judgement:
Appeal No. 500 of 1966.
Appeal by special leave from the judgment and order dated July 27, 1965 of the Mysore High Court in Second Appeal No. 235 of 1960.
B. R. L. Iyengar and E. C. Agrawala, for the appellant.
R. Gopalakrishnan, for the respondent.
8 The Judgment of the Court calling for a report was delivered by Shah, J.
The appellant was appointed on April 10, 1949, HeadMistress of St. Aloysius Higher Elementary School, Urva then in State of Madras.
On June 1, 1955, the Manager of the School reduced her to the post of an Assistant Teacher.
Her appeal to the District Educational Officer, South Kanara, against the action of the Manager was rejected.
In second appeal, the Divisional Inspector of Schools, Coimbatore, by order dated July 5, 1956, allowed the appeal and directed the District Educational Officer to issue instructions to the Management of the School to reinstate the appellant as Head Mistress.
But no effect was given to that order by the Management.
On June 26, 1957, the appellant filed the suit out of which this appeal arises claiming a, mandatory injunction directing the Management of the School to reinstate her to the post of Head Mistress and damages for loss resulting from the wrongful action of the Management.
It was the appellant 's case that the school was receiving grantin aid from the Government of Madras and was subject to the supervision and control of the Education Department of the Government of Madras, and since the reorganization of the States, of the Mysore Government of the affairs of the school, said the appellant, were conducted according to the rules and regulations framed by the Government and embodied in the rules relating to the elementary schools framed under the Madras Elementary Education Act, 1920, and on that account the order passed by the Manager removing her from the post of Head Mistress stood vacated, and refusal of the Manager to reinstate her was illegal, because the Manager was bound by rr. 13 & 14 framed under the Madras Elementary Education Act to obey the order passed by the Divisional Inspector of Schools on an appeal preferred by her.
The suit was resisted by the Management.
They contended that they were not bound by the Madras Elementary Education Act or the rules framed thereunder; that the Manager alone was responsible for the "efficiency, strength and progress" of the school and for the internal discipline, which were all matters left to his discretion and the Management could not be compelled to reinstate the appellant as Head Mistress when she did not command their confidence.
The Trial Court held that the appellant was not entitled to claim reinstatement as Head Mistress, because the action of the Management removing the appellant 's from the post of Head Mistress was not illegal.
The Trial Court also held that the orders 9 passed by the Educational authorities were not binding on the Manager and the action taken by the Manager "though severe", could not be declared illegal.
In appeal the District Court reserved the Judgment passed by the Trial Court and decreed the appellant 's suit and issued a mandatory injunction directing the Management of the School to reinstate the appellant as Head Mistress of the School.
Against that decree a Second Appeal was preferred to the High Court of Mysore.
The High Court reversed the decree passed by the District Court and ordered that the appellant 's suit do stand dismissed.
Against that order this appeal is preferred with special leave.
The principal question which fell to be determined before the High Court was whether the rules framed under the Madras Elementary Education Act, 1920, which conferred authority upon the educational authorities of the State, were statutory and enforceable at the instance of a person prejudicially affected by breach thereof.
The Madras Elementary Education Act 8 of 1920 which originally contained 56 sections has been amended from time to time by Madras Acts 2 of 1932, 2 of 1934, 11 of 1935, 13 of 1938, 2 of 1939, 15 of 1951, 28 of 1943, 8 of 1946 and 23 of 1950.
As a result of these amending Acts a large number of the provisions of the Madras Elementary Education Act, 1920, have been modified or repealed.
Section 41 which provided for the recognition of elementary schools and section 42 which provided for admission of elementary schools to grant in aid, stood repealed by Act 2 of 1939.
By section 56 the State Government was authorized to make rules not inconsistent with the Act to carry out all or any of the purposes of the Act, and by sub section
(2) of section 56 it was provided : "In particular and without prejudice to the generality of the foregoing provisions they may make rules (f) laying down the registers, statements, reports, returns, budgets and other information to be maintained or furnished by local authorities, by panchayats, and by managers of elementary schools under private management and the time within which any statement, report, return, budget or other information shall be furnished; (h) declaring the conditions subject to which schools may be admitted to recognition or aid." 10 Rules were framed under the Act for the first time by the Govt.
of Madras in 1922.
These rules provided for the grant of recognition and aid to elementary schools, and for prescribing conditions of service and qualifications of teachers and the authority of the District Educational Inspector and higher authorities.
The provisions relating to the recognition of the elementary schools and admission of primary elementary schools to grantsin aid were, as stated earlier, repealed by Act 2 of 1939, but the power to frame rules, especially for the purpose of declaring the conditions subject to which schools may be admitted to recognition or aid, was retained.
It also appears that even after Act 2 of 1939 which repealed Ch.
IV was enacted, rules relating to the power of the Educational authorities were republished on August 29, 1949, and Part II of the Rules dealt with matters relating to recognition of schools and grant in aid.
In the view of the High Court, after repeal of sections 41 & 42 of the Act, those rules could only have effect as executive instructions.
On this question it appears that there has been some difference of opinion in the High Courts.
A Full Bench of the Kerala High Court in Chandrasekharan Nair and others vs Secretary to Govt.
of Kerala and others,(1) approving their earlier judgment in Joseph Valamangalam vs State of Kerala(1) held that the rules contained in Part II headed "Rules for grant of recognition and aid to Elementary Schools" framed under the Madras Elementary Education Act, 1920, were mere executive directions having no statutory authority.
The High Court of Andhra Pradesh in Jalli Venkatswamy V.
The Correspondent, Kasturiba Gandhi Basic Senior School kenetipuram(3) was apparently of the view that these rules had statutory operation.
The High Court of Madras in A. Ramaswami Ayyangar vs State of Madras (Education Department)(1) held that the rules were administrative and not statutory in their effect, and the management could dispense with the services of its employee (a teacher) after giving three months ' notice in the usual course, without assigning any special reason, and the employee could not invoke the aid of the Court for an order to quash the proceedings of the management dispensing with his services on the ground of non compliance with those rules.
(1) A. I. R. 1961 Kerala 303.
(3) A. I. R. (2) A. I. R. 1958 Kerala 290.
(4) A. I. R. 11 In this case, the question whether an. order made by the Educational authorities in exercise of the powers conferred upon them by rules is liable to be enforced by action in a civil court at the instance of s person affected by the action of the school authorities falls to be determined.
It is unfortunate that counsel have not been able to place before us the Act, and the rules in force at the material time.
Counsel appearing at the Bar are also unable to inform us about the authority in the exercise of which the rules were originally framed and were reissued after the repeal of Ch.
IV of the Act.
Before we can decide this appeal, we must have before us a copy of the relevant rules in force at the material time, and evidence about the authority under which the rules were framed and continued, the sanction behind the enforcement of the rules, if any, and the manner in which the rules were being administered by the Madras Government and thereafter by the State of Mysore when the District of South Kanara merged with that State under the States Reorganization Act, 1956.
We direct that the papers be sent down to the Trial Court and that the Trial Court do report to us after taking evidence on the questions set out earlier.
The Trial Court may, if so advised, issue a summons to the Educational authorities of the State of Madras or take other steps to ensure production of the documents bearing on the questions on which report is directed to be made.
Enquiry may especially directed to the question whether the State of Madras, or the state of Mysore, have on any earlier occasion enforced the orders passed by the Educational authorities in appeals and the power in exercise of which they have been enforced.
The Trial Court to submit the report within six months from the date on which the papers reach that Court.
The judgment of the Court after receipt of the report was delivered by Shelat, J. Prior to June 1, 1955, the appellant was working as the Head Mistress in the respondent school.
On April 22, 1955, the management of the School served certain charges on her and called upon her to reply to the same.
Her reply was found to be unsatisfactory, and thereupon, by an order passed by the management on June 1, 1955 she was reduced to the position of an Assistant Teacher.
She thereafter filed an appeal against the management before the District Educational Officer, South Kanara.
Her appeal was rejected.
A further appeal by her before the Divisional Inspector of Schools, Coimbatore, succeeded and the Divisional Inspector directed the management to restore her to her original position as the Head Mistress.
The management declined to do so and she filed the suit from which this appeal arises.
12 The suit was on the basis: that since the school had obtained recognition and grant in aid under the Madras Elementary Education Act, VIII of 1920, and the rules made therefore by the Government, it was under the supervision,first of the Education Department of the Madras Government,and.
after reorganization of States, that of the Mysore Government.
According to her, the Act and the said rules were binding on the school and gave her a right to enforce against the management the said order of the Divisional Inspector.
The order reducing, her to the position of an assistant teacher stood vacated by the order of the Divisional Inspector and the respondent school, therefore, was bound to comply with that order and restore her to the position of the Head Mistress, The management contested the suit, maintaining that the order of reduction passed by it was within its power, that there was nothing in the Act or the rules which warranted any interference with its right of internal management of the school and gave no right to the appellant to enforce in, a court of law the order passed by the Divisional Inspector, that order being only a matter between the Education Department and the management.
