judgement:
ivil Appeal No. 2057 of 1987.
From the Judgment and Order dated 13.7.1987 of the Delhi High Court in Civil Writ No. 1604 of 1981.
G.D. Gupta and Ashok K. Mahajan for the Appellant.
G.S. Shah, Hemant Sharma and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
Special leave granted.
In 1980 the appellant was working as an Accountant in the Photo Division of the Ministry of Information and Broad casting, New Delhi.
By that time the appellant had rendered more than 20 years ' service.
By the letter dated 24th of December, 1980 the appellant sought voluntary retirement from the service after having completed more than 20 years ' service.
The said letter dated 24th of December, 1980 which was addressed to the Director, Photo Division, Ministry of Information and Broadcasting stated, inter alia, as follows: "I beg to seek voluntary retirement on 31.3.
I had joined government service on 4th August, 1958, thus I have completed more than 20 years service.
My notice period may please be treated w.e.f. 1.1.
The appellant states that three months notice was re quired by the rules of service to which the appellant be longed.
The said voluntary retirement was sought under Rule 48 A of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as 'the Pension Rules ').
The Rule 48 A provides as follows: "48 A. Retirement on completion of 20 years ' qualifying service: 1177 (1) At any time after a Government servant has completed twenty years ' qualifying service, he may, by giving notice of not less than three months in writing to the appointing authority, retire from service.
(2) The notice of voluntary retire ment given under sub rule (1) shall require acceptance by the appointing authority.
Provided that where the appointing authority does not refuse to grant the permis sion for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.
" Sub rule (4) of Rule 48 A prevents with drawal of resignation letter except with the approval of the authority.
The said sub rule (4 ) provides as follows: "(4) A Government servant, who has elected to retire under this rule and has given the necessary notice to that effect to the appointing authority, shall be precluded from withdrawing his notice except with the specific approval of such authority.
" Acting on the basis of the letter of retirement, by an order dated 20th of January, 198 1 the appellant was allowed to retire voluntarily from service prospectively with effect from the afternoon of 31st March, 198 1.
The said order dated 20th January, 198 1 read as follows: "Shri Bal Ram Gupta, permanent Upper Division Clerk and officiating Accountant in the Photo Division is allowed to retire volun tarily with effect from the afternoon of 31st March, 1981, in accordance with the provisions contained in the Ministry of Home Affairs, Department of Personnel and Administrative Reforms O .M.
No. 250 13 7 77 Estt.
(A) dated 26th August, 1977.
" In the meantime, however, the appellant states that on account of persistent and personal requests from the staff members, the appellant had changed his mind and consequently had by his letter dated 31st January, 1981 withdrawn his notice of voluntary retirement.
He stated in his letter that he had dropped the idea of seeking voluntary 1178 retirement and he, therefore, requested the authorities that his request for resignation might be treated as cancelled and the notice given by him treated as withdrawn.
The appel lant, however, was not allowed to do so.
The appellant was relieved by an order dated 31st March, 1981.
It was stated in the said order that his request contained in the letter dated 31st January, 1981 for withdrawal of his application for voluntary retirement "has also been considered and found not acceptable".
The appellant contended before the authorities and the High Court that in view of his letter dated 31st January, 1981 seeking withdrawal of his letter of resignation, the impugned order dated 31st March, 198 1 retiring the appel lant was illegal and invalid.
The appellant, however, was asked to leave the office immediately.
The appellant was thereafter sent the gratuity form for claiming his retiring benefits.
The appellant met respondent No. 2 and requested him that his case may be considered on merits and the de partment should not "hush up" the matters like this but the same was to no avail.
The respondent No. 2, the Director, Photo Division, Ministry of Information and Broadcasting clearly informed the appellant that in view of the activi ties of the appellant in his capacity as the Secretary of the Photo Division Employees Association (Registered), it had been found appropriate to "ease him out" from the serv ice.
In spite of the several representations nothing hap pened, the appellant moved the High Court by a writ peti tion.
The Delhi High Court dismissed the appellant 's writ petition on the ground that the rule enabled the government servant to withdraw his application for voluntary retirement only with the approval of the Government.
The approval had not been given by the Government.
According to the High Court the rule had been complied with.
The Government had considered afresh the application of the appellant and Government found no reasons to interfere with the refusal to permit the appellant to withdraw his resignation.
The appel lant thereafter has come up in appeal to this Court.
The facts, therefore, are that the appellant offered to resign from his service by the letter dated 24th December, 1980 with effect from 31st March, 1981 and according to the appellant his resignation would have been effective, if accepted, only from 31st March, 1981.
Before the resignation could have become effective the appellant withdrew the application by the letter dated 31st of January, 1981, long before, according to the appellant, the date the resignation could have been effective.
In the meantime, however, prior thereto on the 20th of January, 1981 the respondent has purported to accept the resignation with effect from 31st March, 1981.
The appropriate rule sub rule (4) of 1179 Rule 48 A of the Pension Rules as set out hereinbefore enjoins that a government servant shall be precluded from withdrawing his notice except with the specific approval of such authority.
The proviso stipulates that the request for withdrawal shall be made before the intended date of his retirement.
That had been done.
The approval of the authori ty was, however, not given.
Therefore, the normal rule which prevails in certain cases that a person can withdraw his resignation before it is effective would not apply in full force to a case of this nature because here the Government servant cannot withdraw except with the approval of such authority.
Learned counsel appearing for the appellant contended before us that this rule was bad as violative of the Funda mental Rights of citizens.
Challenge to the rule was however not made before the High Court on this ground.
He, however, contended that if the rule be read as consistent with the constitutional requirements of reasonableness which is well .accepted rule of construction, then the Government could not withhold approval to the withdrawal of resignation without any rhyme or reason.
The counter affidavit filed in this proceeding by Shri Majgaonkar, who is the respondent No. 2 in this appeal reveals very little as to why the sanction was withheld.
It is stated in paragraph 5 of the said affidavit that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal.
What is important in this connection to be borne in mind is not what prompted the desire for withdrawal but what is important is what prompted the government from withholding the withdrawal.
In this respect the government affidavit certainly lacks candour.
In appropriate cases where the Government desires that public servant who seeks voluntarily to resign should not be allowed to continue, it is open to the Government to state those reasons.
There may be hundred and one situations where a situation or opportu nity like this may be used by the Government to ease out a disgruntled or reluctant or troublesome employee.
