JUDGMENT <NAME>, C.J.

1. On 27-10-1944, the appellant, <NAME>, was appointed a District Fishery Officer along with several other persons. He was put on probation for a period of two years and the order of appointment specifically provided that he would be confirmed in service "on the satisfactory completion of the period of probation and the passing of a departmental examination, which may be prescribed during the period." No departmental examination was held during the probationary period, but the appellant was allowed to continue in service. An examination was held in 1951 and the appellant did appear in it, but was unable to pass. Up to the time when the proceedings out of which this appeal has arisen were commenced, he had not passed the departmental examination. We are informed that he passed it while he was under suspension.

2. On 22-9-1951, the appellant was placed under suspension by an order passed on that date. Along with the order, a charge-sheet containing as many as five charges was served on him. Those charges related principally to alleged irregularities in monetary dealings and also failure to maintain proper accounts. The charge-sheet, after reciting the charges, directed the appellant to show cause within a fortnight why disciplinary action under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules. 1936 should not be taken against him. Both the order of suspension and the charge-sheet were signed by one Dr. <NAME> who was the Director of <ORG> at the time.

3. The appellant showed cause by means of a lengthy document submitted on 14-11-1931. On the 7th of December following, he received a telegram from the Director of <ORG>, directing him to see the Director on the 10th of December next in connection with the explanation furnished. <NAME> did see the Director on that date and something like an enquiry was held at which another Officer as also a stenographer was present. What happened exactly on the 10th of December is a matter of dispute between the parties, but this much is clear that the enquiry was not concluded on that date. It appears from a letter of the Director that he thought that the appellant was obstinately refusing to furnish further explanation as to certain points raised by him in his memorandum and that he was insisting on the points being formally reduced to writing and formally served on him before he would undertake to answer them. The appellant's version is different. Be that as it may, the Director finally asked the appellant to appear before him once again on the 13th of December. The appellant did not appear on that date, but on the previous clay left a letter addressed to the Director at his Office by which he explained his own point of view. As the appellant failed to appear on the 13th of December, the Director treated his examination as closed and made a report which was adverse to the appellant. The report was duly considered by <ORG> and they came provisionally to the conclusion that the appellant "should be punished with discharge from <ORG> service under Rule 49 (vi) of the Civil" Service (C.G.A.) Rules." By a notice dated 14-5-1952, an Assistant Secretary to the State <ORG> called upon the appellant to submit within fifteen days any representation that he might desire to make as to why he should not be punished in the aforesaid manner.

4. The appellant did make a representation, but it found no favour with the authorities. They consulted <ORG> and on the recommendation received from that body, they finally decided that the appellant should be discharged from <ORG> service. Thereafter, by an order dated 28-3-1953, he was discharged.

5. The appellant then moved this Court under Article 226 of the Constitution against the Director of <ORG>, the Secretary in the Department of Forests and <ORG> and the State of West Bengal for a writ of mandamus, commanding them to rescind the orders passed against him or to forbear from giving effect to them. The usual additional prayers for writs of certiorari and prohibition were also made. A Rule was issued on the application, but at the final hearing it was discharged by <NAME>, J., by an order dated 29-5-1956. Aggrieved by that order, the appellant preferred the present appeal.

6. A great deal of controversy appears to have taken place before the learned Judge as to whether the appellant had continued to be a mere probationer in <ORG> service or had become a confirmed member by reason of his having been retained in employment after the expiry of the probationary period. The learned Judge held that the appellant had continued to be a probationer and I find no good reason to dissent from that view. It is quite true that the probationary period was for two years only and that even after the expiry of that period, the appellant had not been discharged but kept on in service. At the same time, he had not been confirmed. It has also to be noticed that by the very terms of his appointment, he was to be confirmed only if he satisfied both of two conditions, one of which was satisfactory work during the probationary period and the other of which was the passing of a departmental examination. Admittedly, he did not pass a departmental examination during the probationary period and obviously his work was not considered satisfactory. It may have been wrong for <ORG> not to hold a departmental examination within the probationary period and the appellant, if he was so minded, might have taken appropriate steps at the appropriate time for forcing <ORG> to hold a timely examination. This point, however, which is somewhat in the appellant's favour, loses a great deal of its force, if one remembers that when the examination was ultimately held in 1951, the appellant failed to pass it. Be that as it may, whatever might have been the reason for <ORG> not confirming him, the fact remains that he was not confirmed and if he was not confirmed, he could not claim any status other than that of a probationer.

7. The learned Judge found the status of the appellant to be a complete answer to the grievance made by him. The grievance was that he was entitled to the benefit of Article 311(2) of the Constitution of India and, therefore, he was entitled to a proper enquiry into the charges against him and proper opportunities to show cause both against the charges and, if the charges were found proved, against the action proposed to her taken against him. <NAME>, J., disposed of the appellant's complaint by holding that since his status in <ORG> service was no more than that of a probationer and since under the very terms of his employment, he would be liable to be discharged, if his work was not found satisfactory, it could not be said that he had been penalised, if his service had been terminated in the view that he had failed to render satisfactory service. What had happened, according to the learned Judge, was that the conditions under which the appellant had entered employment in <ORG> had been worked out in a normal manner and, consequently, no question of any penalty arose at all.

8. The learned Judge also pointed out that the appellant had been proceeded against under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936 and that, according to the explanation appended to that Rule, the discharge of a person appointed on probation during the period of probation would not amount to removal or dismissal within the meaning of the Rule. On the basis of the explanation the learned Judge held that since the appellant was only a probationer and since he had been discharged during the period of his probation, he had neither been dismissed nor removed and, therefore, he could not complain that the protection of Article 311(2) had not been made available to him.

9. A point had been taken before the learned Judge that the enquiry which had been held was not a proper enquiry at all. It was said that the Director of <ORG>, having himself framed the charges and having been virtually in the position of a complainant, should not have constituted himself the Enquiring Officer as well. Other complaints were also made as to irregularities in the course of the enquiry. The learned Judge found it unnecessary to decide whether what had taken place could be said to have been an enquiry as contemplated by Article 311(2) or the relevant Service Rules, because, in his view, the appellant having been a mere probationer, was not entitled to an enquiry of that kind at all.

10. On the broad features of the case, the learned Judge held that it could not fairly be said that the appellant had had no opportunity for establishing his innocence. He pointed out that the authorities had proceeded on documents which had been fully dealt with by the appellant in his representations and that he had been given opportunity to show cause against both the charges and the penalty proposed to be imposed on him. Accordingly, the learned Judge concluded that even if Rule 55B of the Fundamental Rules applied, it could not be said that the benefit of that Rule had been withheld from him. I should explain here that Rule 55B provides that where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault on account of his unsuitability for the service, he shall be apprised of the grounds of such proposal and given an opportunity to show cause against it. There is no such Rule amongst the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, and that explains why the learned Judge said "even if Rule 55B applies.'

11. It appears to me that the view taken by the learned Judge of the proceedings had against the appellant is not warranted by the facts. It is quite true that his status was that of a probationer, as the learned Judge has held and as I think he rightly held. But the mere fact that the appellant was a probationer could not by itself exclude him from the benefit of the Constitutional protection. If the service of a probationer is terminated merely on the ground of his work being unsatisfactory and terminated in accordance with the terms of the employment, no question of any penalty being imposed, it is true, arises. But even a probationer can be proceeded against for misconduct and proceedings with a view to imposing a penalty can be taken against a probationer as well. If, on the facts of the case, it appears that what the authorities did was not merely to terminate the employment of the probationer, because his work had not been found up to the required standard, but they had proceeded on some ground extraneous to the terms of service and had intended to punish the probationer on that ground, Article 311(2) would obviously be attracted. As I have explained elsewhere, a probationer will normally servo up to the end of the probationary period and then be either confirmed, if his work has been found satisfactory, or discharged, if the reverse has been the case; but if before me probationary period is over or if although the period is over, the <ORG> servant concerned is still holding the status of a probationer, some misconduct if alleged against him and proceedings are started with a view to punishing him for such misconduct, it can by no means be said that no more is being done than the terms of the employment are being worked out. To such a case, as I have already said, the provisions of Article 311(2) will apply.

