IN THE SUPREME COURT OF INDIA
Karnataka Board of Wakf          …Petitioner
Vs
Government of India & Ors.          …Respondent

DATE : 16/04/2004
CASE NO.: Appeal (civil) 16899 of 1996
BENCH: S. RAJENDRA BABU & G.P. MATHUR

JUDGMENT
[With C.A.Nos. 16900/1996 & 16895/1996]

RAJENDRA BABU, J. :

Three suits were filed by the first respondent in each of these cases seeking for a declaration that notifications issued by the Karnataka Board of Wakf, i.e., the appellant before us, showing some of the defendants to be illegal and void or in the alternative, to declare the first respondent as owner of the suit properties on the ground that they have perfected their title by adverse possession and consequential relief for permanent injunction. There are three sets of properties in each of these three matters. One is CTS No.24 of Ward No.VI, described as “Karimuddin’s Mosque”, another is CTS No.36 of Ward No.VI, described as “Macca Masjid” and the other is CTS No.35 of Ward No. VI, described as ” Water Tower”. All of them were situated at Bijapur.

The claim made by the first respondent is that they acquired the suit property under the Ancient Monuments Preservation Act, 1904 (Ancient Monuments Act) and a notification has been published in that regard and the suit property had been entered in the Register of Ancient Protected Monuments incharge of the Executive Engineer. Thereafter, the Government of India enacted the Ancient Monuments And Archaeological Sites and Remains Act, 1958 and the suit property came to be under the management of the Department of Archeological Survey, Government of India. It is asserted by the first respondent that in all the relevant records, the name of the Government of India has been shown as the owner of the suit property and that they came to know that the defendants got published a notification No.KTW/531/ASR-74/7490 dated 21.4.1976 showing that the suit property as having been declared as ’Wakf Property’ in terms of section 26 of the Wakf Act, 1954 and was also stated to have been published in the Gazette. Inasmuch as the suit property since inception was under the ownership of the plaintiff with lawful possession thereof, defendants could not have made any claim thereto nor get the same declared as Wakf property. The defendants contested this claim of the plaintiffs in the original suits and after following due procedure publication has been made in the Karnataka Gazette in terms of Section 67 of the Karnataka Land Revenue Act and the order passed by the concerned officer is binding on the plaintiff and, therefore, the plaintiff cannot claim any ownership on the ground of adverse possession.

While this is the stand of the Wakf Board, the appellant before us, and the other defendants described as to be “mutawallis” of the Wakf property, stated that one of the Arab Preachers, Peer Mahabari Khandayat came as a Missionary to Deccan as early as AD 1304 and occupied whole Arkilla and erected “Mecca Masjid” according to established customs to offer prayer which is surrounded by a vast open area. The said property had all along for seven centuries been treated as Wakfs and have been since after the time of Peer, managed, looked after and maintained by Sajjada Nashin from time to time. No one has interfered with their right. They claim that they have appropriate sanads to show that the property in question is Wakf property and that another portion of the suit property also belongs to the Darga of Peer Mahabari Khandayat and Chinni Mahabari Khandayat Darga Arbkilla, Bijapur and, therefore, the same has been appropriately entered in the Wakf Register.

The trial court raised several issues in the matter and gave a finding that on a consideration of the oral and documentary evidence in the case it is clear that even prior to the introduction of the Survey Department at Bijapur, the Government of India had taken these properties as ancient monuments and they are protecting them by keeping appropriate watch over these monuments but now the defendants have come forward contending that these properties are Wakf properties and they have nothing to show that even after the demise of Peer Mahabari Khandyat they remained in the possession of the same. The properties in question were acquired by the Government of India as long back as 1900 and they started preserving them as important historical monuments and they remained in possession and enjoyment of them. This was clear both from oral and documentary evidence and on that basis, the Trial Court held that they are owning and managing the suit properties. The Trial Court also gave a finding that the Wakf Board itself declared these properties as Wakf properties without properly following the relevant provisions of the Wakf Act and without following due procedure prescribed therein and in a case where there is a dispute as to who is a stranger to the Wakf, a mere declaration by the Wakf Board will not bind such person and on that basis the Trial Court decreed the suit.

The matter was carried in appeal. A Division Bench of the High Court examined the matter once over again and affirmed the findings of the Trial Court. The Division Bench also noticed that at the end of the arguments the appellant made a submission that as they have not produced some of the important documents, the matter may be remanded to the Trial Court in order to enable them to produce the said documents and with a direction to the Trial Court for a fresh disposal in accordance with law. The High Court did not allow the plea raised by the appellant that there are documents in question which will go to the root of the matter or which would be necessary in terms of Order XLI, Rule 27, CPC to permit them to adduce further evidence and on that basis rejected that claim. The High Court affirmed the various findings given by the Trial Court.

In the circumstances, the learned counsel for the appellant, reiterated the claim made before the High Court that they should be permitted to adduce further evidence before the court to substantiate their claim but when the matters were pending before the Trial Court and the High Court they had ample opportunity to do so. If they had to produce appropriate documents, they could have done so and also it is not clear as to the nature of the documents which they seek to produce which will tilt the matter one way or the other. The scope of Order XLI, Rule 27, CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. In this view of the matter, we do not think there is any justification for us to interfere with the orders of the High Court. However, in view of the arguments addressed by the learned counsel for the appellant, we have also gone into various aspects of the matter and have given another look at the matter and our findings are that the view taken by the High Court is justified. However, one aspect needs to be noticed. The High Court need not have stated that the first respondent is entitled to the relief even on the basis of adverse possession. We propose to examine this aspect.

The case advanced by the Appellants is; that one Arabian saint Mahabari Khandayat came to Bijapur by around 13th century, acquired certain properties (suit property) and constructed ’Mecca Mosque’ which is under the management of the lineal descendants of the said saint; that by virtue of Notification bearing No. KTW/531 ASR/74/7490 dated 21/04/1976 issued by Appellant and Karnataka Gazette Notification page No. 608/Part VI dated 08/07/1976 they became absolute owners and title holders of the suit property; that pursuant to the circulars dated 08/06/1978 and 22/01/1979 the Deputy Commissioner of the Districts were instructed to handover possession of any Wakf Properties that are under the possession of any Government Department; that by virtue of the said circular Assistant Commissioner, Bijapur held enquiry under section 67 of the Karnataka Land Revenue Act, 1964 and arrived at the conclusion that the suit property is a Wakf Property; that the alleged acquisition by the Respondent itself is a concocted story; that the Notification and the Gazette publication itself is a notice to all concerned and the Respondent failed to reply to this notice; that the original suit is bad by limitation; that the original suit itself is not maintainable since there is no notice under section 56 of the Old Wakf Act; that the plea regarding title of the suit property by the Respondent and the plea of adverse possession is mutually exclusive; that therefore the appeal is to be allowed.

Pertaining to the ownership claim of Appellants over the suit property there is no concrete evidence on record. The contention of Appellants that one Arabian saint Mahabari Khandayat came to India and built the Mosque and his lineal descendents possessed the property cannot be accepted if it is not substantiated by evidence and records. As far as a title suit of civil nature is concerned there is no room for historical facts and claims. Reliance on borderline historical facts will lead to erroneous conclusions. The question for resolution herein is the factum of ownership, possession and title over the suit property. Only admissible evidence and records could be of assistance to prove this. On the other hand, Respondent produced the relevant copy of the Register of Ancient Protected Monuments maintained by the Executive Engineer in charge of the Ancient Monuments (Exb P1) wherein the suit property is mentioned and the Government is referred to as the owner. Since the manner of acquisition is not under challenge the entry in the Register of Ancient Protected Monuments could be treated as a valid proof for their case regarding the acquisition of suit property under the appropriate provisions of the Ancient Monuments Act. Gaining of possession could be either by acquisition or by assuming guardianship as provided under section 4 thereof. Relevant extracts of Exb P2 – CTS records fortifies their case. It shows that the property stands in the name of Respondent. Moreover, the evidence of Syed Abdul Nabi who is the power of attorney holder (of defendants 2A and 2B in the Original suit) shows that the suit property has been declared as a protected monument and there is a signboard to this effect in the suit property. He also deposed that the Government is in possession of the suit property and the Government at its expenditure constructed present building in the suit property. On a conjoint analysis of Exb P1, P2 and deposition of Syed Abdul Nabi, it could be safely concluded that the Respondent is in absolute ownership and continuous possession of the suit property for the last about one century. Their title is valid. The suit property is government property and not of a Wakf character.

The Old Wakf Act is enacted “for the better administration and supervision of wakfs.” Under section 4 of the Old Wakf Act, Survey Commissioner(s) could only make a “\005survey of wakf properties existing in the State at the date of commencement of this Act.” Wakf Board could exercise its rights only over existing wakf properties. Since the suit property itself is not an existing wakf property the Appellant cannot exercise any right over the same. Therefore, all the subsequent deeds based on the presumption that the suit property is a Wakf Property are of no consequence in law. The Notification bearing No. KTW/531 ASR/74/7490 dated 21/04/1976 issued by the Appellant and Karnataka Gazette Notification page No. 608/Part VI dated 08/07/1976 is null and void. The same is liable to the deleted. In view of this, the aspects relating to treating Gazette Notification as notice and limitation need not be looked into. As regards the compliance of notice under section 56 of the Old Wakf Act, the High court based on evidence and facts ruled that the same is complied with. This is a finding of fact based on evidence.

Now we will turn to the aspect of adverse possession in the context of the present case. Appellants averred that the plea of the respondent based on title of the suit property and the plea of adverse possession are mutually exclusive. Thus finding of the High Court that the title of Government of India over the suit property by way of adverse possession is assailed.In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a wellsettled principle that a party claiming adverse possession must prove that his possession is ’nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See : S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC 128).

Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that – “Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.” The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v. Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held:

“As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

As we have already found, Respondent obtained title under the provisions of Ancient Monuments Act. The element of Respondent’s possession of the suit property to the exclusion of the Appellant with the animus to possess it is not specifically pleaded and proved. So are the aspects of earlier title of Appellant or the point of time of disposition. Consequently, the alternative plea of adverse possession by Respondent is unsustainable. High Court ought not have found the case in their favour on this ground.

In the result, these appeals stand dismissed.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 175 of 2003

Dastagir Sab & Anr. …PETITIONER
Vs
State of Karnataka …RESPONDENT

DATE OF JUDGMENT: 22/01/2004

BENCH: Doraiswamy Raju & S.B. Sinha.

J U D G M E N T

S.B. SINHA, J :

The appellants herein have been found guilty of commission of offence under Section 376(2)(g) of Indian Penal Code and sentenced to undergo rigorous imprisonment for five years as also imposition of a fine of Rs. 10,000/-. On 31.10.1993, father of PW1 and PW6, her brother had gone to cultivate their agriculture land. Around 11.30 a.m. when PW 1 was attending to her household works and nobody was at home, the appellants came to the house and asked her about the availability of a spray pump. She told the appellants that she did not have any. A little later again the appellants approached her and asked for water whereupon she gave them water for drinking. After some time again the appellants went to her and asked her to give the cycle pump whereupon she told them that she did not have any cycle pump, whereafter they went away. Around 12.30, PW 1 went to a nearby nala to fetch water for the purpose of washing clothes. While she was returning from the canal, both the accused persons came and took her forcibly to the cotton fields by gagging her mouth and committed forcible sexual intercourse with her against her consent. She was unable to cry as the cloth used was put in her mouth. Later, however, she removed the cloth put in her mouth and cried aloud.

Hearing her cries, her father and her brother came running to the spot and found the accused persons running away at a distance. Her father made an attempt to apprehend them, but they made good their escape. He also approached one Mahantesh Patil PW 19 who is an influential person of the village and requested him to see that something is done in this regard. PW 19 promised him that he will send for the accused and a panchayat will be held. The father of the prosecutrix, thereafter, informed the factum of commission of the offence to a number of persons including PW 2 Krishna Veni, PW 3 Krishna Murthy and PW 14 Sadashiva Rao. All of them gathered in the hut of PW 1 and made enquiries whereupon she narrated the acts committed by the accused persons. After 4 days of the incident the father of the prosecutrix lodged a First Information Report before the Sirwar Police Station.

Both the Courts below found the appellants guilty of commission of the said offence.

The principal ground urged by the learned counsel appearing on behalf of the appellants are that:

(i) the identification of the appellants in the Court for the first time by the prosecutrix without a prior Test Identification Parade having been held, the judgment of sentence must be held to be bad in law;

(ii) having regard to the fact that the place of occurrence being an agricultural field and the stuff of the agricultural produce was found to be as high as 5 feet to 6 feet, the absence of injury on her person is not probable;

(iii) in view of the medical evidence, no finding as regard commission of the offence can be held to have been established.

The prosecution in support of its case has examined as many as 26 witnesses. The prosecutrix Malleshwari examined herself as P.W. 1. She in her evidence detailed the circumstance in which the offence is said to have been committed. She also disclosed enough materials to show that she had the occasion to see the accused persons at least on three occasions almost immediately prior to the commission of offence and also when she was intercepted and forcibly committed sexual assault on her. It is further borne out from records that immediately upon hearing her cries when the appellants allegedly took to heels, her brother P.W. 6 Rambabu saw the appellants running away from the spot. The other witnesses including the father of the prosecutrix, the other labourers who were working in the field i.e. Gobindamma w/o Malappa, resident of Athnoor Village, Kabir Jayamma w/o Gangappa Malad, Laxmi w/o Amaresh Malad, Nagaraj s/o Gangappa Malad, Viresh s/o Gangappa Malad, Subamma w/o Rahiman Choudhary of Solapur, Ramjanamma w/o Bhandenawaz, Hussain s/o Choudhary Abi Sab, Mohammed s/o Lal Sab came immediately to the place of occurrence. The father of the prosecutrix got hold of the accused persons and allegedly they confessed their guilt but they refused to come with him. When the incident was narrated to the labourers and others including the P.Ws. 2, 3, 6 and 14, they expressed their anguish and wanted the boys to be punished. One Subamma went to the village and assaulted the appellant No. 1 with her chappal.

The fact that immediately after the incident the matter was narrated to PWs 2 and 3 is not in dispute. They supported the prosecution case. Further, PW 6 Rambabu who was then aged about 12 years also saw two persons running away from the spot. He knew the accused persons.

It is also not in dispute that the accused were arrested on 6.11.1993 and according to the investigating officer they were shown to her to ensure that they have arrested the correct persons and in that view of the matter it was impracticable to hold a Test Identification Parade.

In view of the peculiar facts and circumstances of this case we are of the opinion that non-holding of a Test Identification Parade cannot be said to have vitiated the trial. The learned counsel appearing on behalf of the appellants, however, would submit that the prosecutrix in her evidence categorically admitted that she did not know the accused persons earlier but despite the same they have been named in the First Information Report. A bare perusal of the First Information Report would show that therein it had merely been stated “I came to know that the boy who has raped me is Dastagir and the boy who has held me and put the cotton in my mouth is Rajasab and both of them are of Athnoor village, if shown to me I can identify them”.

It is, therefore, not difficult to perceive that before the First Information Report which was lodged on 5.11.1993 the names of the appellants were disclosed and the prosecutrix came to know thereabout.

No law states that non-holding of Test Identification Parade would by itself disprove the prosecution case. To what extent and if at all the same would adversely affect the prosecution case, would depend upon the facts and circumstances of each case.

In the facts of this case, holding of T.I. Parade was wholly unnecessary. Had such T.I. Parade been held, the propriety thereof itself would have been questioned before the Trial Court.

247], this Court emphasized the purpose for holding test identification parade in the following terms:

“3…During the investigation of a crime the police agency is required to hold identification parade for the purposes of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to the witness or the informant. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement.

Identification parade may also not be necessary in a case where the accused persons are arrested at the spot. The evidence of identifying the accused person at the trial for the first time is, from its very nature, inherently of a weak character. This Court in Budhsen v. State Of U.P. ((1970) 2 SCC 128 :

1970 SCC (Cri) 343) held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part which he allegedly played in the crime in question with reasonable particularity. In such cases test identification is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them.

There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not substantive evidence, yet they are used for corroboration purposes for believing that the person brought before the court was the real person involved in the commission of the crime. The identification parade even if held, cannot, in all cases, be considered as safe, sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where the accused is not known to the witness or the complainant.” (See also Dana Yadav alias Dahu and 295) [(2003) 5 SCC 746] this Court observed:

“16. It is well settled that the substantive evidence is the evidence of identification in Court and the test identification parade provides corroboration to the identification of the witness in Court, if required.