It was further stated that there were guidelines which were laid down by the O.M. No. 24(57) E V 32 dated 24.12.1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notices of voluntary retirement.
What part of the guidelines was violated by the appellant was not indicated or spelled out in the said affidavit.
We would advert to certain guidelines and examine if these were violated later.
It is only stated that the application for withdrawal was considered in the light of the said guide lines and the request was turned down appropriately.
It was further stated that the notice of termination of service or of retirement is a unilateral act whereby the officer commu nicates his intention to dissolve the 1180 contract of service and unlike resignation it operates without the consent of the other party.
It is, therefore, submitted that once notice was given it became operative immediately, if it was received by the Government and auto matically brought about the dissolution of contract after the expiry of the notice period.
We are unable to accept this submission and this position.
The dissolution would be brought about only on the date indicated i.e., 31st of March, 1981, upto that the appellant was and is a Govern ment employee.
There is no unilateral termination of the same prior thereto.
He is at liberty, and entitled independ ently without sub rule (4) of Rule 48 A of the Pension Rules, as a Government servant, to withdraw his notice of voluntary retirement.
In this respect it stands at par with letter of resignation.
This question arose in the case of one Shri Satish Chandra, then a Judge in the High Court of Allahabad in Union of India vs Shri Gopal Chandra Misra and others; , There the second respondent Shri Satish Chandra wrote to the President of India, on May 7, 1977, intimating his resignation from the office of Judge of the Allahabad High Court, with effect from 1st of August, 1977.
On July 15, 1977, he again wrote to the President, revoking his earlier communication, and commenced deciding matters in Court from July 16, 1977.
On 1st of August, 1977 the first respondent Shri Misra, an advocate of the said High Court filed a writ petition under Article 226 of the Constitution contending that the resignation of Shri Satish Chandra having been duly communicated to the President of India in accordance with Article 217(1) Proviso (a) of the Constitu tion was final and irrevocable, and that the continuance of said Shri Satish Chandra as a Judge of the High Court there after, was an usurpation of public office.
The High Court allowed the petition holding that Shri Satish Chandra was not competent to revoke his resignation letter.
On appeal this Court held that the resigning office necessarily in volved relinquishment of the office which implied cessation or termination of, or cutting as under from the office.
A complete and effective act of resigning office is one which severs the link of the resigner with his office and termi nates its tenure.
In the context of Article 217(1) this assumes the character of a decisive test, because the ex pression "resign his office" occurs in a proviso which excepts or qualifies the substantive clause fixing the office tenure of a judge upto the age of 62 years.
It was further reiterated that in the absence of a legal, contrac tual or constitutional bar, an intimation in writing sent to the appropriate authority by an incumbent, of his intention or proposal to resign his office/post from a future speci fied date, can be withdrawn by him at any time before it becomes effective i.e., before it effects termination of the tenure of the office/post, or employment.
This general 1181 rule equally applies to Government servants and constitu tional functionaries, this Court reiterated.
The other peculiar essence of Article 2 17 which was discussed need not detain us in the facts of this case.
On the principle of general law the offer to relinquishment could have been withdrawn by the appellant before the date it became effec tive if sub rule (4) of Rule 48 A was not there.
In Air India etc.
vs Nergesh Meerza & Ors.
; , , there the Court struck down certain provisions of Air India Employees Service Regula tions.
We are not concerned with the actual controversy.
But the Court reiterated that there should not be arbitrariness and hostile discrimination in Government 's approach to its employees.
On behalf of the respondent it was submitted that a Government servant was not entitled to demand as of right, permission to withdraw the letter of voluntary retirement, it could only be given as a matter of grace.
Our attention was also drawn to the observations of this Court in Raj Kumar vs Union of India, There the Court reiterated that till the resignation was accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus poenitentiae but not thereafter.
Undue delay in inti mating to the public servant concerned the action taken on the letter of resignation may justify an inference that resignation had not been accepted.
But in the facts of the instant case the resignation from the Government servant was to take effect at a subsequent date prospectively and the withdrawal was long before that date.
Therefore, the appel lant, in our opinion, had locus.
As mentioned hereinbefore the main question was whether the sub rule (4) of Rule 48 A was valid and if so whether the power exercised under the sub rule (4) of Rule 48 A was proper.
In the view we have taken it is not necessary, in our opinion, to decide whether subrule (4) of Rule 48 A was valid or not.
It may be a salutary requirement that a Government servant cannot with draw a letter of resignation or of voluntary retirement at his sweet will and put the Government into difficulties by writing letters of resignation or retirement and withdrawing the same immediately without rhyme or reasons.
Therefore, for the purpose of appeal we do not propose to consider the question whether sub rule (4) of Rule 48 A of the Pension Rules is valid or not.
If properly exercised the power of the government may be a salutary rule.
Approval, however, is not ipse dixit of the approving authority.
The approving authority who has the statutory authority must act reasona bly and rationally.
The only reason put forward here is that the appellant had not indicated his reasons for withdrawal.
This, in our opinion, was sufficiently indicated that he was prevailed upon by his friends and the appellant had a second look at the matter.
This is 1182 not an unreasonable reason.
The guidelines indicated are as follows: "(2) A question has been raised whether a Government servant who has given to the appropriate authority notice of retirement under the para 2(2) above has any right subse quently (but during the currency of the no tice) to withdraw the same and return to duty.
The question has been considered carefully and the conclusion reached is that the Government servant has no such right.
There would, howev er, be no objection to permission being given to such a Government servant, on consideration of the circumstances of his case to withdraw the notice given by him, but ordinarily such permission should not be granted unless he is in a position to show that there has been a material change in the circumstances in con sideration of which the notice was originally given.
Where the notice of retirement has been served by Government on the Government servant, it may be withdrawn if so desired for adequate reasons, provided the Government servant con cerned is agreeable.
" In this case the guidelines are that ordinarily permis sion should not be granted unless the Officer concerned is in a position to show that there has been a material change in the circumstances in consideration of which the notice was originally given.
In the facts of the instant case such indication has been given.
The appellant has stated that on the persistent and personal requests of the staff members he had dropped the idea of seeking voluntary retirement.
We do not see how this could not be a good and valid reason.
It is true that he was resigning and in the notice for resignation he had not given any reason except to state that he sought voluntary retirement.
We see nothing wrong in this.
In the modern age we should not put embargo upon people 's choice or freedom.