12. Before dealing with the facts of the case may point out that the argument drawn by the learned Judge from Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, does not, with respect, appear to me to be correct. Under the Explanation to Rule 7, discharge of a probationer during the period of probation does not I amount to removal or dismissal from service. The I meaning of that provision is that if a person, appointed on probation, is discharged during the period of probation, such discharge will not be a penalty of removal within the meaning of clause (vi) of Rule 7, nor a penalty of dismissal within the meaning of clause (vii) of the same Rule. In such a case, therefore, there would be no question of proceeding under Rule 7 at all, because Rule 7 only provides for imposition of penalties by way, inter alia, of removal from service or dismissal. The fact, therefore, that the authorities in the present case proceeded under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, 1936, proves rather than disproves that they were proceeding against the appellant with a view to imposing a penalty. The explanation to Rule 7 is an exception and if a case comes under the exception, Rule 7 will not apply at all and no proceedings under that Rule can be taken.

13. Turning now to the facts of the case, it appears from the charge-sheet that the charges all related to specific instances of misconduct on the part of the appellant. The proceedings begin with an order of suspension which, by itself, indicates that it was not as a case of a probationer that the appellant's case was being considered. If it was a question of merely examining the record of the appellant with a view to taking a decision as to whether he should or should not be confirmed, it could hardly be appropriate to serve him with a charge-sheet. Not merely was a charge-sheet served, but, as I have already pointed out, the appellant was asked to show cause why disciplinary action under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules should not be taken against him. The structure of the proceedings, again, was the structure of an enquiry such as prescribed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules. A charge-sheet was served, cause was directed to be shown against the charges, then an enquiry of a kind was held, at the end of the enquiry a particular penalty was tentatively decided on, then the appellant was asked to show cause why that penalty should not be imposed and ultimately it was imposed. The succession of these steps, coupled with the fact that the authorities were on their own admission proceeding under Rule 7 of the Bengal Subordinate Services (Discipline and Appeal) Rules, shows conclusively that they were holding an enquiry with a view to imposing a penalty, if the charges were proved. The matter is clinched by the letter of 14-5-1952, which an Assistant Secretary to <ORG> addressed to the appellant. There it was stated that Government bad come to the conclusion provisionally that the appellant should be "punished" with discharge from Government service and he was asked to show cause why he should not be "punished" in the manner stated. After all these, it cannot possibly be contended that it was not punishment which the authorities had in view, but merely the termination of the appellant's service in accordance with the terms of his employment.

14. Mr. <NAME>, who appeals for the respondents, was asked by me whether he could, in view of these facts, contend that the appellant had been treated merely as a probationer and whether it was not a fact that the authorities had proceeded against him for alleged misconduct with a view to punishing him therefor. He would not directly concede that the true view of the facts was the latter, but was frank enough to say that it looked as if it was so. In my view, it does not merely look that it was so, but it was in fact so.

15. It must, therefore, be held that the appellant was entitled to the protection of Article 311(2) of the Constitution and that, therefore, was entitled to a proper opportunity at a proper enquiry to show cause against the charges framed against him. The learned Judge has undoubtedly held that even if the appellant was entitled to the Constitutional protection, he had in substance got it, because the authorities had proceeded on nothing which he had not dealt with in his representations and because two opportunities, one to show cause against the charges and another to show cause against the proposed punishment, had in fact been given. I think that this is not a correct view of the facts. I pass over the appellant's objection that the so-called Enquiring Officer was the complainant himself, but an enquiry had to be directed to be held and the appellant had to be given proper notice thereof. All that happened after he had submitted the explanation was that he was asked by a telegram to appear before the Director of Fisheries in connection with a representation made by him. What happened subsequently I have already stated. The learned Judge has said that the appellant could not complain that he had not been given an opportunity to call witnesses, because he had never asked for such an opportunity. It appears to me that since no <ORG> or Enquiring Officer had ever been appointed and the appellant had merely been asked to see the Director of Fisheries which he did at least once, it cannot fairly be said that an occasion had arisen when he could ask for an opportunity to call witnesses. There was nothing to indicate to him that what was being held by the Director of Fisheries was anything but an interview between a superior Officer and a subordinate Officer and that it was a formal enquiry at which he would be entitled to call witnesses. It is true, as the learned Judge has observed, that the appellant had not specifically asked for an opportunity to call any evidence, but I do not think that anything ever happened which could put him in mind that he was appearing at a formal enquiry and that he was to ask for an opportunity to tender evidence, if he wished to tender evidence. I am, therefore, of opinion that since no <ORG> or Enquiring Officer was ever appointed and all that happened was that the appellant was summoned for interview with his superior Officer, it cannot be said that having had an opportunity to call evidence, the appellant had not claimed it and that therefore he is estopped.

The result, as I see it, is that the appellant being entitled to a proper enquiry and entitled to an opportunity to snow cause thereat in a proper manner was not granted such an opportunity. The order passed against him cannot, therefore, be sustained.

16. The next question is what order we should make. In my view the proper order to make will be not merely to quash the order passed against the appellant, but also to give further directions. Certain charges were framed, the appellant submitted his explanation and the position is that thereafter the matter did not proceed according to law and that all that happened subsequently must be quashed as having been illegal. This, however, will not affect such portion of the proceedings as was legal which will remain valid to be proceeded with and concluded if desired.

17. For the reasons given above, this appeal is allowed, the order of the learned Judge dated 29-5-1956, is set aside and the order of discharge dated 28-3-1953, passed against the appellant by the State Government is quashed. We direct further that if Government be so minded, they will be at liberty to continue the proceedings in accordance with law from the stage at which the appellant had furnished his explanation of the charges framed against him but no enquiry had yet been held and pass such orders as may be lawful and proper according to the result of such proceedings.

*(As regards the order of suspension passed against the appellant, the order of his discharge being now quashed, it will be governed, so far at least the period subsequent to the date of the order of discharge is concerned, by the principles laid down by <ORG> in the case of <CITATION> )).

18. The appellant will have the costs of this appeal from respondent No. 3, the State of West Bengal hearing fee five gold mohurs.

<NAME>, J.

19. I agree.


CASE NO.: Appeal (civil) 1081 of 2008 PETITIONER: <ORG> & Anr. RESPONDENT: State of Rajasthan & Ors. DATE OF JUDGMENT: 07/02/2008 BENCH: ASHOK BHAN & DALVEER BHANDARI JUDGMENT:

J U D G M E N T [Arising out of S.L.P.(C)No.16910 of 2006] ASHOK BHAN, J.

1. Leave granted.

2. Challenge in the present appeal is to the order passed on 04th September 2006 in D.B. Special Appeal (W) No.134 of 2006 by <ORG> of <ORG> dismissing the appeal filed by the appellants whereby <ORG> has upheld the judgment and order passed by a learned Single Judge of the same <ORG> dismissing the writ petition filed by the appellants thereby upholding the acquisition proceedings in respect of the land of the appellants.

3. In order to appreciate the grievance of the appellants, facts leading to the filing of the appeal are necessary to be indicated.

4. Notice under Section 52(2) [which is equivalent to Section 4 of the Land Acquisition Act, 1894] of the Rajasthan Urban Improvement Act 1959 (for short, 'the Act') was issued on S.L.P.(C)No.16910 of 2006 ..... (contd.)

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25th June 1975 for acquiring the land of the appellants bearing Khasra No.383 measuring 14 bighas and 16 biswas situated at Madrampura, Jaipur, Rajasthan. As per the said notice, land was sought to be acquired for improvement and purposes of Jaipur Town  extension of Civil Lines Area for construction of buildings. On 23rd August 1975, another notice was issued by the <ORG> under Section 52(2) of the Act indicating the purpose of acquisition of land for extension of civil lines and planning of housing scheme. Appellants, on 08th September 1975, filed objections to the acquisition of their land. The appellants also submitted their representation from time to time. The Land Acquisition Officer, however, rejected the objections. On 08th February 1984, the Government issued declaration under Section 52(1) of the Act [which is equivalent to Section 6 of the Land Acquisition Act, 1894]. Pursuant to the said declaration, notice under Section 52(5) of the Act was issued asking the appellants to hand over possession of the land.

5. After these notices were issued, the appellants filed Writ Petition No.5972 of 1984 before <ORG>. A learned Single Judge of <ORG>, while issuing rule nisi, granted stay of the acquisition proceedings and restrained the respondents from taking possession of the land. Aggrieved against the said order the respondents filed Special Leave Petition before this Court, inter alia, S.L.P.(C)No.16910 of 2006 ..... (contd.)