The Trial Court accepted the school 's contention and dismis sed the suit.
In an appeal against that dismissal, the District Judge took a different view and held that the order of the Department was legally enforceable by the appellant since it was passed in an appeal provided by the said rules.
He set aside the dismissal of the suit and passed a decree in favour of the appellant.
On a second appeal by the school, the High Court went into the legislative history of the Act and on an examination of the rules accepted the contention of the management that the relations hip between the parties was that of master and servant and no mandatory injunction could be issued directing restoration of the appellant as the Head Mistress as that would be tantamount to specific performance of a contract of personal service not permissible under section 21(b) of .
The High Court also held that the rules, under which the appellant had filed the said appeal and the said order was made, were only administrative instructions by the Government to its educational officers and not statutory rules which would give rise to a remedy enforceable at law at the instance of an employee of a school aggrieved against its management.
Against this judgment, the appellant obtained special leave from this Court and filed this appeal.
The appeal first came up for hearing in March 1970 before Shah, J. (as he then was) and Grover, J. Not satisfied with the record before them, the learned Judges postponed the hearing of the appeal and called for a report from the Trial Court on certain matters found wanting in the record, In accordance with that order, the Trial Court took additional evidence, both oral and 13 documentary, and dispatched its. report along with a copy of the rules, the Madras Gazette in which they were published and certain other materials.
From; those materials as also from the judgment of the Kerala High Court reported in Rev. Fr. Joseph vs Kerala(1) it is possible to, trace the charges which the Act and the rules have undergone from time to time.
Such a legislative, history of the Act is important to a certain extent as it throws light on the character of the rules and the power under which they were framed from time to time.
Counsel for the appellant urged that in spite of the changes made from time to time in the Act, the rules with which we are concerned in this appeal have retained their original character of being statutory rules.
, They must, therefore, be, held to have been made under section 56 and particularly under cl.
(h) of its sub section
(2), which empowers the Government to make rules in respect.
of recognition as an elementary school and the aid which the Government gives to it from public funds.
The argument was that despite the changes in the Act, particularly the deletion of certain provisions of the Act, to which we shall presently come, the definition of an 'elementary school ' in the Act takes in schools recognised by the Director of Public Instruction of the State Government, and since such a recognised school is the essence of the scheme of elementary education provided by the Act, the rules have to be treated as statutory rules made,under, cl.
(h) of section 56(2) which is still retained in the Act.
Before we proceed to.
consider these contentions it is necessary to examine briefly the Act and its legislative history.
The Act was, first passed as Madras Act, VIII of 1920, and then contained seven chapters with 56 sections.
It underwent several changes.
from, time to time, and particularly when the Madras Elementary Education (Amendment Act.
II of 1939 was passed by which Chapter II, IV, VI and section 55 in Ch.
were deleted.
The Act was passed with the object of making better provisions for elementary education and envisaged imparting of such education through elementary schools, including those run by private managements, but recognised by the Government through its Education Department.
Sec. 3(vi) of the Act defines such an elementary school as one recognised by the Director of Public Instruction or by such authority as may be empowered by him in that behalf.
56 authorized the Government to make rules not inconsistent with the provisions of the Act "to carry out all or any of the purposes (1) A. I. R. 1958 Kerala 290.
14 of this Act", and in particular cl.
(h) of sub section
(2) for "declaring the conditions subject to which schools may be admitted to recognition or aid." Ch. II, before its deletion in 1939, provided for the constitution of District Educational Councils, their duties, their funds, budget and audit.
VI, by sections 41 to 43 in it, dealt with recognition of schools and admission of private managed schools to grant in aid.
These chapters, as stated earlier, were repealed in 1939.
The Rules were first framed in 1922 under section 56 and contained provisions regarding recognition and aid.
These Rules were clearly statutory rules.
Curiously, although Chs. 11 and IV were deleted in 1939, cl.
(h) of section 56(2) was allowed to remain in the Act.
It appears that the rules regulating recognition and aid were framed in 1922 because so long as Chs. 11 and IV were in the Statute, they had to be made to implement the purposes set out in those chapters.
But with the repeal of those chapters, those Rules could not be continued as they could no longer be regarded as rules for carrying out the purposes of the Act as section 56(1) enjoins The Madras Government appears to have appreciated such a re sult arising from the repeal of those chapters and therefore, reframed the rules and published them in the Gazette of August 29, 1930.
The new Rules were divided into two parts.
The first part contained rules dealing with matters provided for in sections 3(i)(v) and (viii), section 36(1) and (2), section 44, section 48, section 50(iii) and (v) and section 51.
Part II Rules did not set out or refer to any of the sections in the Act as Part I Rules did.
The reason was that rules in Part 11 dealt with recognition and aid in respect of which there were, after the 1939 amendment, no corresponding provisions in the Act.
It is also of some significance that when published in 1939 the rules in Part I were headed "Rules framed under the Madras Elementary Education Act, 1920", while the rules contained separately in Part II were not given any such heading or title.
Further, it appears that when these Part II Rules were published in August 1939 there was no previous publication of them as required by section 56(1) of the Act.
I in Part II Rules deals with recognition.
The power to grant or withdraw such a recognition is conferred on the officers of the Education Department.
Under r. 5, applications for recognition of schools or additional standards in such schools are to be made to the District Educational Officer.
An appeal is provided against his decision before the Divisional Officer.
The rules then lay down certain requirements on the basis of which recognition would be given or withheld.
Rule 13(1) provides, inter alia, for the maintenance of a teacher 's service register by the manager of the school specifying therein the terms of service under which a teacher is recruited.
The register would include 15 particulars showing whether a teacher is appointed temporarily or on probation or on a permanent basis, his salary, the scale of pay, if any, etc.
Under the rule, the manager has to get the register countersigned by the Deputy Inspector of Schools.
The rule further provides that no qualified teacher can be appointed on ;a temporary basis or for a stipulated period.
All appointments to permanent posts have initially to be made on probation and on expire of the probation period the teacher would be deemed to be permanent.
(2) of r. 13 provides that no teacher can leave the service of a school without giving three months ' notice, or three months ' salary in lieu thereof.
Under sub cl.
(ii) of cl.
(2) of that rule, the management has the power to terminate the service of any member of the staff, whether permanent, temporary or probationary, without any notice on the grounds set out therein.
But, three months ' notice would be required if the termination of service is for reasons other than those set out in sub cl.
(ii), e.g., for wailful neglect of duty, serious misconduct, gross insubordination, incompetence etc.
The first provision to sub cl.
(ii) requires, however, that before such notice of termination is given the teacher has to be informed in writing of the charges against him and a reasonable opportunity to be heard has to be given to him.
The second proviso to that subclause requires the management to consult the Deputy Inspector and obtain his approval about the propriety of the action proposed against a teacher.
The rule then provides : "When, on a teacher 's appeal, the District Educational Officer orders reinstatement, the management shall forthwith reinstate him within 10 days of the receipt of the orders, notwithstanding a further appeal submitted or proposed to be submitted by the management to the Divisional Inspector and shall inform in writing the Deputy Inspector of Schools and the District Educational Officer of the fact of having done so.
Failure to comply with such orders of the District Educational Officer may entail action against the management under rule 14 below.
" Sub cl.
(vi) of r. 13(2) provides for appeals, first, before the District Educational Officer, and then, before the Divisional Inspector of Schools.
Under r. 14, the Director of Public Instructions has the power to declare, after enquiry, a teacher to be unfit for employment in a recognised school.
Under r. 14 A, he can refuse or withdraw recognition from a school in which is employed a teacher whom he has declared to be unfit, or when the school is under the management of a person declared unfit by him.
Recognition can also ' be withdrawn under rr.
26 to 28, 28 A and 28 B on the grounds set out therein.
11 of Part II Rules contain rules in regard to aid, such as teaching grants, maintenance grant etc., 16 and Ch.
III contains rules with regard, to grants for school buildings, building sites and play grounds.
II and IV of the Act, which contained provisions for recognition and aid, having been repealed, these rules, reissued and published afresh in August 1939, cannot be said to be rules "to,, carry out all or any of the purposes of this Act", as provided by section 56(1).
No doubt, cl.
(h) of sub section (2) of section 56 was still retained even after Chs. 11 and IV were deleted, and therefore, the Government could perhaps claim to have the power to frame statutory rules "declaring the conditions subject to which schools may be admitted to recognition or aid".
But even if the Government were to claim to have framed rules under the sanction contained in cl.
(h) of section 56(2), such rules would not satisfy the condition precedent for such rule making, namely, that they can be made only "to carry out all or any of the purposes of this Act".
, Such rules, therefore, even if made, would not be rules made under section 56.