However, what weight must be attached to the evidence of identification in Court, which is not preceded by a test identification parade, is a matter for the Courts of fact to examine. In the instant case the Courts below have concurrently found the evidence of the prosecutrix to be reliable and, therefore, there was no need for the corroboration of her evidence in Court as she was found to be implicitly reliable. We find no error in the reasoning of the Courts below. From the facts of the case it is quite apparent that the prosecutrix did not even know the appellants and did not make any effort to falsely implicate them by naming them at any stage. The crime was perpetrated in broad day light. The prosecutrix had sufficient opportunity to observe the features of the appellants who raped her one after the other. Before the rape was committed, she was threatened and intimidated by the appellants. After the rape was committed, she was again threatened and intimidated by them. All this must have taken time. This is not a case where the identifying witness had only a fleeting glimpse of the appellants on a dark night. She also had a reason to remember their faces as they had committed a heinous offence and put her to shame.

She had, therefore, abundant opportunity to notice their features. In fact on account of her traumatic and tragic experience, the faces of the appellants must have got imprinted in her memory, and there was no chance of her making a mistake about their identity…” SCALE 732], this Court observed:

“…Though as a matter of general principle, the point urged with reference to the omission to conduct earlier the test identification Parade may be correct, the question as to whether there is any violation of the same in a given case would very much depend on the facts and circumstances of each case and there cannot be any abstract general formula for universal and ready application in all cases…” In the instant case, as noticed hereinbefore, PW 1 gave sufficient particulars of the persons committing the offence of criminal assault on her. They had been identified by their description by her brother. The appellants were chased and they were caught and allegedly they had made a confession of their guilt. The relatives of the prosecutrix and other persons had also approached Mahantesh Patil, PW 19 to see that the culprits are brought to book and assurance in that behalf had been given. It was only when despite repeated attempts their grievances were not met, the First Information Report was lodged. Furthermore, in this case the names of the appellants have been mentioned in the First Information Report.

It has been brought on record that immediately after the incident the father of the prosecutrix went in search of the accused where he also met PW 19 Mahantesh Patil who had promised that he would send for the accused and see that justice is done but since he was not available subsequently for 2-3 days, the complaint was filed.

Further, it is well settled that absence of injuries on the person of the prosecutrix would not by itself be sufficient to discard the prosecution case.

The incident took place on 31.10.1993. PW 1 was examined by the Medical Officer at 4.15 p.m. on 5.11.1993.

Dr. H. Vadiraj PW25 categorically stated that any abrasion or marks of violence would be visible for 24 hours and thereafter the same may disappear. Admittedly, according to the doctor, rupture of hymen of PW1 took place about one year prior to the occurrence and that may lead to the possible explanation as to why no visible injury was found on her private part.

In the cross-examination, it is elicited from this witness that while taking brief history of the incident from the victim, she clearly stated that she had been raped by Dastagir Sab, aged about 28 years and Rajasab, aged 25 years of Athnoor village on 31.10.1993 at 12 noon. Furthermore, the witness failed to state as to whether physical exercise also can lead to rupture of hymen.

The learned Session Judge having regard to the materials on record observed:

“She was wearing at the relevant point of time, one Lahanga, one Davani and a blouse. The two hooks on the top have been torn and the clothes which P.W. 1 was wearing at the relevant point of time were seized by the Investigating Officer subsequent to the complaint filed by P.W. 1 and they were subjected to the chemical analysis by the Investigating Officer. The chemical analysis report is available at Ex.

P.29, item No. 1 is a sealed cloth packed said to contain one Lahanga. The result of the analysis disclosed that the presumptive chemical tests for the presence of seminal stains was found positive for item No. 1 and 5(1). Item No. 5(1) refers to dhoti which was subsequently seized from the possession of A-1. Therefore, the chemical analysis test positively proves that there was seminal stain both on Lahanga of the victim and the dhoti of A-1.” We may notice that the appellant No. 1 was examined by Dr. Chikkareddy PW 20 on 6.11.1993 whereupon the following injuries were found:

“1. Abrasion on the right side of the neck =” x =” with crest formation.

2. Abrasion on the lt. Side of cheek 3/4″ x 3/4″ crest formation.” Those injuries, according to the opinion of the doctor could be caused by scratching with nails.

So far as the alleged absence of injury on her body having regard to place of occurrence, as urged by the learned counsel for the appellant, is concerned, suffice it to point out that the learned Session Judge noticed that ‘there were dried up cotton plants at the spot where the incident took place’. It was further noticed that when the prosecutrix made her lay on a land where there were cotton plants, it is natural that she would not sustain any visible injury.

The spot mahazar MO-1 showed that at the place of occurrence there were dried up cotton plants. Having regard to the aforementioned materials, both the learned Session Judge as also the High Court negatived the submission of the appellant to the effect that absence of injury on the back of the prosecutrix would lead to the conclusion that prosecution case should not be relied upon.

Others etc. [(1994) 5 SCC 728], this Court inter alia observed:

“4(i) According to the prosecutrix, she had been bodily lifted by Muniyappa and Venkataswamy, respondents, taken to the field of Gopalappa where Somanna already present in waiting raped her while she was forcibly laid on the matted jowar crop. Since there were no marks of injury on the back of the prosecutrix and the field was reported to be having stones on the surface, the word of the prosecutrix was doubted by the High Court about the manner in which the crime was committed. The High Court unfortunately did not appreciate the importance of the use of jowar stalks, which in the month of October, when the occurrence took place, would have been more than a man’s height and when trampled upon and matted would provide sufficiently a cushion for the crime being committed without the prosecutrix receiving any injury on her back. The surrounding crop would also provide a cover obstructing visibility to a casual passer-by. Thus we view that the absence of injuries on the back of the prosecutrix can be of no consequence in the circumstances.” The presence of semen on the cloth of the victim also corroborates the evidence of the prosecutrix.

Injury on the body of the person of the victim is not a sine qua non to prove a charge of rape. Absence of injury having regard to overwhelming ocular evidence cannot, thus, be the sole criteria for coming to a conclusion that no such offence had taken place.

1981 SC 559 : [1980] INSC 151; (1980) 4 SCC 262] observed:

“5…The facts and circumstances often vary from case to case, the crime situation and the myriad psychic factors, social conditions and people’s life-styles may fluctuate, and so, rules of prudence relevant in one fact- situation may be inept in another. We cannot accept the argument that regardless of the specific circumstances of a crime and criminal milieu, some strands of probative reasoning which appealed to a Bench in one reported decision must mechanically be extended to other cases. Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstance.

Indeed, from place to place, from age to age, from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of presidential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.” [1983] INSC 74; (1983) 4 SCC 10], this Court observed:

“8…Insofar as non-production of a medical examination report and the clothes which contained semen, the trial court has observed that the complainant being a woman who had given birth to four children it was likely that there would not have been any injuries on her private parts. The complainant and her husband being persons belonging to a backward community like the Santhal tribe living in a remote area could not be expected to know that they should rush to a doctor. In fact the complainant has deposed that she had taken bath and washed her clothes after the incident. The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved. In this situation the non-production of a medical report would not be of much consequence if the other evidence on record is believable…” A question furthermore would arise as to why she would falsely implicate the appellants. Both the Session Judge as also the High Court had rejected the defence plea raised in this behalf by the appellants. The learned Session Judge found:

“The PW1 has withstood the test of cross-examination and consequently her evidence need not be corroborated by any other eye witnesses or any other witnesses. There is no reason to doubt the evidence of PW 1 in any manner. The only motive suggested is that since Veerbhadra wanted to drive away Mohammed who was cultivating the property, a false complaint was filed against the accused persons. At any stretch of imagination, this motive suggested on the part of accused persons against the evidence of PW 1 cannot be accepted.

This Mohammed in no way connected to accused persons. He is not the father of A-1 and A-2; he is not the brother of A-1 and A-2 and the accused persons are not residing in the house of said Mohammed. At any point of time, prior to the incident, Mohammed and the accused persons were not found together in any place. They have no common interest. Consequently, it is not possible to believe that by filing false case against accused persons, CW2 Veerbhadra can evict the Mohammed from the land. Therefore, such a motive is there is one’s imagination and consequently, such evidence cannot be accepted.” We agree with the said findings recorded by the learned Session Judge.

1989 SC 1475], this Court observed:

“9…We found no merit in those contentions because even if communal feelings had run high, it is inconceivable that an unmarried girl and two married women would go to the extent of staking their reputation and future in order to falsely set up a case of rape on them for the sake of communal interest…” 2004], this Court held:

“5. The accused was a distant relative whom the prosecutrix had met for the first time about 5 or 6 years before at the wedding of her sister-in-law.

Thereafter she had not many occasions to meet him. Her relations with the accused were not strained. The relations of her husband with the accused were also not strained. In the circumstances there was no motive or reason for the prosecutrix or her husband to falsely involve the accused in the commission of a crime which would not put her chastity at stake. Her husband had come to celebrate Diwali with his wife and family members and quarrel with anyone, more so a relative, would be farthest from his thought. Even the complaint filed by the accused on the 23rd was a fall out of the incident at which he was beaten.

Unless the evidence discloses that she and her husband had strong reasons to falsely implicate the accused, ordinarily the court should have no hesitation in accepting her version regarding the incident…” For the reasons aforementioned, we do not find any merit in this appeal, which is dismissed accordingly.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 1161 of 2003

Baljeet Singh & Anr. …PETITIONER
Vs
State of Haryana …RESPONDENT

DATE OF JUDGMENT: 24/02/2004
BENCH: N.Santosh Hegde & B.P.Singh.

JUDGMENT

SANTOSH HEGDE,J.

The appellant herein and three others were charged for offences punishable under Sections 304-B, 306, 498-A and 201 of the IPC before the Addl. Sessions Judge, Sonepat who after trial came to the conclusion that the prosecution has failed to established its case against A-1 Sukhbir and A-4 Krishna and acquitted them of the said charges, while it came to the conclusion that A-2 Baljeet, who is the appellant before us, was guilty of offences punishable under Section 304-B IPC as also Section 498-A IPC. The said court found A-3 Ganga Dutt guilty of offence punishable under Section 201 of IPC. The trial court sentenced the first appellant herein for the offence punishable under Section 304-B IPC to undergo 7 years RI and to pay a fine of Rs.500/- while it sentenced him to undergo 2 years RI for an offence punishable under Section 498-A IPC. It convicted the second appellant for an offence punishable under Section 201 IPC and sentenced him to undergo 2 years RI. The sentences imposed on the first appellant Baljeet Singh were directed to run concurrently. Being aggrieved by the said conviction and sentence, the said convicted accused preferred an appeal before the High Court of Punjab & Haryana at Chandigarh which by its impugned judgment confirmed the said conviction and sentence and dismissed the appeal.

It is against the said judgment of the High Court the two appellants filed the above criminal appeal. During the pendency of this appeal, A-3 Ganga Dutt died, hence, his appeal abated and the present appeal is confined to first appellant only.

Brief facts necessary for the disposal of this appeal are as follows:

It is the case of the prosecution as stated by PW-4 Baldeva in his complaint lodged on 14.2.1987 as also in his evidence before the court that his daughter Darshana was married to the appellant herein about 5 years before the filing of the said complaint and he had spent about Rs. 30,000/- in the said marriage. He also alleged that he had given clothes and utensils, apart from ornaments. It is stated by this witness that about one and half months after the marriage, Darshana told her mother that her in-laws were not happy with the dowry given, therefore, they were always taunting her in this regard. PW-4 also alleged that Darshana’s father-in-law and other members of her family including her husband used to beat her. The further case of the complainant is that a year after her marriage, the appellant herein demanded a scooter and about 4 months prior to the filing of the complaint, the appellant had demanded Rs.10,000/- for securing employment for his brother, but PW-4 could not fulfil these demands. It is further stated that about 2 weeks after Darshana went to her marital home, a cousin of Darshana, by name, Dilbagh (PW-7) had gone to the village of the appellant to enquire about the welfare of Darshana and he came to know that Darshana had died as a result of taking pills of insecticide. This witness had also come to know that the accused persons had disposed of Darshana’s body without informing her parents and other members of the family. The written complaint in question was filed before the Superintendent of Police which was transferred for investigation to the jurisdictional Police on 14.2.1987. In the said written complaint date of death of Darahsna was given as 6.2.1987. On completion of the investigation, charge sheet for offences punishable under Sections 498-A, 306 and 201 IPC was filed against four accused persons before the Addl.

Sessions Judge, Sonepat. At the time of framing of charges, the court also included Section 304-B as an additional charge against the accused persons. After the trial, A-1, Sukhbir, the younger brother of the appellant and A-4 Krishna, sister of the appellant were acquitted of the charges while the appellant and his father were convicted as stated above and their appeal having been dismissed by the High Court, they approached this Court by way of above criminal appeal.

After the death of the second appellant, the present appeal is confined to the appellant Baljeet only.

Shri Sushil Kumar, learned senior counsel appearing for the appellant contended that both the courts below seriously erred in drawing a presumption under Section 113B of the Evidence Act and shifting the onus of proof on the accused without the prosecution having proved the basic requirement under the said section. He also contended that the evidence led on behalf of the prosecution to establish either the demand of dowry or harassment meted out to deceased Darshana cannot be accepted at all because it is an afterthought of PW-4 to harass the family of the appellant after his daughter Darshana committed suicide. Learned counsel pointed out that though the death of Darshana took place on 6.2.1987 and her parents and relatives were present at the cremation, no complaint was immediately filed but a well drafted complaint making false allegations against the appellant was made by PW-4 on 14.2.1987. He also contended that the courts below erred in relying upon such a belated complaint. He further contended that the prosecution has failed to establish that Darshana’s death had occurred within 7 years of her marriage and the evidence led by the prosecution to establish demand of dowry and harassment have all emanated from interested sources, hence, the courts below erred in convicting the appellant and his father.

Ms. Avneet Toor, learned counsel appearing for the respondent, however, contended that the courts below were justified in drawing a presumption against the accused because the appellants had failed to establish their case that the marriage of Darshana had taken place 11 years before her death. Learned counsel also contended that it is clear from the evidence of PW-4 and other prosecution witnesses that the appellant and his father were constantly nagging Darshana for not bring sufficient dowry, therefore, the courts below were justified in coming to the conclusion that the prosecution has established its case against the appellant and his deceased father.

A perusal of the judgment of the two courts below clearly shows that they have heavily relied upon the presumption available under Section 113-B of the Evidence Act. This is done by shifting the onus of proving the date of marriage on the accused. Therefore, we will first consider the argument addressed on behalf of the parties in regard to the availability of presumption under Section 113-B of the Evidence Act.

Section 304-B of the IPC which defines “Dowry death” reads thus:- “Dowry death (1) Where the death of a woman is caused by any burns or bodily injure or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation For the purpose of this sub-section “dowry” shall have the same meaning as in section 2 of the Dowry prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” A perusal of this section clearly shows that if a married woman dies otherwise than under normal circumstances within 7 years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand for dowry, such death shall be called “dowry death” and such husband or relative shall be deemed to have caused the death. The conditions precedent for establishing an offence under this Section are as follows: (a) that a married woman had died otherwise than under normal circumstances; (b) such death was within 7 years of her marriage; (c) and the prosecution has established that there was cruelty and harassment in connection with demand for dowry soon before her death.

Section 113-B permits a presumption to be drawn against the accused in regard to dowry death provided the prosecution establishes that soon before her death the woman was subjected to cruelty or harassment.

The explanation to said section says the word “dowry death” shall have the same meaning as in Section 304-B of the IPC which means such death should be otherwise than in normal circumstances and within 7 years of marriage. On a conjoint reading of these sections, it is clear that for drawing a presumption under Section 113-B of the Evidence Act firstly there should be a death of a woman otherwise than in normal circumstances, within 7 years of marriage and the prosecution having shown that soon before her death she was subjected to cruelty or harassment in connection with any demand for dowry by persons accused of having committed the offence. Unless and until these preliminary facts are established by the prosecution, it is not open to the courts to draw a presumption against the accused invoking Section 113-B of the Evidence Act. We are supported in this view of ours by a judgment of a three-Judge Bench of this Court in the case of Ramesh Kumar vs. State of Chhattisgarh (2001 (9) SCC 618) wherein this Court held thus:

“Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the above said circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression “the other circumstances of the case” used in Section 113-A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phase “may presume” used in Section 113-A is defined in Section 4 of the Evidence Act, which says “Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.” The above case, of course, deals with Section 113-A of the Evidence Act. However, the principle laid down therein squarely applies to cases involving Section 113-B of the said Act also in so far as they relate to the proof of facts enumerated in the section before a presumption is drawn.

