period and (2) whether the appellants are entitled to claim such refund in respect of all the goods in question.
F Since it is convenient to dispose of the second question at this stage, we shall take it up first.
A few more facts which are relevant to this issue have to be stated here.
As mentioned earlier the goods in respect of which dispute had been raised by the appellants in their application dated February 20, 1976 were figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass.
But it is seen that in respect of wired glass, a dispute had arisen between the Department and the appellants earlier and in that case while the Department claimed that wired glass was subject to payment of duty under tariff Item 23A(4) the appellants pleaded that wired glass was liable to duty under tariff Item 23A(1).
The Government of India ultimately by its order dated August 24, 1971 (in order No. 261 of 1971 of the Government of India on 186 Central Excise Revision Application accepted the case of the appellants that wired glass was subject to duty wader tariff Item 23A (1) and the appellants paid duty on that basis till February 20, 1976.
These facts distinguish the case in respect of wired glass from the case in respect of the other goods While the said earlier order may not be a legal bar to the contention raised by the appellants on February 20, 1976 that wired glass was not taxable under tariff Item 23A(1) but under tariff Item 68 after that date, it is certainly a circumstance which disentitles the appellants to claim refund of excess duty paid by them in a petition under Article 226 of the Constitution on a ground contrary to their earlier stand.
The claim for refund of excess duty paid on wired glass during the period prior to February 20, 1976 is liable to be rejected.
The appeal of the appellants to that extent should, therefore, fall.
In regard to the relief of refund of excess duty paid in respect of the other goods, the case stands on an entirely different footing.
This is a case where the Department had assessed the duty payable by the appellants under a wrong provision.
The appellants were obliged to pay the duty so assessed.
They did not, no doubt, question the assessments by taking a specific stand as they had done earlier in the case of wired glass.
The appellants, however, questioned the validity of the levy only on February 20, 1976 on the ground that tariff Item 23A (1) of the First Schedule to the Act under which the duty has been levied was not applicable to tile goods.
While the Department refused to accept the said plea, the High Court has upheld it.
In view of the decision of the High Court, the fact that the appellant had paid duty in excess of what they were bound in P law to pay should be now taken as having been established.
It is.
not disputed that if the appellants had filed a suit within the period of limitation the excess amount would have become refundable by virtue of section 72 of the .
Section 17(1)(c) of the provides that where in the case of any suit or application for which a period of limitation is prescribed under that Act, the suit or application is for relief from the consequence of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant had discovered it or could have with reasonable diligence discovered it.
In the instant case the date on which the mistake was discovered by the appellants or the date on which the appellants could with reasonable diligence have discovered it is not clear from the record before us.
No efforts also was made in the course of the arguments urged on behalf of the appellants to establish it.
We have, therefore, to assume that on the date 187 each payment of excise duty made by the appellants in excess of the proper duty payable by them, the appellants could have discovered with due diligence that the duty claimed from them was excessive.
Under Article 113 of the which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department.
But the appellants instead of filing a suit, first filed a writ petition in Special Civil Application No. 1365 of 1976 on September 28, 1976 and that petition had to be withdrawn in view of clause (3) of Article 226 of the Constitution as it stood then because the alternative remedy by way of an appeal was available.
The appellants could, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier.
lt is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by the Government without the authority of law under Article 226 of the Constitution.
This is an alternative remedy provided by the Constitution in additional to but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit either expressly or by necessary implication.
While there are different periods of limitation prescribed for the institution of different kinds of suits by the limitation Act, 1963, there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution.
Whether relief should be granted to a .
petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches.
Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, i. is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable.
This rule, however, cannot be a rigid formula.
There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution.
There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit.
Each case has to judged on its own facts and circumstance touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc.
In the instant case, the appellants 188 had in fact approached the High Court on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for directing repayment of the excess duty paid by them.
But no relief could be granted in that petition in view of the provisions of Article 226 of the Constitution as it stood then and the petition had to be withdrawn.