Besides, the fact is that when Part 11 Rules were published in the gazette of August 28, 1939, they were not claimed to have been made under the power reserved to the Government under section 56.
If they were claimed to have been so made, they would, firstly, have been pre published as required by section 56(1), and secondly, the Government would not have made the distinction between Part I and Part II Rules, which it did, by giving a title to the former, namely, that they were made under the Act, and omitting to give such a title to the latter.
These facts support the contention of the respondent school that Part 11 Rules cannot be said to be statutory rules framed under section 56, although the power to make such rules is still retained with the Government by reason of cl.
(h) being still there in section 56(2).
Ordinarily, the relations between the management of an ele mentary school and the teachers employed in it would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute controlling or abrogating such a contract of employment and providing to the contrary.
The mere fact that such a school has obtained recognition and aid from the education department would not mean that the relationship between its management and its employees has ceased to be governed by the contracts of employment under which the employees are recruited and by the law of master and servant unless there is some provision in the Act overriding that law as one finds in statutes dealing with industrial disputes and similar other matters.
There is in fact no such provision in the Act and none was pointed out to us.
The result is that the relations between the management and the teachers even in a recognised elementary school have to be regarded as being governed by the contracts of employment 17 and the terms and conditions contained therein.
Part II Rules, which cannot be regarded as having the status of statutory rules made under section 56, cannot be said to have the effect of controlling the relations between the management of a school and its teachers or the terms and conditions of employment of such teachers or abrogating the law of master and servant which ordinarily would govern those relations.
But it cannot also be gainsaid that as the Government has the power, to admit schools to recognition and grants in aid, it can, de hors the Act, lay down conditions under which it would grant recognition and aid.
To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, the Government would have to frame rules which, however, would be in the form of administrative instructions to its officers dealing with the matters of recognition and aid.
If such rules were to lay down conditions, the Government can insist that satisfaction of such conditions would be condition precedent to obtaining recognition and aid and that a breach or non compliance of such conditions would entail either the denial or withdrawal of recognition and aid.
The management of school, therefore, would commit a breach or non compliance of the conditions laid down in the rules on pain of deprivation of recognition and aid.
The rules thus govern the terms on which the Government would grant recognition and aid and the Government can enforce those rules upon the management.
But the enforcement of such rules is a matter between the Government and the management, and a third party, such as a, teacher aggrieved by some order of the management, cannot derive from the rules any enforceable right against the management oh the ground of a breach or noncompliance of any of the rules.
To illustrate the point, suppose the management of a school were to terminate the service of a teacher after giving one month 's notice, or one month 's salary in lieu thereof in 'accordance with the contract of employment between the feather and the management, such a termination would be valid.
But the 'Government can insist that since its rules provide for three months ' 'notice, the management cannot terminate the service of a teacher by giving only one month 's notice.
Though in the absence of 'statutory provision having the effect of controlling or superseding the contract of employment agreed to between the parties, the termination would in law be valid, nevertheless, the Government can withdraw, under Part II Rules, the recognition and aid it has given to the school since its rules governing recognition and aid were riot complied with.
But that does not mean that Part II Rules confer upon a third party, viz., an aggrieved employee of a school, any remedy enforceable at law in the event of the management of an elementary school refusing to comply with these 18 rules which, inter alia, enjoin upon a school to abide by the directions given thereunder by the education officers of the Government named therein.
in the absence of any provision in the Act governing the relations between the management and a teacher employed by it or controlling the terms of employment of such a teacher and Part II Rules not being statutory rules, the appellant could not be said to have had a cause of action for enforcing the directions given by the Divisional Inspector to restore her as the Head Mistress in the appeal filed by her.
Appeals against orders passed by the management against a teacher are provided for under r. 19 so as to enforce the satisfaction of conditions under which recognition and aid would be granted or withdrawn, and not for regulating, as between the teacher and the management, the relations of master .and servant arising under the contract of employment.
In Rev. Fr. Joseph vs Kerala,(1) the Kerala High Court had to consider the question of these rules being statutory or not as one of, the schools, whose writ petition among others it was trying, was governed by the Madras Elementary Education Act, 1920 and the rules made, by the Madras Government.
After tracing legislative,, history of the Act, as also of the rules, the High Court held that Part II Rules did not have any statutory origin and were, therefore, only administrative instructions by the Government to its educational officers, and therefore, did not vest in the school any, statutory right for grant in aid.
This decision was later approved by a full bench of that High Court in Chandrasekharan Nair vs Secretary to Government of Kerala(2) where that Court once again held that Part II Rules were administrative rules.
Similarly, in A. Ramaswami Ayyangar V. Madras,(3) the High Court of Madras negatived the contention that these rules, dealing with recognition and aid, could be invoked by an, employee against the management of a private elementary school to enforce a right allegedly arising under the rules.
The High Court held that the rules were, not statutory , rules, and that therefore.
they could not enlarge the scope of the contract of employment between such an employee of, the school and the management embodied in the school register, and that the rules affected the relations between the school and the Government, and not a third party.
In Govindaswami vs Andhra,(1) a learned Single Judge of the Andhra High Court, took the view that the powers and functions of the State 's educational officers under these rules in relation to recognition a ad aid were quasi judicial and held that these rules were Statutory (1) A. 1.
R. 1958 Kerala 290.
(3) 1962(1) M. L. J. 269.
(2) A. I. R. 1961 Kerala 303.
(4) 1962(1) An.
W. R. 263.
19 rules.
But this view was on an assumption that even Part II Rules were made under section 56(2)(h) of the Act.
Such an assumption was made without any enquiry whether they were so made and without taking into account the fact of the deletion of Chs.
II and IV from the Act in 1939, and its impact on the rule making power of the Government, the re issuance of the rules thereafter and the distinction made by the Madras Government itself between Part I and Part 11 Rules in the headings which it gave to those two parts.
The more recent view of the Andhra High Court, however, is reflected in Moss vs The Management(1) where a Division Bench of that High Court has held that Part 11 Rules relating to recognition and aid are not statutory rules but are only executive instructions, and therefore, are not legally enforceable in a court of law.
On the reasons aforesaid, the suit filed by the appellant must be held to be misconceived, and consequently, the High Court righty dismissed her suit.
The appeal fails and is dismissed.
But in the circumstances of the case, we decline to make any order as to costs.
V. P. section Appeal dismissed.
(1) 1970(II) An.
W. R. 157.

summary/full:
The appellant, who was working as the Headmistress in the respondent school was reduced to the position of an Assistant Teacher.
Her appeal to the District Educational Officer under.
13(2)(vi) of Part 11 of the rules published by the State Government in the Gazette on August 29 1939, was rejected, but on a further appeal by her to the Divisional Inspector of Schools, the management of the school was directed to restore her to the position of Headmistress.
As the management did not do so, she filed a suit for the issue of a mandatory injunction to the respondent and for damages.
On the question whether the rules under which the appeal was filed and the order was made were only administrative instructions by the Government to its educational officers and not statutory rules which would give rise to a remedy enforceable at law at the instance of an employee of a school aggrieved against the management, HELD: (1) Section 56 of the Madras Elementary Education Act, 1920, authorized the Government to make rules to 'carry out all or any of the purposes of this Act ', and under sub section 2(h) for declaring the conditions subject to which schools may be admitted to recognition or aid, and rules were framed in 1922.
The Act was amended by Amendment Act of 1939, by which Chs. 11, IV, VI and section 55 were deleted.
The existing rules therefore could not be continued as they could not be regarded as rules for 'carrying out the purposes of the Act. ' Hence they were reframed and published in the Gazette in 1939 in two parts.
[13F, H; 14D].
(a) The first part contained rules dealing with matters provided for in the various sections.
The rules in Part II could not refer to any section because, they related to matters such as recognition and aid dealt with in sections and Chapters which were repealed by the 1939 amendment, and hence, Part II rules did not set out or refer to any section of the Act.
[14E].
(b) The rules in Part I were headed 'Rules framed under the Madras Elementary Education Act, 1920 ', but the Rules in Part 11 were not given any such heading or title.
[14F].
(c) There was no previous publication of the rules in Part 11 as required by section 56(1).
[14F G].
(d) The rules in Part 11 could not be claimed to have been made under section 56(2) (h) dealing with the conditions subject to which schools may be admitted to recognition or aid, because they did not satisfy the condition precedent for such rule making, namely, that they could be made only 'to carry out all or any of the purposes of the Act ', [16D F].
7 Therefore, the rules in Part 11 could not be said to be statutory rules framed under section 56.
[16F] (2) But the Government had the power de hors the Act to lay down conditions under which it could recognise and grant aid.
To achieve uniformity and certainty in the exercise of such executive power and to avoid discrimination, Government could frame rules which would however only be administrative instructions to its officers.