From the above, it is clear that certain conditions precedent by way of proved facts should be brought on record before the courts can draw a presumption under Sections 113-A or 113-B of the Evidence Act.

We will now examine whether the prosecution in this case has discharged its initial burden so as to attract the presumption under Section 113-B of the Evidence Act and whether the courts below have correctly applied that law to the facts of this case.

The trial court in the course of its judgment while dealing with the presumption available under Section 113-A and 113-B held thus :

“In this case, now in view of new statutory provisions, onus also lies on the accused to rebut the presumption which may be raised under Section 113-A of the Indian Evidence Act or under Section 113-B of the Indian Evidence Act.” A reading of this part of the judgment clearly shows that the trial court proceeded as if a presumption is available against the accused merely because an allegation of death within 7 years of the marriage was made, without even the prosecution having proved the required preliminary fact.

Having so erroneously shifted the onus the court then proceeded to hold that the accused had not discharged the said onus, hence, convicted the accused primarily based on the presumption under Section 113-B of the Evidence Act.

The High Court also put the onus of proving the date of marriage on the accused by stating that since a specific plea was taken by the accused persons that the marriage had taken place 11 years prior to the death of Darshana, there was an obligation cast upon the accused to prove this aspect of their assertion and since they had not proved this fact, it held that the trial court rightly drew an adverse presumption against the accused persons.

Having noticed the requirement of law both under Section 304-B of the IPC as also under Section 113-B of the Evidence Act, we are of the considered opinion that both the courts below erred in drawing an adverse presumption against the accused by shifting the onus on them to prove the date of marriage, which, in our opinion, is not the requirement of law. On the contrary, the law requires the prosecution to establish first by cogent evidence that the death in the case occurred within 7 years of the marriage.

Therefore, we will have to consider whether the prosecution has established the factum of Darshana having died within 5 years of her marriage as contended by PW-4. A perusal of his evidence shows that according to him marriage of Darshana was solemnized in the year 1982 but he was not aware which Sambat it was. He says it was the month of Jaistha but was not sure whether it was Sambat 2035. He specifically states that a Bahi entry was made by his nephew Satbir in regard to the date of marriage and expenses incurred in connection therewith, but this document was not produced in the court.

Existence of such a document is established not only from the evidence of PW-4 but also from the evidence of the Investigating Officer PW-10 who says that he was made known of the existence of such a document but he did not either seize the said document or verify the date of marriage from the said document. He also states that he made an inquiry about the year of marriage of Darshana and nobody was able to tell the date but year of marriage was told to him.

He goes further to state that he did not record the statement of those persons who told him about the year of marriage.

Therefore, it is clear that the prosecution has failed to produce the available evidence regarding the date of Darshana’s marriage thereby failed to discharge its initial onus of proof. The defence in this case has unequivocally challenged the correctness of the date of marriage, as stated by the prosecution. It even examined defence witnesses in this regard. Be that as it may the question whether the defence has been able to establish its version of the date of marriage is immaterial because in the first instance it was for the prosecution to establish this fact which for reasons stated above, it has failed to do. Both the courts below, thus, have clearly erred in shifting the onus of proving the date of marriage on the defence and drawing a presumption against it. This is evident from the finding of the trial court which is as follows : “Accused Baljeet in this case has not been able to rebut the mandatory presumption under Section 113-B of the Indian Evidence Act thus prosecution has been able to prove him the guilt”. This finding which is concurred to by the High Court, in our opinion, is wholly erroneous and unsustainable in law.

We will now consider whether the prosecution has established its case de hors the presumption available under the Evidence Act. In this process, we should bear in mind the fact that the complaint in question was filed nearly 8 days after the incident and a perusal of the said complaint shows that it was a well thought, deliberated and typed document which even mentions the sections relating to the offences of which the accused persons were said to be guilty. Though PW-4 has denied that this was a document prepared after consultation and on the advice of outsiders, we must note that he admittedly is an illiterate and, in our opinion, this denial is wholly false. The narration of facts in the complaint enumerates even the ingredients of the offence under the Indian Penal Code and the sections under which the offences fall. This undoubtedly goes to show that this is a document which has come into existence after lots of deliberation and consultation. In this context, the admission of the informant that he had gone to the court where the report to be lodged was prepared, is significant.

In the above background, we will now consider the evidence led by the prosecution. Though PW-4 says that he had no knowledge of the death of Darshana and her cremation was done without informing him and his family, from the material on record, it could be seen that this statement of PW-4 is not true. It has come in evidence that a sketch was prepared showing the place where Darshana’s body was kept before the funeral. This sketch admittedly was prepared on instructions of PW-4. This sketch indicates that firstly Darshana’s body was kept on the first floor of the house and later brought down and kept in the courtyard on a cot. PW-4 could not have acquired such knowledge so as to give it to the maker of the sketch if he was not present before Darshana’s funeral. Therefore, we think that this part of the evidence of PW-4 that the accused did not inform Darshana’s family about her death before her funeral cannot be believed.

The prosecution has then relied on the evidence of PWs.4 to 7 to establish their case of the demand for dowry and harassment meted out to Darshana. We should bear in mind that all these witnesses are close relatives of Darshana being her mother and uncles and their evidence will have to be considered for whatever it is worth in the background of the findings we have given in regard to the evidence of PW-4.

PW-5 the mother of the deceased in her examination-in- chief repeats whatever her husband has stated in his evidence which we have already considered and not found it safe to rely on. In her cross-examination she stated that after the death of Rohtas, who was her only brother, Darshana used to be depressed. She further states that she was also depressed because she had no children. This indicates that there is a possibility of Darshana having committed suicide in a state of depression.

PW-6 is an uncle of Darshana who also speaks about the harassment allegedly meted out by the appellant and his family to Darshana but these facts are not mentioned to the I.O. in his statement under Section 161 (See Ex.DA). He states that they came to know of the death of Darshana from one Balwan who had told about the death of Darshana to a cousin of Darshana, by name Dilbagh, who in turn had informed the other members of the family about the death of Darshana. Curiously none of the witnesses who came to know of the incident from Balwan are able to give either the correct address, the particulars of the caste and occupation of Balwan which gives us an impression that this Balwan is an imaginary person. In these circumstances, bearing in mind the falsity we have found in the evidence of PW-4, we do not consider it safe to place reliance on such oral evidence led by the prosecution to establish the fact that the appellant or his family used to harass Darshana. There is one other aspect of the case to be borne in mind to consider the role played by the appellant in the alleged harassment of Darshana. It has come in evidence that the appellant was not residing in the village with his wife but was employed in Jagadhari in Ambala District and was only visiting the village now and then. This fact has been noticed by the trial court but it rejected the same by observing that if the appellant was not present when Darshana died the evidence under section 304- B is not effected by the factum of appellant being away from his house at the time of death, forgetting the fact that the argument of the defence was not merely the absence of the appellant at the time of death of Darshana but also the possibility of appellant’s involvement in the alleged harassment, since most of the time he was away from the village. That apart, we notice that the courts below have not founded the guilt of the appellant on the oral evidence produced by the prosecution but the same is based primarily on a presumption drawn under Section 113-B of the Evidence Act which we have held to be impermissible in law in view of the prosecution’s failure to prove the basic facts which was a condition precedent to the drawing of such a presumption.

For the reasons stated above, this appeal succeeds. The conviction and sentence imposed on the appellants by the courts below are set aside. If the appellants are in custody, they shall be released forthwith.

The appeal is allowed.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 609 of 1997

Hans Raj …PETITIONER
Vs
State of Haryana …RESPONDENT

DATE OF JUDGMENT: 26/02/2004
BENCH: N. Santosh Hegde & B.P. Singh.

JUDGMENT

B.P. Singh, J.

In this appeal by special leave the appellant Hans Raj has impugned the judgment and order of the High Court of Judicature of Punjab and Haryana at Chandigarh dated January 21, 1997 in Criminal Appeal No.633 SB of 1986 affirming the judgment and order of the learned Additional Sessions Judge, Kurukshetra dated September 24, 1986 convicting and sentencing the appellant to seven years rigorous imprisonment and a fine of Rs.300/- under Section 306 I.P.C. We have carefully perused the judgments of the learned Additional Sessions Judge and the High Court and we are constrained to observe that the High Court while disposing of the appeal did not even apply its mind to the facts of the case. A disturbing feature noticed by us is that the High Court merely repeated paragraphs after paragraphs from the judgment of the learned Additional Sessions Judge as if those conclusions were its own, reached on an appreciation of the evidence on record. Many of the paragraphs are word from word borrowed from the judgment of the learned Additional Sessions Judge without acknowledging that fact. We are, therefore, left with the impression that the High Court failed to apply its mind to the facts of the case as it was required to do, and was content with repeating what was stated in the judgment of the Trial Court. In these circumstances we found it necessary to carefully scrutinize the evidence on record since the High Court even though the first court of appeal failed to do so.

The case of the prosecution is that the wife of the appellant, namely, Jeeto Rani committed suicide on 24.8.1986 on account of the cruelty and harassment meted out to her by the appellant herein.

The case of the prosecution is that in the year 1982 the appellant married Jeeto Rani, daughter of Munshi Ram, PW-2.

It is also not in dispute that Naro, sister of the appellant was married to Fateh Chand, PW-3 the brother of the deceased. The appellant lived in village Kheri Sahidan with the deceased while Naro and Fateh Chand resided in the house of Munshi Ram, PW-2 at village Laha Majri. The appellant was blessed with a daughter only seven months before the death of Jeeto.

On August 24, 1986 Munshi Ram, PW-2 father of Jeeto (deceased) lodged the FIR which was recorded by ASI Chaman Lal, PW-5 of Police Station Ismailabad at 2.50 p.m. The allegations in the FIR were to the following effect.

The appellant was addicted to ‘Bhang’ and did not pay any attention towards his domestic affairs. Whenever Jeeto attempted to prevent her husband from taking ‘Bhang’ she used to be assaulted by him. Jeeto (deceased) had reported this matter to her parents but they all persuaded her to go back to her matrimonial home. On Friday last the appellant and Jeeto (deceased) came to the house of Munshi Ram (PW-2) when the appellant stated that he would not keep Jeeto (deceased) with him because his sister Naro was being harassed by Fateh Chand, PW-3, the brother of Jeeto (deceased). Munshi Ram and members of his family persuaded the appellant not to do so but Jeeto (deceased) was frightened and refused to accompany her husband. The appellant and Jeeto (deceased) stayed at the house of Munshi Ram for two days and on the third day with great difficulty Munshi Ram, PW-2 persuaded his daughter Jeeto to accompany the appellant to her matrimonial home. It was alleged by Munshi Ram in the FIR that the appellant had told them that since Fateh Chand, PW-3 was harassing his sister he would take revenge.

On the date of occurrence at about 10 a.m. Munshi Ram, PW-2 was informed by one Shana Ram that Jeeto was seriously ill and asked him to reach village Kheri immediately. The informant alongwith his brothers and others reached village Kheri and found that his daughter was dead. In the report he stated that he entertained a suspicion that Jeeto had committed suicide by taking poison being fed up by the beatings and the harassment caused to her by her husband.

On the basis of the said report a case was registered and the matter was investigated by ASI, Chaman Lal, PW-5. The medical evidence on record as well as the chemical examiner’s report established the fact that Jeeto died of poisoning.

Apparently, therefore, the case of the prosecution was that she had committed suicide by consuming poison. The record also discloses that Jeeto was treated by Dr. Ram Gopal Sharma when she was in a precarious condition at the house of the appellant. He gave her an injection and thereafter she was shifted to his clinic at Ismailabad on his advice. It appears that thereafter Dr. Kaushal also treated her but her life could not be saved.

In the FIR only two allegations were made by Munshi Ram, PW-2, firstly, that there were frequent quarrels, sometimes resulting in physical assault, between the appellant and Jeeto on account of his being addicted to consumption of ‘Bhang’, and secondly, that the appellant was aggrieved by the fact that his sister was not being properly looked after by his brother-in-law namely, Fateh Chand, PW-3.

Munshi Ram was examined by the prosecution as PW-2.

In his deposition he stated that the appellant was addicted to liquor and bhang and whenever Jeeto attempted to persuade him to desist from this addiction he used to misbehave with her and even beat her. According to him, 8-9 days before her death Jeeto had come to his house alongwith the appellant. The appellant had then complained to him that Jeeto was not good looking and therefore he was not going to take her back and that he intended to perform a second marriage. However, on their persuasion he stayed at his village for 2-3 days whereafter he persuaded his daughter Jeeto to accompany the appellant to village Kheri. From his cross-examination, it appears that the case sought to be made out at the Trial that the appellant was addicted to liquor was not stated in the course of investigation.

Similarly, Munshi Ram, PW-2 had not stated in the course of investigation that the appellant had complained that Jeeto was not good looking. It also appears that in the course of investigation he had not stated about Jeeto having told him that the accused had been beating her.

Fateh Chand, PW-3 also deposed in favour of the prosecution and he also alleged that the appellant was addicted to liquor and bhang and that he had been told by Jeeto that the appellant did not want to keep her as he did not find her to be good looking. According to Fateh Chand, PW-3 whenever Jeeto came to their house she used to complain about the treatment meted out to her by the appellant. Even the appellant had told him that he did not like Jeeto. PW-3 further deposed that for about a year and a half after marriage the appellant and Jeeto lived in harmony. In his statement before the police in the course of investigation there is no mention about the fact that the appellant was addicted to liquor. PW-3 also admitted that in his statement before the police he did not state that the accused had told him that his sister was not good looking, nor did he state that his sister had told him that the accused felt aggrieved because she was not good looking.

The case of the prosecution rests mainly on the evidence of these two witnesses namely, Munshi Ram, PW-2 and Fateh Chand, PW-3. In his examination under Section 313 Cr.P.C.

the appellant stated that the case against him was false. He had kept his wife Jeeto with love and affection and had never proclaimed that she was not good looking. She had given birth to a daughter but thereafter she had been keeping unwell because of some tension in her mind on account of birth of a daughter. Only four days prior to her death she had come from her parents’ house and thereafter she started vomiting. Dr. Ram Gopal Sharma was called from Ismailabad and he gave her an injection. Thereafter Jeeto was removed to the clinic of Dr.

Ram Gopal. Dr. Kaushal was also consulted but he did not give any hope. The parents of Jeeto were thereafter informed through a messenger but by the time they came Jeeto had died.

The learned Additional Sessions Judge noticed the fact that Munshi Ram, PW-2 had considerably improved his case at the trial. The allegations that the appellant used to taunt Jeeto because she was not good looking, or that he was going to re- marry, or even regarding beatings to her, were all in the nature of improvements. His statement at the trial that once the deceased had come to his house in injured condition did not find mention in his statement recorded by the police in the course of investigation. The allegation that the appellant was addicted to liquor also did not find recorded in the statement of the witnesses before the police. However, the Trial Court was greatly impressed by the fact that this was clearly a case of suicide and the appellant had maintained complete silence as to what was the conversation between him and the deceased immediately before the deceased was found in a precarious condition. According to the Trial Court, law enjoined upon the husband an obligation to explain the circumstances in which his wife committed suicide. Reliance was placed on the presumption under Section 113-A of the Indian Evidence Act.