If, however, the administration had made arrange ments acting on his resignation or letter of retirement to make other employee available for his job, that would be another matter but the appellant 's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administrative set up or manage ment was affected.
The administration has now taken a long time by its own attitude to communicate the matter.
For this purpose the respondent is to blame and not the appellant.
We hold, therefore, that there was no valid reason for withhold 1183 ing the permission,by the respondent.
We hold further that there has been compliance with the guidelines because the appellant has indicated that there was a change in the circumstances, namely, the persistent and personal requests from the staff members and relations which changed his attitude towards continuing in Government service and in duced the appellant to withdraw the notice.
In the modern and uncertain age it is very difficult to arrange one 's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administration, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude and allow the appel lant to withdraw his letter of retirement in the facts and circumstances of this case.
Much complications which had arisen could have been thus avoided by such graceful atti tude.
The court cannot but condemn circuitous ways "to ease out" uncomfortable employees.
As a model employer the gov ernment must conduct itself with high probity and candour with its employees.
In the aforesaid view of the matter, we are unable to sustain the judgment and order of the High Court of Delhi dated 13th of July, 198 1 and the same are, therefore, set aside.
The appeal is accordingly allowed with costs and the appellant is entitled to be put back to his job with all the consequential benefits being treated as in the job from 31st of March, 1981.
P.S.S. Appeal allowed.

summary/full:
The appellant offered to resign voluntarily from his service by letter dated 24th December.
1980 with effect from 31st March, 1981 under Rule 48A of the Central Civil Serv ices (Pension) Rules, 1972, having rendered by then more than 20 years service.
The notice period of three months was to commence from 1st January, 1981.
By an order dated 20th January, 1981 he was allowed to retire voluntarily prospec tively with effect from the afternoon of 31st March, 1981.
On account of personal requests from the staff members the appellant, however, changed his mind and by his letter dated 31st January, 1981 requested the authorities that his resignation might be treated as cancelled and the notice given by him be treated as withdrawn.
He was not allowed to do so and was relieved by an order dated 31st March, 1981.
The respondent No. 2 informed him that in view of the activ ities of the appellant in his capacity as the Secretary of the Employees ' Association it has been found appropriate to ease him out from service.
The High Court dismissed the appellant 's writ petition on the ground that sub rule (4) of Rule 48A of the Pension Rules enables the Government servant to withdraw his appli cation for voluntary retirement only with the approval of the Government.
The approval having not been given the rule had been complied with.
In this appeal by special leave, it was contended for the appellant that if Rule 48(A) be read as consistent with the constitutional requirements of reasonableness, which is a well accepted rule of construction, then the Government could not withhold approval to the withdrawal of 1174 resignation without any rhyme or reason.
For the respondents it was contended that a Government servant was not entitled to demand as of right permission to withdraw the letter of Voluntary retirement, it could only be given as a matter of grace, that it was not in the knowledge of the respondent as to what prompted the appellant to request the withdrawal, that the application for withdrawal was considered in the light of the guidelines laid down by O.M. No. 24(57) E V 32 dated 24th December, 1952 for considering and deciding in the matter of accepting or refusing the withdrawals of notice of voluntary retirement and the request was turned down appropriately, and that once the notice was given it became operative immediately.
Allowing the appeal, HELD: 1.1 There was no valid reason for withholding the permission by the respondent to the appellant to withdraw his notice of voluntary retirement.
[1182H 1183A] 1.2 On the principle of general law that in the absence of a legal, contractual or constitutional bar an intimation in writing sent to the appropriate authority by an incum bent, of his intention or proposal to resign his office/post from a future specified date, can be withdrawn by him at any time before it effects termination of the tenure of the office/post or employment, the offer of relinquishment in the instant case, could have been withdrawn by the appellant before the date it became effective if sub rule (4) of Rule 48 A was not there.
[1180G 1181A] Union of India vs Shri Gopal Chandra Misra and others; , , referred to.
1.3 Sub rule (4) of Role 48 A of the Pension Rules enjoins that a Government servant shall be precluded from withdrawing his notice except with the specific approval of the appointing authority.
The proviso to that sub rule stipulates that the request for withdrawal shall be made before the intended date of his retirement.
That had been done in the instant case.
[1178H 1179A] 1.4 Approval under r. 48A(4) is not ipse dixit of the approving authority.
The approving authority who has the statutory authority must act reasonably and rationally.
The guidelines laid down by O.M. No. 24(57) E V 32 dated 24.12.1952 for considering and deciding in the matter of accepting or refusing the withdrawal of notices of voluntary 1175 retirement are that ordinarily permission should not be granted unless the officer concerned is in a position to show that there has been a material change in the circum stances in consideration of which the notice was originally given.
There has been compliance with these guidelines in the instant case, because the appellant has indicated that there was a change in the circumstances.
In the notice for resignation he had not given any reason.
There was nothing wrong in this.
He has stated that the persistent and person al requests from the staff members and relations had changed his attitude towards continuing in Government service and induced him to withdraw the notice.
This was not an unrea sonable reason.
[1181G, 1179FG, 1182E, 1183AB, 1182F, 1181H] 2.
It cannot be said that once notice was given it became operative immediately, if it was received by the Government and automatically brought about the dissolution of contract after the expiry of notice period.
The dissolu tion in the instant case, would have been brought about only on the date indicated in the notice, i.e. 31st March, 1981, upto which the appellant was and is a Government employee.
There could be no unilateral termination of the same prior thereto.
He was at liberty, and entitled independently without sub rule (4) of Rule 48 A of the Pension Rules, as a Government servant to withdraw his notice of voluntary retirement.
In this respect it stands at par with letter of resignation.
[1180A C] 3.
In the modern age the Court should not put embargo upon people 's choice or freedom.
If the administration had made arrangements acting on his resignation or letter of retirement to make other employee available for his job, that would have been another matter but the appellant 's offer to retire and withdrawal of the same happened in so quick succession that it cannot be said that any administra tive set up or arrangement was affected.
[1182FG] Raj Kumar vs Union of India, , referred to. 4.
There should not be arbitrariness and hostile dis crimination in Government 's approach to its employees.
The Court cannot but condemn circuitous ways to ease out uncom fortable employees.
As a model employer the Government must conduct itself with high probity and candour with its em ployees.
In the modern and uncertain age it is very diffi cult to arrange one 's future with any amount of certainty, a certain amount of flexibility is required, and if such flexibility does not jeopardize Government or administra tion, administration should be graceful enough to respond and acknowledge the flexibility of human mind and attitude.
