judgement:
N: Criminal Appeal No. 669 of 1982.
Appeal by Special leave from the judgment and order dated the 29th October, 1981 of the Karnataka High Court in Crl.
Appeal No. 241 of 1981 B.D. Sharma (A.C) for the Appellant.
M. Veerappa and Ashok Kumar Sharma for the Respondent.
The Judgment of the Court was delivered by SEN, J.
Appellant Earabhadrappa @ Krishnappa is under sentence of death and this appeal by special leave is directed against the judgment of the High Court of Karnataka dated October 29, 1981.
The Sessions Judge, Kolar by his judgment dated March 21, 1981 convicted the appellant under section 302 of the Indian Penal Code for having committed the murder of one Smt.
Bachamma, wife of P.W. 3 Makrappa and sentenced him to death.
On reference, the High Court has upheld the conviction of the appellant under section 302 of the Indian Penal Code and confirmed the death sentence passed on him.
The appellant has also been convicted by the learned Sessions Judge under section 302 of the Indian Penal Code for having robbed the deceased of her gold ornaments and clothes and sentenced him to undergo rigorous imprisonment for a term of 10 years.
Upon the evidence presented at the trial it transpired that on the night between March 21 and 22, 1979 the deceased Smt.
Bachamma was throttled to death at her house in village Mallur and relieved of her gold ornaments.
On the night in question, the deceased Smt.
Bachamma as usual served dinner to the family members.
After taking his meals, P.W.3 went upstairs to his bed room, her mother in law P.W.2 Smt.
Bayamma went to the 'Kana ' to keep a vigil while the deceased slept in the hall adjoining the kitchen and her son P.W.4 G.M. Parkash slept in the courtyard of the house.
The appellant who had recently been employed as a servant by P.W. 3 slept in a room on the ground floor where the silk cocoons used to be reared and kept.
On the 22nd morning at about 6 a.m when P.W.4 went to wake up his mother he found that she was lying dead and he therefore went upstairs and called his father P.W.3.
They saw that the deceased had been strangulated to death and relieved of her ornament.
Her gold mangalsutra and gold rope chain were missing so also the gold nose ring and gold ear rings.
On 555 the right side of the bed was lying the screw of the missing gold nose ring.
There was also lying a towel (M.O. 1) which had been given by P.W. 3 to the appellant for his use, and apparently the deceased has been strangulated with the towel.
The iron safe and almirah kept in the hall were found open and bunch of keys which the deceased carried with her was found missing.
All the jewellery and cash of Rs. 1700/ kept in the iron safe and six silk sarees kept in the almirah were also found missing.
There was a search made for the appellant but he was not to be found either in the house or in the village and he had therefore absconded with the jewellery and valuables.
Intelligence report received by P.W. 26 Abdul Mazeed, Circle Inspector of Police who had taken over the investigation from P.W. 25 Sreenivasa Rao, Station officer Shidalaghatta on 28 March 1980 revealed that the appellant was seen moving in Hosakote and Anekal Taluks and accordingly P.W. 26 along with his staff searched for the appellant in both the taluks but he could not be found, and therefore he encamped at Anekal on that day.
On March 29, 1980 he got definite information that the appellant was seen in village Hosahally in Hosakote Taluk and was able to apprehend him at that village at about 2 p,m.
On being taken into custody, the appellant made a statement exhibit P 35 leading to the discovery of the ornaments and clothes belonging to the deceased from several places.
He first led P.W. 26 to the house of his sister P.W. 8 Smt.
Yallamma in village Gudisagarapelly leading to the recovery of four silk sarees (M. Os. 11 to 14) which were seized under seizure memo exhibit P 4.
From that place, he took him to village Mattakur, from where he hails, to the house of one Dasappa leading to the recovery of the screw of the missing gold nose ring (M.O. 5) which was seized under seizure memo exhibit P 7.
Thereafter, he took P.W. 26 to the house of P.W. 12 Guruvareddy leading to the recovery of a silk saree (M.O.15) which was seized under seizure memo exhibit P 5 and then to the house of P.W. 13 Narayanareddy leading to the recovery of the gold chain (M.O. 6) and a pair of gold bangles (M.OS. 7 & 8) which were seized under seizure memo exhibit P 6.
The very day he took P.W. 26 to the house of P.W. 15 Chinnamma in Village Sollepura leading to the recovery of a silk saree (M.O.10) which was seized under seizure memo exhibit P 8.
On the next day i.e. on the 30th the appellant took P.W. 26 to the house of P.W. 21 Ramachari in village Hosur who led them to the shop of P.W. 22 Palaniyachar leading to the recovery of a pair of gold earrings (M.Os. 3 & 4) and a gold ingot (M.O. 9) 556 which were seized under seizure memo exhibit P 15.
The seized articles have all been identified by P.W. 3 Makrappa and his mother P.W. 2 Smt.
Bayamma and son P.W. 4.
G.M. Prakash as belonging to the deceased.
The appellant abjured his guilt and denied the commission of the alleged offence stating that he had been falsely implicated.
He also denied that he ever made the statement exhibit P 35 or that the stolen articles were recovered as a direct consequence to such statement.
In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the fact and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.
The chain of circumstances brought out by the prosecution are these: 1.
The appellant who hails from village Mattakur was a stranger to village Mallur ostensibly in search of employment.
He falsely stated his name to be Krishnappa and gave a wrong address stating that he belonged to a nearby village.
The securing of employment by giving out false name and wrong address shows that he had some oblique motive in his mind.
He obtained employment with p.w. 3 and gained his confidence and was allowed to sleep in a room on the ground floor where the silk cocoons were kept.
He thus became familiar with the places where the inmates of the house used to sleep and where the jewellery, cash and other valuable belongings used to be kept i.e. in the iron safe and almirah kept in the hall adjoining the kitchen.
It appears that the appellant had pre planned the commission of robbery.
Earlier in the evening he went to P.W. 6 Narayanappa and borrowed Rs. 2 and thereafter went to the toddy shop of P.W. 7 Smt.
Anasuyamma and took liquor.
On the night in question he reached the 'kana ' at about 9 p.m. 557 and was reprimanded by P.W. 2 for being late.
Upon reaching the house he went upstairs in an inebriated state and told P.W. 3 that he no longer wanted to serve and he should settle his accounts.
P.W. 3 told him to come in the morning and take his wages.
It therefore appears that the appellant had made up his mind to leave the village.
On the next morning i.e. on the 22nd at about 6 a.m. it was discovered that the deceased Smt.
Bachamma had been strangulated to death.
The gold ornaments on her person and in the iron safe had been stolen.
There was a search made for the appellant but he was not to be found anywhere.
Near the dead body of the deceased was lying the blood stained towel (M.O. 1) given by P.W. 3 to the appellant for his use with which the deceased had apparently been strangulated.
The appellant had therefore absconded from the scene of occurrence after committing the murder and robbery.
After the appellant had suddenly disappeared from the house of P.W. 3 with the gold ornaments and other valuables, there was a frantic search made by P.W. 25, Sreenivasa Rao and P.W. 26 Abdul Mazeed at various places and he was absconding till March 29, 1980 until he was apprehended by P.W. 26 at village Hosahally in Hosakote taluk at about 2 p.m. On being arrested after a year of the incident on March 29, 1980, the appellant made the statement exhibit P 35 leading to the recovery of some of the stolen gold ornaments of the deceased and her six silk sarees from different places and they have all been identified by P.Ws. 2, 3 and 4 as belonging to the deceased.
The appellant falsely denied the recoveries and could offer no explanation for his possession of the stolen articles.
It appears from the prosecution evidence that after the commission of the murder and robbery, the appellant had with him the incriminating articles and 558 taken them to his native place Mattakur where he disposed them of to several persons.