Hence even granting that on the date of making each payment of excise duty in excess of the proper duty payable under law, the appellants should be deemed to have discovered the mistake, all such excess payments made on and after September 28, 1973 which would fall within the period of three years prior to the date on which Special Civil Application No. 1365 of 1976 was filed should have been ordered to be refunded under Article 226 of the Constitution.
But the High Court declined to do so on grounds of estoppel and acquiescence.
While we do agree that the appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973.
In the instant case the appellants had made excess payments on being assessed by the Department and such payments cannot be treated as voluntary payments precluding them from recovering them.
(See Sales Tax officer, Banaras & Ors.
vs Kanhaiya Lal Mukundlal Saraf.
We do not also find that the conduct of the appellants is of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass.
We, therefore, modify the judgment and order passed by the High Court by quashing the assessments of excise duty made in respect of the goods in question other than wired glass viz. figured glass, coloured figured glass, rolled glass and coolex wired glass for the period between September 28, 1973 and February 20, 1976 also and directing the assessing authority to make a fresh assessment in accordance with law in the light of the decision of the High Court.
a The respondents are further directed to refund after such fresh determination any excess duty that may be found to have been paid by the appellants.
The fresh assessments shall be completed 189 within four months from today.
The appeal is, however, dismissed in A so far it relates to the claim for refund of excess duty paid in respect of wired glass during that period.
The appeal is accordingly allowed in part.
No costs.
N.V.K. Appeal partly allowed.

summary/full:
Appellant No. 1 was a company engaged in the business of manufacturing different types of glass, viz., figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass.
The Central Excise Department had levied and collected excise duty on the said goods on the basis that they belonged to the category of 'sheet glass ' and were therefore subject to payment of excise duty under Item 23A(1) of the First Schedule to the Central Excise and Salt Act, 1944.
On February 20, 1976, the appellants applied for the refund of excess duty paid by them from October 1, 1963 upto the date of the application on the ground that the items of glass in question could not be described as 'sheet glass ' mentioned in Item 23A and that since they did not fall under any of the Items ] to 67 in the First Schedule of the Act they could only be subjected to levy of excise duty under the residuary provision, Item 68.
The Assistant Collector of Central Excise rejected the claim for refund and the appellants there upon filed a Writ petition in the High Court on September 28, 1976, but the same was withdrawn as a Departmental Appeal filed by the appellants was pending with the Collector.
The said Departmental Appeal was however later dismissed and this order was confirmed in the appellants ' revision petition to the Government.
The appellants thereupon filed a Writ Petition in the High Court and assailed the order.
The High Court reversed the decision of the departmental authorities and held that the items of glass manufactured by the appellants did not fall within the scope of tariff Item 23A(I) of the First Schedule but that they came within tariff Item 68 thereof, liable to duty accordingly, and directed refund of excess duty paid after February 20, 1976, on which date the dispute was raised.
The claim for refund of excess 'duty paid during the period prior to February 20, 1976 was, however, rejected.
In the appeal to this Court on the question: (I) whether the appellants are resettled to claim refund of excess excise duty paid prior to February 20, 181 1976 and whether they are entitled to claim refund of such duty paid between A October 1, 1963 and February 20, 1976 or during any shorter period, and (2) whether the appellants are entitled to claim such refund in respect of all the goods.
Allowing the appeal in part. ^ HELD: 1.
(i) The excess amount paid by the appellants would have become refundable by virtue of section 72 of the if the appellants had filed a Suit within the period of limitation.
Section 1 1(1)(c) of the provides that where in the case of any suit or application for which a period of limitation is prescribed under that Act, the suit or application is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff or applicant had discovered it or could have with reasonable diligence discovered it.
[186F G] (ii) Under Article 113 of the a suit for recovery of excess duty had to be filed within three years from the date of payment to the Department.
[187B] (iii) The High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights to make consequential orders for repayment of money realised by Government without the authority of law under Article 226 of the Constitution.
This is an alternative remedy provided by the Constitution in addition to, but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit expressly or by necessary implication.
While there are different periods of limitation prescribed for the institution of different kinds of suits by the , there is no such period prescribed by law in respect of petitions filed under Article 226 of the Constitution.