[1181BC, 1183C, B] 1176 Air India etc.
vs Nergesh Meerza & Ors.
; , , referred to.
The appellant in the instant case, is entitled to be put back to his job with all the consequential benefits being treated as in the job from 31st of March, 1981.
[1183DE]


judgement:
ivil Appeal No. 8295 of 1983.
From the Judgment and Order dated 29.7.
1982 of the Calcutta High Court in Appellate Decree No. 385 of 1979.
D.N. Mukherjee and N.R. Choudhary for the Appellant.
Dr. Shankar Ghosh, P.R. Seetharaman and M.T. George for the Respondent.
The Judgment of the Court was delivered by OZA, J.
This is an appeal preferred by the appellant after getting leave from this court against the judgment and decree passed by the High Court of Calcutta wherein the High Court allowed the appeal of the respondent tenant and set aside the decree for eviction granted by the courts below in favour of the appellant.
The appellant landlord filed a suit for recovery of posses sion of 1167 the 2nd floor rear portion of the premises 248, C.I.T. Road, Calcutta which was let out to the respondent defendant as a monthly tenant on the ground that the landlord reasonably required the suit premises for his own occupation and had no other reasonably suitable accommodation in the town.
The decree was also sought on other grounds which is not rele vant for the purposes of this appeal.
Both the courts the Trial Court and the First Appellate Court found that the suit premises were reasonably required for the personal use and occupation of the appellant land lord and his family which consisted of his wife one son one daughter and therefore the decree was granted in accordance with West Bengal Premises Tenancy Act, 1956.
What was urged by the appellant plaintiff in support of genuine requirement was that he is a Medical practitioner and was appointed as a Physician in Ghana (Africa in 1964) where he has been residing temporarily.
In Ghana after some time his family could not stay and his wife and children have come back and are residing in Calcutta.
His service in Ghana was terminable by giving a notice of 3 months and the plaintiff landlord desires to come back to India and settle down in medical practice in this locality where the house is situated.
It was also alleged in the plaint that he could not come back as the accommodation was not available, and that after taking retirement from Ghana they will settle down in Calcutta in this house in dispute.
The requirement of the family also was alleged on the ground that the son and the daughter of the appellant have also grown and they also need rooms for their use.
It was also alleged that apart from the residential portion he also needs one room for his medical practice.
The trial court and the first Appellate Court accepting this contention of the plaintiff appellant granted decree for eviction.
It appears that during the pendency of this litigation the present appellant also had entered into an agreement with some construction company for a flat in South Calcutta and ultimately in October 1978 he got possession of that flat.
The First Appellate Court i.e. the Court of Additional District Judge maintained the decree in favour of the appel lant by its judgment dated 29th September 1978 and against this judgment the respondent tenant preferred a second appeal before the High Court.
During the pendency of this appeal in the High Court the respondent tenant submitted an application for consideration of subsequent events i.e. the acquisition of the flat in South 1168 Calcutta suggesting that the need of the appellant landlord has been satisfied and therefore the decree of eviction should be set aside.
The High Court permitted this applica tion for amendment and permitted parties to lead additional evidence and in consequence the appellant landlord also was examined once again and it is not disputed that apart from his statement which was recorded earlier additional evidence was recorded and it is on this evidence that the High Court came to the conclusion that as now alternative accommodation i.e. a flat in South Calcutta which was acquired in 1978 available the decree of eviction was set aside and it is against this judgment of the High Court that the present appeal has been preferred.
Learned counsel appearing for the appellant contended that while in service in Ghana since 1975 the appellant wanted to come back but could not because the premises were not available and therefore the suit was filed.
During this period out of some savings from the earnings that the appel lant made in Ghana, he booked a flat and ultimately a flat was practically ready in 1978.
It was contended that after the judgment of the power Appellate Court where the decree was confirmed the appellant felt secured that he will now get the premises in suit where he wanted to settle down in practice and where in fact in part of the premises his family was staying and as the appellant had no sufficient funds he let out this flat in South Calcutta and it is the tenant who invested some money and got it completed.
Accord ing to learned counsel the alternative accommodation should be reasonably suitable and available and it is only then it could be said that as the alternative accommodation which is reasonably suitable is available that the decree for evic tion could be refused when the two courts the court of facts have found it in favour of the appellant that he required the premises in question for his bona fide use.
Learned counsel contended that admittedly the flat which was allotted was a flat on the 13th floor in South Calcutta which is a posh locality.
For the appellant who is a M.B.B.S. and who bad been living and practising in C.I.T. Road in the suit premises for him at this stage in life it was not possible to start practice in South Calcutta on 13th floor.
It was also contended that the wife .of the appellant is also working as a teacher in one of the schools in the locality and it would not be convenient and possible for her to live in South Calcutta and come to this area for dis charge of her duties.
According to learned counsel although the flat was acquired but it was not at all suitable and therefore the High Court was not right on this basis to interfere with 1169 the concurrent findings of facts arrived at by the courts below.
Learned counsel by reference to certain decisions of this court contended that mere fact that the landlord had purchased or acquired an accommodation is not sufficient to negative the genuine requirements but it has further to be found that the premises so acquired are reasonably conven ient and in this regard it was contended that the learned Judge of the High Court omitted to consider these circum stances.
It was also contended that the learned Judge omit ted to consider the positive evidence and drove inference from the fact that the flat was acquired on the basis of agreement that it is being acquired for residential purposes and further averment made to indicate that the appellant landlord intended to start some laboratory in the fiat in South Calcutta.
Learned counsel for the respondent contended that after the additional facts came to the knowledge of the respondent tenant it was pleaded an additional evidence produced.
The respondent produced evidence that in fact all other purchas ers of the flats got possession of the flats in 1977 whereas the present appellant got it in October 1978 when the judg ment in lower appellate court was pronounced on 29th Septem ber 1978.
It was contended that the present appellant de layed taking of possession just to wait till the decree for eviction was affirmed by the Appellate Court.
He further contended that there is no evidence to indicate that this alternative accommodation acquired is not reasonably suit able.
According to the learned counsel South Calcutta where this flat is situated is one of the posh localities of Calcutta and after having acquired a flat almost of the same area which is in possession of the respondent in the suit premises, the High Court was right in coming to the conclu sion that the alternative accommodation satisfies the need of the landlord appellant.