The testimony of P.W. 26 reveals that in consequence of the information given by the appellant he recovered the missing screw of the gold nose ring (M.O.5) from one Dasappa in village Mattakur, that of P.W,12 Guruvareddy that appellant had sold to him the silk saree (M.O.15) for Rs. 150/ , and that of P.W.13 Narayanareddy discloses that the appellant had sold to him a gold rope chain (M.O.6) and a pair of gold bangles (M.Os. 7&8) for Rs. 2000/ , The testimony of P.W.8, Smt, Yallamma, sister of the appellant, hailing from village Gudisagarapally show that the appellant had given her four silk sarees (M.Os.11 to 14), and that of P.W.15 Smt.
Chinnamma of village Sollepura, who was known to the appellant from before, shows that the appellant gave her the silk saree for Re. 1/ when she refused to take his gratis.
The testimony of P.W. 21 Ramachari of village Hosur shows that appellant brought with him a pair of gold ear rings and a gold ingot and wanted to sell them saying that he was hard pressed.
This witness took him to P.W. 22 Palaniyachar and the appellant sold the gold ingot (M.O.9) for Rs. 330/ and a pair of gold ear rings (M.Os. 3&4) for Rs. 500/ .
From this evidence it is apparent that the appellant while he was absconding moved from place to place trying to dispose of the stolen property to various persons.
The learned Sessions Judge as well as the High Court have come to the conclusion that the circumstances alleged have been fully proved and they are consistent only with the hypothesis of the guilt of the accused.
We are inclined to agree both with their conclusion and the reasoning.
The chain of circumstances set out above establishes the guilt of the appellant beyond all reasonable doubt There is no controversy that the statement made by the appellant exhibit P 35 is admissible under section 27 of the Evidence Act.
Under section 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible.
The word 'fact ' means some concrete or material fact to which the information directly relates.
As 559 explained by Sir John Beaumont in Pulukuri Kottaya vs Emperor (1): "It is fallacious to treat the 'fact discovered ' within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced, and the knowledge of the accused as to this, and the information given must relate distinctly to this fact".
For the applicability of section 27 therefore two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly ' to the fact discovered.
In the present case, there was a suggestion during the trial that P.W. 26 had prior knowledge from other sources that the incriminating articles were concealed at certain places and that statement exhibit P 35 was prepared after the recoveries had been made and therefore there was no 'fact discovered ' within the meaning of section 27 of the Evidence Act.
We need not dilate on the question because there was no suggestion made to P.W. 26 during his cross examination that he had known the places where the incriminating articles were kept.
That being so, the statement made by the appellant exhibit P 35 is clearly admissible in evidence.
In Jaffer Hussein Dastgir vs State of Maharasetra, (2) the portion of the statement with reference to which this question arose read as follows: "I will point out one Gaddi alias Ramsingh of Delhi at Bombay Central Railway Station at III Class Waiting Hall to whom I have given a Packet containing diamonds of different sizes more than 200 in number.
" The only question for decision in that case before the Court was whether the aforesaid statement made by the accused was admissible in evidence by virtue of section 27 of the Evidence Act, the diamonds having been found with the person named.
In the facts of that case the Court came to the conclusion that the police had already known that the diamonds were with the person named by the accused with the result that there was no fact discovered by the police as a result of the statement made by the accused.
However, it was held clearly that, but for such knowledge of the police, the aforesaid statement of the accused would have been admissible in evidence.
560 In the present case, some of the material portions in the statement exhibit P 35 which distinctly relate to the fact discovered read: "If I am taken to Gudisagarapally, I shall get the four silk sarees." At village Gudisagarapally the appellant took P.W. 26 to the house of his sister P.W. 8 Smt.
Yallamma who produced four silk sarees (M.Os. 11 to 14) which were seized under seizure memo exhibit P 4.
P.W. 8 Smt.
Yallamma states that she is the sister of the appellant and that he had given to her the four silk sarees.
It was suggested that the police had not only planted P.W. 8 as a sister of the appellant but also the four silk sarees in question, but there is no basis for this assertion.
Then the statement exhibit P 35 recites: "If I am taken to native place Mattakur, I shall get one gold nose ring without screw . one silk saree. . one gold rope chain and one pair of gold ear rings.
" At village Mattakur from where he hails, the appellant took P.W. 26 to the house of one Dasappa leading to the recovery of the screw of the missing gold nose ring (M.O. 5) which was seized under seizure memo exhibit P 7.
Thereafter, he took P.W. 26 to the house of P.W. 12 Guruvareddy leading to the recovery of a silk saree (M.O. 15) which was seized under seizure memo exhibit P 5.
He then took P.W. 26 to the house of P.W. 13 Narayanareddy leading to the recovery of a gold rope chain (M.O. 6) and a pair of gold bangles (MOs.
7&8) which were seized under seizure memo exhibit P 6.
The prosecution could not examine Dasappa because he was dead during the trial.
P.W. 12 stated that the appellant had sold him a silk saree for Rs. 150 while P.W. 13 stated that he had sold him a gold rope chain and a pair of gold bangles for Rs. 2000/ .
The statement exhibit P 35 contains similar recitals leading to the recovery of the other incriminating articles, viz (1) A silk saree (M.O.10) given by the appellant to P.W. 15 Smt.
Chinnamma of village Sollepura whom he knew from before, for a token price of Re. 1/ ; (2) A pair of gold ear rings (M.Os. 3&4) and a gold ingot (M.O.9) from P.W. 22 Palaniyachar which he had purchased from the appellant for Rs. 830.
Apart from the question of sentence, two other contentions are raised, namely: (1) There is no proper identification that the seized ornaments belonged to the deceased Smt.
Bachamma; and (2) the presumption arising under illustration (a) to section 114 of the Evidence 561 Act, looking to the long lapse of time between the commission of murder and robbery and the discovery of the stolen articles, should be that the appellant was merely a receiver of the stolen articles and therefore guilty of an offence punishable under section 411 of the Indian Penal Code and not that he was guilty of culpable homicide amounting to murder punishable under section 302 as well.
We are afraid, none of these contentions can prevail.
Our attention was drawn to the testimony of P.W. 13 Narayanareddy who, during his cross examination, stated that ornaments similar to the gold rope chain and the pair of gold bangles were available everywhere and that other ornaments were also in his house.
From this it is sought to be argued that the seized ornaments cannot be treated to be stolen property as they are ordinary ornaments in common use.
Nothing really turns on this because P.W. 2 Smt.
Bayamma, mother in law of the deceased, her husband P.W. 13 Makarappa and son P.W. 4 G.M. Prakash have categorically stated that the seized ornaments belonged to the deceased Smt.
Bachamma.
There is no reason why the testimony of these witnesses should not be relied upon particularly when P.W. 2 Smt.
Baymma was not cross examined at all as regards her identification of the seized ornaments and clothes as belonging to the deceased.
Even if the seized ornaments could be treated to be ornaments in common use, this witness could never make a mistake in identifying the seized six silk sarees (M.Os. 10 to 15).
It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family.
That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs.
There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification.
There is no such legal requirement.
This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to section 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction.
The prosecution has led sufficient evidence to connect the appellant with the commission of the crime.
The sudden disappearance of the appellant from the house of P.W.3 on the morning of March 22, 1979 when 562 it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by P.W. 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement exhibit P 35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments.
The appellant had no satisfactory explanation to offer for his possession of the stolen property.
On the contrary, he denied that the stolen property was recovered from him.
The false denial by itself is an incriminating circumstance.
The nature of presumption under illustration (a) to section 114 must depend upon the nature of the evidence adduced.
No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts.
The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand.
If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particulary when the appellant had been absconding during that period.
There was no lapse of time between the date of his arrest and the recovery of the stolen property.
Finally, there remains the question of sentence, it was cruel hand of destiny that the deceased Smt.