Whether relief should be granted to a petitioner under Article 226 where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches.
Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226, it is appropriate ordinarily to construe that any unexplained delay in filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable.
This rule.
however, cannot be a rigid formula.
Each case has to be judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public.
[187D H] In the instant case, the appellant had made excess payment on being assessed by the Department and such payment cannot be treated as voluntary payment precluding them from recovering the amounts.
The appellants should in the facts and circumstances of this case be deemed to have discovered the mistake on the date of making each payment of excise duty in excess of the proper duty payable under law.
All such excess payments made on or after September 28, 1973 which would fall within the period of three years prior to the date on which the first writ petition was filed should have been ordered to be refunded under Article 226 But the High Court declined to do so.
Though 182 the appellant should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond the three years from the date of the first writ petition, it is not proper and just to negative the claim in respect of excess payments made after September 28, 1973.
Sales Tax officer, Banaras & Ors.
vs Kanhaiya Lal Mukundlal Saraf, , referred to.
In respect of wired glass, a dispute has arisen between the Department and the appellants earlier and in that case while the Department claimed that wired glass was subject to payment of duty under tariff Item 23A(4) the appellants pleaded that wired glass was liable to duty under tariff Item 23A(1).
The Government of India ultimately accepted the case of the appellants, .
and duty was paid on that basis till February 20, 1976.
While the earlier order may not be a legal bar to the contention raised by the appellants on February 20, 1976 that wired glass was not taxable under tariff Item 23A(l) but under tariff Item 68 after that date, it is certainly a circumstance which disentitles the appellants to claim refund of excess duty paid by them in a petition under Article 226.
The claim for refund of excess duty paid on wired glass during the period prior to February 20, 1976 is therefore liable to rejected.
[185G 186C]


judgement:
Civil Appeal No. 108 of 1984.
From the Judgment and order dated 4.3.83 of the Patna High Court in C.W.J.C. No. 3490 of 1979.
M. K. Rangamurthi and A.Sharan for the Appellant S.N. Singh for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The workman is in appeal after obtaining leave under Article 136 of the Constitution from this Court.
The appellant was working as librarian under the respondent employer.
His services were terminated on May 24, 1977, on payment of a month 's salary.
The appellant laid a complaint before the Industrial Tribunal under section 33A of the (hereinafter referred to as 'the Act ') and the Tribunal Came to find on hearing parties that though the charge of misconduct 225 within the meaning of clause 16(iii) (a) of the Standing orders had been established, punishment of termination of service was not warranted.
Accordingly, reinstatement was ordered.
The direction of the Tribunal ran thus: "Considering the facts and circumstances of the case and evidences on record I direct the opposite party (employer to reinstate the complainant (appellant) with half of his back wages and other benefits from the date of termination of his service (24.
section l 977) within one month from the date of pronouncement of this award.
" The employer applied to the High Court under Article 227 of the Constitution to quash the direction of reinstatement and in support of the stand it was contended that as the Tribunal had found misconduct on the part of the workman, it was obligatory for the Tribunal to impose some punishment which it had failed to do.
The employer also took the position that there was loss of confidence , and reinstatement was not appropriate.
The appellant maintained that though under the law he was entitled to full back wages upon , reinstatement, the Tribunal had directed withholding a moiety of it in view of its finding that misconduct had been established.
The High Court come to hold that withholding of SO per cent of the back wages was a condition of reinstatement and was not by way of punishment.
The High Court observed: "The two powers under section IIA are alternative; the first is to direct reinstatement of the workman on such terms r and conditions as it thinks fit and the second is to give some other relief to the workman including the award of any lesser .
P punishment in lieu of reinstatement as the circumstances of this case may require.
Under the second alternative, the Tribunal may instead of directing reinstatement give the relief of compensation to the workman or award a lesser punishment.
It was for the Tribunal, therefore, to decide " .
as to which of the two alternatives it should adopt.
But the .