Learned counsel further contended that the fact that the appellant 's wife is in service and for her it will not be convenient if they stay in South Calcutta and the fact that for practice of the appellant it will not be convenient are facts which have not been stated by the appellant.
When after the amendment fresh evidence was recorded and the appellant was given an opportunity and he in fact examined himself and gave additional evidence but only fact that he stated in the additional evidence is that the flat is not suitable for his purpose.
It was therefore contended that the High Court was ,right in coming to the conclusion that the need of the appellant landlord is satisfied.
Learned counsel also referred to some decisions for their above stated preposition.
1170 So far as the law on the question is concerned it is well settled that the alternative accommodation must be reasonably suitable and if it is not so then more availabil ity of alternative accommodation will not be a ground to refuse a decree for eviction if otherwise the courts are satisfied about the genuine requirement of the landlord and to this counsel for both the parties also agreed but the main contention was that on the facts appearing in evidence in this case whether the inference could be drawn that the flat on the 13th floor in South Calcutta was reasonably suitable to satisfy the need of the appellant landlord.
As regards evidence it is no doubt true that after these facts were pleaded in the statement of the appellant the only statement in regard to suitability is that "the flat is not suitable for my purpose".
It is not disputed that this is a flat on the 13th floor in South Calcutta and learned counsel for parties conceded that from C.I.T. Road where premises in question are situated this place where the flat is situated in South Calcutta will be a distant place.
Although learned counsel for the respondent emphasised that the above quoted statement is the only statement made by the appellant in additional evidence.
It is true that this is the only statement when he was examined afresh after these facts were brought in the pleading by way of addition al evidence.
But it could not be doubted that whatever was in evidence earlier could not be brushed aside and it is also clear that on the basis of evidence which was recorded earlier the 2 courts of facts came to the conclusion that plaintiff has established his genuine requirement.
Before these facts were introduced by amendment it was clearly stated that the appellant wanted to start his prac tice after taking retirement from his service in Ghana.
It was also stated that he intended to start private practice as a medical practitioner in Calcutta.
It is also clear that before going to Ghana the appellant was living in the said premises and was practising.
It had also come in evidence that his wife was also serving in some nearby institution.
On this basis his genuine requirement was held to have been proved and the learned Judge of the High Court also accepted this concurrent finding of fact.
The only consideration which weighed with the High Court was the acquisition of this flat on the 13th floor in South Calcutta.
It could not be disputed that if the medical practition er is an old resident of a particular locality and had practised in that locality it will not be easy for him at a stage in life after retirement to start afresh practice in some new area and that too on 13th floor in a modern flat.
1171 What has weighed with the learned Judge of the High Court was the statement made by the appellant that he intended to start a laboratory after retirement in the flat which he acquired and the other fact which weighed was the agreement which stated that the flat was required for residence.
Apparently not much could be drawn from these facts as starting a laboratory admittedly is much different from starting private practice as the medical practitioner and signing an agreement which talks of residence is nothing but a mere formality if he at all intended to acquire a flat.
It is clear that there is nothing else in the evidence on the basis of which it could be said that this flat is reasonably suitable.
Learned counsel for the respondent contended that the appellant said nothing else except the statement that this flat is not suitable for his purpose but it is very significant that this statement made by the appellant when he was examined additionally after the plead ings were amended.
This statement is not challenged by way of cross examination at all and it clearly states that for the purpose for which the appellant needs the premises and he sought eviction this flat is not at all suitable for that purpose which also is apparent from the situation and the circumstances discussed above.
Both the learned counsel emphasised the date of the judgment of the Lower Appellate Court and the date of acqui sition of the flat as it is apparent that the judgment of the Lower Appellate Court was delivered on 29th September, 1978 and the possession of the flat was given on 5th Octo ber, 1978.
On the one hand the counsel for the appellant contended that the Appellate Court having affirmed the decree of eviction the appellant knew that now there is no problem and this additional flat which he acquired out of the savings of his service in Ghana he could utilise to have some earning which may help the family at this stage in life and therefore he let it out so that he may earn Something out of it whereas learned counsel for the respondent con tended that all others got the possession of the flat in 1977 but this appellant waited till he secured a decree of eviction affirmed by the Appellate Court and it is only then that he took possession of the flat so that a reasonable explanation is possible for having let it out because the decree for eviction was already passed.
The circumstances discussed above and the suitability and the requirement of the appellant the age and nature of practice possible for a retired doctor with only an MBBS degree establish that the premises in question are suitable and so far as this is concerned there is no dispute but in the context of the facts and circumstances discussed above it could not be 1172 held that flat in South Calcutta on 13th floor could be said to be a reasonably suitable accommodation for the require ment of the appellant landlord and in the context of these facts and circumstances not much could be made out from the two dates i.e. the judgment of the Lower Appellate Court and the date on which the appellant got possession of the flat.
It is therefore clear that the learned Judge of the High Court was not justified in second appeal under Sec. 100 to interfere with the finding of fact unless there were facts established to hold that this alternative accommodation acquired after the decree of eviction in favour of the appellant was reasonably suitable.
Learned Judge of the High Court only drew inference from the fact that the appellant wanted to start a laboratory and the fact that he signed the agreement for acquiring the fiat which was meant for residence and in drawing inferences from these two facts, the learned Judge omitted to consider the positive evidence and a positive statement not challenged that this flat was not suitable for the purpose of the appellant landlord.
The judgment of the High Court can not be maintained.
The appeal is therefore allowed.
The judgment of the High Court is set aside and the decree of eviction passed by the two courts below is maintained.
In the circum stances of the case the decree for eviction shall not be executed against the respondent upto 31.3.88 on respondent filing an undertaking in the usual form and also paying rents and mesns profits upto date within four weeks.
If respondent fails to deliver possession on or before 31.3.88 the appellant shall be entitled to execute the decree for eviction.
In the circumstances of the case no order as to costs.
S.L. Appeal allowed.

dataset_name: IN-Abs

summary/full:
The appellant landlord.
a medical practitioner, filed a suit for recovery of possession of the 2nd floor.
rear portion of premises, 248, C.I.T. Road, Calcutta, let out to the respondent defendant, on the ground of the reasonable requirement of the landlord for his own occupation as he had no other reasonably suitable accommodation in the town.
The appellant contended that he had been residing in Ghana, Africa, where he had been temporarily appointed as a Physi cian, and he wanted to come back to India after retirement and settle down in medical practice in the locality where his house was situated.