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challenging the jurisdiction of <ORG> to entertain the writ petition. Since the Special Leave Petition was filed against an interim order, this Court did not go into the merits of the case and while granting leave, by order dated 08th April 1985, set aside the order of <ORG> and held that <ORG> did not have the territorial jurisdiction to entertain the writ petition in respect of a land situated in the State of Rajasthan. Thus, the proceedings before <ORG> came to an end.

6. On 17.02.1987, possession of the land in question is alleged to have been taken by the respondents and the same was handed over to <ORG>. However, according to the the appellants, possession was not taken.

7. The appellants filed Writ Petition No.1507 of 1987 in <ORG> which was withdrawn by them on 10th March 1989 with liberty to file a fresh writ petition.

8. On 26th June 1989, the Land Acquisition Officer passed the award and forwarded the same for approval to <ORG>. According to the respondents, <ORG> accorded its approval on 29th July 1989 which was declared by the Land Acquisition Officer on 30th July 1989 in accordance with law.

9. In the meantime, the appellants filed S.B.Civil Writ Petition No.2911 of 1989 seeking quashing of Notification dated 08th February 1984 and also notice dated 17th/18th February 2007 S.L.P.(C)No.16910 of 2006 ..... (contd.)

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by which the possession is alleged to have been taken. One of the objections taken by the respondents before <ORG> was that the writ petition could not be entertained after taking over of the possession of the land and handing over the same to <ORG> and the award having been passed in respect of the said land in accordance with law. It was also alleged that the award was not the subject-matter of the writ petition. It was also pointed out that the appellants were simultaneously pursuing Reference Application for enhancement of compensation. Ultimately, a learned Single Judge of <ORG> of Rajasthan, accepting the submissions of the respondents, dismissed the writ petition holding that the there was a genuine public purpose behind initiating the acquisition proceedings.

10. Being aggrieved, the appellants carried the matter in appeal before <ORG> of <ORG>. <ORG>, agreeing with the view taken by the learned Single Judge, dismissed the appeal and held that since the appellants had filed an application under Section 18 of the Land Acquisition Act, 1894 for enhancement of the compensation they are not entitled to the relief sought for in the writ petition. The said order is under challenge before us.

11. A preliminary objection has been taken by the respondents to the effect that the appeal is liable to be S.L.P.(C)No.16910 of 2006 ..... (contd.)

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dismissed on the ground of the delay on the part of the appellants to challenge the acquisition proceedings. It is also submitted that the acquisition of the land cannot be challenged after taking over of the possession and after the award having become final. In support of this submission, the respondents have relied upon a number of judgments of this <ORG>.

12. Counsel for the appellants, however, strenuously contended that there was no delay on the part of the appellants in filing the writ petition challenging the acquisition proceedings. He submitted that soon after the notice under Section 52(5) was issued by by the respondents, the appellants filed writ petition before <ORG> which stood dismissed pursuant to an order of this Court, as noted above. Thereafter the appellants filed another writ petition before <ORG> which was withdrawn. Within a period of four months thereof, i.e., on 05th July 1989, another writ petition bearing No.2911 of 1989 was filed. Counsel also submitted that these acts of the appellants demonstrate that there was no delay on the part of the appellants to seek redressal of their grievance. It was contended that actual possession of the land was never taken by the respondents on 17th/18th February 1987.

13. We do not find any substance in the submissions of the counsel for the appellants. No doubt, the appellants had filed S.L.P.(C)No.16910 of 2006 ..... (contd.)

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a writ petition before <ORG> challenging the acquisition proceedings, but the said writ petition was dismissed by this Court on 08th April 1985 holding that <ORG> did not have the territorial jurisdiction to entertain the writ petition. Thereafter, till 1987 the appellants did not challenge the acquisition proceedings and the writ petition was filed by it before <ORG> which had the territorial jurisdiction in the matter and the same was withdrawn which was again filed within the next four months thereof, meaning thereby, during the interregnum the appellants slept over the matter. However, the appellants have not been able to give any explanation for the same. Insofar as the contention regarding the possession having not been taken is concerned, the respondents submit that the possession of the land in dispute has already been taken. Be that as it may, the award in respect of the land having become final, <ORG> is vested with the powers to take possession of the land concerned and, therefore, there is no reason to disbelieve the claim of <ORG> that the possession had been taken before the filing of the writ petition. Moreover, the appellants sought enhancement of compensation by filing reference application under Section 18 of the Land Acquisition Act, 1894. Simultaneously, the appellants filed writ petition before <ORG> after passing of the award.

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This Court has repeatedly held that a writ petition challenging the notification for acquisition of land, if filed after the possession having been taken, is not maintainable. In the case of <CITATION> .  where <NAME>, J. speaking for a Bench consisting of His Lordship and <NAME>, J. held :

"It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. <ORG> has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6 . But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. <ORG> of <ORG> was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."

14. In the concurring judgment, <NAME> J. held as under :

"..... Such a belated writ petition, therefore, was rightly rejected by the learned Single Judge on the ground of gross delay and laches. The respondent-writ petitioners can be said to have waived their objections to the acquisition on the ground of extinction of S.L.P.(C)No.16910 of 2006 ..... (contd.)

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public purpose by their own inaction, lethargy and indolent conduct. <ORG> of <ORG> had taken the view that because of their inaction no vested rights of third parties are created. That finding is obviously incorrect for the simple reason that because of the indolent conduct of the writ petitioners land got acquired, award was passed, compensation was handed over to various claimants including the landlord. Reference applications came to be filed for larger compensation by claimants including writ petitioners themselves. The acquired land got vested in <ORG> and <ORG> free from all encumbrances as enjoined by Section 16 of the Land Acquisition Act. Thus right to get more compensation got vested in diverse claimants by passing of the award, as well as vested right was created in favour of <ORG> by virtue of the vesting of the land in <ORG> for being handed over to the <ORG>. All these events could not be wished away by observing that no third party rights were created by them. The writ petition came to be filed after all these events had taken place. Such a writ petition was clearly stillborn due to gross delay and laches. ...."

15. Similarly, in the case of <CITATION> .  following the decision of this Court in the case of <ORG> (supra) it was held :

".... When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference. <ORG> of <ORG> was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches. ...."

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16. To the similar effect is the judgment of this Court in the case of <CITATION> .  this Court, following the decision of this Court in the case of <CITATION> .  held :

"In any event, after the award is passed no writ petition can be filed challenging the acquisition notice or against any proceeding thereunder. This has been the consistent view taken by this Court and in one of the recent cases ( <CITATION> .) ...."

17. In the present case also, the writ petition having been filed after taking over the possession and the award having become final, the same deserves to be dismissed on the ground of delay and laches. Accordingly, the order of the learned Single Judge and that of <ORG> are affirmed to the extent of dismissal of the writ petition and the special appeal without going into the merits thereof. This appeal also deserves to be dismissed without going into the merits of the case and is dismissed as such. No costs.