Tribunal is always bound to exercise its discretion judicially and decide to adopt either the first course to direct reinstatement on such terms rand conditions as it thinks fit or the .
second course to award a lesser punishment in lieu of reinstatement as the circumstances of the case may require.
The order of reinstatement with half back wages is an order of the first category and not of the second category.
The 226 payment of only half of the back wages is a condition of the reinstatement and not a punishment for the misconduct of the workman.
" The High Court then came to the conclusion that the order of reinstatement was not called for and proceeded to indicate: "The question now is should the award be set aside and the case be remitted back to the Tribunal for a fresh determination of the matter in accordance with law or should the proceeding be concluded by making a reasonable modification in the award of the Tribunal?" The High Court thereafter vacated the order of reinstatement holding that ends of justice would be served by directing payment of compensation to the respondent workman in lieu of reinstatement and quantified the compensation at Rs. 15,000.
This modification by the High Court is assailed in appeal at the instance of the workman.
Section IIA of the Act provides: "Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require." Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions.
It is a well settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be 227 withheld.
The Tribunal while directing reinstatement and keeping A the delinquency in view could withhold payment of a part or the whole of the back wages.
In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty.
Withholding of back wages to the extent of half in the facts of the case was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty.
Under Section IIA of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case.
The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence.
The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any.
The High ult is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it.
In this case, the Tribunal had directed reinstatement, the High Court vacated the direction of reinstatement and computed compensation of Rs. 15,000 in lieu of restoration of service.
We are not impressed by the reasoning of the High Court that reinstatement was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of justice.
The Tribunal had not recorded a finding that there was loss of confidence of the employer.
The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer.
At any rate, the High Court too did not record a finding to that effect.
Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing orders.
The salary and other service benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation.
We are, therefore, of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in procee 228 ding to substitute the direction by quantifying compensation of Rs. 15,000 it acted without any legitimate basis.
Mr. Prasad for the respondent No. 1 invited our attention to the fact that the High Court was cognizant of the necessity of a remand but taking into consideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make took upon itself to give a final decision.
We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another.
We may not be understood to have denied that power to the High Court in every type of cases.
It is sufficient for our present purpose to hold that on the facts made out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law.
The appeal], therefore, is allowed and the order of the High Court is set aside and the award of the Industrial Tribunal is restored.
The appellant became entitled to reinstatement within a month from November 24, 1979, when the award was made.
He would, there fore, be entitled to full wages and other service benefits from December 24, 1979, taking the month 's allowance given in the award into account.
He would also be entitled to the half of the back wages in terms of the award from May 24, 1977 till December 23, 1979.
We direct the Tribunal to compute the amount so due as back wages and the appellant.
is entitled to 12 per cent interest on the sum from January 1, 1980, till payment.
The appeal is allowed with costs.
Hearing fee assessed at Rs. 2000.
N.V.K. Appeal allowed.

summary/full:
The appellant was employed as a Librarian under the Ist respondent.
His services were terminated for misconduct.
He laid a complaint before the Industrial Tribunal under section 33A of the .
The Tribunal came to the conclusion that though the charge of misconduct against the appellant was established, the punishment of termination of service was not warranted, ordered reinstatement with half of his back wages and other benefits from the date of termination.
The respondent employer applied to the High Court under Article 227 to quash the direction of reinstatement contending that as the Tribunal had found misconduct on the pa t of the workman, it was obligatory for the Tribunal to impose some punishment which it had railed to do.
It was further contended that as there was loss of confidence, reinstatement was not appropriate.
The High Court held that with holding of SO per cent of the back wages was a condition of reinstatement and was not by way of punishment,.
held that reinstatement was not called for, vacated the order of reinstatement, directed payment .
Of compensation to the respondent workman in lieu of reinstatement and quantified the compensation at Rs. 15,000.
Allowing the appeal.
224 ^ HELD: 1.
The order of the High Court is set aside and the award of the Industrial Tribunal is restored.
The High Court had no justification to interfere with the direction regarding reinstatement to service and in proceeding to substitute the direction by quantifying compensation at Rs. 150000 it acted without any legitimate basis. '[228D, 227H, 228A] 2.