[17B D] The rules in the present case, relating to recognition and aid, thus governed the terms on which Government would grant recognition and aid and Government could enforce the rules on the management by the denial or withdrawal of such recognition or aid, if there was a breach or noncompliance of the conditions laid down in the rules.
But the enforcement of such rules was a matter between the Government and the management, and a third party, such as a teacher aggrieved by same order of the management, could not derive from the rules any enforceable right against the management on the grounds of a breach of or non compliance with any of the rules.
[17D E; 19B C] (3) The relation between the management of the elementary school and the teachers employed in it would be governed by the terms of the contract of employment and the law of master and servant in the absence of any statute or statutory rules controlling or abrogating such a contract and providing to the contrary.
[16F G] The result is that the relations between the managements and the teachers even in a recognised elementary school have to be regarded as being governed by the contracts of employment and the terms and conditions contained therein.
Part II Rules, which cannot be regarded ,is having the status of statutory rules made under section 56 cannot be said to have the effect of controlling the relations between the management of a school and its teachers.
[16H; 17A B] Therefore, the appellant could not be said to have had a cause of action for enforcing the directions given by the Divisional Inspector to restore her as the Headmistress in the appeal filed by her.
Appeals against orders passed by the management against a teacher are provided for under r. 13 so as to enforce the satisfaction of conditions under which recognition and aid would be granted or withdrawn, and not for regulating as between the teacher and the management, the relations of master and servant arising under the contract of employment.
[18B C] Chandrasekharan Nair vs Secretary to Government of Kerala, , A. Ramaswami Ayyangar vs State of Madras, , and Moss.
vs The Management, , approved.
Govindaswami vs Andhra, , overruled


judgement:
minal Appeal No. 240 of 1968.
972 Appeal by special leave from the judgment and order dated February 8, 1968 of the Punjab and Haryana High Court in Criminal Revision No. 237 of 1967.
section Lakshminarasu, for the appellant.
B. D. Sharma and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by Vaidiafingam, J.
In this appeal, by special leave, the appellant accused challenges the judgment and order dated February 8, 1968, of the Punjab & Haryana High Court in Criminal Revision No. 237 of 1967, confirming the conviction and sentence passed against him for an offence under section 29 of the (hereinafter to be referred as the Act).
The appellant was at the relevant period a constable having roll number 857.
He was originally recruited in 1950 to the police service in the composite Punjab State; and on the formation of the State of Haryana, he was allotted to Haryana.
The appellant was posted to do duty at the police lines,, Kamal, before November 25, 1963.
It was reported by the Lines Officer on November 25, 1963 that when roll call was taken on the evening of that day at about 6.30 p.m., the appellant was found absent.
The report also refers to the absence of certain other police officers, with whom we are not concerned.
The judicial magistrate, Karnal, issued what is stated to be a notice dated January 10, 1966 to the appellant, alleging that he was found absent from duty from the police lines at the time of roll call on November 25, 1963.
He was asked to "plain why he should not be held guilty under section 29 of the Act.
The appellant stated that he would neither plead guilty nor would he admit that he remained absent from duty.
He has further stated that he was mentally upset in view of the sudden deaths of his mother and brother in law, and also due to his children being cut off from him.
He wound up, his answer by saying that he was under medical treatment in the civil hospital, Karnal, and the doctor therein sent him to Patiala.
He was tried for an offence under section 29 of the Act on the ground that he was absent from duty on November 25, 1963.
The judicial magistrate, by his order dated March 4, 1966, found the appellant guilty of the offence and sentenced him to pay a fine of Rs. 51 and in default to undergo simple imprisonment for seven days.
The learned magistrate considered the plea of the accused regarding his having undergone treatment in the civil hospital, as also the evidence of the doctor who has spoken to this fact, and held that the case of the accused requires a very sym 9 7 3 pathetic consideration.
But nevertheless the magistrate found that as the appellant was technically guilty of the offence under section 29 of the Act, with which he was charged, he has be punished Accordingly; he convicted him and imposed the fine, as stated above.
The appellant challenged his conviction and sentence 'before the learned Sessions Judge as well as the High Court, but was unsuccessful.
Though several contentions regarding the legality of the conviction have been taken by Mr. Lakshmi narasu, learned counsel nominated to represent the appellant by the Legal Aid Society of the Supreme Court Bar Association, in the view that we take regarding the prosecution being barred by limitation under section 42 of the Act, it becomes unnecessary to refer to those contentions and deal with them.
We have already referred to the fact that the allegations against the appellant related to hi absence from duty on November 25 , 1963, stated to be an offence under section 29 of the Act.
The notice issued by the judicial magistrate was on January 10, 1966.
The contention that is taken by Mr. Lakshminarasu based on section 42 of the Act is that the prosecution against the appellant has been commenced beyond the period of three months, as provided in section 42 of the Act and therefore, the trial and other proceedings leading upto the conviction of the appellant ate illegal and void.
The counsel pointed out that the act complained of was the appellant 's absence from duty at the time of the roll call on November 25, 1963.
The earliest step taken in this case for prosecuting the appellant was on January 10, 1966 when the judicial magistrate issued the notice to the apple ant calling upon him to explain why he should not be held guilty under section 29 of the Act.
That notice was issued long after the expiry of three months from the date of the commission of the offence complained of.
In fact.
Mr. Lakshminarsu argued that the date of filing 'the complaint will be the date when prosecution is commenced.
But he was willing to assume that the issue of the notice on January 10, 1966.
, is a step in the prosecution.
Even then he argued that the prosecution is barred under section 42 of the Act.
It is no doubt true that this point has not been taken as such before any of the courts; but in the statement given on February 9, 1971 regarding the propositions of law to be advanced before this Court, this contention has been specifically raised.
A copy of the said statement has been given to the counsel for State the same day.
However, the point that is raised is a pure question of law, not involving any further investigation of facts.
We therefore permitted counsel for the appellant to raise this legal contention.
974 The question therefore is whether the prosecution initiated against the appellant in this case is barred by limitation under section 42 of the Act.
" the material part of section 42, relevant for the present purpose reads as follows "All .
prosecutions against any person, which may be lawfully brought for anything clone or intended to be done under the provisions of this Act, or under the general police powers hereby given shall be commenced within three months after the act complained of shall have been committed, and not, otherwise, From the section quoted above, it will he clear that the period of three months prescribed for commencing a prosecution under the said section is only with respect to prosecution of a person or something done or intended to be done by him under the provisions of the or under the general police powers given by the Act.
It is clear that the appellants prosecution was initiated against him for.
something done under the provisions of the Act, namely, noncompliance with the requirement to be on duty as required under the, .
Therefore, under section 42 of 'the Act, the prosecution should have been commenced against the appellant within three months after the act complained of has been committed.
The act complained of was atieged to have been committed on November 25, 1963.
Even treating the notice issued by the judicial magistrate is amounting to commencement of prosecution, it took place only on January 10, 1966, long after the expiry of three months from the date of the commission of the offence.
Therefore, the prosecution, commenced against the appellant is barred by limitation under section 42 of the Act.
In this case there is no controversy that the offence with which the appellant was charged was one under section 29 of the Act and for the said offence he was tried and convicted.
Mr. B. D. Sharma, learned sounsel for the respondent State, faced with this situation urged that in the notice issued by the judicial magistrate, Karnal, to the appellant on January 10, 1966, it was specifically stated that the appellant was absent not only on November 25, 1963, but that he also continued to be absent as before.
According to the learned counsel, this clearly means that even on the date when the notice was issued to the appellant, that is, on January 10, 1966, the appellant was absent and was guilty of an offence under section 29 of the Act and hence the prosecution has cornmeal within the period mentioned in section 42 of the Act.
We are not inclined to accept this contention.
A perusal of the order of" the trial magistrate, the learned Sessions Judge and the High Court, clearly shows that the appellant was tried on the specific charge of having absented himself from duty on November 25, 975 1963.
The notice issued 'by the magistrate on January 10, 1966 also refers to the report of November 25, 1963 about the appellant 's being absent on that evening at roll call., For his absence on November 25, 1963 he was called upon to show cause why he should not be held guilty under section 29 of the Act.
Further it is also seen from the examination of the accused under section 342.
Code, of Criminal Procedure, that a specific question was put to him "It is in evidence against you that you were absent from the Police Lines Kamal on 25 11 63 and as such were marked absent at the time of Roll call.
What do you say to it ?" We may also refer to the decision of this Court in Maulud allegation against the appellant related to his absence on November 25, 1963 and it was the evidence in that regard that was put to the appellant for offering his explanation.
All the above facts clearly show that the appellant was tried and convicted for an offence under section 29 of the Act in which case the prosecution for such An offence should have been done within the time laid down thereunder.
We may also refer to the decision of this Court in Maulud Anand vs State of Uttar Pradesh(1) wherein it alas been held that if there is a prosecution of a police officer for an offence under section 29 of the Act, such a prosecution should be one within the period of limitation mentioned in section 42 of the Act.