Bachamma met a violent end by being strangulated to death by the appellant who betrayed the trust of his master p.w. 3 and committed her pre planned cold blooded murder for greed in achieving his object of committing robbery of the gold ornaments on her person and in ransacking the iron safe and the almirah kept in her bedroom on the fateful night.
The appellant was guilty of a heinous crime and deserves the extreme penalty.
But we are bound by the rule laid down in Bachan Singh vs State of Punjab (1) where the Court moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the 'rarest of the rare ' cases.
The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks the judicial 563 conscience.
A sentence or pattern of sentence with fails to take due account of the gravity of the offence can seriously undermine respect for law.
It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders.
Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided by section 302 of the Indian Penal Code.
The test laid down in Bachan Singh 's case (supra) is unfortunately not fulfilled in the instant case.
Left with no other alternative, we are constrained to commute the sentence of death passed on the appellant into one for imprisonment for life.
Subject to this modification in the sentence, the appeal fails and is dismissed.
section R. Appeal dismissed.

summary/full:
The appellant, Earabhadrappa hailing from village Mattakur, under the false name of Krishnappa and with a false address obtained employment of service as a domestic servant under PW 3 Makrappa, the husband of the deceased Bachamma, who was found murdered by strangulation on the night between March 21 22, 1979 after having been robbed of her jewellery, clothes, etc.
Based on circumstantial evidence, the appellant, who was found missing right from the early hours of the 22nd March, 1979 and who was apprehended a year later on March 29, 1980, was charged with and convicted for the offences under Sections 302, 392 IPC respectively.
He was sentenced to undergo rigorous imprisonment for a term of 10 years under section 392 IPC and to death under Section 302.
In appeal, the High Court confirmed both the conviction and sentences imposed upon him.
Hence the appeal by special leave.
Dismissing the appeal and modifying the sentence, the Court.
^ HELD: 1.1 To sustain a charge under section 302 of the Indian Penal Code,the mere fact that the accused made a statement leading to the discovery of the stolen articles under section 27 of the Evidence Act, by itself is not sufficient.
There must be something more to connect the accused with the commission of the offence.
The circumstances relied upon by the prosecution in the instant case led to no other inference than that of guilt of the accused as murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to section 114 of the Evidence Act is that not only the accused committed the murder of the deceased but also committed robbery of her gold ornaments which formed part of the same transaction.
The prosecution had led sufficient evidence to connect the accused with the commission of the crime.
[561 G H] 553 1.2 For the applicability of section 27 of the Evidence Act, two conditions are pre requisite, viz: (1) Information must be such as has caused discovery of the fact, and (2) The information must "relate distinctly" to the fact discovered.
" Under section 27, only so much of the information as distinctly relates to the facts really thereby discovered is admissible.
The word "fact" means some concrete or material fact to which the information directly relates.
[549A, 550B C] Pulukuri Kottayya vs Emperor, LR [1947] IA 65; Jaffer Hussein Dastgir V. State of Maharashtra, [1970] 2 S.C.R.332, referred to.
2.1 The nature of presumption under illustration (a) to section 114 of the Evidence Act from recent and unexplained possession must depend upon the nature of the evidence adduced.
As to the meaning of "recent possession", it was observed: No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts.
The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand.
The fact that a period of one year had elapsed between the commission of the crime and the recovery of the ornaments on a statement made by the accused leading to their discovery under section 27 of the Evidence Act immediately upon his being apprehended by the police, cannot be said to be too long particularly when the accused had been absconding during that period and the stolen articles were such as were not likely to pass readily from hand to hand.
There was no lapse of time between the date of his arrest and the recovery of the stolen property.
The accused had no satisfactory explanation to offer for his possession thereof.
On the contrary, he denied that the stolen property was recovered by him.
The false denial by itself is an incriminating circumstance.
[56 H, 562 A E] 3.
In Bachan singh V. State of Punjab, , the Supreme Court, moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the "rarest of rare" cases.
The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks judicial conscience.
The test laid down in Bachan Singh 's case is unfortunately not fulfilled in the instant case.
That being so, the Court is constrained to commute the sentence of death passed on the appellant into one for imprisonment for life.
[562 F H, 563 A] Observation of Dissent [A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law.
It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders.
Failure to impose death sentence in such grave cases where it is a crime against society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided under Section 302 of the Penal Code.] [563 A B] 554


judgement:
Appeal No. 132 of 1956.
Appeal by special leave from the judgment and order dated May 16, 1955, of the Election Tribunal, Bhatinda, in Election Petition No. 14 of 1954.
C. K. Daphtary, Solicitor General of India, J. B. Dadachanji, section N. Andley, Rameshwar Nath and K. C. Puri, for the appellant.
N.C. Chatterji, A. N. Sinha and Gopal Singh, for respondent No. 1. 1956.
December 20.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J.
The appellant was one of the candidates who stood for election to the Legislative Assembly of the Paterson and East Punjab States Union from the Farber Constituency in the General Elections held in 1954.
He secured the largest number of votes, and was declared duly elected.
The result was notified in the Official Gazette on February 27, 1954, and the return of the election expenses was published therein on May 2, 1954.
On May 18, 1954, the first respondent filed a petition under section 81 of the Representation of the People Act No. XLIII of 1951, hereinafter referred to as the Act, and therein he prayed that the election of the appellant might be declared void on the ground that We and his agents had committed various corrupt and illegal practices, of which particulars were given.
The appellant filed a written statement denying these allegations.
He therein raised the further contention that the election petition had not been presented within the time limited by law, and was, therefore, liable to be dismissed.
Rule 119, which prescribes the period within which election petitions have to be filed, runs, so far as it is material, as follows: 119.
"Time within which an election petition shall be presented : An election petition calling in question an election may, 27 210 (a) in the case where such petition is against a returned candidate, be presented under section 81 at any time after the date of publication of the name, of such candidate under section 67 but not later than fourteen days from the date of publication of the notice in the Official Gazette under rule 113 that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer ," The last date for filing the petition, according to this Rule, was May 16, 1954, but that happened to be a Sunday and the day following had been declared a public holiday.
The first respondent accordingly presented his petition on May 18, 1954, and in paragraph 6 stated as follows: " The offices were closed on 16th and 17th; the petition is, therefore, well within limitation." On this,, the Election Commission passed the following order : "The petition was filed on l8 5 1954.
But for the fact that 16 5 1954 and 17 5 1954 were holidays, the petition would have been time barred.
Admit.
" The plea put forward by the appellant in his written statement based on Rule 119(a) was that whatever might have been the reason therefor, the fact was that the petition had not been filed "not later than fourteen days" from the publication of the return of the election expenses, which was on May 2, 1954, and that it was, therefore, not presented within the time prescribed.
The Tribunal overruled this plea on the ground that under Rule 2(6) of the Election Rules, the General Clauses Act X of 1897 was applicable in interpreting them, and that under section 10 of that Act, the election petition was presented within the time allowed by Rule 119(a).
On the merits, the Tribunal held that of the grounds put forward in the Election Petition, one and only one had been substantiated, and that was that the appellant had 'employed for payment, in connection with his election, 25 persons in addition to the number of persons allowed under Rule 118 read along with Schedule VI thereto, and had thereby 211 committed the major corrupt practice mentioned in section 123(7) of the Act.
The Tribunal accordingly declared the election void under section 100(2)(b) of the Act.
It also observed that on its finding aforesaid, the appellant had incurred the disqualification enacted in sections 140(1)(a) and 140(2) of the Act.
Against this decision, the appellant has preferred this appeal by special leave.
On behalf of the appellant, two contentions have been pressed before us: (1) that the election petition was presented beyond the time prescribed by Rule 119(a), and should have been dismissed under section 90 (4) of the Act; and (2) that on the findings recorded by the Tribunal, the conclusion that Rule 118 had been contravened does not follow and is erroneous.
The first question turns on the interpretation of section 10 of the General Clauses Act, which is as follows: "Where by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open.