It observed that in the absence of any suitable answer from the defence a presumption arose under Section 113-A of the Indian Evidence Act. Therefore, the Court found that though there were improvements in the statements of the prosecution witnesses, it could not be disbelieved that the appellant treated his wife with cruelty. Taking the aid of Section 113-A the trial court concluded that a presumption of law arose in the given circumstances. Since Jeeto was led to commit suicide, it must have been due to the abetment on the part of the appellant, since the story set up by the appellant in his statement under Section 313 Cr.P.C. was totally unbelievable. Surprisingly, the Trial Court observed that the appellant’s remark that his wife was not good looking and to his liking and that he was going to re-marry was “a gravest of abetment on the part of the husband leading to the wife to commit suicide”. The trial court while recording this conclusion completely lost sight of its own finding that this part of the story was clearly an improvement and that no such allegation was made either in the FIR or in the course of investigation. All that was stated in the FIR and in the course of investigation was that the appellant was aggrieved of the fact that his sister Naro was not properly treated by Fateh Chand, PW-3 who was the brother of Jeeto. The only other allegation found in the FIR is that the appellant was addicted to ‘Bhang’ and whenever Jeeto objected to it, it resulted in a quarrel and sometimes physical assault on Jeeto.

Having gone through the evidence on record we are satisfied that the prosecution has sought to improve its case at the trial by introducing new facts and allegations which were never stated in the course of investigation. All that appears to have been satisfactorily established is that the appellant was addicted to ‘Bhang’ and that frequent quarrels took place when his wife Jeeto objected to his taking ‘Bhang’. Though it is stated in the FIR that the appellant had complained about the treatment meted out to his sister Naro by Fateh Chand, there is evidence of Fateh Chand, PW-3 himself that he was living happily with Naro, his wife, who happened to be the sister of the appellant. One fails to understand why the appellant should make such an allegation when his sister was living happily with Fateh Chand, PW-3. As to the frequent assaults on the deceased by the appellant and her reporting the matter to her father and brother, there appears to be no reason why, if these facts were true, no such allegation was made in the course of investigation by the prosecution witnesses PWs 2 and 3. We are, therefore, satisfied that the prosecution has been able to establish its case only to the extent that the appellant was addicted to ‘Bhang’ which was opposed by his wife Jeeto and on account of such opposition there used to be frequent quarrels and may be on some occasions Jeeto was assaulted by the appellant. Beyond this we find the other allegations made by the prosecution to be unacceptable.

The question then arises as to whether in the facts and circumstances of the case the appellant can be convicted of the offence under Section 306 I.P.C. with the aid of the presumption under Section 113 A of the Indian Evidence Act.

Any person who abets the commission of suicide is liable to be punished under Section 306 I.P.C. Section 107 I.P.C. lays down the ingredients of abetment which includes instigating any person to do a thing or engaging with one or more person in any conspiracy for the doing of a thing, if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing, or intentional aid by any act or illegal omission to the doing of that thing. In the instant case there is no direct evidence to establish that the appellant either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. In the absence of direct evidence the prosecution has relied upon Section 113-A of the Indian Evidence Act under which the Court may presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. The explanation to Section 113-A further clarifies that cruelty shall have the same meaning as in Section 498A of the Indian Penal Code which means:- “(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand”.

Unlike Section 113-B of the Indian Evidence Act, a statutory presumption does not arise by operation of law merely on proof of the circumstances enumerated in Section 113-A of the Indian Evidence Act. Under Section 113-A of the Indian Evidence Act the prosecution has first to establish that the woman concerned committed suicide within a period of seven years from the date of her marriage and that her husband (in this case) had subjected her to cruelty. Even if these facts are established the Court is not bound to presume that the suicide had been abetted by her husband. Section 113-A gives a discretion to the Court to raise such a presumption, having regard to all the other circumstances of the case, which means that where the allegation is of cruelty it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of word cruelty in Section 498-A I.P.C.

The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by her husband.

The Court is required to look into all the other circumstances of the case. One of the circumstances which has to be considered by the Court is whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. The Chhattisgarh (2001) 9 SCC 618 wherein this Court observed :

“This provision was introduced by the Criminal Law (Second) Amendment Act, 1983 with effect from 26-12-1983 to meet a social demand to resolve difficulty of proof where helpless married women were eliminated by being forced to commit suicide by the husband or in-laws and incriminating evidence was usually available within the four corners of the matrimonial home and hence was not available to anyone outside the occupants of the house.

However, still it cannot be lost sight of that the presumption is intended to operate against the accused in the field of criminal law. Before the presumption may be raised, the foundation thereof must exist. A bare reading of Section 113-A shows that to attract applicability of Section 113-A, it must be shown that (i) the woman has committed suicide, (ii) such suicide has been committed within a period of seven years from the date of her marriage, (iii) the husband or his relatives, who are charged had subjected her to cruelty. On existence and availability of the abovesaid circumstances, the court may presume that such suicide had been abetted by her husband or by such relatives of her husband. Parliament has chosen to sound a note of caution. Firstly, the presumption is not mandatory; it is only permissive as the employment of expression “may presume” suggests. Secondly, the existence and availability of the abovesaid three circumstances shall not, like a formula, enable the presumption being drawn; before the presumption may be drawn the court shall have to have regard to “all the other circumstances of the case”. A consideration of all the other circumstances of the case may strengthen the presumption or may dictate the conscience of the court to abstain from drawing the presumption. The expression “the other circumstances of the case” used in Section 113- A suggests the need to reach a cause-and-effect relationship between the cruelty and the suicide for the purpose of raising a presumption. Last but not the least, the presumption is not an irrebuttable one. In spite of a presumption having been raised the evidence adduced in defence or the facts and circumstances otherwise available on record may destroy the presumption. The phrase “may presume” used in Section 113-A is defined in Section 4 of the Evidence Act, which says “Whenever it is provided by this Act that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it”.

The same principle has been reiterated in Sanju Alias [1994] INSC 436; (1994) 1 SCC 73 this Court observed :

“We are not oblivious that in a criminal trial the degree of proof is stricter than what is required in a civil proceedings. In a criminal trial however intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The requirement of proof beyond reasonable doubt does not stand altered even after the introduction of Section 498-A IPC and Section 113-A of Indian Evidence Act.

Although, the court’s conscience must be satisfied that the accused is not held guilty when there are reasonable doubts about the complicity of the accused in respect of the offences alleged, it should be borne in mind that there is no absolute standard for proof in a criminal trial and the question whether the charges made against the accused have been proved beyond all reasonable doubts must depend upon the facts and circumstances of the case and the quality of the evidences adduced in the case and the materials placed on record.

Lord Denning in Bater v. Bater [(1950) 2 All ER 458,459] has observed that the doubt must be of a reasonable man and the standard adopted must be a standard adopted by a reasonable and just man for coming to a conclusion considering the particular subject- matter”.

Having regard to the principles aforesaid, we may now advert to the facts of this case. The learned Trial Judge took the view that since the wife of the appellant committed suicide and since the appellant did not disclose as to what conversation preceded her committing suicide and that there were allegations of cruelty against the appellant, it must be presumed under Section 113-A of the Indian Evidence Act that the suicide had been abetted by him. We do not find ourselves in agreement with the finding of the Trial Court, having regard to the facts and circumstances of this case and our finding that the prosecution is guilty of improving its case from stage to stage.

The allegations that the appellant did not like to keep the deceased with him because she was not good looking, or that he was addicted to liquor or that the deceased had reported these matters to her parents and others, or that the appellant intended to re-marry and had told his wife Jeeto about it, or that the deceased had once come to her father’s house in an injured condition, or even the allegations regarding beatings, do not find place in the statements recorded by the police in the course of investigation. These allegations have been made at the trial for the first time. All that was alleged in the FIR or even at the stage of investigation was that there were frequent quarrels between the husband and wife sometimes resulting in physical assault, on account of the husband being addicted to consumption of ‘Bhang’. The other allegation that the appellant was aggrieved of the fact that his sister Naro was not being properly treated by Fateh Chand, PW-3, brother of the deceased, also appears to be untrue because there is nothing on record to show that there was any disharmony in the marital life of his sister Naro. In fact, Fateh Chand, PW-3, her husband, himself stated on oath that he was living happily with his wife Naro, sister of the appellant. On such slender evidence therefore we are not persuaded to invoke the presumption under Section 113-A of the Indian Evidence Act to find the appellant guilty of the offence under Section 306 I.P.C.

The Trial Court found that there was material to support the charge under Section 498-A I.P.C. but did not pass a sentence under Section 498-A I.P.C. on a finding that the same will be overlapping, the appellant having been found guilty of the offence under Section 306 I.P.C. Having regard to the facts of the case, we are satisfied that though the prosecution has failed to establish the offence under Section 306 I.P.C., the evidence on record justifies the conviction of the appellant under Section 498-A I.P.C.

We, therefore, set aside the conviction and sentence passed against the appellant under Section 306 I.P.C. and acquit him of that charge, but we find the appellant guilty of the offence under Section 498-A I.P.C and sentence him to undergo rigorous imprisonment for one year on that count. This appeal is partly allowed. The appellant was admitted to bail by this Court. His bail bonds are cancelled, and he must surrender to his sentence, subject to the provisions of Section 428 of the Code of Criminal Procedure.

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SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 3392 of 2002

Cholan Roadways Limited …PETITIONER
Vs
G. Thirugnanasambandam …RESPONDENT

DATE OF JUDGMENT: 17/12/2004
BENCH: N. Santosh Hegde & S.B. Sinha

J U D G M E N T

S.B. Sinha, J :

This appeal is directed against the judgment and order dated 6.6.2001 passed by a Division Bench of the Madras High Court in W.A. No.46/1993 as also the judgment and order passed by the learned Single Judge of the said Court in a Writ Petition No.11113/88 whereby and whereunder the writ petition filed by the Appellant herein for setting aside order dated 29.4.88 passed by the Industrial Tribunal, Tamil Nadu, Madras in Approval Petition No. 125 of 1985 rejecting the grant of approval sought for as regard order of dismissal passed against the Respondent herein was dismissed.

The factual matrix of the matter is not much in dispute.

The Respondent herein was a driver of a bus bearing No.TMN-4148 plying between Tanjore and Nagapattinam. On 18.5.1985 while the said bus was driven by the Respondent herein it met with an accident resulting in death of 7 passengers. According to the Appellant the said bus was being driven in a rash and negligent manner. The road at the place of the accident was 300 ft wide and straight one. The Respondent allegedly despite noticing that another bus was coming from the opposite direction did not slow down the vehicle in order to avoid collision therewith. It is said that the Bus was being driven at a speed of 80 k.m.p.h. The bus driven by the Respondent herein is said to have swerved suddenly to the extreme left side of the road which was lined with tamarind trees on both sides. The impact of the said collusion was so severe that the bus dashed against the protruding branches and stumps of the tamarind trees, then dashed against the bus resulting the left side of the bus completely damaged as a result whereof 7 passengers died and several persons were seriously injured.

The Motor Vehicles Claims Tribunal, Madras awarded a sum of Rs. 9 lakhs to the dependants of the victims as compensation for loss of life. It is not in dispute that the Branch Manager of the Appellant, Mr. Venkatesan visited the scene of the accident at about 4 p.m. on the same day and conducted an investigation. During the said inspection some passengers were examined. He submitted a detailed report. In furtherance of the said report, a disciplinary proceeding was initiated against the Respondent on the following charges:

“1. On 18.5.85 while you served as the driver in the bus bearing No.TMN 4148 you have been very careless in your duty and around 3.00 p.m. near Poondi dashed against a tamarind tree which was at the edge of the road and thereby caused a very big accident.

2. While you were on duty as aforesaid, even though it was a straight road and was visible to a distance of about 300 ft. In respect of the buses which come from the opposite direction, you have been very negligent and in a careless and irresponsible manner move the bus very fast and dashed the front left side of the bus against the branch of the tamarind tree which was cut and found at the left side of the road and after that turned the bus towards the right side and thereby caused heavy damage to the bus. On account of your aforesaid act the entire left side of the bus dashed against the tamarind tree branch which resulted in the passengers at the left side of the bus to sustain grievous injuries and that seven passengers died in the aforesaid accident and about 10 passengers sustained grievous injuries and that you were responsible for the same.

3. Further, you were responsible for the loss of accessories of the bus to the tune of Rs.30,000/- and also you were responsible for the loss of revenue for the Corporation.

4. Further, you were responsible for tarnishing the fair name of the Corporation amongst general public.” In the domestic inquiry that followed the said charge-sheet, two witnesses were examined on behalf of the Appellant.

The Inquiry Officer upon consideration of the materials brought on records by the parties therein found the Respondent guilty of misconduct in relation to the charges framed against him. The Inquiry Officer rejected the contention of the Respondent herein that the bus was being driven at a slow speed and the accident took place to save a boy who suddenly crossed the road holding:

“Thus it has been proved beyond doubt by the evidence adduced by the management’s side that the delinquent was careless, negligent and rash in driving the bus at the time of the occurrence resulting in this accident and he is responsible for this accident and consequences thereof and the defence evidence by way of two statements adduced by the delinquent in proof of his defence cannot be given any credit or credence for reasons already expatiated. The delinquent has not alleged any brake failure in his earlier statement in Ex.P-9 or in his written explanation to charge memo, in which he has stated that he effectively used brake and halted the bus after impact.” The Respondent was, thereafter, dismissed from the services by the Disciplinary Authority.

As an industrial dispute was pending before the Industrial Tribunal the Appellant herein filed an application under Section 33(2)(b) of the Industrial Disputes Act for grant of approval of the said order of dismissal. The learned Presiding Officer, Industrial Tribunal by an order dated 29.4.88 despite holding that ‘the scope of adjudication in a proceeding under Section 33(2)(b) of the Industrial Disputes Act is limited and while granting approval it does not sit as a court of appeal re-appreciating the evidence for itself but has to examine the findings of the Enquiry Officer on the evidence adduced in the domestic enquiry to ascertain whether a prima facie case had been made out on the charges leveled or if the findings are perverse’, came to the following findings:

“In the instant case, the domestic enquiry conducted cannot be considered as fair and proper and is vitiated on account of the failure of the Enquiry officer to observe the principles of natural justice by not examining the passengers who had given the statements.” On such finding the approval sought for by the Appellant herein was rejected. A writ petition was filed by the Appellant questioning the correctness or otherwise of the said order dated 1.12.1992 before the High Court. A learned Single Judge of the High Court upheld the said order. A writ appeal No.46/1993 filed by the Appellant against the order passed by the learned Single Judge was dismissed opining:

“Though the learned counsel for the Appellant placed reliance upon the judgment of the Apex Singh reported in AIR 1977 SC 1512, we hold that the said pronouncement of the Apex Court will not have any application to the present case as it was a converse case where the finding are based upon some evidence, namely, eye witness, and therefore, in that context, the Supreme Court held that non- examination of the passenger will not vitiate the enquiry. The said pronouncement will not have any application to the facts of the present case and it is clearly distinguishable.” Mr. K. Ramamurthy, learned senior counsel on behalf of the Appellant would contend that the learned Tribunal and consequently the learned Judges of the High Court committed a serious error in passing the impugned judgments insofar as they failed to take into consideration that in an enquiry of this nature it was not necessary to examine the passengers of the bus. The learned counsel urged that the admitted photographs of the bus in question after it met with an aforementioned accident clearly demonstrate that the same was being driven in a rash and negligent manner as a result of which 7 passengers died and some others suffered serious injuries. It was submitted that the Respondent had not only afforded an opportunity to the Respondent to cross examine the witnesses examined on behalf of the Appellant but also was given the opportunity to examine his defence witnesses and in that view of the matter the principles of natural justice must be held to have fully been complied with. In support of the said contention, learned counsel has strongly relied on a decision of this Court in Divisional Mr. J. Buther, learned counsel on behalf of the Respondent, on the other hand, would submit that in the domestic enquiry the alleged misconduct of the Respondent cannot be said to have been proved inasmuch as no finding has been recorded as regards the culpability of the Respondent vis-a-vis commission of the said misconduct. It was further contended that only because an accident had taken place, the same by itself in absence of the strict proof thereof and having regard to the fact that the Respondent had been acquitted in the criminal trial, cannot be held to be a ground to infer that the misconduct on the part of the Respondent stood proved. The learned counsel in support of his argument has placed reliance upon a decision of India & Others [(1999) 7 SCC 409] Section 33(2)(b) of the Industrial Disputes Act reads as under:

“(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman (a) *** (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman.