In that case the appellant therein, a Head constable, was charged and tried, along with another person, for various offences under the Indian Penal Code, such as sections 304A and 218/109.
The other accused was acquitted but the head constable was convicted under section 218 I.P.C. One of the contentions raised by the appellant before this Court was that as the prosecution was launched against him more than three months after the commission of the ' offence, it was barred by limitation under section 42 of the Act.
This Court after a perusal of the scheme of sections 36 and 42 of the Act rejected the contention of the appellant.
This Court held that the head constable was prosecuted and convicted for offences not under the Act but under the Indian Penal Code.
To such prosecution, it was held that section 42 did not apply.
On the other hand, it was held that section 42 of the Act applies to a prosecution against a person for an offence under section 29 of the Act.
The conclusion arrived at by us that the prosecution in the case on hand is barred by section 42 of the Act is also supported by the decision quoted above.
To conclude, it is clear that the prosecution against the appellant has been commenced beyond the period of three months and as such it is barred by limitation under section 42 of the Act.
Hence (1) [1963] Supp. 2 S.C.R. 38. 9 7 6 the orders of the High Court and the two subordinate courts are set aside.
in consequence, the conviction of the appellant as well as the levy of fine are also set aside.
The appeal is allowed and fine, if collected, shall be refunded.
to the appellant.
G.C Appeal allowed.
110O Supp.
C.I.(P)/71 2500 2 6 72 GIPF.

dataset_name: IN-Abs

summary/full:
The appellant was a constable in the police force ' of Haryana State.
At the relevant time he was posted to do duty at the police lines, Karnal.
It was reported by the Lines Officer that he was not present at the roll call on the evening of November 25, 1963.
The Judicial Magistrate gave him a notice in January 1966 asking him to explain why he should not he held guilty under section 29 of the police 'Act 1891 being absent on the aforesaid date.
The appellant explained that he was mentally upset on account of the death of two near relatives and was himself ill.
The, Magistrate held that the appellant was technically guilty, even though his case required sympathetic consideration.
In this view he sentenced the appellant to pay a fine of Rs. 51 and in default to undergo simple imprisonment for seven days.
Appeals before the Sessions Judge and the High Court failed.
In appeal to this Court by special leave it was contended on behalf of the appellant, that since more than three months, had intervened between the commission of the alleged offence and the commencement of the prosecution, the trial was time barred by limitation under section 42 of the .
This point was raised in this Court for the first time but had been stated in the statement of propositions of law to be advanced before the Court, and a copy of the same had been supplied to the counsel for the State.
Allowing the appeal, HELD : (i) The question of limitation being purely one of law requiring no fresh investigation into facts the appellant could be permitted to raise it for the first time in this Court.
[973 H] (ii)The appellant 's prosecution was initiated against him for something done under the provisions of the Act, namely non compliance with the requirement to be on duty as required under the .
Therefore under section 42 of the Act the prosecution should have been commenced against the appellant within three months of the commission of the act complained of.
The act complained of was alleged to have been committed on November 25, 1963.
Even treating the notice issued by the judicial magistrate as amounting to commencement of prosecution, it took place only on January 10, 1966, long after the expiry of three months from the date of the commission of the offence.
Therefore the prosecution commenced against the appellant was barred by limitation under section 42 of the Act.
[974 D E] Maulud Ahmad vs State of Uttar Pradesh, [1961] Supp. 2 S.C.R. 38, distinguished.


judgement:
minal Appeal No. 165 of 1968.
Appeal by special leave from the judgment and order dated February 8 1968 of the Allahabad High Court in Criminal Appeal No. 2305 of 1965.
916 A. section R. Chari J. P. Goyal and G. section Chatterjee, for the appellant.
O. P. Rana, for the respondent.
The Judgment of the Court was delivered by Dua, J.
In this appeal by special leave the appellant Matru alias Girish Chandra challenges his conviction under section 302 read with section 34, I.P.C. and under section 382, I.P.C.
For the former offence he was sentenced to imprisonment for life and for the latter to rigorous imprisonment for four years.
Both the sentences were directed to ran 'concurrently.
The appellant, along with Mohar Singh and Saheb Singh were committed to the court of Sessions for trial for offences under sections 302/34, I.P.C. for the murder of Smt.
Omwati, wife of Ram Chander (P.W. 1) and of their three years old son Sua Lal and under section 382, I.P.C. for committing theft of cash, armaments and other things from the house of the deceased.
The offences were alleged to have been committed on May 29, 1964 between 10 and II a.m. in the township of Shamsabad.
The appellant and the deceased were admittedly next door neighbors in Mohalla Chaukhanda at the relevant time.
Rain Chandra had two sons, the elder one Ramji being six years old.
On the day of occurrence at about 9 a.m.
Ram Chandra left his house for his shop about three, furlongs away, leaving behind in the house his wife and two sons.
About an hour later Omwati sent the elder son to the shop with some food for his father.
A few minutes later Ram Chandra sent to his house some vegetables through his servant.
After sometime his servant returned to the shop and informed Ram Chandra that his wife was lying in the house in pool of blood.
After calling his nephew to look after the shop Ram Chandra immediately went to his house and found his wife lying dead in the courtyard near the well whereas his 3 year old son Sua Lal was lying dead in a room close to the courtyard.
The box inside the room also appeared to have been opened and its contents pilfered.
Some gold and silver omaments which his deceased wife was wearing that morning were found missing.
Information of the occurrence was lodged at the police station Shamsabad at about 12.40 in the afternoon.
But as he did not suspect anyone he merely stated the circumstances in which he came to know of the occurrence and found his wife and child dead in the house.
It was stated in the report that Rs. 200/ in cash and three ornaments including a ring had been taken away by the miscreants.
Matru, appellant, who was the next door neighbour came to Ram Chandra 's house before the first information report was lodged and remained with him till the 917 report was made to the police.
The investigating officer found blood at both the places where the two dead bodies were lying.
The blood stained and unstained earth was collected and sealed.
Next morning it appears Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10) went to see Ram Chandra between 6, and 7 a.m. Chhotey Lal informed him that he (Chhotey Lal) had seen Matra and two unknown persons entering Ram Chandra 's house at about 10 or 10.30 a.m. on the previous day and Nathu Lal gave him the information that at about 11 a.m. on the day of the occurrence he had seen Matru and.
two other persons coming out of his house.
These witnesses at that time did not attach any importance to the three persons entering and after some time coming out of Ram Chandra 's house.
However, later when they leamt about the double murder in Ram Chandra 's house between 1 0 and II a.m. they thought that they should tell Ram Chandra what they had seen on the morning of May 29 at about the time of the occurrence.
It is said that about six months prior to the occurrence relations between Omwati and the wife of Matru, appellant, had become strained.
One of Matru 's daughter was married and the other was of marriageable age but both were living with their parents.
Omwati suspected that some 'people used frequently to visit Matru 's house without any cogent reason and also gave currency to this fact.
Matru 's wife naturally resented this.
About six months prior to, the occurrence an incident is stated to have taken place which gave rise to a quarrel between the two women.
Matru 's wife threw a stone which struck Omwati on her head.
Ram Chandra did not attach much importance to this incident considering it to a matter of common occurrence amongst womenfolk.
Later, however, Omwati seems to have told her husband that she had been threatened by Matru 's wife with dire consequences.
Ram Chandra advised his wife not to have anything to do with Matru 's wife.
After the occurrence, the appellant, it appears, remained in his house till the inquest was over but thereafter he seems to have disappeared.
On receiving in formation about Matru and his two companions going into his house and coming out a short while later round about the time of the occurrence, Ram Chandra informed the investigating officer what he had been told by Chhotey Lal and Nathu Lal.
The Sub Inspector searched the appellant 's house at about 9 a.m. on May 30, but he was not found there, nor was any incriminating thing found in the house.
A search for the appellant was made but he could not be traced till three days later.
On June 1, when the investigating officer learnt that Matru was likely to go to his village to see his children he was apprehended and on search of his person a spectacle case containing a pair of spectacles and a gold ring was recovered from the folds of his dhoti.
Complicity 918 of Mohar Singh because known to the police on Matru 's interrogation.
But Mohar Singh could not be arrested till September 13, 1964.
When arrested, he offered to recover a shawl, one of ,the stolen properties, which he had sold to Darbarilal (P.W. 17) for Rs. 70/ .
The shawl was accordingly recovered at Mohar Singh 's instance from Darbarilal.
Saheb Singh was also arrested on suspicion.
The Sessions Judge found the appellant guilty of murder and also of an offence under section 382, I.P.C. Since there was no evidence of specific part played by the appellant the extreme penalty was not imposed on him.
As observed earlier under section 382, I.P.C. he was sentenced to four years rigorous imprisonment.