" The contention of Mr. Solicitor General on behalf of the appellant is that this section can apply on its own terms only when the act in question is to be done " within a prescribed period", that under Rule 119(a) the petition has to be filed "not later than" fourteen days, that the two expressions do not mean the same thing, the words of the Rule being more peremptory, and that accordingly section 10 of the General Clauses Act cannot be invoked in aid of a petition presented under Rule 119, later than fourteen days.
In support of this contention, he invites our attention to some of the Rules in which the expression "the time within which" is used, as for example, Rule 123, and he argues that when a statute uses two different expressions, they must be construed as used in two different senses.
He also points out that whenever the Legislature intended 212 that if the last date on which an act could be performed fell on a holiday, it could be validly performed on the next working day, it said so, as in the proviso to section 37 of the Act, and that there would be no need for such a provision, if section 10 of the General Clauses Act were intended generally to apply.
This argument proceeds on an interpretation of section 10 of the General Clauses Act which, in our opinion,is erroneous.
Broadly stated, the object of the section is to enable a person to do what he could have done on a holiday, on the next working day.
Where, therefore, a period is prescribed for the performance of an act in a court or office, and that period expires on a holiday, then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the court or office is open.
For that section to apply, therefore, all that is requisite is that there should be a period pres cribed, and that period should expire on a holiday.
Now, it cannot be denied that the period of fourteen days provided in Rule I 1 9 (a) for presentation of an election petition is a period prescribed, and that is its true character, whether the words used are " within fourteen days" or "not later than fourteen days".
That the distinction sought to be made by the appellant between these two expressions is without substance will be clear beyond all doubt, when regard is had to section 81 of the Act.
Section 81 (1) enacts that the election petition may be presented "within such time as may be prescribed, and it is under this section that Rule 119 has been framed.
It is obvious that the rule making authority could not have intended to go further than what the section itself had enacted, and if the language of the Rule is construed in conjunction with and under the coverage of the section under which it is framed, the words "not later than fourteen days" must be held to mean the same thing as "within a period of fourteen days".
Reference in this connection should be made to the heading of Rule 119 which is, " Time within which an election petition shall be presented ".
We entertain no doubt that the legislature has used both 213 the expressions As meaning the same thing, and there are accordingly no grounds for holding that section 10 is not applicable to petitions falling within Rule 119.
We are also unable to read in the proviso to section 37 of the Act an intention generally to exclude the operation of section 10 of the General Clauses Act in the construction of the Rules, as that will be against the plain language of Rule 2 (6).
It should be noted that proviso applies only to section 30 (c) of the Act, and it is possible that the Legislature might have considered it doubtful whether section 30 (c) would, having regard to its terms, fall within section 10 of the General Clauses Act and enacted the province abundant cauterize.
The operation of such a beneficent enactment as a. 10 of the General Clauses Act is not, in our opinion, to be cut down on such unsubstantial grounds as have been urged before us.
We are accordingly of opinion that the petition which the respondent filed on May 18, 1954, is entitled to the protection afforded by that section and is in time.
We should add that the appellant also raised the contention that if we agreed with him that the election petition was not presented in time, we should hold that the order of the Election Commission admitting the petition was not one of condonation within the proviso to section 85, because that proceeded on the footing that the petition was in time, and did not amount to a decision that if it was not, there were sufficient grounds for excusing the delay.
We are not disposed to agree with this contention; but in the view which we have taken that the petition is in time, it is unnecessary to consider it.
Then the next question and that is one of substance is whether there has been contravention of Rule 118.
The material facts are that the appellant is the quondam ruler of Faridkot, which enjoyed during the British regime the status of an independent State, and came in for judicial recognition as such in Sirdar Gurdyal 'Singh vs Rajah of Faridkote (1), and, after Independence, became merged in the State of Pepsu.
The (1) (I894) L.R. 21 I.A. 171.
214 appellant continues to retain a large staff of subordinates, and the charge of the first respondent in his petition was that as many as 54 of them were employed for purposes of election, and that Rule 118 had thus been violated.
Rule 118 is as follows: , "No person other than, or in addition to, those specified in Schedule VI shall be employed for payment by a candidate or his election agent in connection with an election." Under Schedule VI, a candidate for election may employ for payment in connection with election (1) one election agent, (2) one counting agent, (3) one clerk and one messenger, (4) one polling agent and two relief polling agents for each polling station or where a polling station has more than one polling booth, for each polling booth and (5) one messenger for each polling station, or for each polling booth, if a polling station has more than one booth.
The finding of the Tribunal on this question is as follows: " . it is clear that 25 persons named in the foregoing paragraphs took part in the election campaign of respondent No. I apart from any duties they may have performed as polling agents.
Now admittedly all these persons are paid employees of respondent No. 1.
As their number exceeds the statutory number provided in Rule 118, respondent No. I is undoubtedly guilty of a major corrupt practice under section 123 (7).
A question however arises whether the fact that these persons were already in the employ of respondent No. I and were not specially engaged for purposes of election, would take them out of purview of Rule 118.
In our judgment it would not." Then, dealing with the question as to whether the return of election expenses made by the appellant was false in that it did not include anything on account of the services of the 25 employees, the Tribunal says: " We have held under Issue No. 3 that respondent No. I did utilise the services of 25 of his employees for furthering his election prospects.
Now there is no evidence on the record to show that these employees 215 were engaged specifically for the purposes of election.
All of them had been in the service of respondent No. I for a long time before the election in normal course.
Therefore, there is no reason why the emoluments paid should be charged to the election account.
However, if any additional allowances were paid to these persons that would certainly be chargeable to the election account.
But there is no evidence on the record to show that any such allowance was paid.
" Now, the question is whether on these facts there is a contravention of Rule 118.
The contention of Mr. Solicitor General for the appellant is that the Rule would apply only if 'the employment of the persons was specifically for work in connection with the election and such employment was for payment.
In other words, according to him it is only employment ad hoc for the election that ' is within the mischief of the Rule.
On behalf of the respondent Mr. N. C. Chatter bee contends that it is not necessary for the Rule to operate that there should have been an employment specially for the purpose of the election, and that it would be sufficient if the persons who did work in connection with the election were in the employment of the candidate, and that employment carried with it payment of salary or remuneration.
In our opinion, neither of these contentions is wellfounded.
Rule 118 does not require that the person engaged by a candidate to work in the election should have been specially employed for the purpose of the election.
It is sufficient, on the wording of the Rule, that person is employed in connection with the election.
At the same time, the requirements of Rule 118 are not satisfied by proving merely that the person does work in connection with the election.
That work must be done under a contract of employment.
Thus, if the candidate has been maintaining a regular staff of his own and its members have been doing personal service to him and he has been paying them and then the election supervenes, and off and on he sets them on election work but they continue to do their normal work as members of his staff, it cannot 216 be said of them that they have been employed in connection with the election.
But if, on the other hand, he takes them out of their normal work and puts them on whole time or substantially whole time work in connection with the election, that would amount to converting their general employment into one in connection with the election.
It will be a question of fact in each case whether what the candidate has done amounts merely to asking the members of the staff to do casual work in connection with the election in addition to their normal duties, or whether it amounts to suspending the work normally done by them and assigning to them election work instead.
Then again, it is a condition for the application of the Rule that the employment of the person must be for payment.
If the members of the staff continue to do their normal work and do casual work in connection with the election, the payment of salary to them would be a payment on account of their employment as such members of the staff and not in connection with the election.
Rule 118 would not apply to that case, as there is neither an employment in connection with the election, nor a payment on account of such employment.
Indeed, the salary paid to the members would not even be election expenses liable to be included in the return.
But if, in the above case, the members are paid extra for their work, such extra payment will have to be included in the return of election expenses, though it 'may be that Rule 118 itself might have no application for the reason that there is no employment for election and the payment is not in respect of such employment.