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer.” It is neither in doubt nor in dispute that the jurisdiction of the Industrial Tribunal under Section 33(2)(b) of the Industrial Disputes Act is a limited one. The jurisdiction of the Industrial Tribunal under Section 33(2)(b) cannot be equated with that of Section 10 of the Industrial Disputes Act. In this case admittedly an enquiry has been held wherein the parties examined their witnesses. The Respondent was represented and assisted by three observers. Shri M. Venkatatesan was the Branch Manager, CRC Tanjore Town Branch, who had submitted his report and proved the same before the Inquiry Officer. He furnished a detailed account of the position of the bus vis-`-vis the other bus after the collision took place. He found that there was no brake tyre mark of the bus on the road. All the two seaters seats on the entire left side of the bus were found totally damaged. The left side roof arch angle of the bus was found totally out. Not only 4 persons were found to be dead at the spot, the driver and conductor of the bus and 10 other passengers were also sustained injuries in this accident. Out of the said 10 passengers, 3 subsequently died in the hospital owing to the injuries sustained by them. He further found that on the left side of the road in the earthen margin, there was a tamarind tree’s protruding branch and which was found to have been already cut and the bottom stump of the branch was found protruding to a length of 3 inches. The bus was found to have been brought to a halt only at a distance of 81 ft. from the place of impact against the tree. He further noticed that even after the impact of the bus against the tree, the delinquent is said to have swerved the bus further to the right side from left side without applying brake and reducing speed and later only be brought the bus to a halt at some distance as a result of which the entire side roof angle of the bus got cut.

The learned Presiding Officer, Industrial Tribunal, as noticed hereinbefore, opined that the passengers of the bus should have been examined. It does not appear from the order dated 29.4.88 passed by the Presiding Officer, Industrial Tribunal that the Respondent herein made any prayer for cross examining the passengers who travelled in the ill-fated bus and who were examined by the said Shri M. Venkatesan. It is evident from the order of the learned Tribunal that only in the show cause filed by the Respondent in response to the second show cause notice, such a contention was raised. The learned Presiding Officer, Industrial Tribunal in his impugned judgement further failed to take into consideration that even if the statements of the said passengers are ignored, the misconduct allegedly committed by the Respondent would stand proved on the basis of the evidence adduced by Shri M. Venkatesan together with the circumstantial evidences brought on records. The learned Single Judge of the High Court although referred to the sketch drawn by PW-1 on the site (Ex.P-2) and 4 photographs (Ex.P-8) but ignored the same observing that unless witnesses were examined in support of the two exhibits, it is not possible to draw any inference therefrom. The Division Bench of the High Court did not examine the materials on records independently but referred to the findings of the Industrial Tribunal as also the learned Single Judge to the effect that from their judgments it was apparent that the driver had not been driving the bus rashly and negligently.

It is now a well-settled principle of law that the principle of Evidence Act have no application in a domestic enquiry.

In Maharastra State Board of Secondary and Higher Secondary “It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc.

seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish.The standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw an inference that the fact must be more probable.

Standard of proof, however, cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquires.” There cannot, however, be any doubt whatsoever that the principle of natural justice are required to be complied with in a domestic enquiry. It is, however, well-known that the said principle cannot be stretched too far nor can be applied in a vacuum.

The jurisdiction of the Tribunal while considering an application for grant of approval has succinctly been stated by this Court in Martin Burn Ltd. vs R.N. Banerjee [1957] INSC 76; (AIR 1958 SC 79). While exercising jurisdiction under Section 33(2(b) of the Act, the Industrial Tribunal is required to see as to whether a prima facie case has been made out as regard the validity or otherwise of the domestic enquiry held against the delinquent; keeping in view the fact that if the permission or approval is granted, the order of discharge or dismissal which may be passed against the delinquent employee would be liable to be challenged in an appropriate proceeding before the Industrial Tribunal in terms of the provision of the Industrial Disputes Act.

In Martin Burn’s case (supra) this court stated:

“A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case had been made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. It may be that the Tribunal considering this question may itself have arrived at a different conclusion. It has, however, not to substitute its own judgment for the judgment in question. It has only got to consider whether the view taken is a possible view on the evidence on the record. (See Buckingham & Carnatic Co. Ltd. vs The Workers of the Company (1952) Lab. AC 490(F).” It is further trite that the standard of proof required in a domestic enquiry vis-`-vis a criminal trial is absolutely different. Whereas in the former ‘preponderance of probability’ would suffice; in the latter, ‘proof beyond all reasonable doubt’ is imperative.

The tribunal while exercising its jurisdiction under Section 33(2)(b) of the Industrial Disputes Act was required to bear in mind the aforementioned legal principles. Furthermore, in a case of this nature the probative value of the evidence showing the extensive damages caused to the entire left side of the bus; the fact that the bus first hit the branches of a tamarind tree and then stopped at a distance of 81 ft therefrom even after colliding with another bus coming from the front deserved serious consideration at the hands of the tribunal. The nature of impact clearly demonstrates that the vehicle was being driven rashly or negligently.

Res ipsa loquitur is a well-known principle which is applicable in the instant case. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent. As noticed hereinabove, the enquiry officer has categorically rejected the defence of the Respondent that the bus was being driven at a slow speed.

& Pressing Co. Pvt. Ltd. and another [1977] INSC 98; [AIR 1977 SC 1735] this Court observed:

“6.The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence” Balwant Yadav and Others [(1996) 3 SCC 179].

In A.T. Mane (supra), this Bench observed:

“6 Learned counsel relied on a judgment of this Court in support of this contention of his in the B.S. Hullikatti [(2001) 2 SCC 574]. That was also a case where a conductor concerned had committed similar misconduct 36 times prior to the time he was found guilty and bearing that fact in mind this Court held thus:- “Be that as it may, the principle of res ipsa loquitur, namely, the facts speak for themselves, is clearly applicable in the instant case. Charging 50 paise per ticket more from as many as 35 passengers could only be to get financial benefit, by the Conductor. This act was either dishonest or was so grossly negligent that the respondent was not fit to be retained as a Conductor because such action or inaction of his is bound to result in financial loss to the appellant corporation.”

7. On the above basis, the Court came to the conclusion that the order of dismissal should have been set aside. In our opinion, the facts of the above case and the law laid down therein applies to the facts of the present case also.” observed:

“4. It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that the bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes into play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part.” The burden of proof was, therefore, on the Respondent to prove that the vehicle was not being driven by him rashly or negligently.

Furthermore, in a case involving accident it is not essential to examine [(1977) 2 SCC 491] this Court observed:

“5. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statement of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid.

Likewise, the re-evaluation of the evidence on the strength of co-conductor’s testimony is a matter not for the court but for the administrative tribunal.

In conclusion, we do not think the courts below were right in overturning the finding of the domestic tribunal.” Yet again, this Court in A.T. Mane (supra) referring to the decision of this court in Rattan Singh (supra) held:

“6 In such circumstances, it was not necessary or possible for the appellant corporation to have examined the passengers to establish the guilt of the respondent. He also submitted that the finding of the Labour Court and the learned Single Judge that the punishment is disproportionate to the misconduct is wholly misconceived.” In M/s Bareilly Electricity Supply Co. Ltd.(supra) this Court was seized with a different question namely the employer’s liability to pay the bonus to the workmen which had a direct relation with the profit earned by the company for the year 1960-61. In support of financial condition of the management which had a direct nexus with the employer’s capacity to pay bonus and in that situation it was held that mere production of a balance- sheet by the management would not serve the purpose as the entries contained therein, if called in question, must be proved. The tribunal in that case came to the conclusion that management had failed to prove the original cost of the machines, plant and machinery, its age, the probable requirements for replacement, the multiplier and the divisor. In those circumstances the claim was held to have been properly disallowed by the Tribunal holding:

“14 No doubt the procedure prescribed in the Evidence Act by first requiring his chief- examination and then to allow the delinquent to exercise his right to cross-examine him was not followed, but that the Enquiry Officer, took upon himself to cross-examine the witnesses from the very start. It was contended that this method would violate the well recognized rules of procedure. In these circumstances it was observed at page 264:

“Now it is no doubt true that the evidence of the Respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by Tribunal even though they may be judicial in character. The law requires that such Tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that which obtains in a Court of law.” But the application of principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal the questions that naturally arise is, is it a genuine document, what are its contents and are the statements contained therein true. When the appellant produced the balance-sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the Appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accord with principles of natural justice as also according to the procedure under Order XIX, Civil Procedure Code and the Evidence Act both of which incorporate these general principles. Even if all technicalities of the Evidence Act are not strictly applicable except in so far as Section 11 of the Industrial Disputes Act, 1947 and the rules prescribed therein permit it, it is inconceivable that the Tribunal can act on what is not evidence such as hearsay, nor can it justify the Tribunal in basing its award on copies of documents when the originals which are in existence are not produced and proved by one of the methods either by affidavit or by witnesses who have executed them, if they are alive and can be produced. Again if a party wants an inspection, it is incumbent on the Tribunal to give inspection in so far as that is relevant to the enquiry. The applicability of these principles are well recognized and admit of no doubt.” The said decision, for the reasons stated hereinabove, cannot have any application to the fact of the present case.

The learned Counsel for the respondent also placed reliance upon a decision of this Court in Zunjarrao Bhikaji Nagarkar (supra). In that case, this court was concerned with the charge of misconduct against the appellant therein concerning an allegation that he favoured M/s Hari Vishnu Pakaging Ltd. Nagpur (assessee) by not imposing penalty on it under Rule 173-Q of the Central Excise Rules, 1944 when he had passed an order-in-Original No.20 of 1995 dated 2.3.1995 holding that the assesee had clandestinely manufactured and cleared the excisable goods willfully and evaded the excise duty and had ordered confiscation of the goods. The misconduct was said to have been committed by the appellant while exercising his judicial function. Having regard to the factual matrix obtaining therein, this court observed:

“37. Penalty to be imposed has to be commensurate with the gravity of the offence and the extent of the evasion. In the present case, penalty could have been justified. The appellant was, however, of the view that imposition of penalty was not mandatory. He could have formed such a view.” It was further observed:

“41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed “favour” to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi- judicial authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal.

42. Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceed against the appellant.

There is no other instance to show that in similar case the appellant invariably imposed penalty.” In the aforementioned factual matrix of the case it was held that every error of law would not constitute a charge of misconduct.

This decision also has no application to the facts of the present case.

In the instant case the Presiding Officer, Industrial Tribunal as also the learned Single Judge and the Division Bench of the High Court misdirected themselves in law insofar as they failed to pose unto themselves correct questions. It is now well-settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, further more, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of Res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not garmane for determining the issue, namely, the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which in “preponderance of probability” and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.

Errors of fact can also be a subject-matter of judicial review. (See E.

vs Secretary of State for the Home Department (2004 Vol.2 Weekly Law Report page 1351). Reference in this connection may also be made to an interesting article by Paul P. Craig Q.C. titled ‘Judicial Review, Appeal and Factual Error’ published in 2004 Public Law Page 788.

The impugned judgment, therefore, cannot be sustained and, thus, must be set aside.

Ordinarily, we would have remitted the matter back to Industrial Tribunal for its consideration afresh but as the matter is pending for a long time and as we are satisfied having regard to the materials placed before us that the Industrial Tribunal should have granted approval of the order of punishment passed by the Appellant herein against the Respondents, we direct accordingly. The Respondents may, however, take recourse to such remedy as is available to in law for questioning the said order of dismissal.

For the reasons aforementioned, the impugned judgments cannot be sustained which are set aside accordingly. The appeal is allowed. No costs.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 589 of 1999

State of Himachal Pradesh …PETITIONER
Vs
Shree Kant Shekari …RESPONDENT

DATE OF JUDGMENT: 13/09/2004
BENCH: ARIJIT PASAYAT & PRAKASH PRABHAKAR NAOLEKAR

J U D G M E N T

ARIJIT PASAYAT, J.

The factual matrix of this appeal is unfortunately related to sordid and obnoxious incidents where the respondent (hereinafter referred to as ‘accused’) who at the relevant point of time was working as a teacher gratified his animated passions and sexual pleasures by having carnal knowledge of his student, a girl of tender age. The result was that the sacred relation of teacher and his pupil was besmirched. As observed by this Court in Madan Gopal Kakkad v. Narain Dubey and Anr. (1992 (2) Crimes 168) such offenders are menace to the civilized society.

The State of Himachal Pradesh is in appeal against the judgment of a learned Single Judge of the Himachal Pradesh High Court directing acquittal of the accused who faced trial for alleged commission of offences punishable under Sections 376 and 506 of the Indian Penal Code, 1860 (in short the ‘IPC’). The trial Court i.e. the Sessions Court, Kinnaur had convicted and sentenced him to undergo imprisonment for 7 years and a fine of Rs.2,000/- for the first offence and one year and a fine of Rs.2,000/- for the second offence. In addition, the accused was directed to pay compensation of Rs.10,000/- to the prosecutrix.

Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity  it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922), the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ‘Constitution’) The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.

We do not propose to mention name of the victim. Section 228-A of IPC makes disclosure of identity of victim of certain offences punishable. Printing or publishing name of any matter which may make known the identity of any person against whom an offence under Sections 376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been committed can be punished. True it is, the restriction, does not relate to printing or publication of judgment by High Court or Supreme Court.

But keeping in view the social object of preventing social victimization or ostracism of the victim of a sexual offence for which Section 228-A has been enacted, it would be appropriate that in the judgments, be it of this Court, High Court or lower Court, the name of the victim should not be indicated. We have chosen to describe her as ‘victim’ in the judgment. (See State of Karnataka v. Puttaraja (2003 (8) Supreme 364) Prosecution version as unfolded during trial is essentially as follows:

On 28.5.1993 the accused Shree Kant asked the victim who was his student of class 4 to wait after school hours for solving a question, while he allowed other students to go. The victim remained in the class room when the accused bolted the door from inside and made the victim to lie on the floor and forcibly committed sexual intercourse with her.

She kept refusing, wept and cried. However, since the doors of the room were closed, none could hear her cries. He then threatened her that if she dared to narrate the incident to anyone, he would throw her into the river. Being threatened she did not disclose this fact to any person.

Few days after the first incident the accused had taken her and three other students to Chuha Bagh for cleaning his room. The accused sent the other three students out of the room and kept her inside the room. He bolted the door of the room and made her lie on the floor and committed sexual intercourse with her again.

In September, 1993 the victim stopped going to school. As she regularly complained of stomach ache, her mother took her to Rampur Hospital where after examination by Doctor (PW-1), mother of the victim learnt that she was pregnant. On enquiry by her mother, the victim disclosed to her mother that her conception was due to sexual intercourse by the accused. After returning to the village, mother of the victim discussed the matter with her husband and then disclosed the incident to Krishna, a member of Gram Panchayat who suggested to report the matter to the police.

On 20.11.1993, the victim lodged a report at police station, Rampur. On the basis of such report a case under Section 376 and 506 IPC was registered vide FIR No.365/1993 (Ex.PW3/A).

During the course of investigation the victim (PW-3) was medically examined on 20.11.1993 at 4.00 p.m. Such medical examination was carried out by doctor (PW-1) of Refural Hospital, Rampur. In her opinion her period of gestation was 28 weeks.

On the completion of investigation, charge sheet was placed and matter was taken up for trial. Twelve witnesses were examined to further the prosecution version. The key witnesses were the victim herself who was examined as PW-3, her mother (PW-4), father (PW-5) and other witnesses who had spoken about the age of the victim. Placing reliance on the evidence of the victim the trial Court found the accused guilty, convicted and sentenced him as aforesaid.

The accused questioned his conviction and sentence imposed before the High Court. A learned Single Judge by the impugned judgment set aside the judgment of the trial Court and directed acquittal.

Learned counsel for the appellant-State submitted that the High Court has failed to analyse the factual and the legal position in the proper perspective and has kept out of consideration relevant matters and drawn the presumptuous conclusions and, therefore, the judgment is to be set aside. There is no appearance on behalf of the accused in spite of service of notice.

The factors which seem to have weighed with the High Court are (i) the age of the victim, which according to the High Court was more than 16 years; (ii) no evidence has been placed by the prosecution to show that the victim had not consented to the act; and (iii) the time of alleged rape as given by the victim and her mother was improbabilised by the medical evidence. A particular reference was made to the fact that a child was born on 10.4.1979 and if the alleged rape has been committed during the period indicated by the victim and her mother the same would have been altogether different periods. The delay in lodging the first information report was also highlighted to attach vulnerability to the prosecution case.