Mohar Singh was, acquitted of the offence under section 302/ 34, I.P.C. as also of the offence under section 382, I.P.C. He was, however, convinced for an offence under section 411, I.P.C. and sentenced to rigorous imprisonment for two years.
Saheb Singh was given benefit of doubt and acquitted.
The only evidence against Saheb Singh was that of his by Nathu Lal (P.W. 10) which was not corroborated by any other evidence and identification alone in the circumstances was considered unsafe for convicting him.
Both the convicts appealed to the High Court.
That Court came to the conclusion that Matru had a motive to commit the crime and that Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10) were reliable witnesses and that the investigation was neither tainted nor unfair to the accused.
The statement of Ram Chandra (P.W. 1), husband of the deceased, and his conduct throughout also appeared to be quite strains forward.
The ring, which had been recovered from Matru 's possession at the time of his arrest was held to be the one which the deceased was wearing when her husband left the house in the morning of the occurrence.
This was considered to be a very incriminating circumstance.
All these circumstances taken along with the fact that Matru had absconded were held to connect the appellant with the crime beyond reasonable doubt.
Mohar Singh, from whose possession nothing had been recovered was given benefit of doubt and acquitted.
The recovery of the shawl from Darbarilal in the absence of any writing was not considered to be incriminating enough to justify Mohar Singh 's conviction because it did not exclude reasonable doubt about his innocence.
In this Court it was strongly argued on behalf of the appel lant Matru that the circumstantial evidence does not establish his complicity in the offence charged.
The Police investigation was also assailed and it was submitted that identification of the articles 919 alleged to have been stolen and later recovered was not of much value because the articles alleged to have been recovered were commonly available and had no distinguishing marks of identification Objection was also raised to the admissibility of exhibit Ka 4, a letter Written by the deceased to her father in which reference was made to injury received by her as a result of a brick thrown by Matru 's wife.
This ground was not included in the original memorandum of appeal dated May 1, 1968 presented in this Court but permission to raise this ground was sought by means of an application dated July 25, 1968 which was allowed by this Court while granting special leave.
It was contended that this letter was inadmissible in evidence as it did not contain any statement relating to the cause of Omwati 's death or to the circumstances of the transaction which resulted in her death.
According to the argument this letter did not fall within the purview of any of the clauses of section 32, Indian Evidence Act under which alone it could be hold admissible in evidence.
Shri Chari also submitted that the other two co accused having been acquitted, section 34, I.P.C. became inapplicable to the case of the appellant and his conviction under section 302 read with section 34, I.P.C. must be held to be con trary to law.
For this submission he relied on Prabhu Babaji Navle vs State of Bombay.(1) Finally counsel argued on the authority of Hanumant vs State of M.P.(2) that in case of circumstantial evidence the circumstances from which the conclusion of guilt is to be drawn should be fully.
established and all the established facts should be consistent only with the hypothesis of the guilt of the accused.
In the present case the circumstantial evidence is not of conclusive nature and tendency, said Shri Chari.
Normally this Court doe& not go into the evidence and appraise it for itself in criminal appeals under article 136 of the Constitution because this Article does not confer a right of appeal on a party.
It merely clothes this Court with discretionary power to scrutinise and go into the evidence in special circumstances in order to satisfy itself that substantial and grave injustice has not been done.
In the case before us we are persuaded to go into the evidence because of several exceptional features.
It was a case of circumstantial evidence and the two accused who had been charged along with the appellant under section 302 read with section 34, I.P.C. were acquitted.
The appellant a neighbdur of the deceased, remained With her husband at the place of occurrence till the report was made to the police on the day of the murder.
Indeed, he accompanied Ram Chandra for lodging the report.
The question of admissibility and value of exhibit Ka 4 and the probative value of the identification proceedings of the articles alleged to have been stolen and recovered were also seriously canvassed at the Bar.
And apart from the argument that the circumstantial evidence on (1) A.1 R,1956 S.C.51.
(2) [1952] S.C.R. 1091.
920 the record does not exclude reasonable possibility of the appellants innocence, the further question was raised that if these two pieces of evidence, namely exhibit Ka 4 and the identification of the, articles were to be ignored then there was absolutely no evidence on which a serious argument about the appellant 's guilt could be founded.
Now, the deceased Omwati and her infant son were undoubtedly both murdered at about IO or 1 1 on the morning of May 29, 1964.
Ram Chandra Gupta, the husband of Omwati had no reason to suspect Matru, appellant, (his neighbour) of this crime.
In the F.I.R. exhibit Ka.
IO no one was named as a sus pect and only the following articles of property were stated to be missing :, 1.
Gold chain weighing about 3 tolas, plain twisted design worth Rs. 375/ 2.
One pair of gold jhumki together with kundal weighing 1 1/2 tolas worth, Rs. 1501 ; 3.
One gold ring longitudinal design weighing 1/2 tola worth Rs. 75/ .
this was stated to have been worn by the deceased; and 4.
Currency notes worth Rs. 200/ stated to have, been in the box.
It may here be pointed out that when P.W. I Ram Chandra came into the witness box he attempted to prove exhibit Ka 3, a supplementary list of missing articles which list, he said, had been handed over to the investigating officer soon after the preparation of the inquest report.
The production of this list was objected to and though the trial court relied on it, the High Court ruled it out as hit by section 162, Cr.
P.C. The position, therefore, remains that the description of the ring in the F.I.R. is the only description we have on the record and also that there is no mention of the spectacle case and the spectacles in the F.I.R. Suspicion fell on the appellant only when Chhotey Lal, barber (P.W. 2) and Nathu Lal (P.W. 10) saw Ram Chandra on the following morning (May 30, 1964) and informed him of what they had separately seen on the morning of the 29th at about the time of the alleged murder.
What they conveyed to Ram Chandra has already been noticed by us.
It was on the basis of this information that Ram Chandra is said to have informed the investigating officer about his suspicion against the appellant.
The recovery of the articles, even if the evidence of these two witnesses is believed, would have a material bearing on the case because if the recovery proceedings of the articles said to have been recovered 92 1 from the appellant 's possession does not inspire confidence and it is not possible to hold beyond reasonable doubt that these were the very articles found missing from the house of the deceased, then it may be extremely difficult to sustain the appellant 's conviction on the prosecution evidence.
In this connection particular importance attaches to the ring stated to have been worn by the deceased because if that ring is not proved to be the same which is alleged to have been worn by the deceased Omwati at the time of her murder then no inference would seem to arise against the appellant.
The prosecution case against the appellant is mainly sought to be established by the evidence of P.W. 2 and P.W. 10 and by the evidence relating to the recovery from the appellant of the, articles alleged to belong to the deceased supported by the evidence of motive on the part of the appellant for committing this crime 'and corroborated by the appellant 's alleged conduct in trying to mislead Ram Chandra and the investigating officer and ' finally by disappearing after the lodging of the F.I.R. The trial court, as also the High Court, both relied on these four pieces. of evidence for convicting the appellant.
To begin with it is notworthy that Ram Chandra himself does.
not seem to have thought that the appellant was inimical towards.
the deceased and he did not suspect the appellant of complicity in the murder.
According to his own testimony it was only after Chhotey Lal (P.W. 2) and Nathu Lal (P.W. 10), had informed him about what they had seen on the morning of May 29, that he recollected that about five or six months prior to the occurrence there was an altercation between Omwati and the appellant 's wife.
This would clearly indicate that the alleged altercation had not left any serious impact on the mind of Ram Chandra and theapperant 's admitted presence in the house of Ram Chandra till ' the lodging of the F.I.R. indicates that relations between Ram Chandra and the appellant were not openly hostile or unfriendly.
The evidence of P.W. 2 shows that the appellant and two other persons came out of the appellant 's house and entered the house of Ram Chandra on the morning of May 29, and the evidence of P.W. 10 shows that the appellant and two otherpersons came out of Ram Chandra 's house and entered that of the appellant on the same morning a little later.
This evidencehaving been believed by the two courts below may be accepted.
But so far as the question of time when these two witnesses saw the appellant and two other persons going.
into and coming out of Ram Chandra 's house is concerned they seem to have given the time from their impression Ram Chandra (P.W. 1) does not say that P.W. 2 and P.W. 10 had told him on the morning of May 30 that when they saw the appellant and his two com 922 panions on May 29, they had a Potli with them.
It also seems somewhat unbelievable that the appellant with his companions should have entered the house of Ram Chandra with the pur,Pose of committing murder and theft in broad daylight particularly when P.W. 2, a barber who knew him and lives about one furlong away from his house had actually seen him.
It is un.likely that the appellant should have failed to notice P.W. 2.
It is in the evidence of P.W. 2 that the, appellant and his companions came out of the appellant 's house and entered that of Ram Chandra when the witness called out the name of Panditji meaning thereby Puttulal Pandit.