The trial court granted the decree for eviction in accordance with the West Bengal Premises Tenancy Act, 1956.
The first appellate court the Court of the Additional District Judge maintained the decree in favour of the appellant by its judgment dated September 29, 1978.
During the pendency of this litigation, the appellant had entered into an agreement with some construction company for a flat in South Calcutta, and got the flat in October, 1978.
This flat was on the 13th floor in South Calcutta, a posh locality.
The respondent tenant preferred a second appeal before the High Court against the judgment of the first appellate court. 'During the pendency of this appeal, the respondent tenant submitted an application for consideration of the subsequent events, i.e. the acquisition of a flat by the landlord suggesting that the need of the appellant landlord had been satisfied, etc.
The High Court permitted this application for amendment and permitted the parties to lead additional evidence, and in consequence, the appellant landlord also was examined once again.
On consideration of the evidence, the High Court came to the conclu 1165 sion that now as alternative accommodation The flat in South Calcutta was available, and, therefore, it set aside the decree of eviction.
Aggrieved by the decision of the High Court, the appellant landlord appealed to this Court for relief by special leave.
Allowing the appeal, the Court, HELD: It is well settled that the alternative accommoda tion must be reasonably suitable and if it is not so, then, the mere availability of the alternative accommodation will not be a ground to refuse a decree for eviction, if other wise, the courts are satisfied about the genuine requirement of the landlord, and to this, counsel for both the parties also agreed, but the main contention was whether on the facts appearing in evidence in the case, the inference could be drawn that the flat on the 13th floor in South Calcutta was reasonably suitable to satisfy the need of the appellant landlord.
Counsel for the appellant had contended inter alia that for the appellant, who had lived and practised (as a doctor) in the suit premises in the C.I.T. Road, it was not possible at that stage in life to start practice in South Calcutta on the 13th floor.
Counsel for the parties conceded that from C.I.T. Road where the premises in question were situated, the place where the flat was situated in South Calcutta, would be a distant place.
As regards evidence it was no doubt true that after these facts were pleaded in the statement of the appellant, the only statement in regard to suitability was "the flat is not suitable for my purpose.
" Counsel for the respondent emphasised that the above quoted statement was the only statement made by the appellant in the additional evidence.
It was no doubt true that this was the only statement made by the appellant when he was exam ined afresh after these facts were brought in the pleading by way of additional evidence, but it could not be doubted that whatever was in evidence earlier could not be brushed aside and it was also clear that on the basis of evidence recorded earlier, the two courts of facts came to the con clusion that the appellant plaintiff had established his genuine requirement.
On the basis of the facts, the genuine requirement of the appellant plaintiff was held to have been proved and the High Court also had accepted this concurrent finding of fact.
The only consideration which weighed with the High Court was the acquisition of the flat on the 13th floor in South Calcutta.
[1170A G] It could not be disputed that if a medical practitioner is an old resident of a particular locality and had prac tised in that locality, it would not be easy for him at a stage in life after retirement to start practice afresh in some new area and that too on 13th floor in a modern 1166 flat.
There was nothing in the evidence on the basis of which it could be said that the flat in South Calcutta was reasonably suitable for the appellant.
In the context of the facts and circumstances of the case, it could not be held that the flat in South Calcutta on the 13th floor could be said to be a reasonably suitable accommodation for the requirement of the appellant landlord.
[1170H; 1171A C] The High Court was not justified in the second appeal to interfere with the finding of fact unless there were facts established to hold that alternative accommodation acquired after the decree of eviction in favour of the appellant was reasonably suitable.
The High Court omitted to consider the positive evidence and a positive statement, not challenged, that this fiat (in South Calcutta) was not suitable for the purpose of the appellant landlord.
[1172B C] Judgment of the High Court was set aside.
Decree of eviction passed by the two courts below was maintained.
The court directed in the circumstances of the case that the decree for eviction would not be executed against the re spondent upto 31.3.88 on the respondent 's filing an under taking in the usual form and also paying the rents and mesne profits upto date within four weeks, and that if the re spondent failed to deliver possession on or before 31.3.88, the appellant would be entitled to execute the decree for eviction.
[1172D E]


judgement:
Criminal Appeal No. 401 of 1987.
From the Judgment and Order dated 8.9.
1986 of the Karnataka High Court in Crl, Revision Petition No. 482 of 1986.
L.R. Singh for the Appellants.
M. Veerappa and A.K. Panda for the Respondents.
The Judgment of the Court was delivered by OZA, J.
Leave granted.
This appeal has been preferred by the appellants who are the accused persons in a complaint filed by the State Gov ernment before the Principal Sessions Court, Bangalore.
It is alleged that this complaint is filed by the State Govt.
under Sec.
500 of the Indian Penal Code.
This complaint was filed by the State Govt.
on the basis of a sanction granted by the State Govt.
under Sec. 199, clause (2) of the .
Code of Criminal Procedure, as one of the persons defamed is the Director General of Police, State of Karnataka.
The Trial Court after the filing of the complaint took cognizance of the matter and issued process against the petitioners who were the accused persons before the court below.
Against this issue of process, these petitioners filed a criminal revision before the High Court of Karnataka seeking the relief of quashing of the order directing issue of process and also the quashing of proceedings pending in the court below.
The revision which was filed in the High Court was filed under Sections 397 and 401.
In addition to the State Government, the petitioners joined respondent No. 2, the Director General of Police, State of Karnataka and also respondent No. 3, the Chief Minister of Karnataka, Shri Ramakrishna Hegde.
It is alleged that when the revision petition was filed in the High Court, it was heard for admission and was admit ted and orders were passed for issue of notices to the respondents.
But by the impugned order the High Court di rected deletion of the names of respondents 1131 Nos. 2 and 3 holding that they are not necessary parties to the proceedings and it is against this order that the spe cial leave was filed and hence this appeal.
The order of the High Court indicates that the matter was taken up on being mentioned by either of the counsel in the matter as it reads: "This CRP coming on for being spoken to the Court made the following order: Respondents 2 and 3 in this petition, who are not parties to the complaint, are not neces sary parties to the proceedings.
Hence, Respondents 2 and 3 in this petition are deleted.
S d/Judge" An attempt was made by the learned counsel for the appel lant, to contend that once the process was issued in the revision by the High Court after admission it is curious that this matter was taken up.