We shall first deal with the question of age. The radiological test indicated age of the victim between 15 to 16= years. The school records were produced to establish that her date of birth was 10.4.1979. The relevant documents are Ex.PW6/A to PW6/C. The High Court was of the view that these documents were not sufficient to establish age of the victim because there was another document Ex.PW7/A which according to the High Court did not relate to the victim. Merely because one document which was produced by the prosecution did not, according to the High Court relate to the victim that was not sufficient to ignore the evidentiary value of Ex.PW6/A to Ex.PW6/C.

These were records regarding admission of the victim to the school and her period of study. These documents unerringly prove that the date of birth of the victim as per official records was 10.4.1979. Therefore, on the date of occurrence and even when the FIR was lodged on 20.11.1993 she was about 14 years of age. Therefore, the question of consent was really of no consequence.

Even otherwise the High Court seems to have fallen in grave error in coming to the conclusion that the victim has not shown that the act was not done with her consent. It was not for the victim to show that there was no consent. Factually also the conclusion is erroneous right from the beginning that is from the stage when the FIR was lodged and in her evidence there was a categorical statement that the rape was forcibly done notwithstanding protest by the victim. The High Court was therefore wrong in putting burden on the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it was for him to place materials to show that there was consent. It is significant to note that during cross examination and the statement recorded under Section 313 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) plea of consent was not taken or pleaded. In fact in the statement under Section 313 of the Code the plea was complete denial and false implication.

The High Court has also committed error in making hypothetical calculations regarding dates to doubt the testimony of the victim and her mother. What the witnesses had stated were approximate dates or periods and not that they were to be reckoned with exactitude. The victim is not an intelligent girl as the evidence on record shows. She passed out Class 3 on the third attempt. Her mother, a rustic woman is practically illiterate. To examine their evidence with microscopic approach would be an insult to justice oriented judicial system. It would be totally detached from the realities of life.

The High Court has also disbelieved the prosecution version for the so-called delay in lodging the FIR. The prosecution has not only explained the reasons but also led cogent evidence to substantiate the stand as to why there was delay. The trial Court in fact analysed the position in great detail and had come to a right conclusion that the reasons for the delay in lodging the FIR have been clearly explained.

The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not.

In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor.

On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar v. State of Goa (2003 (8) SCC 590).

The High Court by hypothetical calculations has concluded that there were discrepancies and has come to the presumptuous conclusion on mere surmises and conjectures that there was unexplained delay in lodging the FIR. In view of the above, conclusions of the High Court are not to be sustained.

It was also pleaded by the accused before the High Court which seems to have weighed regarding absence of any corroboration to the victim’s evidence.

It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime.

There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is physical as well as psychological and emotional. However, if the court on facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would suffice.

The victim has categorically stated that she was afraid of the accused who was her teacher and the threats given by him to the extent that she would be put to physical harm if she spoke about the incident to anybody. The stand of the accused that he was falsely implicated because brother of the victim was not successful in the examination and therefore, his family had grudge against the accused is too swallow to be accepted. The incident which involved the accused and mother and brother of the victim took place about a decade back. There is not even remote possibility of the same being the foundation for false implication. In any event no girl of a tender age and her parents would like to jeopardize her entire future by falsely implicating a person alleging forcible sexual intercourse.

Looked at from any angle, judgment of the High Court is indefensible and the same is accordingly set aside. The order of the trial Court is restored. Accused shall surrender to custody forthwith to serve remainder of sentence. The appeal is allowed.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 122 of 2004

Dr. B. Singh …PETITIONER
Vs
Union of India & Ors. …RESPONDENT

DATE OF JUDGMENT: 11/03/2004
BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

J U D G M E N T

(D. No.305/2004)

ARIJIT PASAYAT, J.

This petition filed purportedly under Article 32 of the Constitution of India, 1950 (in short the ‘Constitution’) shows to what extent the process of law can be abused. It carries the attractive brand name of “public interest litigation”, but the least that can be said is that it smacks of everything what a public interest litigation should not be.

The petition is purported to have been filed questioning the propriety of respondent No.3 being considered for appointment as a Judge. Subsequently, an application was filed for permission to withdraw the petition with liberty to file a fresh petition as in the meantime respondent No.3 has been appointed as a Judge.

Before we go into the desirability of even entertaining such a petition, background in which the petition has been filed needs to be noticed.

According to the petitioner, as reflected in the petition, basis of the petition is a copy of the representation purported to have been received from one Ram Sarup which was addressed to the President of India with copies to the Chief Justice of India, Ministry of Law and Justice, Chief Justice of Punjab and Haryana High Court, Governor of Haryana and Bar Council of India wherein allegations were made against respondent No.3. Only on the basis of what is stated therein of which apparently the petitioner himself cannot legitimately claim to have any personal knowledge the petitioner filed a writ petition before the Punjab and Haryana High Court which was dismissed. The petitioner makes a grievance that aforesaid Ram Sarup had received acknowledgement of the representation addressed to the President of India wherein it was also noted that the same had been forwarded to the Secretary to the Government of India, Ministry of Law, Justice and Company Affairs (Department of Legal Affairs) for appropriate action. But no action was taken to look into the allegations. It is not clear from the writ petition as to whether the petitioner had sent any representation to the President and other constitutional functionaries as the enclosures to the writ petition show that aforesaid Ram Sarup had sent representations to the President with copies to the other functionaries. The copy of the representation dated 18.10.2003 shows that it was sent by Ram Sarup. The second representation is dated 13.12.2003 in which reference has been made to a representation purported to be dated 28.11.2003. In the representation dated 13.12.2003 reference is made to the acknowledgement dated 12.11.2003. This creates an impression that the acknowledgment dated 12.11.2003, of the President’s Secretariat relates to the representations sent by Ram Sarup. But the copy of purported acknowledgement filed as Annexure P-2 shows as if it was sent by the petitioner. No copy of any representation dated 28.10.2003 as indicated in Annexure P-2 has been filed along with the petition. The petitioner nowhere has stated that he has any personal knowledge of the allegations made against respondent No.3. He does not even aver that he made any effort to find out whether the allegations have any basis. He only refers to the representation of Ram Sarup and some paper cuttings of news items. He has not indicated as to whether he was aware of the authenticity or otherwise of the news items. It is too much to attribute authenticity or credibility to any information or fact merely because, it found publication in a newspaper or journal or Magazine or any other form of communication, as though it is gospel truth. It needs no reiteration that newspaper reports per se do not constitute legally acceptable evidence. Strangely, in the affidavit accompanying the writ petition he has stated as follows:

“That I have read over the contents of accompanying writ petition page No. 1 to 13 para, Para No. 1 to 18, synopsis and list of dates, page A to C and I say that the same are true and correct on knowledge and based on the record of the case”.

The affidavit shows that the contents were true and correct to his knowledge and based on records. Strangely, it has not been indicated as to what is the source of his knowledge and are based on what records. Even the copy of the order passed by the Punjab and Haryana High Court where he filed writ application on allegedly identical issues, as indicated in the petition, has not been annexed. The casual and cavalier fashion it appears to have been handled and of late attempted to be made ipse dixit, in a laconic and lackadaisical manner compels to draw the only inference that the petitioner is a busy body bent upon self publicity sans any sense of responsibility unmindful of the adverse impact, at times it may go to create at the expense of decency and dignity of constitutional offices and functionaries and there is no element or even trace of public interest involved in the petition.

When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes or vendatta to bring to terms a person, not of ones liking, or gain publicity or a facade for blackmail, said petition has to be thrown out. Before we grapple with the issues involved in the present case, we feel it necessary to consider the issue regarding the “public interest” aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be “publicity interest litigation” or “private interest litigation” or “politics interest litigation” or the latest trend “paise income litigation”. If not properly and strictly regulated at least in certain vital areas or spheres and abuse averted it becomes also a tool in unscrupulous hands to release vendetta and wreck vengeance, as well to malign not only an incumbent to be in office but demoralise and deter reasonable or sensible and prudent people even agreeing to accept highly sensitive and responsible offices for fear of being brought into disrepute with baseless allegations.

There must be real and genuine public interest involved in the litigation and concrete or credible basis for maintaining a cause before court and not merely an adventure of knight errant borne out of wishful thinking. It cannot also be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. The credibility of such claims or litigations should be adjudged on the creditworthiness of the materials, averred and not even on the credentials claimed of the person moving the courts in such cases. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the Court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by this Court in Janata Dal v. H.S. Chowdhary and Ors. (1992 (4) SCC 305) and Kazi Lhendup Dorji vs. Central Bureau of Investigation, (1994 Supp (2) SCC 116). A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. See Ramjas Foundation vs. Union of India, (AIR 1993 SC 852) and K.R.

Srinivas vs. R.M. Premchand[1994] INSC 502; , (1994 (6) SCC 620).

It is necessary to take note of the meaning of expression ‘public interest litigation’. In Strouds Judicial Dictionary, Volume 4 (IV Edition), ‘Public Interest’ is defined thus:

“Public Interest (1) a matter of public or general interest does not mean that which is interesting as gratifying curiosity or a love of information or amusement but that in which a class of the community have a pecuniary interest, or some interest by which their legal rights or liabilities are affected.” In Black’s Law Dictionary (Sixth Edition), “public interest” is defined as follows :

“Public Interest something in which the public, or some interest by which their legal rights or liabilities are affected.

It does not mean anything the particular localities, which may be affected by the matters in question. Interest shared by national government….” In Janata Dal’s case (supra) this Court considered the scope of public interest litigation. In para 53 of the said judgment, after considering what is public interest, has laid down as follows :

“The expression ‘litigation’ means a legal action including all proceedings therein initiated in a Court of law for the enforcement of right or seeking a remedy.

Therefore, lexically the expression “PIL” means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.” In para 62 of the said judgment, it was pointed out as follows:

“Be that as it may, it is needless to emphasis that the requirement of locus standi of a party to a litigation is mandatory, because the legal capacity of the party to any litigation whether in private or public action in relation to any specific remedy sought for has to be primarily ascertained at the threshold.” In para 98 of the said judgment, it has further been pointed out as follows:

“While this Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that Courts should not allow its process to be abused by a mere busy body or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or private profit or other oblique consideration.” In subsequent paras of the said judgment, it was observed as follows:

“It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have as locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration.

Similarly a vexatious petition under the colour of PIL, brought before the Court for vindicating any personal grievance, deserves rejection at the threshold”.

It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise could have been spent for the disposal of cases of the genuine litigants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievance go unnoticed, un- represented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and substantial rights and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters – government or private, persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no real public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions of luxury litigants who have nothing to loose but trying to gain for nothing and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the court never moves, which piquant situation creates frustration in the minds of the genuine litigants.

Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations by masked phantoms who moniter at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary costs.

The Council for Public Interest Law set up by the Ford Foundation in USA defined the “public interest litigation” in its report of Public Interest Law, USA, 1976 as follows:

“Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.” The Court has to be satisfied about (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interests; (i) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect.

Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharashtra vs. Prabhu[1993] INSC 472; , (1994 (2) SCC 481), and Andhra Pradesh State Financial Corporation vs. M/s GAR Re-Rolling Mills and Anr., (AIR 1994 SC 2151). No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See Dr. B.K. Subbarao vs. Mr. K. Parasaran[1996] INSC 942; , (1996) 7 JT 265). Today people rush to Courts to file cases in profusion under this attractive name of public interest. Self styled saviours who have no face or ground in the midst of public at large, of late, try to use such litigations to keep themselves busy and their names in circulation, despite having really become defunct in actual public life and try to smear and smirch the solemnity of court proceedings. They must really inspire confidence in Courts and among the public, failing which such litigation should be axed with heavy hand and dire consequences.

As noted supra, a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that Courts are flooded with large number of so called public interest litigations, whereas only a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, Courts at times are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilized for disposal of genuine cases.

Though in Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors. (AIR 1999 SC 114), this Court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the Courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. This tendency is being slowly permitted to percolate for setting in motion criminal law jurisdiction, often unjustifiably just for gaining publicity and giving adverse publicity to their opponents. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copters, the real brain or force behind such cases would get exposed to find out whether it was a bona fide venture. Whenever such frivolous pleas are taken to explain possession, the Court should do well not only to dismiss the petitions but also to impose exemplary costs, as it prima facie gives impression about oblique motives involved, and in most cases show proxy litigation. Where the petitioner has not even a remote link with the issues involved, it becomes imperative for the Court to lift the veil and uncover the real purpose of the petition and the real person behind it. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with costs as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the Courts.

In S.P. Gupta v. Union of India and Anr. (1981 Supp SCC 87) it was emphatically pointed out that the relaxation of the rule of locus standi in the field of PIL does not give any right to a busybody or meddlesome interloper to approach the Court under the guise of a public interest litigant. The following note of caution was given: (SCC p.219, para 24) “But we must be careful to see that the member of the public, who approaches the court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain a political objective.” In State of H.P. vs. A Parent of a Student of Medical College, Simla and Ors. [1985] INSC 86; (1985 (3) SCC 169), it has been said that public interest litigation is a weapon which has to be used with great care and circumspection.

Khalid, J. in his separate supplementing judgment in Sachidanand Pandey vs. State of W.B.[1987] INSC 43; , (1987 (2) SCC 295, 331) said:

“Today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must inspire confidence in courts and among the public.

They must be above suspicion. (SCC p. 331, para 46) * * * Public interest litigation has now come to stay. But one is led to think that it poses a threat to courts and public alike.

Such cases are now filed without any rhyme or reason. It is, therefore, necessary to lay down clear guidelines and to outline the correct parameters for entertainment of such petitions. If courts do not restrict the free flow of such cases in the name of public interest litigations, the traditional litigation will suffer and the courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions. (SCC p.334, para 59) * * * I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants.” (SCC p.335, para 61) These aspects have been highlighted in Ashok Kumar Pandey v. The State of West Bengal (2003 (8) Supreme 299) Procedure for appointment of a Judge is provided in Article 217 of the Constitution. The process is an elaborate one and involves the views of the collegium of the Court. Where a particular person is to be appointed as a Judge, the modalities and procedures to be adopted have been elaborately dealt with in Special Reference No.1 of 1998, Re: (1998 (7) SCC 739). The scope of judicial review has been specifically delienated, limiting it to want of consultation with the named constitutional functionaries or lack or any condition of eligibility and not on any other ground including that of bias which is in any case is excluded by the element of plurality in the process of decision-making. The view in Supreme Court Advocates-on- Record Association and Ors. v. Union of India 1993 (4) SCC 441 (popularly known as Second Judges’ case) was reiterated. It would be proper to take note of very significant observations made in the Second Judges’ case about the growing tendency of needless intrusion by strangers and busybodies in the functioning of the judiciary under the garb of public interest litigation, in spite of the caution in S.P. Gupta’s case (supra). The note of caution has yielded no fruitful result and on the contrary these busybodies continue to make reckless allegations and vitriolic statements against Judges and persons whose names are under consideration for judgeship.

Therefore, it has become imperative to take stern actions against these persons. It is not the ipse dixit of any individual to say as to whether the recommended person is fit for appointment, by making wide allegations which has become common these days and have resulted in delaying appointment of Judges, though large number of vacancies exist in different High Courts. All possible care and caution is exercised before appointment of a Judge is made.

It is true that no system is infallible, but at the same time the sinister design of people intended to thwart prospects of a person likely to be appointed as a Judge has to be nipped at the bud. The petitioner has not shown any material to show that he is really interested in the welfare of the judicial system or the institution of the judiciary. As indicated above, he appears to be a busy person seeking publicity and a person who has no genuine concern for the institution, if such type of petitions are permitted to be entertained it will cause immense damage to the system itself. High sounding words used in the petition about the desirability of a transparent judicial system cannot in our view turn a mis-conceived petition filed with oblique motives to be treated as a public interest litigation. This petition deserves to be dismissed with exemplary costs and we direct so. The petition though deserves to be dismissed with costs of Rs.50,000/- hoping that the petitioner would mend his ways and would not hazard such vexatious litigations in future dismiss the same with costs of Rs.10,000/- which the petitioner shall deposit in the Registry of this Court within 6 weeks from today. If deposit is made it shall be remitted to the Supreme Court Legal Services Authority. In case the cost is not deposited within the time stipulated, the Registry shall forward this order to the Punjab and Haryana High Court and the High Court shall have it recovered by coercive means of recovery and remit the same to this Court, which on receipt shall be paid to the Supreme Court Legal Services Authority.