PETITIONER: HARBANS SINGH AND ANOTHER Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT: 16/10/1961 BENCH: <NAME>, K.C. DAS BENCH: <NAME>, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. CITATION: 1962 AIR 439 1962 SCR Supl. (1) 104 CITATOR INFO : RF 1963 SC 200 (17) R 1965 SC 26 (19) R 1965 SC 257 (8) R 1970 SC1566 (5) F 1972 SC 622 (27,31) R 1973 SC 55 (19) R 1973 SC1204 (9) R 1973 SC2195 (8) F 1973 SC2622 (7) R 1974 SC 606 (8,9) R 1976 SC1994 (6) R 1985 SC 416 (13) ACT: Appeal against acquittal -interference by appellate court, when permissible-Dying declaration Corroboration, if necessary. HEADNOTE: <ORG> set aside <ORG> order of acquittal of the appellants and convicted them on a charge of murder under s. 302 of the Indian Penal Code. On appeal by the appellants by special leave ^ Held, that this <ORG> in its earlier decisions emphasised that interference with an order of acquittal should be based only on "complying and substantial reasons" and held that unless such reasons were present an Appeal <ORG> should not interface with an order of acquittal, but this <ORG> did not try to curtail the powers of the appe11ate court under s. 423 of the Code of Criminal Procedure. Though in its more recent pronouncements this <ORG> laid less emphasis on 105 "compelling reasons" the principle has remained the same. That principle is that in deciding appeals against acquittal the <ORG> of Appeal must examine the evidence with particular care and must also examine the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting judge was clearly unreasonable. Once the <ORG> came to the conclusion that the view of the lower court was unreasonable that itself was a "compelling reason" for interference. Once it was found that the High <ORG> applied the correct principles in setting aside the order of acquittal this <ORG> will not ordinarily interfere with the High <ORG>'s order of conviction in appeal against acquittal o enter into the evidence to ascertain whether the High <ORG> was right in its view of the evidence. Only such examination of the evidence would ordinarily be necessary as is needed to see that the High <ORG> approached the question properly and applied the principle correctly. If the judgment of the High <ORG> did not disclose a careful examination of the evidence in coming to the conclusion that the view of the acquitting court was unreasonable or if it appeared that the High <ORG> erred on questions of law or misread the evidence or the judgment of the trial court, this <ORG> would, unless the case was sent back to the High <ORG> for re-hearing, appraise the evidence for itself to examine the reasons on which the lower court based its order of acquittal and then decide whether the High <ORG>s view that the conditions of the lower court was unreasonable, was correct. If on such examination it appeared to the <ORG> that the view of the acquitting court was unreasonable the acquittal would be set aside and if on the other had it appeared that the view was not unreasonable the order of acquittal would be restored. <NAME> v. State,  S.C.R. 194, <CITATION>  S.C.R. 418, <CITATION> A.I.R. 1953 S.C. 459, <NAME> v. State of M. P., Cr. A. No. 178 of 59 and <NAME> v. State of Bombay, Cr. A. No. 38 of 1960, referred to. It was neither a rule of law nor of prudence that a dying declaration should be corroborated by other evidence before a conviction could be ba ed thereon. <NAME> v. state of M. P. A.l.R. 1953 S.C. 420, referred to. <NAME> v. State of Bombay, [l958] S.C.R. 552, followed. A dying declaration did not become less credible if a number of persons were names are culprits 106 <NAME>. v. Emperor,(1941) 43 Cr.L.J.59, held erroneous. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 115 of 1959.

Appeal by special leave from the judgment and order dated May 23, 1958, of <ORG> in Criminal Appeal No. 414 of 1957.

<NAME> <NAME>, <NAME> and <NAME>, for the appellant.

<NAME> and <NAME>, for the respondent.

1961. October 16. The Judgment of the Court was delivered by <NAME>, J.-Six persons including the present appellants were tried by the Additional Sessions Judge Ferozpur on several charges in connection with the death by homicidal injuries of two brothers <NAME> and <NAME>. Of these six, <NAME> was the father of the other five accused persons. All the six accused persons were acquitted by the Additional Sessions Judge; on appeal by the State, <ORG> set aside the orders of acquittal in respect of <NAME> and Major <NAME> and convicted them under section 302 of the Indian Penal Code. The appeal was dissmissed in respect of the other four, viz., <NAME>, <NAME>, Bant <NAME> and Gian <NAME>. It is against this order of conviction that <NAME> and Major <NAME> have filed the present appeal after obtaining special leave from this Court.

The prosecution case is that at about 8 or 9 P.M. on July 23, 1956, shortly after <NAME> had returned home and complained to his father <NAME> about the conduct of <NAME> and <NAME> in abusing him. <NAME> ran out of his house on hearing some cries; but when he reached the Dharamshala not far from his house these two appellants, along with their father <NAME> and their brothers <NAME>, <NAME> and <NAME> fell upon him and caused numerous injuries with the weapons which they carried. <NAME>, it is said, struck <NAME> on the abdomen with a Sela in his hand. <NAME>'s brother <NAME> and his father <NAME> also had followed <NAME> when he ran out of the house. On seeing this attack on <NAME>, <NAME> tried to intervene, but he too was attacked and received several injuries. <NAME>, it is said, gave him a Sela thrust in the abdomen. <NAME> died on the spot; <NAME> was brought to the hospital at Gidderbha the following morning and received some treatment but he also died of his injuries the following day, that is, the 24th July.

All the accused pleaded not guilty, the defence being that they had been falsely implicated out of enmity.

To prove its Base the prosecution relied on the evidence of two persons, the deceased's father <NAME> and their uncle <NAME> and the dying declaration alleged to have been made by <NAME>, once in the village before <NAME>, the Sub-Inspector of Police who had come to the village that night in connection with some other investigation and for the second time at Gidderbha hospital before a Magistrate.

On a consideration of the evidence the Trial Judge came to the conclusion that the prosecution case had not been proved against any of the accused person. Being of opinion that the First Information Report had been recorded as late as 4- 30 P.M. On the 24th July he thought that "the complainant party was not able to day who the assailants were and the police was making time to find out the culprits after investigation and the First Information Report was delayed on that account." He was doubtful also about the truth of the Sub-Inspector's story that he actually reached the village of occurrence on that very night and consequently doubtful about any statement having been made by <NAME> to him on that night. In any case, he thought <NAME>'s dying declaration had little probative value because as many as six persons had been named and that it could not be relied upon without corroboration. The learned Judge was also not satisfied that <NAME> (Prosecution Witness) "was present in the village or at his house at the time of the occurrence" since "his statement was not recorded in the Inquest Report prepared by the police at midnight". The learned Judge also thought it unsatisfactory that nobody other than these two near relatives, that is, the father and uncle of the deceased persons had been examined as witnesses of the occurrence. These were the main reasons for which he came to the conclusion that the case had not been proved against any of the accused beyond reasonable doubt and accordingly acquitted the accused <ORG> was of opinion that the learned Judge was wholly "wrong in holding that <NAME> was not mentioned in the Inquest Report"; that he had misread the time of the first Information Report as 4-30 P. M. for 4-30 A. M. and that he was again in error in concluding that "the statement made by <NAME> to the police on their arrival at 1-15 A.M. was inadmissible". After pointing out these "errors" in the reasoning of the learned Trial Judge <ORG> said:-

"We have no hesitation in concluding that for the said reasons the judgment of the learned Additional Sessions Judge is wholly erroneous resulting in complete miscarriage of justice.

After having gone through the testimony of both of the eye-witnesses and examining the other material, particularly the two dying declarations, we are of the view that the projection case was substantially true and have been proved.

As regards complicity of <NAME> and Major <NAME>, there appears to be no doubt. Both of them had been assigned participation and were responsible for the fatal blow on each of the deceased. In this respect the testimony of both of the witnesses and the dying declarations are consistent. They were accordingly held guilty under section 302 , Indian Penal code."

The main contention raised by Mr. <NAME> on behalf of the appellants is that <ORG> had no sufficient reasons for interfering with the order of acquittal made by the Additional Sessions Judge and that <ORG> itself had been guilty of "errors", especially as <ORG> has misread the judgment of the learned Additional Sessions Judge and had attributed to him statements which are not to be found in his judgment.

The question as regards the correct principles to be applied by a <ORG> hearing an appeal against acquittal of a person has engaged the attention of this <ORG> from the very beginning. In many cases, especially the earlier ones, the <ORG> has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on "compelling and substantial reasons" and has expressed the view that unless such reasons are present an Appeal court should not interfere with an order of acquittal. (Vide <NAME> v. The State (1); <CITATION> (2); <CITATION> (3). The use of the words "compelling reasons" embarrassed some of the High <ORG>s in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this <ORG> had meant by the (1)  S. C. R. 194. (2)  S. C. R.

3)A.l.R. (1953) S. C. 459.

words "compelling reasons". In later years the <ORG> has often avoided emphasis on "compelling reasons" but nonetheless adhered to the view expressed earlier that before interfering in appeal with an order of acquittal a <ORG> must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which impelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable. (<NAME> v. The State of Madhya Pradesh (1); <NAME> v. The State of Bombay (2), It is clear that in emphasising in many cases the necessity of "compelling reasons" to justify an interference with an order of acquittal the <ORG> did not in any way try to curtail the power bestowed on appellate courts under s 423 of the Code of Criminal Procedure when hearing appeals against acquittal; but conscious of the intense dislike in our jurisprudence of the conviction of innocent persons and of the facts that in many systems of jurisprudence the law does not provide at all for any appeal against an order of acquittal the <ORG> was anxious to impress can the appellate courts the importance of bestowing special care in the sifting of evidence in appeal against acquittals. As has already been pointed out less emphasis is being given in the more recent pronouncements of this <ORG> on "compelling reasons". But, on close analysis, it iq clear that the principles laid down by the court ill this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the <ORG> of Appeal must examine (1) Criminal Appeal No. 178 of 1959 decided on l8-11-60.