Section IIA of the vests wide discretion in the Tribunal.
and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions.
It is a well settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be withheld.
The Tribunal while directing reinstatement and keeping the delinquency in view could withhold payment of a part or the whole of the back wages.
[226G, '227A] 3.
The High Court under Article 227 of the Constitution does not enjoy the wide discretion vested in the Tribunal under section IIA, though as a superior court, it is vested with the right of superintendence.
The High Court is in disputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and it could in an appropriate case quash the award of the Tribunal aud thereupon remit the matter to it for fresh disposal in accordance with law and directions if any.
The High Court is not entitled to exercise .
the powers of the Tribunal and substitute an award in peace of the one made by the Tribunal as in the case of an appeal where it lies to it.
[227D]


judgement:
Civil Appeal No. 2147 of 1980.
Appeal by Special leave from the Judgment and order dated the 19th August, 198(), of the Allahabad High Court in C.M.W.P. No. 7578 of 1979.
Pramod Swarup for the Appellant.
M.K. Garg and V.K. Jain for the Respondent.
The Judgment of the Court was delivered by RAANGANATH MISRA, J.
The tenant of one room which is a part of a premises located within the township of Aligrah in the State of Uttar Pradesh is in appeal before this Court after obtaining special leave under Article 136 of the Constitution.
The respondent 218 landlord asked for his eviction on the ground of the tenant having created a sub tenancy of the premises sometime in October, 1976, in favour of M/s. Pavan Trading Company, a soap manufacturing concern.
The tenant denied the allegation of sub letting.
The main issue raised in the proceeding was whether the tenant had sub let the accommodation as alleged by the landlord.
The SCC Judge started dealing with this issue by saying: "Under Sections 12, I S and 20 of the Act if tenant has allotted a non family member to occupy the accommodation, he should be deemed to have sub let the accommodation.
If it is found that Pavan Trading Co. Or if any of his partner is carrying on business in the accommodation, the tenant in fact shall be deemed to leave sub let.
the accommodation.
In Delhi Rent Control Journal 1971 page 492 (Abdul Aziz vs Yakub Khan) it was held by the Court t hat if any person other than a tenant is found sitting in the shop, the tenant has to lead evidence to show that a sitting person is not the sub tenant.
Thus the burden is on the defendant to explain the circumstances under which partner of the Pavan Trading Co. is sitting in the accommodation.
21/C I a photograph has been proved.
Even the defendant has admitted this photograph during his cross examination; the person standing in the shop has been identified by the parties to be the son of the proprietor of Pavan Trading Co. " .
He looked for evidence from the tenant against sub letting by assuming from the presence of the son of the proprietor of Pavan Trading Company that there was a sub tenancy; held against the tenant and directed his eviction from the premises.
The Additional District Judge before whom the tenant 's revision petition came for disposal took note of the erroneous approach of the trial court and came to hold: "In the present case, it has not at all been admitted by the defendant that Pavan Trading Company or any member of the said company has been carrying on business in the shop alongwith him or by himself.
The mere presence of a member of Pavan Trading Company in the shop at a certain time will not be sufficient to say all that the business is being carried on by Pavan Trading Company in the shop.
In these circumstances, it was for the plaintiff to lead good and positive evidence to prove that the business in fact at that shop 219 was being carried on by the Pavan Trading Company and not A by the defendant himself." He looked into the evidence and came to hold: "The evidence of the plaintiff was not at all sufficient to shift the burden of proof to the defendant and on consideration of the evidence of the plaintiff it is not at all possible to say that the plaintiff has been able to prove the fact of Pavan Trading Company carrying on the business at the shop which may amount to sub letting of the shop by the defendant." .
The appellate authority, therefore, allowed the revision and reversed the order of eviction and directed dismissal of the petition of the landlord.
The landlord filed an application under Article 227 of the Constitution.
Referring to the contention of the landlord, the High Court observed: "Learned counsel for the petitioner submitted that the learned Additional District Judge clearly misconceived his jurisdiction under Section 25 of the Provincial Small Cause Court Act.