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SMT. DAYAMATHI BAI ….PETITIONER
Vs
SRI K.M. SHAFFI ….RESPONDENT

DATE OF JUDGMENT: 04/08/2004
BENCH: ASHOK BHAN & S.H. KAPADIA.

J U D G M E N T

KAPADIA, J.

This appeal by special leave is filed by the original defendant against the judgment and order dated 18th December, 1998 passed by the High Court of Karnataka in R.S.A. No.802 of 1995.

Briefly, the facts giving rise to this appeal are as follows:\027 K.M. Shaffi, respondent herein instituted a suit bearing O.S.

No.451/84 in the Court of Principal Munsiff, Bellary (hereinafter for the sake of brevity referred to as “the trial Court”) for a declaration that a portion of T.S. No.272-A and T.S. No.273-B admeasuring 80’x120′ (hereinafter for the sake of brevity referred to as “the suit plot”) was his and his brother’s absolute property. In the said suit, the plaintiff also sought an injunction restraining the appellant herein (defendant) from entering the suit plot.

T.G. Sreenivasa Pillai, T.G. Vivekananda Pillai and T.G.

Sathyanarayana Pillai sons of Gurunatham Pillai were the owners of suit land bearing S. No.635R (which was revised to T.S. 272) admeasuring 90 cents and S. No.635T (revised to T.S. 273) admeasuring 5 acres 38 cents. The sons of Gurunatham Pillai sold the above lands to Khan Saheb Abdul Hye vide sale deed dated 14.11.1944 (Ex.P.1) for Rs.300/-. Khan Saheb Abdul died in 1947 leaving behind him his two sons, Basheer and Muneer who in turn gifted the said lands to one Sattar (father of the plaintiff) and Rahiman (plaintiff’s uncle) under gift deed dated 20.6.1966 (Ex.P2). Sattar and Rahiman got the above lands sub-divided. In the partition suit No.381/72 on the file of Principal Munsiff, Bellary the plaintiff herein and his brother got the sub-divided plot Nos.T.S. 272A and T.S. 273B which included the suit plot admeasuring 80’x120′. The present title suit was filed when the appellant herein tried to enter upon the suit plot.

In the written statement, the appellant herein pleaded that the suit plot admeasuring 80’x120′ was a separate plot and that it was not a part of T.S. 272A and T.S. 273B as alleged. It was pleaded that the suit plot was separately assessed by the municipality. It was pleaded that on 19.7.1967, the husband of the appellant had bought the suit plot from one Rajarathnam. That the husband of the appellant had later on executed a deed of settlement in favour of the appellant on 12.1.1973 and that the appellant had been in possession and in enjoyment of the suit plot. That Rajarathnam had purchased the suit plot in 1965 from the wife of Gurunatham Pillai. In the written statement, the appellant herein denied that the sons of Gurunatham had sold the lands to Khan Saheb Abdul as alleged. It was contended that sons had no right to sell the said lands. That the wife of Gurunatham was the owner. That she had not executed any conveyance in favour of Khan Saheb. In the written statement, appellant denied the gift by sons of Khan Saheb to Sattar and Rahiman.

Two main points arose for determination before the trial Court.

Firstly, whether the plaintiff is the owner of the suit plot. Secondly, whether the suit plot formed part of T.S.272A and T.S.273B.

According to PW1 the title came to him through the sons of Gurunatham vide Ex.P1 which was a registered sale deed dated 14.11.1944 and later on under Ex.P2 which is gift deed executed by sons of Khan Saheb in favour of Sattar and Rahiman.

On the other hand, the appellant (defendant) claimed title only to the suit plot admeasuring 80’x120′. She claimed it to be a separate property. She traced her title to the wife of Gurunatham. She contended that the sons of Gurunatham had no right to sell.

The trial Court found that when on 14.11.1944 the sons of Gurunatham Pillai had sold the above lands vide sale deed Ex.P1 to Khan Saheb Abdul for Rs.300/-, the wife of Gurunatham had no right to sell the suit plot in 1965 through her constituted attorney to Rajarathnam from whom the husband of the appellant claims to have purchased the suit plot. The trial Court further observed that before it there was no plea that the wife of Gurunatham was the absolute owner. The trial Court found from Ex.P1 that the sons of Gurunatham had sold the lands for family necessity. In the circumstances, the trial Court held that no title had vested in Rajarathnam. The trial Court further found that Ex.P1 was more than 30 years old document and the presumption under Section 90 of the Evidence Act applied to the said documents. Before the trial Court Ex.P2 stood proved by the plaintiff who examined the constituted attorney of Basheer and Muneer as PW2. Further, execution of Ex.P2 was not challenged.

At this stage, it may be mentioned that the appellant did not object to the registered sale deed Ex.P1 dated 14.11.1944 being marked and admitted in evidence. The appellant also did not challenge the execution of Ex.P2. Hence the trial Court decreed the suit.

Being aggrieved by the decree passed by the trial Court, the appellant herein preferred Regular Appeal no.36 of 1988 in the Court of Civil Judge, Bellary (hereinafter for the sake of brevity referred to as “the lower appellate Court”), who took the view inter alia that the plaintiff had failed to prove Ex.P1 and Ex.P2 as neither the executant nor the donor had been examined. That Ex.P1 and Ex.P2 could not be acted upon as the original deed dated 14.11.1944 (Ex.P1) had not been produced. The lower appellate Court found that the plaintiff had not laid the foundation for admissibility of secondary evidence under Section 65(a) and (f) and in the circumstances the sale was not proved. The lower appellate Court observed that although the original deed was available in the collateral proceedings the plaintiff took no steps to produce it before the trial Court in the present suit. The lower appellate Court further found that the power of attorney in favour of PW2 was duly registered. That the plaintiff could have summoned it from the office of the sub-registrar. This was not done. In the circumstances, the lower appellate Court came to the conclusion that both the Exhibits P1 and P2 were not proved. Consequently, the lower appellate Court allowed the appeal and dismissed the suit filed by the plaintiff.

Aggrieved by the decision of the lower appellate Court, K.M.

Shaffi, the original plaintiff preferred Second Appeal under section 100 of CPC before the High Court. At the time of admission of the second appeal, following substantial question of law was formulated by the High Court:\027 “As to whether the lower appellate Court has erred in holding that the certified copies of the sale deed and the gift deed being Exs.P1 and P2 respectively are not admissible in evidence and as such the plaintiff had failed to substantiate his title over the suit schedule property?” The High Court on consideration of various authorities came to the conclusion that since the copy of Ex.P1 was a certified copy and since it is more than 30 years old document, the trial Court was right in invoking the presumption under Section 90 of the Evidence Act.

Consequently, the appeal was allowed. Hence, this civil appeal.

Ms. Kiran Suri, learned counsel appearing on behalf of the appellant submitted that once the document becomes incapable of being proved for want of primary evidence, the foundation of secondary evidence must be laid, without which, such secondary evidence was inadmissible. That in the present case, no steps were taken by the plaintiff to produce the original sale deed. That no steps were taken to prove the loss of the original sale deed. That no steps were taken to establish the source from which certified copy was obtained. She submitted that if the foundation is laid under section 65 and if the plaintiff was able to prove that the original sale deed was lost then the secondary evidence was admissible but in the absence of such a foundation, the High Court erred in holding that the registered certified copy of the sale deed was admissible in evidence as the document produced was more than 30 years old.

We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissible but that the mode of proof was irregular and insufficient.

Objection as to the mode of proof falls within procedural law.

Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P.

Temple & Another reported in [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party vide para 20:

“20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [1966] INSC 10; [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case.

However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there;

and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.” To the same effect is the judgment of the Privy Council in the case of Gopal Das & Anr. v. Sri Thakurji & Ors. reported in [AIR 1943 PC 83], in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.

In the present case, when the plaintiff submitted a certified copy of the sale deed (Ex.P1) in evidence and when the sale deed was taken on record and marked as an exhibit, the appellant did not raise any objection. Even execution of Ex.P2 was not challenged. In the circumstances, it was not open to the appellant to object to the mode of proof before the lower appellate Court. If the objection had been taken at the trial stage, the plaintiff could have met it by calling for the original sale deed which was on record in collateral proceedings. But as there was no objection from the appellant, the sale deed dated 14.11.1944 was marked as Ex.P1 and it was admitted to the record without objection.

For the foregoing reasons, we do not find any merit in this civil appeal and the same is accordingly dismissed, with no order as to costs.

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Virendra Nath Thr. P.A. Holder R.R. Gupta …PETITIONER
Vs
Mohd. Jamil & Ors. …RESPONDENT

DATE OF JUDGMENT: 14/07/2004

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari.

J U D G M E N T

Dharmadhikari J.

This appeal has been preferred against the judgment dated 07.8.1997 of the High Court of Allahabad whereby revisional order dated 10.2.1975 passed by the Deputy Director of Consolidation, Allahabad, has been set aside and the order dated 26.3.1974 passed by the Assistant Settlement Officer of Consolidation has been restored.

Relevant facts leading to filing of this appeal are as under :- In relation to the lands in question, an objection was filed by Jan Mohammad (represented now by the respondents) in the court of Consolidation Officer under provision of section 9A of Uttar Pradesh Consolidation of Holdings Act, 1953 [for short the Consolidation Act, 1953] for declaring and recording him on the land as Sirdar in accordance with section 210 of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950 [for short the Abolition Act]. The claim of Jan Mohammad was on the basis of his alleged adverse possession on the land for long period of 40 years. The Consolidation Officer accepted case of Jan Mohammad and recorded him as Sirdar on the land.

The recorded owners of the lands preferred an appeal under section 11 of the Consolidation Act to Assistant Settlement Officer of Consolidation. In the appeal, it was pointed out that in the basic years of Fasali 1359 and 1361 in the revenue papers i.e. Khasras name of Jan Mohammad was recorded in respect of the lands as a mortgagee [Murtheen]. The case of the petitioners before Appellate Authority was that Jan Mohammad came in possession of the property as a mortgagee and could not acquire any title by adverse possession. The appellate authority took the view that the mortgage of the land was for a loan of more than Rs.100/- and the mortgage- deed required compulsory registration. The appellate court came to the conclusion that as the alleged mortgage is not evidenced by any registered document, the oral evidence of mortgage cannot be relied.

The Appellate Authority, therefore, dismissed the appeal and maintained the order of the Consolidation Officer directing recording of name of Jan Mohammad as having acquired ownership to the land by adverse possession.

The petitioners then preferred a revision under section 48 of the Consolidation Act to the court of Deputy Director of Consolidation, Allahabad. The revisional authority took the view that though the unregistered written mortgage-deed being in possession of the mortgagee, could not be produced, oral evidence was admissible to ascertain the nature of possession of Jan Mohammad on the land.

The revisional authority relied on the earliest entries in the Khasaras of basic years to come to the conclusion that Jan Mohammad came into possession of the land as mortgagee. His possession could not be held to be adverse. His possession would be deemed to be only permissive as a mortgagee. The revisional authority, therefore, relying on the entry in khasaras of fasli 1359 where Jan Mohammad is recorded as a mortgagee, allowed the revision and dismissed his claim for being recorded as Sirdar of the land.

The legal representatives of Jan Mohammad preferred writ petition to the High Court of Allahabad.

The High Court in the writ petition reversed the judgment of the revisional authority on the ground that the plea of relationship of mortgage and mortgagee and the possession of Jan Mohammad to be permissive was raised for the first time in revision. The High Court held that the revisional authority was in error in upsetting orders of the lower authorities.

Learned counsel representing the original recorded owner of the lands in this appeal submits that claim of Jan Mohammad was based on alleged adverse possession on the land. It was an error on the part of the High Court to hold that relationship of mortgage and mortgagee never came up for consideration before the Consolidation Officer and Assistant Settlement Office of Consolidation. The order of the appellate authority has been placed on record of this appeal which clearly shows that the alleged relationship of mortgage and mortgagee between the parties was under discussion. Despite the entry in the remarks column of the Khasara of the fasli years 1359 and 1361 showing Jan Mohammad as mortgagee on the land, his possession was held to be adverse and his claim for recording him as Sirdar on the land was allowed.

Learned counsel appearing for the respondents has filed written submissions. In opposing the appeal, it is contended that the revisional Authority exceeded its powers of revision under section 48 of the Consolidation Act.

After hearing the learned counsel for the parties and perusing the record we find that the High Court had no justification to upset the decision of the revisional Authority. The earliest khasara records clearly show nature of possession of Jan Mohammad on the lands as mortgagee. Even though, mortgage-deed which was unregistered and being in possession of mortgagee, could not be produced by the mortgagor, evidence could be admitted for collateral purpose of ascertaining the nature of possession of Jan Mohammad. There is no evidence that the possession of Jan Mohammad as mortgagee ever became adverse to the knowledge of the original owner that is the mortgagor. The claim for recording Jan Mohammad as Sirdar on the land was filed under section 210 of the Abolition Act which reads as under :- “210. Consequences of failure to file suit under section 209. -If a suit for eviction from any land under section 209 is not instituted by a bhumidhar or asami, or a decree for eviction obtained in any such suit is not executed within the period of limitation provided for institution of such suit or the execution of such decree, as the case may be, the person taking or retaining possession shall a) where the land forms part of the holding of a bhumidhar with transferable rights, become a bhumidhar with transferable rights of such land and the right, title and interest of an asami, if any, in such land shall be extinguished;

b) where the land forms part of the holding of a bhumidhar with non-transferable rights, become a bhumidhar with non- transferable rights and the right, title and interest of an asami, if any, in such land shall be extinguished;

c) where the land forms part of the holding of an asami on behalf of the Gaon Sabha, become an asami of the holding from year to year.

Provided that the consequences mentioned in clauses (a) to (c) shall not ensue in respect of any land held by a bhumidhar or asami belonging to a Scheduled Tribe.

Section 209 of the Abolition Act confers right on a recorded owner of the land to eject persons occupying land without title. In case of a mortgage, the mortgagor has no right in law to eject a mortgagee until the mortgage is redeemed. Even though, the mortgage was not by any registered instrument, it is not disputed that the possession of the land was taken by Jan Mohammad as a mortgagee. If his entry on the land was as mortgagee, nature of his possession would continue to be as mortgagee unless there is evidence to show that, at any point of time, he asserted his adverse title, by repudiating his possession as mortgagee and continued in adverse possession for the prescribed period of more than 12 years to the knowledge of the mortgagor. From none of the orders either of the original or appellate authority, any evidence seems to have been led to establish date or period from which the possession of Jan Mohammad became adverse to the knowledge of the recorded owner.

In the state of above evidence on record, the revisional court was fully justified in coming to the conclusion that Jan Mohammad, who came in possession of the land as mortgagee, cannot be recorded as Sirdar or Bhumidar under section 210 of the Abolition Act.

The High Court in reversing the order of the revisional Authority erroneously attached undue importance to the fact that there was no specific plea or evidence led on behalf of the recorded owner that the possession of Jan Mohammad on the land was permissive. From the orders passed by the authorities under the Consolidation Act, it is apparent that throughout the stand of the original recorded owner, was that Jan Mohammad came in possession of the land as a mortgagee. The argument of permissive possession was advanced before the revisional Authority on the plea of mortgage. The High Court committed a serious error in upsetting the judgment of the revisional court on the ground of alleged want of plea of permissive possession by the original recorded owner.

Consequently, we allow this appeal, set aside the impugned judgment dated 07.8.1997 of the High Court of Allahabad and restore the revisional order dated 10.2.1975 of Deputy Director, Consolidation.

In the circumstances, we, however, make no order as to costs.

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Commissioner, Jalandhar Division & Others …PETITIONER:
Vs
Mohan Krishan Abrol & Another …RESPONDENT

DATE OF JUDGMENT: 02/04/2004

BENCH: CJI.V.N. KHARE & S.H. KAPADIA.

J U D G M E N T

WITH
CIVIL APPEAL No.1265 OF 1999.

Mohan Krishan Abrol
Versus
State of Punjab

KAPADIA, J.

Both the above civil appeals raise common question of law and fact and, therefore, they are disposed of by this common judgment. For the sake of convenience, facts in Civil Appeal No.1257 of 1999 are mentioned hereinbelow.