(2) Criminal Appeal No. 38 of 1960 decided on 14-12-60.

the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion that the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a court's duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established.

When <ORG> judgment shows clearly that the matter has been approached in the proper manner and the correct principles have been applied, there is very little scope for this <ORG> to interfere with an order made by <ORG> convicting an accused person in an appeal against acquittal. Once it is found that the principles laid down by this <ORG> have been correctly applied this <ORG> will not ordinarily embark upon a reappraisal of the evidence to ascertain whether <ORG> was right in its view of the evidence. The only examination of the evidence that this <ORG> may find itself called upon to undertake will ordinarily be just so much as is necessary to see whether <ORG> has approached the question properly and applied the principles correctly.

The position may however be different if the judgment of <ORG> while indicating its conclusion that in its opinion the view taken by the lower court is unreasonable does not disclose a careful examination of the evidence for coming to such conclusion. Or it may appear from <ORG>'s judgment that <ORG> has erred on questions of law or has obviously misread the evidence on the record or the judgment of <ORG>. What is this <ORG> to do in such cases ? We are unable to agree with Mr. <NAME> that the only proper course for this court to take is to set aside the order made by <ORG> and restore the order of acquittal. For, even where <ORG>'s judgment suffers from any of these defects it may very well be that <ORG>'s conclusion that the view of the lower court is unreasonable is correct. So, unless this <ORG> thinks fit to send the case back to <ORG> for re-hearing of the appeal and its disposal in accordance with law, it becomes the duty of this <ORG> in cases like these which fortunately are likely to be few in number-to appraise the evidence for itself, to examine the reasons on which the lower court based the order of acquittal and then decide whether <ORG>'s conclusion that the view taken by the lower <ORG> on the question of the guilt of the accused is clearly unreasonable, is correct. If satisfied that the view was clearly unreasonable, this <ORG> is bound to dismiss the appeal and to maintain the order of conviction made by <ORG>; if on the contrary, this <ORG> is not satisfied on such examination that the conclusion reached by the lower court that the guilt of the accused has not been proved was clearly unreasonable, the order of acquittal would be restored.

The judjment of <ORG> in the present case does not contain much discussion of the evidence in the case. All the discussion of the eviddnce is confined to the few sentences which we have quoted earlier in this judgment. We also notice that the learned judges of <ORG> were under some misapprehension in thinking that the Additional Sessions Judge had held that <NAME> was not mentioned as a witness in the Inquest Report. What the Additional Sessions Judge had pointed out was that <NAME>'s statement had not been recorded in the Inquest Report. The Additional Sessions Judge was certainly right in this. While <ORG> might have well thought that no doubt against the credibility of <NAME> should be based on this fact that his statement was not recorded, <ORG> was not justified in attributing to the Trial Judge something which he did not say.

It is also not quite clear how the learned Judge said about the appellant Major <NAME> that he had been assigned participation and was responsible for the fatal blow on each of the deceased. In fact, neither of the two who claim to be the eye-witnesses of the occurrence has said that Major <NAME> dealt a fatal blow on either Hazura <NAME> or Munshi <NAME>. While it is true that a general statement is made by both the witnesses as regards all the six accused having attacked both Munshi <NAME> and Hazura <NAME> neither of them has spoken of any particular injury having been caused by Major <NAME>. Hazura <NAME> himself in his dying declaration did say that Major <NAME> gave him a Sela blow on his left wrist but does not speak of any other injury having been caused by Major <NAME> either to him or to Munshi <NAME> except that he also said generally that all the accused gave blows on the person of Munshi <NAME>. <ORG> has therefore clearly misdirected itself in thinking that Major <NAME> was responsible for any of the fatal injuries.

In view of all this we consider it necessary to examine the judgment of <ORG> and also the evidence on record ourselves for a proper decision of this appeal.

Turning to the judgment of <ORG> we find that the main circumstance which weighed with him for doubting the truth of the prosecution story is what he considered the considerable delay in recording the First Information Report. From the printed record before us we find that <NAME> Head Constable, who actually entered the formal First Information Report, stated in his evidence that he made the entry at "4.30 P.M." on the 24th July 1956. It is apparently this fact taken with the fact that the report did not reach the Magistrate <NAME> before 8.45 P.M. on the 24th July that made the learned Judge think that the First Information was made at the Police Station at 4.30 P.M. He has unfortunately not noticed that the record of the First Information Report Ex. PP1 shows the time of record as 4.30 A.M. He also overlooked <NAME>'s own evidence in cross-examination in these words: "I have perused the <NAME> entries and find that this special report was despatched by me through <NAME> Foot Constable at 5.15 A.M. I cannot say why he did not deliver it to the Magistrate till 8.45 P.M." It is quite clear that 5.15 A.M. as recorded in the printed record in <NAME> cross- examination is not a mistake for 5.15 P.M. If that had been so there would have been no point in his saying that he could not say why the Constable did not deliver it to the Magistrate till 8.45 P.M. when this statement in cross-examination is considered along with the recording of the time in Ex. PP1 itself there is no escape from the conclusion that 4.30 P.M. as stated in <NAME> Examination-in-Chief was a slip of tongue and the correct time of the record was 4.30 A.M. and that the fact that it reached the Magistrate at 8.45 P.M. that day may well be due to the fact that the Constable was negligent and took his own time about going to the Magistrate or to some other reason not clear from the record. The reasoning of the Trial Judge based on his wrong view about the time of recording of the formal First Information Report that the complainant party was not able to say who the assailants were and so delay was made, therefore falls to the ground.

The learned Judge has also misdirected himself in thinking that the dying declaration had very little probative value because as many as six accused persons had been named and that no conviction could in law be based on such dying declaration without corroboration. The law does not make any distinction between a dying declaration in which one person is named and a dying declaration in which several persons are named as culprits. A dying declaration implicating one person may well be false while a dying declaration implicating several persons may be true. Just as when a number of persons are mentioned as culprits by a person claiming to be an eye-witness in his evidence in court the court has to take care in deciding whether he has lied or made a mistake about any of them, so also when a number of persons appear to have been mentioned as culprits in a dying declaration that court has to scrutinise the evidence in respect of each of the accused. But it is wrong to think that a dying declaration becomes less credible if a number of persons are named as culprits. The contrary view taken in <ORG> in <NAME> v. Emperor (1) on which apparently the Trial Judge has relied is clearly erroneous.

The learned Judge appears to have relied also on what was said by this <ORG> in <CITATION> (2) on the need of corroboration for a dying declaration. Speaking for the <ORG> <NAME> (as he then was) observed in that case:-

"It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration."

The question was however considered again by this <ORG> in <CITATION> (3). After pointing out that in <NAME> Case (Supra) the <ORG> after a careful examination of the facts of that case distinctly came to the conclusion that the dying declaration was not true and could not be relied upon this <ORG> stated in the later case that the observations of the <ORG> in <NAME> case were in the nature of obiter dicta. The <ORG> then proceeded to review the relevant provisions of the Evidence Act and of the decided cases in the different High <ORG>s in India and in this <ORG> and stated the law in these words:-

"that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; (2) that each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general position that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as anotherpiece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; (5) that a dying declaration which has been recorded by a competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the <ORG> has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement by circumstances beyond his control that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. "Hence, in order to pass the test of reliability a dying declaration has to be subjected to a very close scrutiny, keeping in view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross-examination. But once the court has come to the conclusion that the dying declaration was the truthful version as to the circumstances of the death and the assailants of the victim, there is no question of further corroboration. If, on the other hand, the <ORG>, after examining the dying declaration in all its aspects and testing its veracity, has come to the conclusion that it is not reliable by itself, and that it suffers from an infirmity, then, without corroboration it cannot form the basis of a conviction. Thus, the necessity for corroboration arises not from any inherent weakness of a dying declaration as a piece of evidence, as held in some of the reported cases, but from the fact that the court, in a given case has come to the conclusion that that particular dying declaration was not free from the infirmities referred to above or from other infirmities as may be disclosed in evidence in that case."

