iminal Appeals Nos.

160 to 162 of 1960.

Appeals by special leave from the judgment and order dated January 20, 1960 of the Allahabad High Court in Criminal Government Appeals Nos.

2011 to 2013 of 1958.

B. C. Misra and P. K. Chakravarti, for the appellant.

G. C. Mathur and C. P. Lal, for the respondent.

September 27.

The judgment of the Court was delivered by MUDHOLKAR, J.

These three appeals arise out of three separate trials before the Additional Sessions judge, Bulandshahr, but were argued together as they arise identical questions.

In all these trials, the appellant, who was a postman attached to the Bulandshahr post office was tried for offences under section 52 of the Indian Post Office Act, 1898 (VI of 1898) and in two of ' them, also for offences under sections 467 and 471 of the Indian Penal Code.

Briefly stated the allegations against the appellant were that he either stole or secreted five registered letters and that he fabricated three receipts showing that the registered letters were received by the addressees.

The learned Additional Sessions judge acquitted the appellant of all these offences.

The State then preferred an appeal against his acquittal in these three cases to the High Court of Allahabad but restricted the appeal to the acquittal of the appellant in respect of offences under 410 section 52 of the Indian Post Office Act, 1898 (hereafter referred to as the Act).

The High Court held that the appellant had secreted the five registered letters in question and on this finding set aside his acquittal and convicted him in each of the three appeals for offences under section 52 of the Act and sentenced him to undergo rigorous imprisonment for a period of one year in each case.

The appellant has come up to this Court by special leave.

Briefly stated the prosecution case is that when the house in which the appellant lives along with his father Diwan Singh, a retired Police Head Constable, was searched by the C.I.D. Inspector, S.N. Singh, along with Masood Murtaza, Sub Inspector of Police, Bulandshahr on May 12, 1956, in connection with a case against Messrs Greenwood Publicity, they accidentally discovered a large number of letters and postcards and also the five registered letters in question.

At the time of the search the appellant who happens to be a trade union official, was not in Bulandshahr but was away on leave at Delhi in connection with a postal conference.

These articles were found in an almirah, the key of which was produced by the appellant 's father.

The articles were not listed at the spot but were taken to the Kotwali in a sealed packet and later on listed there.

A number of other articles were also seized at that time but we are not concerned with them as they have no connection with the charges against the appellant.

Briefly, the appellant 's defence in all these cases is that there are two factions in the Bulandshahr post office and that these articles were planted by the opposite party.

According to him, the planting must have occurred in the Kotwali when the Sub Inspector purported to make a list of the articles seized from the house in which the appellant lives.

Further, according to him, neither the house nor the almirah from which the articles are said to have been 411 seized was in his exclusive possession.

He stated and that fact is not denied that the house which consists of two rooms only has been rented in his father 's name, that both of them live in those two rooms and that the almirah was in his father 's possession inasmuch as the key was produced by him.

On behalf of the appellant Mr. B. C. Misra has raised the following six points: (1) That on the findings arrived at by the High Court no offence under section 52 of the Post Office Act has been made out.

(2) That it has not been established that the five registered letters were in the exclusive possession of the appellant.

(3) That the search was illegal inasmuch as it was in contravention of the provisions of sections 103 and 165 of the Code of Criminal Procedure.

(4) That in examining the appellant the Ad ditional Session Judge did not comply with the requirements of section 342 of the Code of Criminal Procedure.

(5) That the High Court has not found that there were compelling reasons for setting aside the appellant 's acquittal .

(6) The sentences in the three cases having been ordered to run consecutively the total sentence is excessive.

We will deal with the last four points first.

So far as the alleged illegality of the search is concerned it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated.

It may be that where the provisions of ' sections 103 and 165, Code of Criminal Procedure, are 412 contravened the search could be resisted by the person whose premises are sought to be searched.

It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evidence regarding the seizure.

But beyond these two consequences no further consequence ensues.

The High Court has chosen to accept the evidence of the prosecution with regard to the fact of seizure and that being a question to be decided only by the Court of fact, this Court would not re examine the evidence for satisfying itself as to the correctness or otherwise of the conclusions reached by the High Court.

In so far as the contravention of provisions of section 342, Code of Criminal Procedure, are concerned it is sufficient to point out that no grievance was made either before the Court of the Additional Sessions judge or before the High Court that there was such a contravention and the appellant was prejudiced and we cannot allow the point to be raised for the first time here, the reason being that whether there was prejudice is a question of fact and cannot be permitted to be agitated for the first time in an appeal under article 136 of the Constitution.

As regards the fifth point, it is sufficient to say that this Court has held that an appeal from acquittal need not be treated differently from an appeal from conviction and if the High Court finds that the acquittal is not justified by the evidence on record it can set aside the acquittal without coming to the conclusion that there were compelling reasons for doing so.

In so far as the sentence is concerned, bearing in mind the fact that the maximum sentence awarded under section 52 of the Act is seven years it would not be right to say that in ordering the sentences in the three cases to run consecutively the appellant is being very severely punished.

In so far as section 52 of the Act is concerned the argument is that the prosecution having merely shown that the registered letters were recovered from an almirah in the house in which the appellant lives the 413 utmost that could be said is that he was in possession of letters, that is, assuming that he was in the exclusive possession of the house and the almirah.

The mere fact of possession, according to learned counsel, does not suffice to show that the letters were secreted by the appellant.

It is contended that for an officer of the post office to be found guilty for any of the acts specified in section 52 it has further to be shown that he was entrusted with the postal article with respect to which he is alleged to have committed any of those acts.

Section 52 of the Act runs thus : "Penalty for theft, dishonest, misappropriation, secretion, destruction, or throwing away of postal articles.

Whoever, being an officer of the Post Office, commits theft in respect of, or dishonestly misappropriates, or, for any purpose whatsoever, secretes, destroys or throws away, any postal article in course of transmission by post or anything contained therein, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be punishable with fine.

" The first act referred to in this section is theft.

Surely it cannot be contended that any (entrustment ' is necessary with regard to that act.