If, however, the members of the staff are switched off from their normal work and turned on to election work so that it could be said that work has been assigned to them in supersession of their normal work, then the salary paid to them could rightly be regarded as payment for work in connection with election within Rule 118.
That being our view on the construction of Rule 118, we shall now proceed to consider what the position is, on the authorities cited before us.
217 In the Hartlepools Case(1) the question arose with reference to one Butler who was the general secratary of Mr. Furness, the returned candidate, and certain clerks in a company in which Mr. Furness, had considerable influence.
All these persons had taken part in the election.
As regards Butler, Phillimore J. observed that if it could be held that at the time ' of his employment his duties included also work in elections if and when they, were held, then a proportionate part of his salary should be regarded as election expenses; but, on the facts, he held that it was no part of the duties of Butler in respect of his standing employment to be election agent when called upon, and that, therefore, no part of his salary need be shown as election expenses.
As put by Pickford, J., in Ins concurring judgment, Butler was paid " his salary as private secretary and was not paid anything as election agent ".
Counsel for the appellant relies on these observations, and argues that on the finding of the Tribunal that the 25 men had been in service for a, long time, there could be no question, of their having been employed for work in connection with election, and that they were, therefore, neither election agents nor was the salary paid to them payment on account of any employment in connection with the election.
But then, considering the effect of the clerks of the company taking part in the election, Phillimore J. observed: " .
I am certainly inclined to think that if a business man takes his business clerks and employs them for election work which, if he had not business clerks, would be normally done by paid clerks, he ought to return their salaries as part of his expenses." Counsel for respondent strongly relies on these obser vations.
But then, the point was not actually decided by Philimore, J., as the evidence relatinig to the matter was incomplete, and Pickford, J. expressly reserved his opinion on the question.
In view of the remarks of Sankey, J., in the Borough of Oxford Case (2), in the (1) 28 (2) , 56 57 218 course of his argument, it is doubtful,,how far the observations ' of Phillimore, J. quoted above could be accepted as good law.
They Were, however,.
adopted in two decisions of the Election Tribunals of this country, to which our attention was invited by Mr. Chatterjee.
In the Amritsar Case(1), the following observation occurs: We also consider that if any man in the service of the respondent were put on election work, their wages for the period should have been shown in the return.
(See Hartlepools Case(2) ".
The words " put on election work " in this passage suggest that the employees had been taken out of their original work.
As there is no discussion of the present question, the authority of this decision is, in any event, little.
In Farrukhabad Case(3), this passage,, as also the observations of Phillimore, J., we 're quoted, and in accordance therewith, it was held that the salaries of Tilakdhari Singh, Kundan Singh and Drigpal Singh for the period they worked in connection with the election of the respondent Nol should have been shown in the return It was found in that case that Tilakdhari Singh worked exclusively for 30 days in connections with the election and Kundan Singh and Drigpal Singh would appear to have similarly devoted themselves to election work for certain periods.
None of these cases has considered what would amount to employment in connection with election, when the persons had been previously employed on other work; and they throw no light on the present question.
The position may thsu be summed up : (1)For Rule 118 to apply, two conditions must be satisfied, viz., there should have been an employment by the candidate of a person in connection with,an election, and such employment should have been for payment.
(1) [1924] Hammond 's Election Cases 83.
(2) (3) [1927] Hammond 's Election Cases 349.
219 (2) Where a person has been in the employment of the candidate even prior to his election and his duties do not include work in election 'and he takes part in election, whether he is to be regarded as employed in connection with the election will depend on the nature of the work which he performs during the election.
(3) When the work which he does in election is ', casual and is in addition to the normal work for which, he has been employed , he is not within Rule l 18.
if his work in connection with the election is such that he could be regarded as having been taken 'out of his previous work and put on election work, then he would be within Rule 118.
(4) Whether a person who has been previously employed by the candidate on other work should held to have been employed in connection with election is a question of fact to be decided on the evidence in each case.
In the present case, the finding is that 25 persons belonging to the staff of the appellant had taken part in the election.
It has been found that they had been in the service of the appellant for a long time and that their appointment was not colorable for election purposes.
It has also been found that they were not paid anything extra for what work they might have done in connection with the election.
But there is no finding that having regard to the work which they are proved to have done, they must be taken to have been relieved of their original work and put on election work.
In the absence of such a finding, it cannot be held that Rule II 8 had been infringed.
It is possible that the Election Tribunal did not appreciate the true legal position and has in consequence failed to record the findings requisite for a decision on Rule 118, and that would be a good ground on which we could, if the Justice of the case required it, set aside the order and direct the matter to be heard afresh and disposed of by another Tribunal in accordance with law.
But we do not consider that this is a fit case for passing such an order.
The evidence adduced by the first respondent is very 220 largely, to the effect that the appellant 's men did election work in the morning or in the evening, that is , out of office hours.
That shows that the work the staff was in addition to their normal duties, and on the, principles stated above, they could not be held to have been employed in connection with the election.
As the first respondent does not appear himself to have under , stood the true position under Rule 118 and has failed to adduce, evidence requisite for a decision of the question, he must fail, the burden being on him to establish that Rule had been infringed.
In the result, this appeal is allowed, the order of the, Election Tribunal is set aside and the election petition of the first respondent will stand dismissed.
As the parties have each succeeded on one issue and failed on another, they will bear their own costs, throughout.
Appeal allowed.

dataset_name: IN-Abs

summary/full:
The last day for filing the election petition was a Sunday and the day following was a public holiday.
The petition was presented on the next day after the public holiday.
Held, that section 10 of the General Clauses Act was applicable and that the petition was presented within time.
The appellant, who retains a large staff of subordinates, was charged with employing 54 of them for purposes of the election in violation of Rule 118, and with failure to include their salaries in the return of his election expenses.
The election tribunal found that 25 of the old paid employees of the appellant took part in his election campaign, that their number exceeded the statutory number provided by Rule 118 and that consequently the appellant was guilty of a major corrupt practice under section 123 (7) of the Representation of the People Act, 1951.
The tribunal further held that there was no evidence to show that the employees were engaged specifically for the purposes of the election, that they had been in the service of the appellant for a long time and that the emoluments paid to them were not election expenses.
In the result the tribunal set aside the election of the appellant: Held, that where a person has been in the employment of a candidate even prior to his election and his duties do not include election work but he takes part in the election, and the work which he does is casual and is in addition to his normal work, he is not within Rule 118.
But if the work in connection with the election is such that he could be regarded as having been taken out of his normal work and put on election work, then he would be within Rule 118.
Hartlepooles Case, and Borough of Oxford Case, , referred to.
If the members of the staff of a candidate do their normal work and do casual work in connection with the election, the payment of salary to them would be payment on account of their 209 employment as such members of the staff and not in connec tion with the election.


judgement:
N: Criminal Appeal No. 249 of 1976.
Appeal by Special leave from the Judgment and order dated the 10th July, 1975 of the Allahabad High Court in Criminal Misc.
No 1104 of 1975.
Prithvi Raj and Dalveer Bhandari for the Appellant.
N.M. Ghatate for the Respondents.
The Judgment of the Court was delivered by DESAI, J.
: Respondents Lakshmi Brahman and Naval Garg were suspected of having committed an offence punishable with death or imprisonment for life under section 302 IPC.
Both of them surrendered before the Magistrate on November 2, 1974 and were taken into custody.
The investigation was then in progress.
The investigating officer failed to submit the charge sheet against 540 them within a period of 60 days as contemplated by sub sec 2 of sec.
167 of 1973 Code prior to its amendment by the Criminal Procedure Code (Amendment) Act, 1978 which enlarges the period from 60 to 90 days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years.
In this case we are concerned with the proviso to sec.
167 (2) of the Cr. P. C. 1973 prior to its amendment in 1978.