In view of this latest pronouncement of this <ORG>-which it should be stated in fairness to the Trial Judge was made long after he gave his judgment-it must be held that it is neither a rule of law nor of prudence that a dying declaration requires to be corroborated by other evidence before a conviction can be based thereon. The evidence furnished by the dying declaration must be considered by the Judge, just as the evidence of any witness, though undoubtedly some special considerations arise in the assessment of dying declarations which do not arise in the case of assessing the value of a statement made in <ORG> by a person claiming to be witness of the occurrence. In the first place, the <ORG> has to make sure as to what the statement of the dead man actually was. This itself is often a difficult task, specially where the statement had not been put into writing. In the second place, the court has to be certain about the identity of the persons named in the dying declaration-a difficulty which does not arise where a person gives his depositions is <ORG> and identifies the person who is present in court as the person whom he has named. Other special considerations which arise in assessing the value of dying declarations have been mentioned by this <ORG> in <CITATION> (1) and need not be repeated here.

In view of this latest pronouncement of this <ORG> on the question of need of corroboration of a dying declaration by other evidence, it must be held that the Trial Judge was wrong in thinking that he could not act on the dying declaration of <NAME> unless it was corroborated by other evidence.

In view of the several defects in the reasoning of the Trial Judge, it is necessary for us to examine the evidence on the record to see whether <ORG> was right in thinking that the view taken by the learned Judge was clearly unreasonable. The most important evidence in the case is furnished by the dying declaration made by <NAME>. The Investigating Officer, <NAME> has said that on July 22, 1956 he had gone to the village Rikala on an excise raid and from there he went to Mallan at about 2 P.M. on July 23, to investigate a case under section 392 of the Indian Penal Code. His further evidence is that it was on the same night at about midnight that he started for Dhurkot from Mallan. We see no reason to doubt the truth of his statement that he did reach Dhurkot shortly after midnight of the 23rd July and that when on hearing that a murder had taken place near the Dharamshala he came to the Dharamshala. <NAME> who was lying injured on a cot there made a statement to him, he recorded the statement correctly. That statement has been marked Ex. PP. The substance of this statement is that at about 9 P.M. on the night of the occurrence his brother <NAME> came and complained about the conduct of <NAME>, <NAME> and other sons of <NAME> and that shortly after this on hearing shouts of <NAME> and others near the Lharamshala, <NAME> went towards that place followed by <NAME> and his father <NAME> and that when they reached the place they found <NAME> and the other accused persons all armed with weapons raising uproar and when <NAME> reached the place and returned the abuse <NAME> gave the first blow to <NAME> with a Sela in his hand hitting him on the front of the chest after which others of the party also gave blows and when <NAME> stepped forward to rescue his brother, <NAME> gave him a blow with a Sela in his hand which hit him on the abdomen and the other accused also gave him blows. The blow given by Major <NAME> hit him on his left wrist.

It is clear that this statement was made by <NAME> shortly after midnight i.e., within about four hours after the occurrence. It has to be remembered that <NAME> had one single serious injury viz., the penetrating wound on his abdomen. We are satisfied from the evidence of the witnesses that there was sufficient moonlight that to enable <NAME> to recognize clearly the assailant who struck the blow which caused this injury. He could have therefore made no mistake about the indentity of his assailant. Nor is it likely that he would within a few hours of the occurrence ascribe this fatal blow on him to somebody other than the real assailant. The several injuries on <NAME> and the numerous injuries on <NAME> justify the conclusion that there was more than one assailant in the attacking party. Whether or not <NAME> could have made a mistake about the identity of the other assailants or could have implicated some of them at least falsely, it will be unreasonable to think that he would substitute another person for the one assailant who gave him the fatal blow. On a consideration of these circumstances we are therefore satisfied that it would be unreasonable to doubt or disbelieve the truth of <NAME>'s statement when he said that <NAME> struck him with the Sela in his hand which hit him on the abdomen. Even if there was no other evidence on the records as regards the part taken by the appellant <NAME> this dying declaration of <NAME> is so clearly true that the only reasonable view for a judge of facts to take is that <NAME> caused the death of <NAME> by striking him with a Sela.

As has already been noticed <NAME> in this statement mentioned <NAME> as the person who gave the first blow to <NAME>, the blow which caused one of the injuries on his chest. We can think of no reason why this main part should be ascribed falsely to <NAME>; we think, considering the circumstances in which the statement was made, that this part of <NAME>'s statement is also clearly the truth and could reasonably be accepted even without any corroboration.

A second statement of <NAME> was recorded at the Hospital where he was removed. This statement appears to have been recorded at about midnight of the 24th July. In this statement also he mentioned <NAME> and the other accused persons as having taken part in the attack. It appears that when this statement was made <NAME>'s condition was very bad. Indeed, after he had made a part of the statement the Magistrate recorded that he had started giving indifferent answers and asked the Doctor to give him the necessary treatment. After the treatment was given the statement was concluded. We would not attach much weight to this statement on the 24th July. But, it will be noticed that there is nothing in this latter statement which detracts from the truth of the earlier statement made shortly after the occurrence to the police sub- Inspector.

There is apart from this the testimony in Court of <NAME> the father of the two deceased persons and his uncle <NAME>. As regards <NAME> the learned Trial Judge has pointed out that <NAME>'s statement was not recorded by the sub-Inspector in the Inquest Report. While there is nothing in law which requires the statement of witnesses to be recorded in the Inquest Report, it appears to be a common practice in Punjab for police officers to record statements of witnesses in Inquest Reports. In the present case the Sub- Inspector appears to have recorded a fairly full statement of <NAME> as also short statements of <NAME>, <NAME> and <NAME> in the Inquest Report itself. It is somewhat curious therefore that the Sub-Inspector did not record the statement of <NAME> also in this report even though it is found that <NAME> was named as a witness of the occurrence in <NAME> dying declaration itself. It is also difficult to understand <NAME>'s statement that he left the place as soon as some neighbours came up after the occurrence and did not go back to the spot till he was called by the police. He has offered no explanation for this rather unusual conduct. In view of all this, we are not prepared to say that tho Trial Judge acted unreasonably in doubting his testimony.

We are unable however to discover any valid reason for doubting the presence of <NAME> at the place of occurrence. It seems to us that the main reason for the Trial Judge to doubt the truth of <NAME>'s evidence was what he considered the great delay in lodging the formal First Information Report. That reason, as we have already pointed out, does not exist.

On an examination, it seems to us quite likely that <NAME> also accompanied <NAME> when the latter followed <NAME> towards the Dharmashala and it also seems to us improbable that he would give the main part in the assault falsely to <NAME> if somebody else was responsible for the blow which caused <NAME>'s death. In our view the learned Trial Judge acted unreasonably in doubting the truth of <NAME>'s evidence against <NAME>.

On a consideration of the evidence we are therefore satisfied that the conclusion reached by <ORG> that the view taken by <ORG> as regards <NAME> guilt Was clearly unreasonable is correct and that the only reasonable view on the evidence can be that <NAME> committed murder by causing the death of <NAME> and also committed murder by causing the death of <NAME>.

The position is however different as regards Major <NAME>. As has already been pointed out <ORG> is wrong in thinking that the evidence Shows that Major <NAME> gave any of the fatal blows. Hazura <NAME> in his first dying declaration mentioned Major <NAME> as having given a below on him on his left wrist. Apart from Bhag <NAME> only Hira <NAME> has ascribed any specific part to Major <NAME> in addition to saying generally that he took part in the attack. The evidence therefore leaves scope for thinking that Hazura <NAME> has made a mistake about Major <NAME> or has wrongly implicated him. We are not therefore prepared to say that the view taken by the Trial Judge as regards Major <NAME> is clearly unreasonable.

We therefore allow the appeal of Major <NAME> set aside the order of conviction and sentence made against him by <ORG> and restore the order of acquittal made by <ORG>. The appeal of Harbans <NAME> is dismissed. Major <NAME> should be set at liberty at once.

Appeal of appellant 2 allowed.

Appeal of appellant 1 dismissed.


JUDGMENT <NAME>, J.

(1) This is an appeal from an order granting temporary injunction in a suit pending before a learned Single Judge on the original side of this Court.