Indeed, if entrustment were proved and the article entrusted is not found to have been disposed of in the manner permissible under the Act, the offence committed would be not theft but criminal breach of trust.

according to Mr. Misra, the appellant cannot be said to have secreted the letter just because it was found in the almirah which is said to have been in his exclusive possession.

To secrete means, according to the dictionary "to hide".

In connection with a postal article addressed to some person the fact that it is retained in his possession by an officer of the post office in an almirah and that too for an inordinately long period would be tantamount to hiding that 414 article.

Of course, what act amounts to "secreting" would necessarily depend upon the facts of each case and in our opinion in a case like the present, what 'has been established by the prosecution would sustain an inference of secreting.

Further, a perusal of section 55 makes it clear that where the entrustment of an article is made an ingredient of an offence, the legislature has used appropriate words to make the matter clear.

If, therefore, it was the intention of ' the legislature that for an officer of the post office to be punished for secreting, destroying or throwing away a postal article in the oucrse of transmission by post, entrustment of that article to him was essential it would have used language similar to that used by it in section 55.

It seems to us that bearing in mind the ' fact that an officer of the post office having in the course of his duties access to postal articles kept or lying in the post office, the legislature has deliberately enlarged the scope of section 52 so as to encompass secretion, destruction or throwing away of postal articles by an officer of the post office even though they may not have been entrusted to him or even though the are riot articles with which he is required or is competent to deal in the course of his duties.

The object of the provision is to prevent postal articles 'in course of transmission by post ' from being tampered with, and so the secreting, destruction ' etc., of postal articles to which the provision is directed is to such secreting, destruction etc., as would frustrate or tend to frustrate their delivery to the addressees.

Then Mr. Misra contended that it would not be correct to say that the five registered letters recovered from the almirah were in the course of transmission by post because that recovery was made 7 or 8 months after those letters had been despatched and that no complaint had ever been made regarding their nondelivery by the senders or the addressees of those letters.

He further referred to the fact that at least in respect of three of the registered letters 415 acknowledgments purporting to be from the addressee were obtained and were with the post office.

He admitted that the prosecution allegation was that those documents were fabricated but that case having failed before the Court of Sessions and the Government not having appealed against that part of the decision of that court it must be held that at least three of those letters were duly received by the addressees.

The expression "in course of transmission by post" has been defined in section 3 (a) of the Act as follows : .lm15 " a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a Post Office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII.

" The mere fact that there is even a delay of several months in delivering a postal article to the addressee would not mean that the article had ceased to be in course of transmission.

It is common experience that delivery of postal articles is now and again delayed for a considerable length of time may be through accident or through the negligence of the postal employees.

It is probably for this reason that the definition clearly lays down that until an article despatched by post is delivered or can be said to be delivered that it will be deemed to be in course of transmission.

We cannot, therefore, accept the first part of this contention of Mr. Misra.

As regards the other point, that is, based on the fact that there were acknowledgments in respect of three letters in the post office we may point out that the existence of these acknowledgments would no more than raise a presumption that those articles were delivered to the addressees.

The addressees have been examined in this case and they have deposed that the letters in question were not received by them.

Their 416 evidence has been believed by the High Court and therefore, there is an end to the matter.

In the circumstances, therefore, we do not accept Mr. Misra 's contention that the act of an officer of the post office in being in possession of a postal article for an inordinate length of time has no significance and cannot justify the conclusion that he had secreted the article.

The next and in our opinion the most important question to be considered is whether the prosecution has established that the five registered letters in question were recovered from the possession of the appellant.

As already stated, all that the prosecution has been able to prove is this case is that these letters were found in an almirah of the house in which the appellant lives jointly with his father and of which the key was furnished by the father.

Dealing with this question the High Court has observed as follows : "In the first place, the respondent alone had the opportunity and the means to secure such a large number of postal articles.

(2) that at least nine of those postal articles were addressed to the respondent himself (vide exhibit Ka 9, serial No. 66), (3) that Dewan Singh, who, we are informed is a very old man, would not foist the said incriminating articles on his son and thus ruin his career for ever, and (4) that the respondent alone can be said to have had some motive for secreting and concealing the registered letters and other postal articles in question.

" Before the High Court could take into consideration the circumstance that as between himself and his father the appellant had a better opportunity to 417 get at postal articles it had to find affirmatively that the almirah was in the exclusive possession of the appellant.

We have not been able to discover anything in the judgment which directly bears on this question.

As the key was produced by the appellant 's father and there is no evidence that it was ever with the appellant it would not be legitimate to infer that the almirah was even in the appellant 's joint, much less in his exclusive, possession.

Tile circumstance that the almirah contained, apart from the registered letters in question, certain other articles belonging to the appellant cannot sustain an inference that the almirah was in the appellant 's possession exclusively or even jointly with his father.

We may recall that the almirah contained a large number of articles belonging to the father and since he had the key with him it must be he who must be deemed to be in possession of the almirah and consequently of its contents including the registered letters in question.

Apart from that, out of the four reasons given by it, the last, as pointed out by the High Court itself, is a speculative reason and must, therefore, be left out of consideration.

The second 'reason ' is no reason at all because a very large number of articles found in the almirah admittedly belong to the father.

The third reason that the rather would not foist articles to incriminate the son and thus ruin his career assumes that had the father kept the articles he could have done so only if he wanted to incri minate the son.

We cannot understand why the father, if he happened to get possession of the articles from some source may not have kept them in the almirah in the same way in which he had kept the other articles belonging to him.

That leaves, therefore, only the first reason.

We doubt if on the basis of this reason alone the High Court could have held that though the locked almirah was not in the exclusive possession of the appellant, these articles were in his exclusive possession.

If the point to be 418 established was whether the appellant had availed himself of the opportunity to procure the articles it could have been established by showing that he was in their exclusive possession.

But to say that he must be deemed to be in exclusive possession of these articles and not merely in their joint possession along with his father because he had the opportunity to get at the articles and then infer that he must have utilized the opportunity and was therefore in their exclusive possession would be arguing in a circle.

Moreover since entrustment of the articles has not been established, the taking away of the articles by the appellant from the post office (if that is how he came by the articles) would be theft but it has not been found that he committed any theft.

Indeed, had it been so found he could have been convicted under section 52 without the Court having to consider whether he had secreted the articles.