It appears that the Investigating officer failed to submit the charge sheet within the prescribed period and according to the High Court till as late as February 5, 1975.
Thereupon the two respondents moved an application under sec.
439 of the Cr. P. C. invoking the power of the High Court to grant bail to any person accused of an offence, even where the offence is punishable with death or imprisonment for life.
A Division Bench of the Allahabad High Court which heard the application was of the opinion that after the charge sheet has been submitted under sec.
170 Cr. P. C., the Magistrate has no jurisdiction to authorise the detention of an accused in custody under sec.
167 Cr. P. C., and therefore, the authority to remand the accused to custody after the charge sheet has been submitted, has to be gathered from other provisions of the Code.
The High Court then posed to itself the question whether in a case instituted upon a police report exclusively triable by the Court of Sessions, the Magistrate while committing the accused to the Court of Sessions, under sec.
209 Cr. P. C. has, after the accused is brought before him and before the order committing the accused to the Court of Sessions is made, jurisdiction to remand the accused to custody other than the police custody ? The High Court was of opinion that since after the enactment of Code of Criminal Procedure, 1973, the proceeding before the Magistrate under Chapter XVI of the Code would not be an enquiry within the meaning of the expression in sec.
2 (g) and, therefore, sec.209 would not confer power on the Magistrate to commit the accused to custody.
Proceeding along the line, the High Court held that in view of the provision contained in sec.
207 read with sec.
209 of the Cr. P. C. the Magistrate has to commit the accused forthwith to the Court of Sessions and only after the order of commitment is made, the Magistrate will have power to remand accused to the custody during and until the conclusion of the trial.
Tho High Court according held that the Magistrate has no 541 jurisdiction, power or authority to remand the accused to custody after the charge sheet is submitted and before the commitment order is made, and therefore the accused were entitled to be released on bail.
So saying, the High Court directed that the respondents be released on bail pending the trial by the Court of Sessions.
State of U.P. has preferred this appeal by special leave.
Respondents have not appeared even though served and the notice of lodgment of appeal has also been served upon them.
As the respondents had not entered appearance, a fresh notice of hearing the appeal was also issued, but the respondents have not chosen to appear at the hearing of the appeal.
Mr. Prithviraj, learned counsel appeared for the appellant, State of U.P.
At the commencement of the hearing of the appeal, we enquired from him as to what has happened to the case against the respondents, whether the trial had taken place; whether they were acquitted or convicted and whether any useful purpose would be served by hearing of the appeal which appears to us to have become practically infructuous.
Mr. Prithviraj had no information about the stage of trial and the present position of the respondents.
But it was urged that the interpretation put by the High Court on secs.
207, 209 and 309 if not examined by this Court is likely to result in miscarriage of justice in a large number of cases as the High Court has introduced a stage of compulsory grant of bail to persons accused of serious offence not warranted by the Code, and who would not be otherwise entitled to the discretionary relief of bail.
It is this submission which has persuaded us to examine the contention on merits.
Section 2(g) of the Code defines inquiry to mean every inquiry, other than a trial, conducted under the Code by a Magistrate or Court.
Cognizable offence has been defined in sec, 2(c) to mean an offence for which, a police officer may, in accordance with the First Schedule or under any other law for the time in force, arrest without warrant.
57 provides that no police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not, in the absence of a special order of a Magistrate under Sec. 167, exceed twenty four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate 's Court.
In fact, the provision contained in sec, 57 incorporates the fundamental right guaranteed by article 22 of the 542 Constitution.
Chapter XII of the Code incorporates provisions for initiation of investigation on receipt of information of a cognizable offence continuing the investigation culminating in the submission of a police report otherwise styled as charge sheet under sec.
170 to the Magistrate having jurisdiction, which would imply the end of investigation.
Subsequent proceeding before the Magistrate would be the commencement of inquiry or trial leading to either commitment for trial in the Session Court or to discharge or acquittal of the accused by the Court having jurisdiction to try the case.
167 finds its place in Chapter XII.
Prior to its amendment by the amending Act of 1978, it read as under: "(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty four hours fixed by sec.
57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to Magistrate having such jurisdiction: Provided that: (a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied, that adequate grounds exist for doing so, but, no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the 543 expiry of the said period of sixty days, the accused person shall be released on bail; and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of the Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police.
" In this appeal, we are concerned with sec.
167 hereinabove extracted.
The High Court after examining the scheme of sec.
167(1) and (2) with the Proviso rightly concluded that, on the expiry of 60 days from the date of the arrest of the accused, his further detention does not become ipso facto illegal or void, but if the charge sheet is not submitted within the period of 60 days, then notwithstanding to the contrary in sec.
437(1), the accused would be entitled to an order for being released on bail if he is prepared to and does furnish bail.
In this case, it is an admitted position that the respondents did not apply to the Magistrate for being released on bail on the expiry of 60 days from the date of their arrest.
The High Court was of the opinion that as the respondents did not apply for bail on the expiry of sixty days from the date of their arrest, their continued detention would not be illegal or without the authority of law.
So far there is no controversy.
It was next contended before the High Court that after the submission of the charge sheet, when the investigation could be said to have ended, it was not open to the Magistrate to authorise the detention of an accused in custody under sec.
167 of the Code, and therefore, if the accused is to be detained in custody after the submission of the charge sheet upon which the Magistrate takes cognizance of an offence, the power to remand the accused to custody will have to be gathered from other provisions of the Code.
The High Court then took notice of the fact that the police report discloses an offence exclusively triable by the Court of Sessions and the Magistrate will have to proceed according to the provision contained in sec.
209 of the Code.
Shorn of embellishment the High Court proceeded to find out how the accused against whom the allegation is that he is 544 suspected of having committed an offence punishable with death or imprisonment for life and in respect of whom the period for completion of investigation has elapsed and in the absence of charge sheet, order committing him to Court of Sessions to stand his trial cannot be made and the accused does not apply for bail, how is he to be dealt with by the Magistrate.
In other words during the interregnum, has the Magistrate power or jurisdiction to remand him to custody other than police custody and if there is such power, in which provision it is located.
The High Court then combed other provisions of the Code, and, ultimately, concluded that since the 1973 Code does not envisage a preliminary enquiry to be held by the Magistrate under Chapter XVI, the Magistrate is not expected to hold any enquiry before committing the accused and therefore sec.
309, would not enable him to remand the accused to custody.
In the terms High Court held that in such a situation for want of power in the Magistrate to remand accused to custody, the Magistrate must forthwith on receipt of charge sheet pass an order committing the accused to Court of Sessions to stand his trial and then exercise power under sec.
309 or to release him on bail notwithstanding the fact that accused has not sought an order of bail.
The High Court left the question unanswered what would happen if the accused is unable to furnish bail by suggesting that the best thing to do for the Magistrate in such a situation is to forthwith pass an order committing the accused to Sessions to stand his trail and then invoke his jurisdiction to remand the accused to custody under sec.
309 of the Code.
The High Court held that as the Magistrate before whom the charge sheet was submitted remanded the respondents to custody without making the order of commitment, the order remanding the accused to custody, cannot be sustained under secs.
167 (2), 209, 309 of the Code, and no other provision under which the respondents could be remanded to the custody at that stage having been indicated to the Court, the High Court considered it a compelling necessity to accede to the request of the respondents to direct that they should be released on bail.
Serious exception is taken to this view of the High Court by the learned counsel for the appellant.
Respondents were suspected of having committed an offence punishable under sec.
302 IPC.
On their having surrendered, they were taken into custody.
When the matter was before the High Court as noticed by the High Court, the charge sheet was not submitted against them by the Investigating Officer meaning thereby that 545 investigation was still in progress.
The High Court proceeded to examine the powers of the Magistrate to whom the charge sheet is submitted, in case of an offence exclusively triable by the Court of Sessions for dealing with an accused after he is produced before him presumably under sec.