Again, if the appellant and his two companions had committed the gruesome murder of Omwati and Sualal (Omwati aged 25 years had 4 incised wounds, 3 in the neck and one in the abdominal cavity and :Sualal, 3 years old, had three incised wounds on his neck and one on his right wrist) within half ;In hour and had also stolen the articles including a ring, a gold kundal, jhumki and silver iori worn by the deceased on her person and also broken open a box and removed therefrom a shawl and Rs. 200/ within a short span of half an hour as alleged by the prosecution, then it is somewhat surprising that 'their movements and behaviour should not have reflected any abnormality.
At least Nathu Lal does not seem to have noticed any abnormal behaviour which Would excite his suspicion.
Now, the appellant and his companions were seen by P.W. 2 and P.W. 10, broadly speaking, between 1 0 and 1 1 in the morning.
We would give these two witnesses a margin for their inaccuracy in regard to the time as deposed by them in the witness box.
P.W. 2, it may be reCalled, gives the time as between 10 and 10.30 a.m. when he saw the appellant and his companions and.
P.W. 10 gives the time between 10.30 and 11 a.m. when he saw them coming out of the house of P.W. 1.
The F.I.R. was lodged at 12.40 p.in.
which means that Ram Chandra (P.W. 1) must have arrived at his house a little earlier.
The appellant, according to P.W. 1, had been with him when the F.I. Report was got written at his house and he went along with P.W. 1 for lodging the said report.
The behaviour and conduct of the appellant, judged by normal standards, is not suggestive of his involvement in such heinous crime, unless he was an experienced criminal (of which there is no suggestion) with extraordinary balance of mind and a disciplined control over his senses and faculties.
In the absence of any direct evidence this consideration cannot be completely ruled out as irrelevant when weighing the circumstantial evidence in a case like the present.
This takes us to the recovery of the alleged stolen articles from the appellant and their identification.
The main evidence 923 of recovery consists of the statements of Head Constable Ahibaran Singh (P.W. 5) and of Nathu (P.W. 10) and the recovery memo exhibit Ka 1 dated June 1, 1964.
P.W. 5 has.
deposed in his examination in chief that he did not know the appellant.
According to him, an approver had informed him at about 7 p.m. on June 1, that the appellant would be coming to his house that evening to meet his children.
At about 7.30 p.m.,: P.W. 5 along with Bankey, Nathu, Dilasa and two constables sat near Bankey 's house waiting for the appellant.
It was the approver who pointed out the appellant, whereupon, on being.
interrogated by the witness, the appellant tried to run away.
He was, however, apprehended.
In the course of this process the appellant received some injuries.
Now, the person described as the approver has not been produced as a witness and indeed even his identity has not been disclosed.
It is noteworthy that there is no mention of any approver anywhere else on the record.
What is still more intriguing is that even though Nathu was not previously known to the witness, within half an hour of the information about the appellant 's expected visit to his house P.W. 5 managed to collect Nathu and two other persons for arresting him.
The statement made by P.W. 5 in this connection makes interesting reading.
He said: "I received information through an approver at about 7 P.M. that he shall come home to meet his children from the jungle of Imadpur by night.
At this I sat near the house of Bankey by the side of the passage, alongwith Bankey, Nathu, Dilasa and two constables.
Matru, accused present in court came from the side of Imadpur at about 7.30 O 'clock.
The approver pointed him out.
On being interrogated by me, he took to his heels.
I caught him after surrounding and causing slight injuries to him, When I duly searched his person in presence of the witnesses, the case exhibit 3, was recovered from the right plant of the dhoti which he was Wearing.
On opening it, the spectacles, exhibit 2 and ring exhibit I were found in it.
I prepared their memo, exhibit Ka 1 correctly at that spot immediately and obtained the signatures and thumb impressions of the witnesses over it.
I sealed the, articles there after sewing them in cloth.
Before the arrest of Matru, I and the witnesses had searched each other 's persons.
" In cross examination it was elicited from him: "The approver had not told me that he was carrying articles also with him.
I took the witnesses for 924 help.
I did not recognise him also.
Imadpur might be about half a mile from the place where I arrested him.
I did not make people, sit on any other way.
I sat on that very way.
I took Nathu with me while he was coming out of a temple in Mauza Jatpura.
I took Bankey from Bazar Kalan and Dilasa from Mauza Jatpura.
I had not told the witnesses that there was possibility of article s being recovered from him.
I did not know Nathu from before.
I might have seen him.
I did not know that his name was Nathu.
Matru was at a distance of about ten paces towards the South of me when I saw him for the first time.
He was coming from the western side.
" Now, considering the fact that it was only at about 7 p.m. that the approver had informed P.W. 5 that the appellant was coming to 'his house and at 7.30 p.m. the arrest was actually made, it seems to be somewhat surprising that he should have within that short time collected Nathu, whom he did not know before, Bankey and Dilasa from various places and come to the spot in time for ,effecting the appellant 's arrest and search.
Bankey and Dilasa have also not been produced as witnesses.
Nathu, who has appeared as P.W. 10, has stated in his examination in chief about the arrest and search of the appellant in the following words: "On the fourth day of murder, i.e., after a gap of two days at about 7 p.m. the Head constable took me, Bankey and others with him.
One person was keeping his face covered.
He asked me to accompany him saying that he had to arrest a man.
He had taken Dilasa as well.
We sat in moballa Tikuriya near the house of Bankey.
We searched the persons of the cons tables and Head Constable.
We searched the persons of us all.
A little later, Matru accused, present in court came from the western side.
The person who was with us pointed out that he was Matru.
Matru started running away.
At this the Head Constable and the constables caught hold of him.
They gave him one or two danda blows while trying to catch him.
When his person was searched, a case for keeping spectacles, containing a pair of spectacles and a gold ring, was recovered from the right phant of Matru accused.
All these things were sewn in cloth and sealed on the spot.
Memo was prepared there on the spot.
It was read ,out.
My thumb impression was also obtained.
(exhibit Ka 1 read over) Yes.
These very contents were read.
,out (Shown exhibit 1 3 says) Now, I shall not be able to 925 identify the articles as to whether they are the same or some other.
It happened long ago.
" P.W. 16, Jamuna Prasad, retired police constable is another witness who claims to have been present at the time when Matru was arrested.
He was at that time posted as a constable at P. section Shamsabad.
In examination in chief he said nothing about the appellant 's arrest or the recovery of the articles) from him.
It was only in cross examination that he & posed that he was with P.W. 5 at the time of the appellant 's arrest and after arresting him the party returned to the police station at about 8 or 8.30 p.m.
His version is: "Diwanji (presumably referring to P.W. 5) had a talk with one person in my presence.
After that he asked me to go along with him.
So I accompanied him.
We met Bankey witness in Kalan Bazar.
I cannot tell whether Bankey has got some shop or not or if he has got it, where is it ? We met Nathu near the Maria.
After arresting Matroo, we returned to the Police Station at about 8 or 8.30 O 'clock in the evening." He has, however, given no details of the articles recovered nor about the appellant 's search.
The testimony of these witnesses is far from impressive and the story of recovery is difficult to accept on its face value.
The memo of recovery is exhibit Ka 1.
It purports to have been prepared at 7.30 p.m. on June 1, 1964.
According to it on Matru 's search, a spectacle case containing "a spectacle and a gold ring as per description given below corresponding to the case as offence No. 67 under sections 302/380, I.P.C. was recovered from the right side of the phent of his dhoti.
" The description of the articles recovered, according to this memo, is 1.
One spectacle case of black colour, having dark blue colour inside; 2.
One spectacle, having brown frame.
, white glasses, not circular, half frame; 3.
One gold ring, longitudinal deSign, having green enamel with lengthwise, with red and blue flowery design on the enamel.
The ring is somewhat bent.
It is signed by Head Constable, Ahibaran Singh and attested by Bankey, Dilasa and Nathu.
It does not mention the place where the search was effected though the memo is stated to have been prepared in a shop without giving any particulars of the shop.
This memo does not materially add to the oral testimony of recovery.
This is all the evidence of recovery of the articles.
We 926 do not find it safe on this evidence to hold that the articles mentioned in exhibit Ka 1 were recovered from the appellant Possession at the time of his arrest on June 1, 1964 at 7.30 p.m.
Neither P.W. 5, the investigating H. C. nor Nathu, (P.W. 10) can be considered to be witnesses on whom implicit reliance can be placed without proper corroboration from a more disinterested and dependable source.
Having not been impressed by the evidence of recovery, the identification test of the articles can be of little help to the prosecution, though even on that point the prosecution evidence is equally uninspiring.
Identification tests, it may be pointed out, do not constitute substantive evidence.
Such tests are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines.
Now, although the articles are stated to have been recovered on June 1, the test identification was held by Shri Jwala Prasad Srivastava, Magistrate, on October 23, 1964.
The reason for this delay as suggested is that similar articles had to be procured for mixing up with the articles recovered.