We may mention that Mr. Mathur who appears for the State does not even suggest that the articles were stolen by the appellant.

Therefore, the contention that he had an opportunity to get at the articles loses all significance and can possibly have no bearing on the question as to the nature of possession attributable to the appellant.

In the circumstances we must hold that the prosecution has failed to prove that these letters were in the exclusive possession of the appellant.

No presumption can, therefore, be drawn against him that he had secreted them from the mere fact that they were found in the almirah which, at best, may be regarded as being in the joint possession of himself and his father.

But, as already stated, even an, inference of joint possession would not be legitimate.

For these reasons we allow the three appeals and set aside the conviction and sentences passed against the appellant.

Appeal allowed.

Summary: The appellant, a postman, and I,is father were living in the same house.

Summary: Certain undelivered postal articles were re covered from an almirah in the house, the key of which was produced by the father.

Summary: The appellant was tried and convicted of an offence under section 52 Post Offices Act for secreting postal articles.

Summary: The appellant contended that since it had not been proved that he had been entrusted with these articles the offence under section 52 was not made out and that lie could not be held guilty of secreting as he was not in exclusive possession of these articles.

Summary: Held, that entrustment was not an essential ingredient of the offence under section 52.

Summary: Where the legislature intended to make entrustment an ingredient of the offence it had used appropriate words to make it clear.

Summary: It had used no such words in section 52.

Summary: To secrete means to hide.

Summary: In a case like the present, the retention of an undelivered postal article in an almirah for an inordinately long period would be tantamount to hiding that article.

Summary: Held, further, that the appellant was not in exclusive possession of the postal articles and no inference could be drawn 409 that he had secreted them.

Summary: As the key was produced by the appellant 's father it could not be inferred that the appellant was in joint possession of the almirah much less that he was in exclusive possession of it.

Summary: No inference could be drawn from the fact that the almirah contained certain other articles belonging to the appellant as it also contained a large number of articles belonging to the father.


iminal Appeal No.112 of 1965.

Appeal by special leave from the jurisdiction and order dated April 29, 1965 of the Allahabad High Court in Criminal Misc. 'Contempt Case No. 43 of 1965.

A. section R. Chari, M. K. Ramamurthi, Vineet Kumar and Shyamala Pappu, for the appellants.

O. P. Rana, for respondent No. 1.

J. P. Goyal, V. C. Prasar and section P. Singh for respondent No. 2.

The Judgment of the Court was delivered by Sikri, J.

This appeal by special leave is directed against the judgment of the Allahabad High Court adjudging the five appellants guilty of contempt of court and sentencing each of them to pay a fine of Rs. 1,000/ and further ordering that in case of default they shall undergo simple imprisonment for two weeks.

The High Court held that the five appellants had disobeyed an order of stay passed by it staying proceedings pending before the Nyaya Panchayat, Jokha Khas, District Deoria.

The relevant facts are these.

On September 2, 1963, Yashoda, son of Raj Kumar, filed a complaint before the Nyaya Panchayat, Jokha Khas, against Jagdeo, Mahabir and Laxmi alleging that he had been abused and be laboured and his property worth Rs. 40/ damaged.

On September 10, 1963, the Nyaya Panchayat assembled and evidence was led before it.

The case was adjourned to December 25, 1963.

On October 11, 1963, Mahabir, accused, made an application under section 85 of the U.P. Panchayat Raj Act, 1947, to S.D.M., Deoria, to transfer the proceedings on the ground that the complainant Yashoda was father of Bunna Prasad, Sarpanch of Nyaya Panchayat, Jokha Khas.

On November 28, 1963, the S.D.M. rejected this application.

On December 13, 1963, a notice was issued to the five members of the Panchayat to assemble on December 25, 1963, and hear the case.

On December 20, 1963, Mahabir moved an application under article 227 of the Constitution challenging the order of the S.D.M., dated November 28, 1963, and on the same day the High Court admitted the application and stayed further proceedings before the Nyaya Panchayat.

An urgent copy of the order was applied for and obtained on that very day and the counsel sent a telegram in the following words "Allahabad He 20 Baldeopd cashier Trust Sdr GR Mahabir application admitted stay granted Banwarilal.

" 117 It is alleged on the side of the applicant, Mahabir, that immediately after the receipt of the telegram an application accompanied by an affidavit and the telegram of his counsel in the High Court was presented before the Nyaya Panchayat with the prayer to stay further proceedings but the Sarpanch refused to take it.

This fact was denied and the High Court seems not to have relied on this fact in its judgment.

It seems to us that it is not proved on the evidence here that any such application was made before the Nyaya Panchayat.

No application dated December 21, 1963, which was not accepted by the Nyaya Panchayat, has been produced.

On December 23, 1963, Mahabir submitted an application in the Court of Shri R. Singh, S.D.M., Deoria, alleging that "writ petition has been admitted and a stay order has been issued.

But notwithstanding my informing the Panchayat Adalat of that, I am not getting any hearing there, and when an application is made there, it is not entertained." He prayed that the Panchayat Adalat be directed to postpone proceedings pending the receipt of the stay order.

He produced the telegram received from the Advocate before the S.D.M.

In the affidavit accompanying the application, however, no mention was made about Mahabir having informed the Panchayat Adalat of the stay order or the fact that the order and the application was not being entertained by the Adalat.

It happened that the S.D.M. was absent on December 23, 1963, and papers were put up before Shri section K. Srivas tava, Additional Sub Divisional Magistrate, who issued the order "Put up with records".

Apparently he did not take any further action till December 26, 1963.

But as the notice against Shri Srivastava has been discharged by the High Court, we need not give any further details about his various orders, On December 25, 1963, the Nyaya Panchayat met and proceeded to hear the case.

The order sheet reads thus : "Put up today the 25th December, 1963.

The complainant and the accused are present.

The statements of the complainant and his witnesses, Bhabhuti and Damri, are recorded.

The accused refused to make statements and put down their signatures.

Today, the 25th December, 1963, Mahabir has made an applica tion to the Court and signed it before it.

Hence judgment shall be given on 25 12 63.

" This order was signed by three Panchas, Phagu Parsad, Jagat Dubey and Badri Yadav.