170 and before an order committing the accused to the Court of Sessions as envisaged under sec.
209 is made.
If the High Court had no information when the application for bail moved by respondents for being enlarged on bail was heard as to whether the charge sheet against respondents was submitted to the Magistrate or not, in our opinion, it was futile for the High Court to undertake investigation of a point of law which would not directly arise in the facts before the High Court and ordinarily the academic exercise is hardly undertaken.
However, now as the High Court has dealt with the matter it becomes a precedent and, therefore, it becomes necessary for us to examine whether the view of the High Court is in consonance with the provision of the Code.
And if not whether in the larger interest of criminal justice, it is necessary to interfere with the same.
We would proceed on the assumption as done by the High Court that the Investigating Officer has submitted the police report as contemplated by sec. 170 and as required therein forwarded the accused under custody to the Magistrate to whom the police report is submitted.
Now, the High Court is right in holding that the jurisdiction to grant bail, in case investigation is not completed within the prescribed time limit as incorporated in the provision as it then stood, vests in the Magistrate if the accused applies and is prepared to furnish bail.
Section 167 envisages a stage when a suspect is arrested and the investigation is not completed within the prescribed period.
The investigation would come to an end the moment charge sheet is submitted as required under sec.
170 unless the Magistrate directs further investigation.
This view is in accord with the decision of this Court in State of Bihar Anr.
vs I.A.C. Saldanha & Ors.
(1) The question is how the Magistrate is to deal with the accused forwarded to him with the police report under sec.
170 and the police report disclose an offence exclusively triable by the Court of Sessions.
Provisions contained in Chapter XVI provide for commencement of proceedings before the Magistrate.
But before we refer to 546 those provisions, w must make a passing reference to the provision contained in sec.
190 which provides for taking cognizance of any offence by Magistrate, one such mode of taking cognizance of an offence being upon police report if the facts disclose an offence.
The police report contemplated by sec.
190(1)(b) is the one submitted to the Magistrate under sec.
provides for issue of process.
207 provides that in any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of costs, a copy of each of the documents set out therein.
There are two provisos to this section which are not material for the present purpose.
209 confers power on the Magistrate to commit the accused to the Court of Sessions when the offence disclosed in the police report is triable exclusively by it.
Section 209 reads as under: "209.
Commitment of case to Court of Sessions when offence is triable exclusively by it; When in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall (a) commit the case to Court of Sessions; (b) subject to the provisions of this Code, relating to bail, remand the accused to custody during, and until the conclusion of the trial;. " The High Court was of the opinion that on the submission of the police report under sec.
170, the Magistrate has to forthwith commit the accused to the Court of Sessions if the offence disclosed in the charge sheet is the one exclusively triable by the Court of Sessions.
This being the only function of the Magistrate according to the High Court, the proceeding before the Magistrate under sec.
207 read with sec.
209 would not be an inquiry within the meaning of the expression in sec.
2(g) of the Code.
In reaching this conclusion, the High Court referred to secs.
84, 116, 125, 137, 138, 145 and 146 as well as secs.
159 and 202 of the Code to ascertain the meaning of expression 'inquiry ' in the context in which it is used in these provisions.
These provisions would hardly shed any light on the nature of the proceedings and the function discharged by the Magistrate from the time of receipt of a police report 547 under sec.
170 disclosing an offence exclusively triable by the Court of Sessions and until making of an order committing the accused to the Court of Sessions to stand his trial.
The question posed is: is it an administrative function or it is a judicial function ? It is certainly not an administration function.
If it is judicial function, it has to be either an inquiry or a trial because the Code does not envisage discharge of judicial function by the Magistrate under the Code in any other manner.
The High Court in this context has observed as under: "These sections (207 209) do not contemplate that before committing the case to Sessions, the Magistrate should conduct some proceeding with a view to ascertain or verify facts.
209 of the Code merely required the Magistrate, taking cognizance of an offence on the basis of a police report, to look into the report and if he finds that the case is triable exclusively by Court of Sessions to make an order committing the case to Sessions.
Since in such a case the Magistrate taking cognizance of the offence is not required to conduct any proceeding for ascertaining or verifying facts with a view to commit the case to Sessions, it cannot be said that the provisions contained in secs.
204, 207 to 209 of the Code contemplate an inquiry under the Code.
" With respect this approach is not only not borne out by the relevant provisions of the Code but it overlooks the scheme of the sections and the purpose underlying the same.
Section 170 obligates the Investigating Officer to submit the police report if in the course of investigation sufficient evidence or reasonable ground is made out for the trial or for commitment of the accused, to the Magistrate empowered to take cognizance of the offence upon a police report.
On this report being submitted the Magistrate takes cognizance of the offence disclosed in investigation as envisaged by sec. 190.
It is indisputable that taking cognizance of an offence under sec.
190 is a purely judicial function subject to judicial review by court of appeal or revision to which the Magistrate is subject.
Cognizance of an offence even if exclusively triable by the Court of Sessions has to be taken by the Magistrate because section 193 precludes it from taking cognizance 548 of any offence when it provides that no Court of Sessions shall take cognizance of any offence as a court of original jurisdiction unless the accused has been committed by the Magistrate under the Code.
Thus even in case of an offence exclusively triable by the Court of Sessions, the police report on completion of investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial.
It is the Magistrate who takes cognizance of the offence and not the Court of Sessions though the case is one exclusively triable by the latter.
Sec. 170 directs that if the accused in respect of whom police report is being submitted is in police custody, he has to be forwarded alongwith the police report to the Magistrate.
When the Magistrate receives the report and the accused is produced before him it is necessary for him to pass some order for his further detention subject to provisions contained in Chapter XXXIII as to Bails and Bonds.
The view taken by the High Court makes it a necessity for the Magistrate to release the accused on bail even if the accused is not otherwise entitled to the discretionary order of bail nor he applies for nor is ready to furnish bail only because the Magistrate has no jurisdiction to keep the accused in custody till an order committing the accused for trial is made.
The High Court referred to sec.
209 which provides that the Magistrate shall commit the accused to Court of Sessions and subject to the provisions of the Code relating to bail, remand the accused to custody during and until the conclusion of the trial.
This according to the High Court implies that the Magistrate can exercise power to release on bail or remand to the custody the accused only after making the order of commitment but the Magistrate has no such power anterior to the order of commitment and during the interregnum since the receipt of the charge sheet.
This dichotomy read by the High Court in secs.
207 and 209 is certainly not borne out by the provisions of the Code.
Sec. 207 as it then stood made it obligatory for the Magistrate to supply free of costs, copies of the documents set out in the section.
The duty cast on the Magistrate by sec.
207 had to be performed in a judicial manner.
To comply with sec.
207 which is cast in a mandatory language, when the accused is produced before the Magistrate, he has to enquire from the accused by recording his statement whether the copies of the various documents set out in sec.
207 have been supplied to him or not.
No order committing the accused to the Court of Sessions can be made under sec.
209 unless the Magistrate fully complies with the provisions of sec.
And if it is shown that the copies of relevant documents or some 549 of them are not supplied, the matter will have to be adjourned to get the copies prepared and supplied to the accused.
This is implicit in section 207 and sec.
209 provides that on being satisfied that the requisite copies have been supplied to the accused, the Magistrate may proceed to commit the accused to the Court of Sessions to stand his trial.
The statutory obligation imposed by sec.
207 read with sec.
209 on the Magistrate to furnish free of costs copies of documents is a judicial obligation.
It is not an administrative function.
It is a judicial function which is to be discharged in a judicial manner.
It is distinctly possible that the copies may not be ready.
That makes it necessary to adjourn the matter for some time which nay be spent in preparing the copies and supplying the same to the accused.
The Magistrate can proceed to commit the accused for trial to the Court of Sessions only after he judicially discharges the function imposed upon him by sec.