Although it is not clearly alleged that this order was passed without affording an opportunity of hearing to the petitioner, admittedly they were heard.
The main grievance appears to be that it was suddenly taken up for hearing on being mentioned.
This is not unusual and there is no grievance that the petitioners had no hearing.
Under these circumstances no grievance could be made to this part of the order.
It is not disputed that in the revision petition itself the relief claimed by the petitioners were: "Wherefore the petitioners pray that this Hon 'ble court be pleased to call for the records and a return from the respondents and (i) Quash the proceedings of the first respondent dated 30.6.1986 bearing Order No. HD , Annexure 'E '.
(ii) Quash the entire proceedings initi ated against the petitioners as per the sum mons Annexure 'F ' in C.C. No. 62/86 on the file of the Principal Civil and Sessions Judge, Bangalore City.
(iii) Grant such other reliefs as this Hon 'ble Court deems 1132 fit in the circumstances of the case including an order as to costs.
" A perusal of these prayers made in the revision petition clearly indicates that what was challenged before the High Court was the order dated 30.6.86 by which the process was issued against the petitioners and further the quashing of the proceedings instituted before the court below i.e. Principal Civil & Sessions Judge, Bangalore City which was Criminal Complaint No. 62 of 1986.
It is therefore clear that the only challenge before the High Court was to the proceedings on the basis of the complaint and the relief sought was quashing of these proceedings.
It is clear that High Court exercises jurisdiction under Sec.
401 when it exercises revisional jurisdiction.
It is contended by the learned counsel that it is Sec. 397 of the Code of Criminal Procedure which empowers the High Court to call for the record and examine the record about the propri ety of the order.
But the High Court exercises revisional jurisdiction under Sec. 401.
Learned counsel laid much emphasis on sub clause 2 of Sec.
40 1 to contend that as in the revision petition the contention advanced by the peti tioners is that this prosecution was instituted by sanction from the State Govt.
because the two respondents and the petitioner in this revision petition made allegations against the two respondents who have been deleted that it was necessary for them to join them as parties under clause 2 of Sec.
It was further contended that in fact the news item and the allegation which form the basis of the complaint pertain to these two persons.
In fact not about the Chief Minister himself but about his wife and in this aspect of the matter it was contended that these two were necessary parties before the High Court and it was for this reason that the petitioners joined them in the High Court.
Learned counsel for the appellants placed reliance on a decision of this Court in Thakur Ram vs The State of Bihar, ; and it was contended that the Court below was not right in deleting these two respondents.
Learned Advocate General appearing for the State of Karnataka frankly stated that so far as the two respondents ' continuance or discontinuance from the criminal revision is concerned the State of Karnataka is not interested and he has nothing more to add but he contended that joining of such parties which are not necessary in a revision arising out of criminal proceedings is a matter of far reaching consequences.
He contended that if such parties are permit ted to be joined then any accused person who is facing a trial in a criminal prosecution may file a revision chal lenging either the issue of process or the framing of charge and may join unnecessarily parties and it may 1133 become difficult even to serve such parties and because of this the criminal proceedings may remain stayed for long time.
This ultimately may result in defeating the criminal justice.
And in this view of the matter the learned Advocate General contended that the High Court was right in deleting these two names as they were not parties in the criminal case pending before the trial court nor were necessary parties to these proceedings.
Learned counsel appearing for the two respondents con tended that in fact in view of Sec. 397 and 401 of the Cr.
P.C. what the court i.e. the High Court is expected to see in a revision of this nature against the issue of proc ess is as to whether the complaint and the papers filed alongwith the complaint are sufficient to justify the order passed by the learned trial court by issuing process against the petitioners accused persons.
It was contended by the learned counsel that the Court is not expected to see any thing further nor there is any material to come to a conclu sion as to whether the prosecution has been launched fairly or at the instigation or under the influence of some other person.
It was contended that in fact these questions may be before the court below when evidence is recorded what the Court primarily is concerned to see is that the facts al leged in the complaint whether prima facie constitute an offence calling for a trial and if the Court is so satisfied it issues process.
The High Court in revision under Sec.
401 read with 397 only is concerned to see those papers which were before the court below.
Admittedly these two respond ents Nos. 2 and 3 were not parties before the court below and the High Court was right in deleting their names from the proceedings.
Learned counsel placed reliance on a deci sion of this Court in Municipal Corporation of Delhi vs Ram Kishan Rohtagi and Ors., ; and contended that the scope of Sections 401 and 397 has been considered by series of decisions of this Court, the above noted case being one and contended that in the light of law laid down, no grievance could be made against the order of the High Court.
It was also contended that even if the petitioners have chosen to make allegations against respondents 2 and 3 as any one is free to make allegations, it does not call for any enquiry before the High Court as the High Court is not expected to enquire into the allegations and counter allega tions while it is only examining in revision the order issued by the trial court which is nothing more but issue of process and that order the trial court has passed on the basis of complaint and papers filed alongwith the complaint and the High Court only is expected to see as to whether on these papers and complaint the Court below was fight in issuing process and it is a proceeding which deserves 1134 to continue or it could be quashed; except this while exer cising revisional jurisdiction, according to the learned counsel, High Court is not expected to go into the matter at all.
And therefore the High Court was right in deleting the names of respondents 2 and 3.
Calling for records to exercise powers of revision. (1) The High Court or any Ses sions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record." This section provides that the High Court or the Court of Sessions may send for the record of any inferior criminal court for satisfying itself about the "correctness, legality and propriety of any findings, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court.
" Therefore it clearly indicates that the court when calls for the record in exercising powers under Sec.
397 Cr.
P.C. it is expected to examine the records for the purpose of satisfying itself about legality, propriety and correctness of the order passed and also about the regularity of the proceedings.
It is not disputed that the complaint filed by the respondent State Govt.
was the matter before the trial court on the basis of which and accompany ing papers the Court after considering issued process and it is this order of issue of process correctness, legality or propriety of which is under challenge before the High Court.
A perusal of the revision petition which has been filed here with the SLP clearly shows that there is nothing except a challenge to the propriety and correctness of the order passed by the trial court while issuing process.
There is nothing about irregularity or illegality.
The grievance is also made about the sanction granted by the State Govt.
but that apparently is not a matter which could be gone into at this stage.
Admittedly, therefore the only thing which is before the High Court is to satisfy itself about the cor rectness or propriety of the order.
Admittedly no question of legality is raised.
Therefore the High Court is expected to look into those papers and record which were before the trial court.