On the same day a final order was made holding the accused guilty and imposing a fine of Rs. 3/ each on accused Nos. 1 and 3, and Rs. 9/ on accused No. 2.

The application of Mahabir, referred to in the order, reads thus: 118 .lm15

Sir, It is submitted that I have filed a writ petition in the above case, in the High Court.

It has been admitted by the High Court which has stayed proceedings also in this case.

It is, therefore, prayed that the proceedings in this case may be stayed." A document purporting to be an affidavit was also attached, in which it was stated "I make oath and say that in the above case I have filed a writ petition in the High Court, that it has been admitted, and that proceedings in the case have been stayed by the High Court.

" We looked at this so called affidavit and found.

that it has not been sworn to before any person authorised to administer oaths.

On May 21, 1964, Mahabir filed an application under sections 4 and 5 of the , against the five appellants and section K. Srivastava, A.S.D.M.

The main allegation, apart from reciting the facts which we have already detailed above, was that "in spite of the knowledge of the interim stay dated 20 12 63 passed by the Hon 'ble High Court the Sarpanch, the Opposite Party No. 1 and the members of the Bench, Opposite Parties Nos. 2 to 5 disobeyed the order of the Hon 'ble High Court and disposed of the case on 25 12 63 and thus they committed contempt of the Hon 'ble High Court.

" Affidavits were filed in the High Court by Baldeo Prasad, pairokar of Mahabir, Burma Prasad, the Sarpanch, and Mahabir, and statements of Phagu Prasad and Bunna Prasad were recorded on oath.

Bunna Prasad, in his affidavit, stated that as the Nyaya Panchayat was not satisfied for want of evidence by way of proper affidavit etc.

, the Nyaya Panchayats proceeded with the case.

Phagu Prasad.

in his statement, stated "As the paper of Mahabir 's application and affidavit was not good, we had asked him to get them written on a proper paper obtained from the Tehsil.

We had also told him to get the affidavit verified before some Tehsil authority.

We had told Mahabir as above before we had read the application and affidavit presented before the Nyaya Panchayat.

Mahabir told us that he is not prepared to go to Tehsil, but is presenting before the Panchayat whatever he has got in his possession." Phagu Prasad further stated that "no other affidavit had ever been filed before us, but we knew that in the law courts the 119 affidavits,which are filed, are verified by some authority."He further added that "the reason why we did not believe theaffidavit of Mahabir was that it did not contain any date of theHigh Court 's stay order." Bunna Prasad, in his statement, stated that he had told Mahabir to bring the affidavit on a good quality paper of full size, and Mahabir thereupon told him that he would present whatever he had.

According to him, the Panchas did not tell Mahabir that his affidavit was not proper; they, however, told him to get it verified in Tehsil and that it should be duly sealed.

The High Court, on examination of the evidence, came to the conclusion that it was the Sarpanch who bad initially declared that the affidavit of the applicant was not proper and that the matter should file a proper affidavit in support of his allegations, though the Sarpanch had admitted in his deposition that he had to authority to tell Mahabir that his affidavit was not proper.

It appeared to the High Court that "the Sarpanch first wanted to avoid the petitioner 's affidavit being brought on the record by declaring that it was not proper because it did not fully evidence the fact that the High Court had passed an order staying proceedings before the Nyaya Panchayat." The High Court further held that "the Nyaya Panchas faithfully accepted the objections raised by the Sarpanch and dittoed him about the impropriety of the petitioner 's affidavit and inadequacy of the evidence contained therein regarding the stay order alleged to have been.

passed by the High Court.

" The High Court disbelieved the explanation of the Panchas given before it because no mention of these was made in the order sheet dated December 25, 1963.

The High Court held : "There was no reasonable ground for the Panchas to have doubted the averments made in the application and affidavit of Mahabir that the High Court had stayed further proceedings before the Panchayat, nor is there any thing in the order sheet to show that the Panchas did not believe the contents of the application, and affidavit of Mahabir.

However, if they wanted to ascertain the matter, they should have at best stayed the proceedings for a short while and should have asked the applicant to produce a certified copy of the stay order.

In the alternative, they should have verified from the Sub Divi sional Magistrate whether Mahabir had really filed an application and affidavit before him along with the original telegram received from his counsel at Allahabad saying that the High Court had already stayed the proceedings before the Nyaya Panchayat.

But the Panchas did nothing of the kind.

The action of the Nyaya Panchas in not doing so was obviously not bona fide and 120 amounts to wilful disobedience of the High Court 's order.

The learned counsel for the appellants, Mr. Chari, says that no contempt of court has been established because a Court is entitled not to act on an application which is not accompanied by an affidavit properly sworn to or a certified copy of the order He urges that the Nyaya Panchayats exercised judicial powers and, even if the Panchas erred in not staying proceedings, before finding them guilty of contempt of court it should be definitely proved that the order was passed deliberately to by pass the order of the High Court.

This Court quoted with approval the following passage from Oswald 's Contempt of Court, in Hoshiar Singh vs Gurbachan.

Singh(1): "The judgment or order should be served on the party personally, except in the following cases : (1) prohibitive orders, the drawing up of which is not completed;. .

In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order Was pronounced, or *hen the motion was made, although he left before the order was pronounced.

" We need not consider whether it makes any differnce in law if the order has been drawn up.

We will for the purpose of this case assume that it does not make any difference.

It is also clear that in such matters those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt.

If there is any doubt, the benefit ought to be given to the person charged with contempt of court.

If a person bona fide comes to the conclusion on the material placed before him that the source of information is not authentic he cannot be held guilty of contempt of court for disobeying the order.

The question then arises whether the Sarpanch and the Pan chas had knowledge of the existence of the order of the High Court dated December 20, 1963.

The only material before them was the application dated December 25, 1963, which was not supported by any affidavit sworn to before a person authorised to (1) [1962] Supp. 3 S.C.R. 127,138.

121 administer oaths.

Further, the application did not contain the .date of the order; even a copy of the telegram was not attached to the application; and the application seems to have been made after the proceedings on that date had commenced and evidence taken.

We are unable to appreciate how on this material the bona fides of the Panchas can be doubted if they refused to accept the mere statement of the party that the High Court had stayed proceedings before them.