(2) The facts have been fully stated in the order under appeal and may therefore be only briefly re-stated.

(3) The appellants are defendants in a suit filed on the original side of this <ORG> by the plaintiff-respondent which is a foreign company having its registered office in Karachi (West Pakistan.). The company is the registered proprietor of a trade mark "Tibet Snow" which was registered in India under No. 14567 in class 3 as of 16-4-1943. The trade mark was renewed and its registration, subject to cancellation in the meanwhile, would be valid till 16-4-1972.

(4) The defendants-appellants are carrying on business as manufacturers of cosmetics, including face cream, in the name and style of <ORG> and <ORG>, Delhi. The face cream manufactured by them is being marketed and sold under the mark "Tibet Snow".

(5) It is not disputed that the appellants had applied for registration of a trade mark with the words "Tibet Snow"; but their application was dismissed in the year 1968 on the ground that the said trade mark was already registered in the name of the respondent. The appellants thereupon filed an application under Section 56 of the Trade and Merchandise Marks Act . 1958 (hereafter referred to as the Act) for rectification of the Register of trade marks by removal of respondent's mark No. 14567 there from. The application was however dismissed by <ORG> on 21-11-1968.

(6) While the appellants' application for rectification of the Registrar was still pending, the respondent-company instituted in this <ORG> on 23-9-1968, a suit wherein it prayed for a decree inter alia, for perpetual injunction restraining the appellants, by themselves or through any other persons on their behalf, from using the trade mark "Tibet Snow" or any other mark in respect of face cream which may be an infringement of its trade mark. The plaint was accompanied by an application for grant of a temporary injunction to the same effect till the decision of the suit. On that application an ad-interim order requiring the appellants to maintain accounts of the sale of face cream manufactured and traded by them under the mark "Tibet Snow" was passed. The appellants were also directed to file quarterly statements of account in <ORG>. Meanwhile a notice of the application for temporary injunction was also issued to the appellants, (7) The appellants entered appearance and by two separate applications asked for stay of proceedings in the suit till the final disposal of their application for rectification of the <ORG> and for security for their costs in defending the suit being furnished by the respondent.

(8) The learned Judge trying the suit, allowed the application for stay of proceedings in the suit. He also held that the appellants were entitled to an order regarding security for costs being made in their favor, but since their application for stay of the suit was being accepted by him, it was not necessary to make such an order at present and that necessary directions in that behalf, would be given if and when the proceedings in the suit were resumed.

(9) In this appeal we are only concerned with the order made by the learned Judge on the respondent's application for grant of temporary injunction whereby the appellants have been restrained from using any carton, packing, container or bottle bearing the words "Tibet Snow" or any word that might sound like "Tibet" while marketing and selling the face cream manufactured by them till the disposal of the suit. The appellants have also been directed to submit a statement showing particulars of the face cream in stock that had already been manufactured by them and was packed in bottles and cartons, resembling those which they had been using previously, prior to the date of the order vi:.. April 22, 1969. With regard to the face cream that had already been manufactured and packed in such bottles and cartons the appellants were permitted to sell the same but they were directed to maintain accounts regarding the sale and submit the same in <ORG> by the 10th day in each quarter. They were further restrained from trading under the mark "Tibet Snow" or any work which mights sound like "Tibet" in respece of any face cream manufactured by them thereafter.

(10) The appellants are aggrieved by the aforesaid order and have come up in appeal against the same.

(11) At the hearing of the appeal, the <ORG>'s jurisdiction to issue an order of injunction has not been challenged on the ground that the original suit having been stayed no such interlocutory order could be made by it. Counsel for the appellants has however endeavored to attack the order of the learned Judge holding that the respondent has a 'prima fade case which requires investigation and that the balance of convenience lies in favor of the respondent rather than the appellants.

(12) It is contended that the carton used by the appellants is somewhat different from that of the respondent and as such it cannot be held that the user of the mark "Tibet Snow" by the appellants amounts to an infringement of the respondent's trade mark. Another fact on which a great deal of stress had been laid is that there has been considerable delay on the part of the Respondent 1n instituting the suit in spite of the fact that the respondent had come to know in the year 1966 that the appellants had commenced proceedings for cancellation of their trade mark 14567 and for rectification of the <ORG>.

(13) In support of his argument, learned counsel for the appellants has not only cited the case of <ORG> versus <ORG> (1957 R.P.C. 183)(') which was relied upon by the appellant before the learned Judge but he has also cited a decision of <NAME> (as his lordship then was) in Firm Gaylord Shangrila and another v. <ORG>. New Delhi (1962 Pir 1128). The case of <CITATION> has also been cited. In <ORG>) the plaintiff-company had traded as jewellers for over a century, In August 1956 the defendant <ORG> using the name <ORG>, opened a jewellery shop which it was alleged resembled in appearance a neighbouring shop of the plaintiff-company. The plaintiff issued a writ in December 1956 and moved for an interim injunction restraining the defendant from carrying on business except under his full name "<ORG>". Up-Johan J. held that it was doubtful whether the similarity of the shops would deceive potential customers and as there had been un-due delay in the plaintiff's taking action no interim relief could be granted. It is apparent that there is no connection between the two cases. Firstly, the respondent's action in the present case is eased on the alleged infringement of its registered trade mark which is different from a passing off action, as was the case before <ORG> Secondly, the similarity in the two marks is prima fade too obvious. The appellants are using the same mark bearing the words "Tibet Snow" which the respondent claims to be its registered trade mark.

(14) It is well settled that there is an essential difference between an action for infringement of a trade mark and an action for passing off. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of "the exclusive right to the use of the trade mark in relation to those goods" while an action for passing off is a common law remedy, being in substance an action for defunct, that is. a passing off by a person of his own goods as those of another. In an action for infringement where the defendant's trade mark is identical with the plaintiff's mark. the court will not enquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it, the test of infringement is the same as in an action for passing off. (See <NAME> <CITATION> and <CITATION> . .

(15) The learned Judge has advisedly refrained from expressing any opinion about the alleged similarity between the two marks. We also do not propose to say anything that may be understood as a final expression of our opinion on that question, Prima fade however it seems to us that the respondent has a case which certainly merits examination. more particularly after the appellants' application for a trade mark having the words "Tibet Snow" was dismissed and their application for cancellation of the respondents' mark was also rejected by the Joint Registrar of Trade Marks. It is no doubt true, as has been contended by the learned counsel for the appellants, that their appeal against the order of the Joint Registrar of "trade Marks is still pending before <ORG> and that since the appeal is a continuation of the original cause the controversy, as to whether the respondent's trade mark should be cancelled is still un-resolved and the whole question is at large. But the very fact that the appellants have been defeated in at least two rounds, does give rise to' the belief that the respondent-company has a prime fade case and that the sale of the same class of goods under the mark "Tibet Snow" does constitute infringement of the respondent's trade mark.

(16) The case of Gay lord <NAME> decided by the learned Chief Justice, also relates to a dispute regarding a trading style. The plaintiffs in that suit were carrying on business under the trading style "<NAME> Restaurant' in New Delhi. The defendant started their restaurant at Chandigarh under the trading style "<NAME> <NAME>". The plaintiffs sued turn a decree for perpetual injunction restraining the defendants from using the words "<NAME> <NAME>" or "<NAME>" as their trading style and succeeded in obtaining a temporary injunction from the District Judge restraining the defendants till the decision of the suit from using the words "<NAME>" or "<NAME> <NAME>". The defendants appealed against the order. The appeal was allowed and the order of temporary injunction-was substituted by an order for maintaining true and proper accounts and for furnishing security for payment to the plaintiffs of profits made by them in case the plaintiffs ultimately succeeded in the suit. There was also a further direction that the defendants shall display the word '<NAME>' on the signboard, cash memo's, cartons and memo books as prominently as the word ''<NAME>" and also publish general notices in the newspapers viz., <ORG>, New Delhi and the <ORG>, Ambala, to the effect that the restaurant of the defendants had no connection with the restaurant of the plaintiffs. This again was not a case of infringement of a registered trade marks. The very fact that <ORG> gave the aforesaid directions clearly shows that the plaintiffs had a prima facie case. The ultimate decision in the appeal, on the other hand turned on the issue as to balance of convenience and not on the question of prima focie case, for it is implicit in the judgment that the use of the word "<NAME>" both by the plaintiffs and the defendants, did indicate that the plaintiffs had a prima facie case.