It is urged that it was not permissible for the learned Judge to, re appraise the evidence on record on the issue purely on fact.
The learned counsel contended that whether it was defendant 'who was doing business in the shop in dispute of M/s. Pavan Trading Company is undoubtedly a pure issue of fact, the findings on which could not be disturb ed in revision under Section 25 of the Provincial Small Cause Court Act", and held: "The Simple question for determination before both the courts below was whether defendant had sub let the shop in dispute to M/s. Pavan Trading Company.
This question depended on the facts of the present case wholly on the answer to the question whether it was the defendant or the proprietor of the said company who was doing business in the disputed shop.
This question was determined by the trial court on the basis of direct oral and documentary evidence adduced by the plaintiff to the effect that in point of fact it was the proprietor of M/s. Pavan Trading Company who was doing business in the shop in question instead of the defen 220 dant.
This finding is not based on any notion of burden of proof.
It was a pure and simple finding arrived at on the analysis of the evidence on record without reference to the question of burden of proof.
On the answer to this question depends entirely the fate of the case in as much as under Section 25 of the U.P. Act No. XIII of 1972 read with Section 12(1)(b) and Section 12(2) of the aforesaid Act, a tenant would be deemed to have sub let the accommodation, if he has allowed it to be occupied by any person who is not a member of his family.
Whether the tenant has allowed the shop to be occupied by someone not a member of his family is indisputably a pure question of fact.
That being so, the learned District Judge exceeded his jurisdiction under Section 25 of the Provincial Small Cause Court Act in setting aside the finding of the trial court on a mere re appraisal of the evidence or record.
The finding of the trial court was not vitiated by any error of law.
The impugned order is thus ex facie illegal." Having heard counsel for the parties we are of the view that the High Court was clearly wrong in reversing the decision of the Additional District Judge.
The application for eviction was based on the allegation of sub tenancy.
The allegation that the premisses had been sub let to Pavan Trading Company had to be proved as a fact by the landlord and merely on the basis of photograph showing the presence of the son.
Of the proprietor of Pavan Trading Company within the room, sub letting could not be presumed.
We must indicate that the approach of the trial Judge was to tally vitiated.
Merely from the presence of a person other than the tenant in the shop sub letting cannot be presumed.
There may.
be several situations in which a person other than the tenant may be found sitting in the shop for instance, he may be a customer waiting to be attendant a distributor who may have come to deliver his goods at the shop for sale; a creditor coming for collection of the dues; a friend visiting for some social purpose or the like.
As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub letting flowing from the presence of a person other than the tenant in the shop cannot be assumed.
The Act does not require the Court to assume a sub tenancy merely from the fact of presence of an outsider.
Obviously the law has intended and we must assume that the rule in the Abdul 221 Aziz 's case (referred to by the trial court) proceed on the footing A that the person was sitting in the shop in exercise or his own right and not in a situation as indicated by us.
The trial court unwarrantedly drew the presumption and looked at the evidence of the tenant to find out whether the presumption had been rebutted.
There is no warrant in law for such a situation.
The Additional District Judge rightly took exception to this approach to the matter by the trial court and since the evidence of the plaintiff had not been scrutinised under the erroneous impression of the legal position, the same was looked into to find out whether the claim of the sub tenancy had been established.
This was nat an attempt to re assess.
evidence but to take into consideration the evidence which had not been looked into by the trial court.
The revisional jurisdiction under Section 25 of the Provincial Small Cause Court Act is not as wide as the appellate jurisdiction under Section 96 of the Code of Civil Procedure; yet in a case of this type we do not think fault could be found with the revisional court for pointing out the legal error committed by the trial court in its approach to this material aspect.
The legal position having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority entitled to Point out the legal error and rectify the defect.
This is all that had been done by the Additional District Judge.
In the case of Syed Yakoob vs K.S. Radhakrishna & Ors., a Constitution Bench of this Court indicated the scope of interference in a certiorari proceeding by saying that a writ of certiorari is issued for correcting the errors of jurisdiction committed by the courts or tribunals in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally or improperly.
i.e. where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principles of natural justice.