It seems to us that the High Court did not appreciate that the so called affidavit which was filed before the Panchas was in fact not an affidavit at all.

it had not been sworn to before any person authorised to administer oaths.

It was no part of the duty of the Panchas to enquire from the S.D.M. about the filing of the application before him.

At any rate, he has apparently no jurisdiction to stay proceedings before the Nyaya Panchayats when no Proceeding is pending before him.

It is true that in certain cases proceedings can be adjourned to enable the parties to file better proof, but a judicial officer is not bound to do so and, if he bona fide does not in his discretion adjourn proceedings, it cannot be said that he has committed contempt of court.

It must also be borne in mind that Panchas are not well versed in law and procedure and the records maintained by them should not be judged in the same manner as that of ordinary courts.

With respect, the High Court should not have drawn an adverse inference from the fact that the reasons for not accepting the prayer for stay were not recorded.

Contempt of court is a serious matter and a High Court should be chary of finding a judicial officer guilty of contempt of court for disobeying its orders unless there is unimpeachable evidence that the judicial officer had knowledge of the order of the High Court.

In our opinion, there is no such evidence in this case.

The learned counsel for the State contends that we should not reappreciate the facts, but, with respects, it seems to us that the High Court, while dealing with the evidence, has not kept in mind the principles which we have mentioned above.

In the result we allow the appeal and set aside the judgment and order of the High Court.

R.K.P.S. Appeal allowed.

Summary: M, an accused person in certain proceedings pending before the Nyaya Panchayat filed a petition under article 227 in the High Court and obtained a stay of the proceedings on December 20, 1963 .

Summary: Thereafter when the Panchayat met to proceed with the matter, he made an application supported by a document purporting to be an affidavit stating that the High Court had admitted his writ petition and had stayed further proceedings before the Panchayat; and that therefore nothing further should be done in the matter.

Summary: However, the, Panchayat did not allow his application and proceeded (to hold M and others guilty and imposing fines on them.

Summary: M, thereafter filed an application under sections 4 and 5 of the , alleging contempt of the High Court by the Panchayat.

Summary: An affidavit filed before the High Court by the Sarpanch stated that the document filed by M, by way of an affidavit in support of his application had not been verified by any proper authority and for this and other reasons the Panchayat did not believe that the High Court had stayed the proceedings.

Summary: The High Court held the members of the Panchayat guilty of contempt and observed that if they wanted to ascertain the matter, they should have at best stayed the proceedings for a short while and asked the applicant to produce a certified copy of the stay order; in not doing so, the Panchas had obviously not acted bona fide and their action amounted to, wilful disobedience of the High Court 's order.

Summary: On appeal to this Court, HELD : The appeal must be allowed and the judgment and order of the High Court set aside.

Summary: The only material before the Panchayat was the application dated December 25.

Summary: 1963, which was not supported by 'any affidavit sworn to before a person authorised to administer oaths.

Summary: Further, the application did not contain the date of the order; even a copy of the telegram stated to have been sent by M 's advocate in the High Court was not attached to the application.

Summary: On this material the bona fides of the Panchas could not be doubted if they refused to accept the mere statement of the party that the High Court had stayed the proceedings before them.

Summary: In such matters those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt.

Summary: If there is any doubt.

Summary: the benefit, ought to be given to the person charged with contempt of court.[120 F H; 121 A B] It is true that in certain cases proceedings can be adjourned to enable the parties to file better proof, but a judicial officer is not bound (to do so and, if the bona fide does not in his discretion adjourn proceedings, it cannot be said that he has committed contempt of court.

Summary: [121 C D]


ION: Criminal Appeal 89 of 1961.

Appeal by special leave from the judgment and order dated December 8, 1960, of the Allahabad High Court in Criminal Appeal No. 1782 of 60 and Referred No. 125 of 1960, section K. Kapur, for the appellant, G. C. Mathur and C. P. Lal, for the respondent.

December 19.

The Judgment of the Court was delivered by RAGUHBAR DAYAL, J.

Ram Singh appeals, by special leave, against the order of the Allahabad High Court dismissing his appeal and confirming 204 his conviction and sentence of death, under section 302, I.P.C., by the Session Judge, Etawah.

The prosecution case, in brief, is that due to enmity, the appellant caused injuries to Sheo Sahai, who was sleeping in his cattle shed in village Bhadurpur Ghar, with a sword at about mid night on the night between June 14 15, 1960.

Sheo Sahai died of the injuries received.

The appellant thereafter proceeded to the Canal Distributory at some distance from the village and had a bath there.

Later on, he went to the Police Station, Ekdil, nine miles away and lodged a report.

He delivered the sword which has been found by the Serologist to be stained with human blood.

The appellant was taken in custody and as a result of the investigation was sent up for trial, The appellant denied the allegation that he had caused the death of Sheo Sahai and alleged that he was falsely accused of the offence.

He also denied the other allegations for the prosecution.

He alleged that one Paley Singh informed him about the murder of Sheo Sahai and asked him to go to the Police Station, Ekdil, and to inform the Station Officer orally about the murder.

He did accordingly.

He was detained at the Police Station till 11 a.m., the next day and was then put up in the lock up.

The Sub Inspector took his thumb impression forcibly on three papers, but did not tell him the reason.

The appellant adduced no evidence in support of his statement.

The Courts below rightly did not accept his version.

The evidence led by the prosecution consisted of the evidence relating to motive, to his extrajudicial confession to one Ujagar Singh when he was having a bath in the Canal, to his purchasing the sword and to his delivering it at the police Station after he had dictated the report.

Both the Courts below rightly believed the evidence about the motive and purchase of the sword by the appellant.

205 The learned Sessions Judge believed Ujagar Singh and acted on the extra judicial confession made by the appellant to him.

The High Court, however, did not rely on this extra judicial confession.

It relied on certain statements made by the appellant in his report dictated at the Police Station and considered those facts together with the motive and the evidence about the purchase of the sword sufficient to confirm the appellant 's conviction and sentence.