(17) The case of <CITATION> ^) is also of no assistance to the argument of the learned counsel for the appellants. although the case does relate to infringement of a trade mark. The relief of temporary injunction was refused to the appellant in that case not on the ground of absence of a prima jade case but on the ground that the respondent's business was centered in three districts of Madhya Pradesh where the appellant had practically no sales. It was the local nature of the respondent's business that was responsible for the decision.

(18) As regards delay, the argument of the learned counsel for the appellants lies that this aspect of the case had not been considered by the learned Judge at all and that only a passing reference has been made to it in the order under appeal. It is no doubt true that the delay in applying for an order of temporary injunction is one of the considerations which has to be kept in view, but delay by itself is not sufficient to deprive the registered proprietor of a trade mark of his rights unless it is such as to give rise to a belief that the proprietor of the trade mark has either acquiesced in the user of the mark by the opposite party or has abandoned his rights therein. The respondent no doubt came to know about the appellants' efforts to have the respondent's trade mark removed from the <ORG>, but so long as there was no real danger to its rights the respondent could well ignore the threat. We also cannot shut our eyes to the fact that the respondent is a foreign company in Pakistan and there are obvious difficulties in the way of its launching on a litigation in this country. In such circustances. if there has been some delay in the respondent's coming to court, it is not such as to dis-entitle the respondent to the protection of this <ORG>.

(19) In the ultimate analysis the question of delay is also linked with the question of balance of convenience and is one of the factors to be kept in view while deciding an application for grant of temporary injunction. The principle that governs such matters is as was held by <NAME> and <NAME> in <CITATION> , that when an interim injunction is sought during the pendency of a suit what has to be seen is first, whether a prima facie case has been made out by the plaintiff in respect of the claim, and secondly, whether the balance of convenience demands that the injunction should be issued.

(20) The real question that has to be considered in this appeal therefore is on which side lies the balance of convenience. Learned counsel for the appellants contends that it is incontrovertible that the face-cream bearing the respondent's trade mark and manufactured by it in Pakistan is not being imported in this country since some years past. It is also not known how long the present trade restrictions between the two countries may last. In such circumstances, the respondent cannot restrain the appellants from manufacturing and marketing their produce under that mark when there is no possibility of the respondent's own product being made available to the public in India.

(21) In this connection reliance is placed by the learned counsel on a recent decision of <ORG> in England in <NAME> v. <ORG> (1968 R.P.C. 433)^). Special stress has been laid by the learned counsel on the observations of <NAME> at page 495 of the report where it was said :

"IT is naturally with reluctance that I differ from the view of so experienced a judge, but I cannot think that this is a proper case in which to grant the relief of an interlocutory injunction. The grant of such relief can be a very serious matter especially if it leads to the closing down of the defendants' works for an indeterminate period, with the possibility of throwing a number of people out of employment.

"INthe circumstances of this case I do not see that in the absence of an interlocutory injunction, there is the slightest chance of the plaintiff suffering any irreparable injury. I see no reason why damages should not afford an adequate remedy, assuming that the plaintiff ultimately succeeds in the action. We have not been informed as to the scale on which the defendants are operating, but if in turns out that they are operating on a large scale than no doubt, if the plaintiff succeeds in the action, she will recover substantial damages. But equally on that basis there should be no doubt as to the ability of the defendants to pay them. If, on the other hand. the defendants are operating on only a small scale, than I venture to think that any injury to that plaintiff will be almost minimal."

(22) We are not impressed by this argument. Firstly, the case before <ORG> related to infringement of a patent. The plaintiff in that case was the owner of two patents relating to a vehicle anti-theft device which immobilised the vehicle by locking the steei-ing wheel and the foot-paddle together by means of a hooked telescopic rod. The defendant disputed the validity of the patent on the grounds of prior publication, obviousness and lack of un-inventive merit. Although no opinion was expressed by <ORG> upon the general merits of the question canvassed before them, it was said by <NAME> that in his view there was a good deal to be said in support of either side's case. That apart, what appears to have weighed with the learned Judges of <ORG> was that the grant of injunction in that case would have led to the closing down of the defendants' works for an un-determined period with the possibility of throwing a number of people out of employment. There was also no material before the <ORG> as to the seals on which the defendants were operating. It was further said that normally an interlocutory injunction would not be granted where damages would provide adequate remedy should the claim succeed nor would the <ORG> grant an interlocutory iniunction unless it was satisfied that there was a real probability of the plaii-itiff succeeding on the trial of the suit.

(23) In the present case, there is no danger of the business of the appellants closing down. As a result of grant of injunction, the appellants can still continue to manufacture and sell their face cream: only they have to stop using the words "Tibet Snow" on the cartons, bottles and packages etc. in which the said article may be sold. It has been pointed out by Mr. <NAME>, learned counsel for the respondent that the audited statements of account which the appellants have been filing in <ORG> under the directions of the learned Judge, do not at all indicate that the appellants are operating on a large scale. According to Mr. <NAME>, either the audited statements filed by the appellants do not give a correct version of their sales or the business of the appellants is 'on such a small scale that any injury to them will be almost minimal. It is urged that if the audited statements of account do not reflect the true version of the sales the necessary inference is that it will not be possible for the trial Judee to compute the damages which the Respondent 1s likely to suffer during the pendency of the spit that case damages will not provide an adeauate remedy should the respondent's claim succeed. On the other hand. if the appellants' sales are as reflected by the statements of account filed by them in court, they are not likely to suffer any serious injury.

(24) Mr. <NAME> further contends that in spite of the embargo on. the import of respondent's goods from Pakistan into this country, the very fact that during the period the said embargo lasts and there is equal possibility of the embargo being removed sometime or the other, she respondent will have suffered an irreparable injury. He says that the respondent's face cream sold under the trade mark 'Tibet Snow" is both widely advertised and has always had large sales. Although due. to import restrictions it has at present no sales in this country it cannot be denied that the product is associated, in the mind of the people with the name of the respondent. The object of the appellants in using the same mark is, or at any rate. the natural consequence of their doing so would be, to induce the public to believe that the goods which they are selling were exported by or came from the respondent's house or that the appellants were concessionnaires from the respondent-company or were under some arrangement with it. In that case the appellants would evidently be deceiving the public to the prejudice of the respondent. Likewise if the appellants were allowed to use the same trade mark in the market turn a long time they would become as well known in the market as importers and sellers of the goods of the respondent. There is thus an apparent danger to the respondent's goodwill and reputation which is a necessary attribute of a right to trade mark. To accept the argument if the learned counsel for the appellants that since the respondent-company was not having any sales of Its product in this country on account of trade restrictions one would have to go to the length of holding that it had also no right to its rights as the registered' proprietor of the trade mark being protected by injunction or otherwise. On that view of the matter we shall have to establish two separate standards, one for the protection of the rights of a national of this country and another for a foreigner who may be registered as a proprietor of a registered trade mark in this country. In the latter case, the trade mark could be successfully purloined by any unscrupulous indigenous producer on the ground that the Government had temporarily imposed trade restrictions on the import of the product. That is not the law as we understand it to be.

(25) Mr, <NAME> also referred us to a decision of <NAME> in <ORG> v. <ORG> and others (1969 Dlt 469) where it was held that for the grant or a temporary injunction the question of balance of convenience could arise only when at least pritna facie the two parties were on the same levels and their rights were about equal. The plaintiff in that suit for the grant of a permanent injunction to restrain the defendant from infringing its trade mark had alleged that it was the user of the trade mark for 12 years and had spent about four lakhs of rupees for advertising the trade mark and had sold goods under that trade mark to the tune of Rupees three crores while the defendant had used the trade mark for six months only. It was. held that the balance of convenience was in favor of the plaintiff and a temporary injunction ought to have been "ranted by the trial court.

(26) It appears to us that in the present case there was material before the learned Judge that the respondent had large sales and had widely advertised its product for several vears. It was only due to import restrictions that the respondent's product had no sales in this country at present.

(27) On an over-all view of the material on record we are satisfied that the learned Judge exercised his discretion on sound lines and that there is no error of principle involved in the order made by him. The order made by the learned Judge is therefore maintained and the appeal is dismissed with costs