This conclusion is fortified by the provisions contained in Chapter XVIII which prescribed the procedure for trial of a case by Court of Sessions.
Sec. 226 provides for opening the case for the prosecution.
227 confers power on the Court of Sessions to discharge the accused if upon consideration of the record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused.
No duty is cast on the Court of Sessions to enquire before proceeding to hear the case of the prosecution under sec.
226 to ascertain whether the copies of the documents have been furnished to the accused because section 207 casts the obligation upon the Magistrate to perform the judicial function.
Now, if under sec.
207, the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an inquiry for the purpose of satisfying himself that sec.
207 has been complied with in letter and spirit.
That satisfaction has to be judicial satisfaction.
It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry.
The making of an order committing the accused to the Court of Sessions will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment.
Thus, from the time the accused appears or is produced before the Magistrate with the police report under sec.
170 and the Magistrate proceeds to enquire whether sec.
207 has been complied with and then proceeds to commit the accused to the Court of Sessions, the proceeding before the Magistrate would be an inquiry as contemplated by sec.
2(g) of the Code.
We find it difficult 550 to agree with the High Court that the function discharged by the Magistrate under sec.
207 is something other than a judicial function and while discharging the function the Magistrate is not holding an inquiry as contemplated by the Code.
If the Magistrate is holding the inquiry obviously sec.
309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete.
Sub sec.
2 of sec.
309 provides that if the Court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody.
There are three provisos to sub sec. 2 which are not material.
If, therefore, the proceedings before the Magistrate since the submission of the police report under sec.
170 and till the order of commitment is made under sec.
209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, sec.
309(2) would enable the Magistrate to remand the accused to the custody.
Therefore with respect, the High Court committed an error in holding "that the order remanding the respondents to custody, made after cognizance of offence was taken cannot be justified under section 167(2), 209 and 309 of the Code and no other provision under which the respondents can be remanded to custody at this stage, has been indicated by the learned Government Advocate, we feel that it would be proper to accede to the request made by the respondents and to direct that they would be released on bail after furnishing adequate security to the satisfaction of the Chief Judicial Magistrate, Banda.
" The view taken by the High Court introduces a stage of compulsory bail not envisaged by the Code, and therefore, also the view of the High Court cannot be upheld.
According to the High Court after the accused is brought before the court alongwith the police report, the Magistrate must forthwith commit the accused to the Court of Sessions because the Magistrate would have no jurisdiction in the absence of any provision to remand the accused to custody till the order committing the case to Court of Sessions is made.
The view with respect is wholly untenable and must be set aside.
Mr. Prithviraj, learned counsel, drew our attention to the decision of this Court in Gauri Shanker Jha vs The State of Bihar 551 and Ors '(1) This case is of no assistance because it dealt with the situation under the Code of Criminal Procedure, 1898 which did require the Magistrate to be satisfied with prima facie case before an order committing an accused to the Court of Sessions could be made.
In view of the discussion, this appeal is allowed and the order of the High Court granting bail to the respondents on the short ground that they could not be remanded to the custody before the order committing them to the Court of Sessions is made, is set aside, However, if in the meantime, the trial is over, no question of taking the respondents into custody pursuant to the order would arise.
H.L.C. Appeal allowed.

summary/full:
The respondents were suspected of having committed an offence punishable with death or imprisonment for life under section 302 I.P.C. triable exclusively by the Court of Session.
They surrendered before the Magistrate on November 2, 1974 and were taken into custody.
The investigating officer failed to submit the charge sheet/police report against them within the period of 60 days contemplated by the proviso to sub section
(2) of section 167 of the Code of Criminal Procedure 1973 as it stood prior to its amendment in 1978.
However, the respondents did not apply to the Magistrate for being released on bail but approached the High Court under section 439 Cr.
According to the High Court, the charge sheet against the respondents was submitted on February 5 1975.
The High Court directed that the respondents be released on bail pending trial by the Court of Session holding: (i) that in a case triable exclusively by the Court of Session after the charge sheet has been submitted under section 170 and before committing the accused to the Court of Session the Magistrate has no jurisdiction to authorise the detention of an accused in custody under section 167 Cr.
P.C.; (ii) that in such a case section 209 would not confer power on the Magistrate to commit the accused to custody since after the enactment of the Code of Criminal Procedure, 1973, the procedure before the Magistrate under Chapter XVI of the Code would not be an inquiry within the meaning of section 2 (g) thereof; 538 (iii)that in such a case section 309 would also not enable the Magistrate to A remand the accused to custody since he would not be competent to try the accused; and (iv) that in view of the provision contained in section 207 read with section 209 Cr.
P.C. the Magistrate has to commit the accused forthwith to the Court of Session and it is only after the order of commitment is made that the Magistrate will have power to remand the accused to the custody during and until the conclusion of the trial.
Allowing the appeal, ^ HELD: The view that after the accused is brought before the court along with the police report under section 170 Cr.
P.C. the Magistrate must forth with commit the accused to the Court of Session because the Magistrate would have no jurisdiction in the absence of any provision to remand the accused to custody till the order committing the case to the Court of Session is made.
is wholly untenable and must be set aside.
[550 F H] Section 170 Cr.
P.C. Obligates the investigating officer to submit the police report, if in the course of investigation sufficient evidence or reasonable ground is made out for the trial or for commitment for trial of the accused, to the Magistrate empowered to take cognizance of the offence upon a police report.
On this report being submitted, the Magistrate takes cognizance of the offence disclosed in investigation as envisaged by S.190.
Cognizance of an offence even if exclusively triable by the Court of Session has to be taken by the Magistrate be cause section 193 precludes the Court of Session from taking cognizance of any offence.
Taking cognizance of an offence under section 190 is a purely judicial function subject to judicial review.
The statutory obligation imposed by section 207 read with section 209 on the Magistrate to furnish free of cost copies of documents mentioned in section 207 to the accused is a judicial function and it has to be discharged in a judicial manner.
It is distinctly possible that the copies may not be ready.
That makes it necessary to adjourn the matter for some time which may be spent in preparing the copies and supplying the same to the accused.
The Magistrate can proceed to commit the accused for trial to the Court of Session only after he judicially discharges the function imposed upon him by section 207.
This conclusion is fortified by the provisions contained in Ss. 226 and 227 of Chapter XVIII which prescribe the procedure for trial of a case by the Court of Session.
When the Magistrate is performing a judicial function under section 207, it would undoubtedly be an inquiry.
The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry.
Thus from the time the accused appears or is produced before the Magistrate with the police report under section 170 and the Magistrate proceeds to enquire whether section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by section 2(g), and section 309(2) would enable the Magistrate to remand the accused to custody till the inquiry to be made is complete.
[547 G H; 548 A B; 549 B H; 550A D] 539 In the instant case, when the matter was before the High Court, the charge sheet had not been submitted against the respondents by the investigating A officer meaning thereby that the investigation was still in progress.
If the High Court had no information when the application for bail moved by the respondents for being enlarged on bail was heard as to whether the charge sheet against the respondents had been submitted to the Magistrate or not, it was futile for the High Court to have undertaken an investigation of a point of law which did not directly arise in the facts before the High Court.
As the High Court had dealt with the matter, it became a precedent and, therefore, it became necessary for the Court to examine whether the view of the High Court was in consonance with the provisions of the Code.
[544 H; 545 A D] The High Court was right in holding that the jurisdiction to grant bail, in case investigation is not completed within the prescribed limit as incorporated in the proviso to section 167 (2) as it then stood, vests in the Magistrate if the accused applies for and is prepared to furnish bail.
Section 167 envisages a stage when a suspect is arrested and investigation is not complete within the prescribed period.
The investigation would come to an end the moment charge sheet is submitted as required under section 170 unless the Magistrate directs further investigation.
[545 E F] State of Bihar and Arn.
vs J.A.C. Saldanha and Ors. ; , referred to.