The learned counsel for the appellant has argued that the entire report dictated by the appellant was inadmissible in evidence as its contents amounted to a confession of the offence by the appellant made to a Police Officer and that the evidence relied upon by the High Court was insufficient to establish that the appellant had murdered Sheo Sahai.

On the other hand, learned Counsel for the respondent urged that the High Court was wrong in rejecting the statement of Ujagar Singh about the appellant 's extra judicial confession and that the extra judicial confession together with the circumstances relied on by the High Court, fully make out the prosecution case against the appellant.

He also urges that such portions of the report which did not amount to a direct admission of the appellant 's striking Sheo Sahai with a sword and thereby causing his death were admissible in evidence.

We do not consider it necessary to decide whether any portion of the report dictated by the appellant at the Police Station is admissible or not in evidence, as there is good independent evidence with respect to the four matters mentioned in the report and relied on by the High Court in considering the case against the appellant.

These admissions of the appellant are (i) that he purchased a cycle from the deceased; (ii) that there was a quarrel in a play of cards; (iii) that he purchased a sword; and (iv) that he deposited the sword at the Police Station.

206 Ajit Singh, P.W., 5 deposed about the purchase of the cycle and about a dispute taking place between Sheo Sahai and the appellant on account of the latter 's demanding the return of Rs. 10/ which had been paid towards the sale price as the balance of the sale price had not been paid and the deal was cancelled by Sheo Sahai in accordance with the oral contract.

Ajit Singh bears no enmity with the appellant.

In fact, none of the prosecution witnesses is alleged to bear enmity with the appellant.

Paley Singh, P.W. 2, and Baij Nath P.W. 4, depose about the dispute during the game of cards played on June 12, 1960.

Kehar Singh P.W.3.

deposed about the selling of a sword to the appellant on June 13, 1960.

A receipt about the sale was found on the person of the appellant when he was searched after his arrest.

The appellant 's depositing the sword at the Police Station is deposed by Madho Ram P.W. 12, and by Sri Kishan Singh, Station Officer, Ekdil, (P.W. 16), in whose presence the appellant had dictated the report.

It is therefore not necessary to rely on the admissions of the appellant in the report with respect to these facts deposed to by the various witnesses whose testimony has been rightly accepted.

We need also consider whether the facts that the accused had a motive to harm Sheo Sahai and that he had purchased a sword a day before the incident and deposited it stained with human blood at the Police Station on the night of the murder are sufficient to establish that it must be the appellant who committed the murder of Sheo Sahai or not, as we are of opinion that the High Court erred in rejecting the statement of Ujagar Singh about the appellant 's confessing to him that he had murdered Sheo Sahai.

207 In this connection, the High Court simply said: "A perusal of the statement of Ujagar Singh would show that it is very likely that this may have happened.

To us, it seems that in the middle of June when the chari and sugar cane crop would not have been very high, it seems improbable that Ujagar Singh would have been sleeping in his field or that he should have met the appellant in the manner alleged.

We do not feel sure of the extra judicial confession said to have been made by the appellant to Ujagar Singh, and consequently we do not place any reliance on his statement, though it has been relied upon by the court below.

" With respect to the learned Judges, these observations are not very consistent.

If Ujagar Singh 's statement made it very likely that what he stated did happen, there could not have appeared any improbability in Ujagar Singh 's sleeping in his field and meeting the appellant in the manner alleged, especially when the learned Judges believed, and there was evidence about it, that the fields had chari and sugarcane crop at the time.

The learned Judges have not stated those considerations, if any, in addition to the improbability of Ujagar Singh 's presence in his field on account of the crops being not very high, which made them doubt the appellant 's confessing to Ujagar Singh.

It may be mentioned that Ujagar Singh was on the field, according to his statement, for protecting the crop from the depradations of neel gais.

They damage the leaves of the plants and have no partiality for tall plants alone.

In fact, the smaller the plants, the easier it must be to graze.

The learned Sessions Judge has discussed the criticism urged before him against the acceptance of the statement of Ujagar Singh and considered 208 it, for reasons given, not to justify the rejection of Ujagar Singh 's statement.

We agree with those reasons.

There is no enmity between Ujagar Singh and the appellant and therefore no good reasons existed for Ujagar Singh to state falsely.

Extra judicial confessions are not usually considered with favour but that does not mean that such a confession coming from a person who has no reason to state falsely and to whom it is made in circumstances which tend to support his statement, should not be believed.

The murder was committed in the month of June.

Both on account of the temperature and on account of the culprit 's desire to wash of blood marks on his person, the appellant 's bathing in the Canal at that hour of the night cannot be said to be improbable.

It is not stated by sub Inspector Kishan Singh, nor it is alleged that the appellant had on his person or on his clothes blood stains when he presented himself at the Police Station.

This tends to support Ujagar Singh 's statement that the appellant had a bath in the Canal at that hour.

Of course, this consideration springs out of the supposition that the appellant did commit the murder.

The fact that he had the sword which was stained with human blood, leads to such a supposition, even if the mere possession of a sword so stained be not sufficient to establish conclusively that the person who possessed it so shortly after the murder of a person with whom he had enmity, had committed the murder.

The Canal runs beside Ujagar Singh 's field.

Ujagar Singh was on the field for the purpose of watching it against the neel gais trespassing and grazing the crop.

It is not therefore a matter of surprise that he wakes up and proceeds to the spot from where the splashing sound which, is supposed to be due to the wading of the neel gais, came.

On reaching the Canal bank, he observes 209 the person bathing and naturally asks him what.

led him to have a bath at that hour at night.

Taken by surprise, it is not unlikely that the appellant should have made a statement that he had committed the murder of Sheo Sahai and was, thereafter, having a bath.

There is no reason to think that the appellant would not make such a statement when the appellant himself proceeds to the Police Station and hands over the blood stained sword.

It is no doubt unusual, as urged for the appellant, that a person who commits a murder in pursuance of an enmity arising out of minor disputes, would be feeling so justified in his conduct as to openly admit it to the first person he met and to go to the Police Station and report about it.

It is always difficult to find reasons for a person 's acting in a certain manner.

It may be that having blurted out the truth to Ujagar Singh, when taken by surprise, the appellant thought the best thing to be to proceed to the Police Station and report the matter there.