Late Sardarni Chanan Kaur widow of Sardar Triloki Nath Singh (deceased) was the owner of a kothi and lands admeasuring 90 kanals bearing khasra No.4971 situated at Circular Road, Kapurthala (hereinafter referred to for the sake of brevity as “the said property”). It is not in dispute that late Sardarni Chanan Kaur was the owner of the said property and that she had executed a registered will on 15.9.1962, whereby she bequeathed the said property to the State Government through Randhir Jagjit Hospital, Kapurthala (hereinafter referred to for short as “the said Hospital). The bequeath in respect of the said property was made vide paragraph 2 of the will which is reproduced herein below: “I bequeath my bungalow situated at Circular Road, Kapurthala, known as kothi “S. Tirloki Nath Singh” to Randhir Jagjit Hospital, Kapurthala, absolutely and for ever for the use of as a ward of the Hospital patients as and this estate should not be used or utilized for any other purpose than described above. Area of the property is 90 kanals, Khewat No.1/180, Khasra No.4971, consists of 4 servant quarters, 2 garages, 2 kothries, langarkhana with verandah, 2 kothries, one dalan, 2 kothries, maweshikhana, 6 kothries, 2 dalans, pacca well with iron persion well fitted, garden orchard, cultivated lands surmounted by on North, Government landed property south road, East Garden Diwan Ahudhya Dass West, landed property will not be sold or mortgaged or disposed off in any other way. This property will remain in the name of my late husband S.

Triloki Nath Singh, for the maintenance and improvement of this institution. The income derived from this garden, landed properties etc.

should be used on the up-keep and maintenance and improvement.” In the will aforestated, the testatrix appointed three executors. On the basis of the above will, mutation no.3597 was made on 20.4.1970 in favour of the said Hospital. On 15.6.1977, the said Hospital moved an application before the Collector, Kapurthala under sections 4 and 5 of Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (hereinafter referred to as “the 1973 Act”) for eviction of Mohan Krishan Abrol, respondent no.1 herein, who was alleged to be an unauthorized occupant of the said property. In the meantime, the said respondent instituted a title suit on 2.11.1977 stating that the testatrix had executed a registered lease deed dated 7.6.1962 in his favour and he was the lessee in continuous possession and after the demise of the testatrix on 26.11.1962, he was a tenant in law and under her legal representatives. In the said suit, respondent no.1 alleged that the state government has no connection with the property in dispute as the will was not probated and had not been acted upon. In the said suit, respondent no.1 herein sought a declaration that the state government was not the owner of the said property. He also challenged the genuiness of the above will and prayed for perpetual injunction against the government from taking possession of the said property under the provisions of the 1973 Act.

In the said suit, the government submitted that the proceedings for eviction of respondent no.1 from the property were pending before the competent authority under the 1973 Act and, therefore, the suit was barred under sections 10 and 15. It was also pleaded that respondent no.1 herein had no locus standi to challenge its title as the said respondent was a lessee under the lease which stood expired on 7.6.1972.

At this stage, it may be noted that on 25.10.1978, the competent authority found that the property had vested in the said Hospital; that the said property was a public premises under the 1973 Act; that the ownership of the property stood transferred to the Hospital under the will of Smt. Chanan Kaur; that the first respondent herein was a lessee under lease dated 7.6.1962; that the lease was for 10 years; and on expiry of the lease on 7.6.1972, respondent no.1 was a trespasser. The competent authority further found that the lease was not renewed. Accordingly, the impugned order of eviction was passed by the competent authority against respondent no.1 declaring him to be unauthorized occupant of the premises. Being aggrieved by the order of eviction, respondent no.1 preferred appeal to the Commissioner under section 9 of the 1973 Act. By judgment and order dated 8.5.1984, the appeal was dismissed.

During this period, the title suit instituted by respondent no.1 being suit no.124 of 1977 came to be decreed on 15.1.1979 by Senior Sub Judge, Kapurthala who took the view that respondent no.1 was a lessee and he was entitled to maintain the said suit. The trial Court further held that on the death of testatrix on 26.11.1962, the said property vested in the executors and not in the State and, therefore, the proceedings under the 1973 Act were not maintainable. Being aggrieved, the government preferred Civil Appeal No.29 of 1979 before the lower appellate court which found that respondent no.1 had no locus standi to bring the title suit; that the State was a beneficiary under the will and on the death of the testatrix, the said property had vested in the State as a legatee to which respondent no.1 cannot raise any objection as he had no right to challenge the title of the legatee under the will.

The lower appellate Court further found that the executors of the will had never objected to the vesting of the property in the State and the executors never came forward with any objection to such vesting even after the demise of the testatrix and, therefore, by their conduct, the executors had assented to the perfection of the title in the State. It was held that as between respondent no.1 herein and the appellant, no question of title was involved and the only question was whether respondent no.1 was in authorized possession of the property as claimed by him and since no question of title was involved, the Civil Court had no jurisdiction to decree the suit. Accordingly, the lower appellate Court dismissed the suit filed by respondent no.1 on 26.4.1983.

Aggrieved by the order of eviction passed under the 1973 Act and by the dismissal of the suit by the lower appellate Court, respondent no.1 herein approached the High Court by Civil Writ Petition No.2959 of 1984 and by Regular Second Appeal No.1263 of 1983 respectively.

Both the proceedings were tagged together and by common impugned judgment, the High Court came to the conclusion that the said property did not vest in the said Hospital in terms of the clause 2 of the will under which the property vested in the executors who were required to maintain a ward in the above hospital from the income arising out of the garden and other landed properties of the testatrix. The High Court further found that the said Hospital was only a beneficiary under clause 2 of the will and since under section 211 of the Indian Succession Act, 1925 (hereinafter referred to as “the 1925 Act), the property had vested in the executors, the eviction proceedings under the 1973 Act were not maintainable. However, in view of section 15 of the 1973 Act, the High Court held that the suit filed by respondent no.1 was not maintainable and consequently, the High Court dismissed the second appeal preferred by respondent no.1 herein while it allowed Civil Writ Petition No.2959 of 1984 filed by respondent no.1 and accordingly set aside the order of eviction passed under the 1973 Act.

Aggrieved, both sides have come by way of civil appeals to this Court.

Mr. H.M. Singh, learned counsel for the appellant submitted that the only question which arises for determination is whether the said property vested in the executors on the death of the testatrix and not as to whether the executors were required to obtain a probate. In this connection it was urged that under section 211, the property vests in the executors by virtue of the will and not by virtue of the probate. On the demise of the testatrix, the property vested in the executors. According to the learned advocate, the word ‘vesting’ in section 211 was only for the purposes of representation and it did not refer to vesting of beneficial interest in the property in the executors. Learned counsel submitted that under the will, the said property was bequeathed to the hospital. It was the desire of the testatrix that the said property shall be used as a ward in the hospital in the name of her late husband. While interpreting the will, it was urged, that the Court must sit in the armchair of the testatrix and the said will has to be interpreted in the light of her desire expressed therein. It was urged that the High Court had erred in holding that the ownership of the demised premises did not vest in the said Hospital; that the said Hospital was only a beneficiary under the will and, therefore, the said demised property did not constitute public premises under section 2(e) of the 1973 Act. It was urged that a bare reading of clause 2 of the will shows that the said property was bequeathed absolutely in favour of the said Hospital so that a ward could be set up in that hospital in the name of the deceased husband of the testatrix. It was next contended that even assuming for the sake of argument that the above finding of the High Court was correct, learned counsel submitted that the words “public premises” used in section 2(e) of the 1973 Act have been defined to mean inter alia as the premises belonging to the State Government. It was urged that the words ‘belonging to’ should be read in the widest possible sense and if so read they would include beneficial interest in the property in favour of the State Government and consequently, the property in dispute would fall in the category of public premises under the 1973 Act. Learned advocate for the appellant next urged that on 7.6.1962, the deceased Smt. Chanan Kaur had let out the said property on lease to respondent No.1 herein for ten years and the lease expired on 7.6.1972; that there was no renewal of the said lease and, therefore, respondent No.1 was in wrongful and illegal use and occupation of the said property, in the nature of unauthorized occupation after 7.6.1972, and, therefore, the eviction proceedings were maintainable under the 1973 Act. It was urged that the High Court was right in dismissing the suit filed by respondent No.1 in view of section 15 of the 1973 Act.

Per contra, Shri Ranjit Kumar, learned senior counsel appearing on behalf of respondent No. 1 submitted that clause 2 of the said will refers to bequest in favour of the said Hospital only for the specific use of the property as a ward and, therefore, the said Hospital was only a beneficiary under the will and not the owner and, therefore, the eviction proceedings under the 1973 Act were not maintainable. It was contended that a bare perusal of clause 2 of the will shows that a limited right in the property was bequeathed to the hospital. In this connection, it was further contended that the last sentence of clause 2 of the will indicates that the said property was to be maintained out of the income from the landed property of the testatrix, which circumstance shows that the hospital was only a beneficiary. It was urged that mutation of the property in the name of the appellant in the revenue records did not confer title on it. Alternatively, it was submitted that the matter refers to complicated questions of title and, therefore, the matter was not triable under the provisions of the 1973 Act. Learned counsel for respondent No.1 next contended that in the present case the lease was executed on 7.6.1962 by the constituted Attorney of Smt. Chanan Kaur (testatrix) for ten years and under the lease respondent No.1 could make constructions, and pursuant thereto, respondent No.1 had constructed a factory. Under clause 8, it was urged that the right of renewal was given to respondent No.1. In this connection, it was urged that correspondence had taken place in 1972 between the parties and by letter dated 22nd May 1972, respondent No.1 had sought renewal of the lease. It was contended that request for renewal was made both to the executors as well as to the appellant to which neither replied. It was submitted that in any event, clause 8 provided for automatic renewal and, therefore, there was no need to make an application for renewal. In the circumstances, it was urged that respondent no.1 cannot be said to be in unauthorized occupation of the property. It was contended that respondent No. 1 had leasehold rights in the property prior to the will and even prior to the demise of the testatrix and consequently, the suit filed by respondent No.1 in the civil court was maintainable and the lower appellate court had erred in holding that respondent No.1 had no locus standi to challenge the title of the State.

It was submitted that the said property was subject to lease executed before the will coupled with automatic renewal and, therefore, the possession of the property on expiry of the lease cannot be termed as unauthorized under the 1973 Act. In the circumstances, the High Court was right in coming to the conclusion that respondent No.1 cannot be said to be in unauthorized occupation of the premises.

Lastly, it was urged on behalf of respondent No.1 that under section 211 of the 1925 Act, the will which is not probated cannot confer title on the legatee. He submitted that in the present case, the executors had applied for probate which was refused. It was urged that under section 211 read with section 213 of the 1925 Act, the said property had vested in the executors and not in the State and in the absence of probate/letters of administration, the State had no right to administer the estate of the deceased testatrix, including right of action under the 1973 Act.

The first point which arises for determination is whether the said Hospital was the owner or the beneficiary in terms of clause 2 of the will? Clause 2 of the will unequivocally states that the testatrix bequeaths her bungalow to the said Hospital absolutely and forever. The very first sentence of clause 2 indicates that a complete bequest was made in favour of the said Hospital which was to operate for all times in future. Further clause 2 stipulates that the property was to be used as a ward of the hospital and for no other purpose. Section 87 of the 1925 Act stipulates that intention of the testator shall be effectuated as far as possible. In the matter of interpretation of wills, the Court has to look at the wishes of the testator indicated therein. In the present case, the testatrix wanted her bungalow to be bequeathed for all times to the government hospital and she wanted it to be used as a ward of the hospital to be named after her late husband. She further directed that the income derived from the surrounding garden and her landed properties should be used for maintenance and improvement so that in future the continuity of the said ward in the hospital is not adversely affected for want of funds. In our view, the High Court erred in holding that the said Hospital was a beneficiary and not the owner. In the circumstances, the said property constituted public premises under section 2(e) of the 1973 Act. It was however urged on behalf of respondent No. 1 that the said property did not vest in the appellant; that under section 211 of the 1925 Act, it had vested in the executors who had applied for probate but which was refused by the testamentary court, and, therefore, the said property never vested in the appellant. We do not find any merit in this argument. Sections 211 and 213 of 1925 Act read as follows: “Section 211.Character and property of executor or administration as such.(1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

(2) When the deceased was a Hindu, Muhammadan, Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.

Section 213. Right as executor or legatee when established.(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in the case of Wills made by Mohammadans or Indian Christians and shall only apply (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and (ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962) where such Wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situated within those limits.” A bare reading of section 211 shows that the property vests in the executors by virtue of the will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the will. In the case of Kulwanta Bewa v. Karamchand reported in [AIR 1938 Calcutta 714] it has been held that section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty reported in [43 Indian Appeals 113], the Privy Council has held that an executor derives his title from the will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets divested of his interest as an executor from the death of the testator when he assents to a specific legacy. Section 213 acts as a bar to the establishment of rights under the will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under will is sought to be established. However an un-probated will can be admitted in evidence for collateral purposes in any other proceedings apart from a probate proceedings.

(See: Cherichi v. Ittianam reported in [AIR 2001 Kerala 184]). Therefore, on the demise of the testatrix, the said property vested in the executors. The question which arises for determination on the facts of this case is whether the executors assented to the vesting of the said property in the Hospital in terms of section 336 of the 1925 Act. In this case, the facts show that the executors never objected to the vesting of the said property in the hospital. Three executors were appointed under the will. They never objected to the legacy. Several meetings of the executors had taken place both before the death of the testatrix on 26th November 1962 and even thereafter for updating the accounts and to obtain probate and at no stage they objected to the vesting of the property in the Hospital. Although application for probate was made, the State was not a party respondent. In fact, mutation was made in favour of the hospital as far back as 2nd April 1970 to which the executors never objected. In the circumstances, the executors had assented to the legacy in favour of the Hospital. Looking to the terms of clause 2 of the will, we hold that the hospital was not a beneficiary, but a full owner of the property; that on the demise of the testatrix the property vested in the executors who assented by their conduct to the legacy of the demised premises in the hospital and consequently, the eviction proceedings were maintainable under the 1973 Act.

The only question, therefore, which remains to be decided is whether the competent authority was right in coming to the conclusion that respondent No.1 was in unauthorized occupation of the property as defined under section 3(b) and, therefore, liable to be evicted under section 5 of the 1973 Act? As stated above, during the lifetime of Smt. Chanan Kaur, a lease was executed in favour of respondent No.1 on 7.6.1962 for ten years. Clause 8 provides for renewal and not for extension of lease. Hence, respondent no.1 was required to apply for renewal which he never did. The so- called application dated 22.5.1972 for renewal merely states that there was a lease deed dated 7.6.1962 and on its expiry, the lessee would continue. In this case, the intention of the testatrix under the will was to bequeath her bungalow to the hospital absolutely and free of all encumbrances and for all times. She wanted her bungalow to be used as a ward in the government hospital. In the circumstances, we are of the view that on expiry of the lease, respondent No.1 was in wrongful and illegal use and occupation of the property in the nature of unauthorized occupation and, therefore, the competent authority was right in passing the impugned order of eviction under the 1973 Act.

Before concluding we may point out that during the pendency of proceedings before this Court, an intervention application was made on behalf of Smt. Reba Kapur (respondent no.2). That application was granted by the earlier order passed by this Court. Shri Rajiv Sharma, learned counsel submitted on behalf of respondent No.2 (intervener) that if the appellant herein succeeds, it may proceed against respondent No.2 under the 1973 Act. He contended that the property in question surrounding the bungalow is quite substantial, a portion whereof is in possession of respondent No.2. We do not wish to go into the arguments advanced on behalf of respondent No.2 as eviction order, if any, against respondent No.2 is not the subject matter of challenge before us. It is not even clear as to whether any such proceedings have been taken against respondent No.2. In the present case, we are only concerned with the order of eviction passed against respondent No.1 by the competent authority under the 1973 Act. Hence, we are confining our judgment to the facts of this case.

For the aforestated reasons, we hold that the High Court was right in dismissing Regular Second Appeal No.1263 of 1983 filed by respondent No.1. However, it had erred in allowing Civil Writ Petition No.2959 of 1984 filed by respondent no.1 and in setting aside the order of eviction under the 1973 Act. We accordingly set aside judgment under challenge and allow Civil Appeal No.1257 of 1999 filed by the State Government and dismiss Civil Appeal No.1265 of 1999 filed by respondent No.1. There shall be no order as to costs.

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