But the manner in which this delayed identification has been held in this case is highly un satisfactory.
Jwala Prasad Srivastava, Magistrate, First Class,, who had conducted the test identification appeared as P.W. 21, in his examination in chief he said: "Even before the dates for identification proceedings were fixed but the identification could not be conducted because similar articles had not been received.
The articles were opened and shown to the contractor once so that correct articles could be brought.
On 13 7 64 he made an application that the articles should be shown to him.
The articles must have been shown to him within some days after that.
The date must have been mentioned there but that order sheet is missing.
Even then I took a precaution that none except the Contractor and the court mohair should see the articles.
Just after showing the articles to the contractor, I got the same sealed in the court room in my presence.
In cross examination he said : "The khol (case) exhibit 3 was old.
Out of the khols which were mixed, one or two were perhaps new.
That too was 'Similar (dissimilar ?) but the dissimilarity was not so much, that I ought to have noted it (shown paper No. 49/147 of S.C. File) Yes, this note is mine. 'The case of the spectacle is old one whereas the mixed cases were new ' (marked exhibit Kha 19).
The counsel for the accused persons moved an application 627 on the same day after the identification proceedings.
I had, read it.
The allegations regarding the ring, were not correct.
So I did not note them in my order.
The order sheet of some particular dates regarding the identification proceedings, were preserved ? The same has been found.
The order sheet of two dates has been found.
Out of them, one bears the signature of my predecessor.
I recognise the same.
(marked exhibit Kha 21).
The other one does not bear the signature of any one.
I do not remember exactly who presented the application exhibit Kha 11.
Perhaps it was moved but the contractor 's man.
That man used to come frequently.
Marginal note on exhibit Ka 11 shown.
That encircled in red pencil and (marked X) I do not recognise the same.
I cannot tell who made this entry and when.
At present I cannot tell on which date the articles were shown.
I did not find any such entry in the record which could tell on which date the articles were shown to the contractor.
Only the word "allowed" is written with the date 13 7 64. . articles before me.
I do not remember his name.
I can only recognise him by face.
It is quite wrong that on 1 9 64 these articles were brought to the court and were shown to the witnesses.
I do not remember orally on which date these articles were taken out from the malkhana.
It is wrong to say that all the articles which were to be mixed, were dissimilar.
Only the cases of the spectacles were somewhat new.
The statement of this witness reveals the unsatisfactory manner ' of dealing with the test identification.
We are unable to place any reliance on these proceedings.
This takes us to the question of motive.
We have already noticed that the altercation between the deceased Omwati and the appellant 's wife does not seem to have been taken seriously by either party.
The proceedings under section 107, Cr. P. C. to which a reference has been made were started by Ram Chandra against the appellant after the occurrence in question and, therefore, they are not relevant on the question of motive for the present offence of murder.
The appellant 's counsel questioned the admissibility of exhibit Ka 4, the letter said to have been written by the deceased to her father, on the ground that it did not fall within the purvi ew of section 32, Indian Evidence Act.
The objection appears prima facie on plain reading of the section to possess L1100 SUP CI/71 929 merit.
But even if this letter were to be held admissible we are not satisfied that the motive which this letter suggests is of strong and impelling nature so as to induce the murder of Omwati and her infant child.
The motive suggested by this letter, coupled with the testimony of P.W. 2 and P.W. 10, may at best give rise only to a suspicion against the appellant; but suspicion however strong cannot take the place of roof.
The appellant 's conduct in absconding was also relied upon.
Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind.
Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self Preservation.
The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case.
Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction.
It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the 'accused.
In the present case the appellant was with Ram Chandra till the F.I.R. was lodged.
If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice.
It is not inconsistent with his innocence.
One other circumstance which on the facts of this case also deserves notice is the non recovery of the weapon of offence and the fact that no stains of blood were noticed by any one on the appellant 's clothes even though he was with Ram Chandra right upto the loding of the F.I.R. and even accompanied him for that purpose.
The courts below seem to us to have failed to take into consideration all the relevant facts and circumstances of the case.
As proof of the appellant 's guilt depended solely on circumstantial evidence it was incumbent on the courts below to properly consider and scrutinise all the material factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of the appellant 's guilt.
In our view, the cumulative effect of the circumstantial evidence in this case falls far short of the test required for sustaining conviction.
We are, therefore, constrained to allow this appeal, set aside the appellant 's conviction and acquit him.
V.P.S. Appeal allowed.

summary/full:
The appellant and two others were charged with the offences of murder of a woman and her three year old son by brutally stabbing them, and theft of cash and ornaments from the house of the deceased.
The offences were alleged to have been committed between 10 and 11 a.m.
About six months prior to the occurrence there was a quarrel between the deceased and the wife of the appellant who was the next door neighbor during which the deceased received an injury.
The deceased wrote about this incident to her father.
On the day of the occurrence when the husband of the deceased received information of the murder he rushed home from his shop and gave information of the occurrence to the police at about 12.40 p.m. but, as he did not suspect anyone, he merely, mentioned the circumstances in which he had come to know of the murder.
The appellant was with him till the time when the First Information Report was lodged.
Next morning one person informed the husband of the deceased that he had seen the appellant and two unknown persons entering the house of the deceased at about 10 or 10.30 a.m. on the previous day and another person gave the information that about 11.00 a.m. he had seen the appellant and two other persons coming out of his house.
The husband of the deceased passed on the information to the police.
By that time the appellant had disappeared.
Three days later, he was appellant handed.
On search of his person a spectacle case containing a pair of spectacles and a gold ring were recovered from the folds of his dhoti.
The Sessions Judge found the appellant guilty of murder and the High Court confirmed the conviction.
The other two accused were acquitted.
On appeal to this Court, HELD : The cumulative effect of circumstantial evidence in the present case falls short of the test required for sustaining a conviction.
When proof of guilt depended solely on circumstantial evidence, it was incumbent on the courts to properly consider and scruitinise all the material factors and circumstances for determining whether the chain of circumstantial evidence is so complete as to lead to the only conclusion of guilt.
[928 F H] (1) Normally this Court does not go into evidence and appraise it for itself in criminal appeals under article 136 of the Constitution, because, the Article does not confer a right of appeal.
It merely clothes this Court with discretionary Power to scrutinise and go into the evidence in special circumstances in order to satisfy itself that injustice has not been done.
In the present case the exceptional features were that it was a case of cir cumstantial evidence, the identification of the stolen articles was unsatisfactory, and the other two accused who had been charged along with the appellant, had been acquitted.
[919 F G] (2) (a) The husband of the deceased himself did not think that the appellant was inimical towards the deceased and he did not suspect him 915 of complicity in the murder.
The alleged altercation between the deceased and the appellant 's wife did not leave any serious impact on the mind of the husband of the deceased, and the appellant 's admitted presence in the house of the deceased till the lodging of the F.I.R. indicated that relations between them were not hostile or unfriendly.
[921 D F] (b) The letter written by the deceased to her father about the quarrels does not prima facie fall within the purview of section 32, Indian Evidence Act.
But even if this letter were held to be admissible the motive which it Suggested was not of such a strong and impelling nature as to induce the murder of the deceased and her infant child.
[927 H, 928 A B] (3) (a) It is unbelievable that the appellant and his companions entered the house of the deceased for the purpose of committing murder and theft in broad day light when persons who knew him were likely to see him entering the house.
The movements and behavior of the appellant did not show any abnormality.
On the contrary, the behavior and conduct of the appellant, Judged by normal standards, was not suggestive of his involvement in such a heinous crime.
In the absence of direct evidence this consideration could not be ruled out as irrelevant.
[922 A B, D E, G H] (b)The appellant 's conduct in absconding does not necessarily lead to the inference of a guilty mind.
Even an innocent person may feel panicky and try to evade arrest when wrongly suspected of a grave crime.
Normally courts are disinclined to attach much importance to the act of absconding.
of the accused, treating it as a very small item in the evidence for sustaining conviction.
[928 B D] (4) The evidence 'regarding the recovery of the articles from the appellant 's possession at the time of his arrest was not acceptable without proper corroboration from a more disinterested and dependable source.
Also, the ring said to have been recovered was of a common design and easily available.
[926 A C] (5) The identification of the ring was also unsatisfactory.
Identification tests do not constitute substantive evidence.
They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on right lines.
[192O F G, 926 G H] In the present case, although the articles were recovered three days after the occurrence the test identification was held by the Magistrate nearly four months later.
The reason for the delay was suggested that similar articles had to be procured for mixing up with the articles recovered; ,but in fact the delayed identification had been held in a highly unsatisfactory manner, in that the articles mixed up were dissimilar.
[926 C D] (6) The weapon with which the crime was committed was not recovered, and, no stains of blood were noticed by anyone on the, appellants clothes even though he was with the husband of the deceased right up to the lodging of the F.I.R. and even accompanied him for that purpose.
[928 E F]