It is true that Ujagar Singh did not rush to the village at once and convey the news of the murder of Sheo Sahai.

The learned Sessions Judge has considered the criticism against such a conduct and has held that there were good reasons for Ujagar Singh 's not leaving his field whose crops he was watching against the neel gais.

We agree with the view of the learned Sessions Judge and do not consider Ujagar Singh 's conduct of continuing to remain on his field during the night to be so improbable as to affect his veracity.

Ujagar Singh went to the village at about 5 a.m., and them told the people of what he had been told by the appellant.

This statement of his, is supported impliedly by Paley Singh, P.W. 2, who states that the Sub Inspector was not present when Ujagar Singh related to them the fact which had taken place at night and by Bishram Singh, P.W. 13, who 210 deposed that Ujagar Singh stated that Ram Singh was taking his bath at night in the Canal Distributory and had said that he had come after committing the murder of Sheo Sahai and that the appellant had then proceeded towards the police station.

We are therefore of opinion that Ujagar Singh 's statement about the appellant 's confessing to him that he had murdered Sheo Sahai has been erroneously rejected by the High Court.

The extra judicial confession of the appellant to Ujagar Singh finds ample support from the facts that the appellant did purchase a sword a day before, that very sword was found to be stained with human blood shortly after the murder and that sword was handed over by the appellant himself to the Police Officer at the Police Station.

The evidence of the appellant 's having enmity with Sheo Sahai, the appellant 's conduct in purchasing a sword and delivering it stained with human blood to the Police and the appellant 's confession to Ujagar Singh, fully establish that the appellant did commit the murder of Sheo Sahai.

We are therefore of opinion that he has been rightly convicted of the offence under section 302, I.P.C., and has been awarded the proper sentence.

We therefore dismiss the appeal.

Appeal dismissed.

Summary: The appellant was tried for murder.

Summary: The facts established were that there were quarrels between the appellant and the deceased over the purchase of a cycle and in a play of cards that the appellant had purchased a sword a day earlier and that he had deposited the sword stained with human blood at the police station shortly after the murder.

Summary: Evidence was also led of an extra judicial confession made by the appellant to one U but the High Court did not place reliance on it as it did not feel sure of it though it observed that a perusal of the statement of U showed that it was very likely that what he stated may have happened.

Summary: ^ Held, that the statement of U regarding the extra judicial confession was erroneously rejected by the High Court.

Summary: Extra judicial confessions were not usually considered with favour but such a confession coming from a person who had no reason to state falsely and to whom it was made in circumstances which tended to support his statement could be relied upon.

Summary: The extra judicial confession in the present case was supported by the facts established, and these together fully established the guilt of the appellant.


Civil Appeal Nos.

1617 and 1640A of 1979.

Appeals by Special Leave from the Judgment and order dated 20 1 1979 of the Madhya Pradesh High Court in Misc.

Petition No 884 of 1978.

R. P. Bhatt and Sri Narain for the Appellant (In CA 1617/79).

G. L. Sahu and Miss Maya Ra for the Appellant (In CA 1640A/79) an R. 54 in CA 1617/79.

Shiv Shankar Rao, H. K. Puri, V. K. Bahl and Miss Madhu Moolchandani For RR 7 10, 13, 14, 16, 18 25, 27 29, 33 36, 39 42, 45, 49 and 50 in CA 1617 and for RR 7, 10, 13 14, 16, 18 25, 27 29, 33 36, 39 42, 45, 49 & 50 in C.A. 1640A/79.

section K. Gambhir for RR.

5 6 in CA 1617/79.

The Judgment of the Court was delivered by VENKATARAMIAH, J.

For the purpose of holding election to the .

Municipal Corporation of Raipur in the month of December, 1978 under the provisions of the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956) (hereinafter referred to as 'the Act '), the Collector of Raipur published the preliminary electoral roll on September 30, 1978 under Rule 4(1) of the Madhya Pradesh Munici 493 pal Corporation (Preparation, Revision and Publication of Electoral Rolls and Selection of Councillors) Rules, 1963 (hereinafter referred to as 'the Rules ') promulgated under the Act by the Madhya Pradesh State Government and issued a public notice under Rule 4(1) of the Rules calling upon persons whose names had not been included in the electoral roll and who claimed to be included in i. and persons who had any objection to the inclusion of the name of any person in the said electoral roll to submit their claims and/or objections within 20 days from the date of the publication of the said notice before Shri K. P. Pande, Deputy Collector, Raipur who had been authorised to pass orders on such claims or objections.

It was also notified that claims or objections which had not been preferred as required under the Rules within the prescribed period would be rejected.

The final publication of the electoral roll under Rule 8 of the Rules was done on November 16, 1978.

Thereafter the calendar of events was published on November 25, 1978 notifying that the poll, if necessary would take place on December 31, 1978 in all the 44 constituencies: Six petitioners including the appellants herein presented a petition under Article 226 of the Constitution before the High Court of Madhya Pradesh at Jabalpur on December 28, 1978 requesting the Court to make an order quashing the electoral roll and the calendar of events issued for the purpose of the said election and directing the respondents to refrain from conducting the poll on December 31, 1978.

They prayed for a further direction to be issued to the respondents calling upon them to hold the election after preparing the electoral roll afresh in accordance with the provisions of the Act and the Rules.

They also prayed for the issue of an interim order staying the poll which had been fixed to be held on December 31, 1978.

On December 30, 1978, the learned Single Judge before whom the case came up for orders directed the issue of notice of the petition and the stay application to the respondents and issued an interim order directing the respondents not to notify the results of the election under Rule 46 of the Rules pending disposal of the petition.

On December 31, 1978, the poll was held and 44 persons were declared elected.

Their names were, however, not published under Rule 46 of the Rules in view of the interim order made by the Court.

Thereafter the successful candidates were also impleaded as respondents and the petition was amended by the inclusion of an additional prayer that the declaration of the results of the election should also be quashed.

After the respondents filed their counter affidavits, the petition was heard and it was dismissed by a Division Bench of the High Court on January 20, 1979.