1135 It is not in dispute that these two respondents Nos. 2 and 3 were not parties before the court below.
Learned counsel for the appellants contended that the proceedings have been launched by the State Govt.
on behalf of respond ent No. 2 and therefore indirectly respondent No. 2 being the complainant is a party to the proceedings.
That is too tall a proposition.
The prosecution is launched by the State Government and before the court below i.e. the trial court the only parties are the petitioners who are accused persons and the State Govt.
which stands in the place of a complain ant.
There are prosecution witnesses and there may even be defence witnesses.
But the witnesses are not parties to the proceedings and admittedly these two respondents who have been deleted by the impugned order of the High Court were not parties before the court below.
Learned counsel laid much emphasis on the provisions contained in sub clause 2 of Sec.
reads: "401.
High Court 's powers of revision.
(1) in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in, the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any 1136 person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
" Sub clause 2 of this Sec.
talks of a situation where an order is being passed against any person and it was contend ed by the learned counsel that the section not only talks of accused persons but also of "or other person unless he has had an opportunity of being heard.
" Apparently this sub clause contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Sec.
401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party.
Learned counsel for the appellants was not in a position to contend that even if any contention of the appellants is accepted and the High Court accepts the revision petition as it is, there will be any situation where an order may be passed against these two respondents or they may be joined as parties to the proceed ings.
Reference to Section 401 clause 2 is of no consequence so far as these two respondents are concerned.
The decision to which reference was made by the learned counsel for the appellants, it appears has no bearing on the question.
That was a case where the question before this Court was as to whether when a person was charged under Section 392 and was facing trial before the Court of a Magistrate, it was proper to send the case to the Sessions Court when such applications earlier to the Magistrate have been rejected and it is in this context the scope of the revisional jurisdiction was being examined.
In our opinion, this case is of no consequence at all so far as the present case is concerned.
In the case of Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors., (supra) this Court considered the scope of Section 482 Cr.
P.C. and Sec.
397 in the context of challenge to the criminal proceedings or issue of process and this Court observed that: "It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the 1137 same, no offence is constituted.
In other words, the test is that taking the allegations and the complaint as they are, without adding or substracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482 of the present Code." In this decision, the earlier decisions of this Court on the question have also been considered.
It is therefore clear that when the issue of process is challenged in the revision petition before the High Court what the High Court is expected to see is as to whether the complaint and the papers accompanying the complaint prima facie indicate that an offence is made out.
If so, the Court below was right in issuing process against the accused persons and such proceedings can not be quashed; if the complaint and the papers accompanying the complaint, in the opinion of the High Court are such which do not prima facie disclose an offence then it will be open to the High Court to entertain the revision and quash the proceedings.
In the light of the discussions above therefore it is clear that the question about anyone else being instrumental in getting the prosecution launched or questions which are foreign are not to be considered in a revision where the issue of process is being challenged and therefore the further question as to whether the party against whom an allegation is made is or is not a necessary party in the proceedings also is of no avail.
The scope of the revisional jurisdiction of the High Court as we have discussed earlier clearly indicates that the High Court is only expected to see the legality, correctness or the propriety of the order, which is an order of issue of process, these things could only be seen by looking into the complaint and the accompa nying papers and evidence if any which were before the court below.
In our opinion, the High Court was right in deleting the names of the two respondents.
We see therefore no substance in this appeal.
It is therefore dismissed and the order passed by the High Court is maintained.
P.S.S. Appeal dismissed.

summary/full:
The trial court took cognizance of a complaint by the State Government under section 500 I.P.C. filed on the basis of a sanction granted by the State Government under section 199(2) Cr.
P.C., as one of the persons defamed was the Director General of Police, and issued process against the appellants.
In the revision petition preferred by the appellants under sections 397 and 401 Cr.
P.C. against that order, in addition to respond ent 1, the appellants also joined respondent 2, the Director General of Police, and respondent 3, the Chief Minister of the State, as parties.
The High Court admitted the petition and ordered issue of notice to the respondents, but directed deletion of the names of respondents 2 and 3 holding that they were not necessary parties to the proceedings.
In the appeal by special leave assailing the order of the High Court it was contended for the appellants that since the prosecution was instituted by sanction from the State Government, and the news item and the allegation which formed the basis of the complaint pertained to the two respondents they were necessary parties before the High Court.
The High Court, therefore in exercise of its juris diction under section 401(2) Cr.
P.C. was not right in deleting the names of these two respondents.
For the respondents, it was contended that the High Court was right in deleting the names of respondents 2 and 3 as they were not parties in the criminal case pending before the trial court, nor were they necessary parties to the proceedings before the High Court, that under sections 397 and 401 Cr.
P.C. what the High Court was expected to see in revision against the issue of process was as to whether the complaint and the papers filed alongwith it were sufficient to justify the order passed by the trial court and whether it was a proceeding which deserves to continue or it could be quashed.
1129 Dismissing the appeal by special leave, HELD: 1.
The High Court was right in deleting the names of the two respondents.
[1137F G] 2.
When the issue of process is challenged in revision petition before the High Court and the record is called for under section 397 Cr.
P.C., what it is expected to see only is as to whether the complaint and the papers accompanying it prima facie indicate that an offence is made out.
If the complaint and the papers in the opinion of the High Court are such which do not prima facie disclose an offence then it will be open to the High Court to entertain the revision and quash the proceedings.
Except this the High Court is not expected to go into the matter at all.
[1137C D] 3.
Section 401(2) Cr.
P.C. contemplates a situation where a person may not be an accused person before the court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under section 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither party in the proceed ings in the court below nor is expected at any stage even after the revision to be joined as party.
[1136B D] In the instant case the prosecution was launched by the State Government and before the trial court the only parties were the petitioners, who were accused persons, and the State Government, which stood in the place of a complainant.
There were prosecution witnesses and there might even be defence witnesses.
But the witnesses are not parties to the proceedings.
The two respondents were not parties before the court below.
They could not, therefore, be joined as parties before the High Court.
[1135B C] 4.
The question about anyone else being instrumental in getting the prosecution launched or questions which are foreign are not to be considered in a revision where the issue of process is being challenged and therefore the further question in the instant case as to whether the party against whom an allegation is made is or is not a necessary party in the proceedings also is not relevant.
[1137E F] Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors., ; referred to.
1130 Thakur Ram vs The State of Bihar, ; , distinguished.