A caution was indicated by saying that the jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal.
That necessarily means that the findings of fact arrived at by the inferior court or tribunal are binding.
An error of law apparent on the face of the record could be corrected by a writ of certiorari, but not an error of fact, however, grave it may appear to be.
The rule in Yakoob 's case when applied to the present facts would lead to the conclusion 222 that the High Court exceeded its jurisdiction in interfering with the order of the Additional District Judge.
We are, therefore, inclined to agree with the appellant 's contention that the High Court . wrongly interfered with the decision of the Additional District Judge that the landlord failed to establish sub tenancy.
The circumstances in which the son of the proprietor of Pavan Trading Company was in the shop have been clearly explained and we are inclined to agree that there is no material on the record to doubt the explanation placed by way of evidence in the proceeding.
The appeal is accordingly allowed and the order of the High Court is vacated and that of the Additional District judge is restored.
The net effect is the application for eviction of the appellant tenant is dismissed with costs throughout.
Hearing fee in this Court is assessed at Rs. 1,000.
H.S.K. Appeal allowed.

summary/full:
The respondent landlord filed a suit for eviction of the appellant tenant in a town in U.P.
On the ground that the tenant had created a sub tenancy of the premises in favour of a trading company.
The landlord filed a photo graph showing the son of the proprietor of the trading company standing in the shop.
Adopting the approach that if any person other than a tenant was found sitting in the shop, the tenant had to lead evidence to show that a sitting person was not a sub tenant, the small cause court Judge assumed that there was a sub tenancy; held against the tenant and ordered his eviction.
Allowing the revision petition filed by the tenant the Additional District Judge held that it was for the landlord to lead good and positive evidence to prove that the business in fact at the shop was being carried by the trading company and not by the tenant himself.
The Additional District Judge looped into the evidence and held against the landlord.
In an application under article 227 the High Court held that under section 25 of the U.P. Act No. 13 of 1972 read with sec.
12(1)(b) and section 12(2) of the aforesaid.
Act a tenant would be deemed to have sub let the accommodation if he had allowed it to be occupied by any person who was not a member of his family.
The High Court further held that the Additional District Judge exceeded his jurisdiction under section 25 of the Provincial Small Cause Courts Act, 1887 in setting aside the findings of the trial court on a mere re appraisal of the evidence on record.
Hence this appeal.
Allowing the appeal, ^ HELD: As long as control over the premises is kept by the tenant and the business run in the premises is of the tenant, sub letting flowing from the presence of a person other than the tenant in the shop cannot be assumed.
The U.P. Act No. 13 of 1972 does not require the Court to assume a sub tenancy merely from the fact of presence of an outsider.
[220G] 217 In the instant case the allegation that the premises had been sublet to a trading company had to be proved as a fact by the ' landlord and merely on the basis of the photograph showing the presence of the son of the proprietor of the trading company within the room, sub letting could not be presumed.
The approach of the trial Judge was totally vitiated.
[?20 D E] The revisional jurisdiction under section 25 of the Provincial Small Cause Courts Act is not as wide as the appellate jurisdiction under section 96 of the Code of Civil Procedure; yet in a case of this type this Court does not think fault could he found with the revisional court for pointing out the legal error committed by the trial court in its approach to this material aspect.
The legal position having been totally misconceived by the trial court and there being an assumption of the position which the landlord was required to prove by evidence, the revisional authority was entitled to point out the legal error and rectify the defect.
[221B D] The jurisdiction to issue a writ of certiorai is a supervisory one and in exercising it, the court is not entitled to act as a court of appeal.
That necessarily means that the finding of fact arrived at by the inferior court or tribunal arc binding.
An error of law apparent on the face of the record could be corrected by a writ of certiorari but not an error or fact, however, grave it may appear to be.
[221F G] Syed Yakoob vs K.S. Radhakrishnan & Ors., ; referred to.
In the instant case the High Court exceeded its jurisdiction in interfering with the order of the Additional District Judge.
[221G]