Aggrieved by the order passed by the High Court, Ashok Kumar Mishra and Bhagwat Singh Thakur (Petitioners No. 1 and 5 respectively in the 494 petition before the High Court) filed a petition for special leave to appeal to this Court and Purshottam Lal Sharma (petitioner No. 6 before the High Court) filed another petition.

On special leave being granted, the above petitions were registered as appeals.

One of the grounds on which the appellants challenged the validity of the electoral roll, the calendar of events and the declaration of results of election was that the entire election process had become vitiated on account of the defect in the notice issued under Rule (1) of the Rules notifying that claims and objections should be preferred within a period of 20 days from the date of the publication of that notice when sub rule (3) of Rule 4 of the Rules prescribed that such claims and objections could be preferred within 30 days from the date of publication of that notice.

It was alleged that by reason of a shorter period being fixed for entertaining claims and objections, a large number or people who could have filed claims and objections were prevented from preferring them within 30 days from the date of publication or the notice which was the prescribed period.

It was alleged that petitioner No. 5 had filed a claim to include his name in the electoral roll on October 19, 1978 and that was rejected by the Deputy Collector without following the procedure prescribed for the purpose.

It was also alleged that on October 20, 1978, 34 persons mentioned in Annexure P 7 approached the Deputy Collector to entertain their claim for inclusion in the electoral roll and he refused to receive their applications.

It was contended that on account of noncompliance with Rule 4(3) of the Rules, which was mandatory, the entire election process held on the basis of the defective electoral roll '.

became a nullity and that therefore, the declaration of results of all the 44 successful candidates was liable to be quashed.

On behalf of the respondents, it was pleaded that while it was true that the period of 20 days had been mentioned in the notice issued under Rule 4(1) of the Rules, it was open to all the persons who were interested in preferring claims or objections to file them within 30 days from the date of publication of the notice under Rule 4(1).

It was pleaded that pursuant to the notice published under Rule 4(1) of the Rules only four claims including that of petitioner No. S were received by the Deputy Collector; that all the applicants were asked to appear on October 30, 1978 to substantiate their claim and that the applications were disposed of on October 30, 1978.

The claim of petitioner No. 5 was rejected as no evidence in support of his claim was produced before the Deputy Collector.

It was further pleaded that no other claims or objections were preferred either on October 20, 1978 or on any other sub sequent date.

The allegation that 34 persons had approached the Deputy 495 Collector requesting him to receive their applications for inclusion of their names in the electoral roll on October 20, 1978 was denied.

They further pleaded that the authorities would have taken action to correct the error in the notice issued under Rule 4(1) of the Rules granting 20 days ' time to prefer claims and objections if it had been brought to their notice by the petitioners immediately after it was noticed by them.

The petitioners were not entitled to any relief under Article 226 of the Constitution on account of the inordinate delay involved in the presentation of the writ petition.

The High Court after hearing the parties dismissed the petition holding (i) that respondent No. 2, the Deputy Collector had asked petitioner No. S to appear before him on October 30, 1978 and that as he did not produce any evidence in support of his claim, his application was dismissed, (ii) that none of the persons mentioned in Annexure P 7 preferred any claim before respondent No. 2 on October 20, 1978 and that he did not refuse to receive any such claim and that no person preferred any claim or objection after October 19, 1978 before respondent No. 2 and (iii) that the petitioners were not entitled to any relief as they had approached the Court after undue delay.

Since one of the grounds on which the High Court dismissed the petition was that the petitioners were not prompt in moving the High Court, we shall first examine whether the High Court was right in doing so, since if we agree with the High Court on the above question, it would become unnecessary to go into the other questions raised before us.

The Collector published the notice under Rule 4(1) of the Rules on September 30, 1978 and also called upon interested persons to prefer claims and/or objections thereto within a period of 20 days.

In paragraph 7 of the notice, it was mentioned that claims and objections received beyond the prescribed period would not be considered.

The period prescribed for preferring claims and objections under Rule 4(3) was 30 days.

It is not the case of the petitioners that they did not know immediately after the publication of such notice that in the said notice a period of 20 days had been mentioned in its preamble as the period within which the claims and objections could be preferred and in paragraph 7 thereof it had been stated that any such claim or objection filed beyond the prescribed period was liable to be rejected.

If they felt that the said notice suffered from any illegality, they could have brought it to the notice of the Collector immediately 496 thereafter.

It was open to them to move the State Government under Rule 6 of the Rules to make an order directing the Collector to follow .

the provisions governing the preparation of the electoral roll.

It was also open to them to file a writ petition immediately after the publication of the said notice questioning its legality.

None of the above courses was adopted by the petitioners.

Persons whose claims were rejected could have filed an appeal under Rule S before the Collector.

No such appeal was presented.

The final electoral roll was published on November 16, 1978.

It was notified that the nominations could be filed on and after November 25, 1978 and the poll, if necessary, would take place on December 31, 1978.

After November 25, 1978, a large number of nominations were received by the Returning officer.

It was only on December 5, 1978 for the first time that a letter was addressed by petitioner No. 6 to the Collector drawing his attention to the error that had crept into the notice published under Rule 4(1) of the Rules.

By that time, the nominations had all been received.

The final list of candidates for the election with their symbols was published on December 20, 1978.

The writ petition itself was filed on December 28, 19?8 when the poll had to take place on December 31, 1978.

When the petition came up for order on December 29, l 978, it had to be adjourned to December 30, 1978 at the request of the counsel for the petitioners.

No satisfactory explanation was given in the course of the petition by the petitioners as to why they delayed the filing of the petition till December 28, 1978 even though they knew that there was an error in the notice issued under Rule 4(1) of the Rules in the month of October, 1978 more than two months before the date on which i, was filed.

It was, however, argued before us relying upon a news item which had appeared in a daily called 'Nav Bharat ' dated October 21, 1978 in which there was a reference to a statement made by the Minister for Local Self Government of Madhya Pradesh regarding the irregularity in the division of Raipur town into different wards for purposes of election.

It was also stated therein that in the course of the discussion with the press reporters on that day, the Minister had stated that he had directed the Commissioner, Raipur Division, Raipur that the date for inclusion of names in the electoral roll could be extended if the election date was not affected.

There was a further reference to dates of election to Bilaspur Municipal Committee having been adjourned twice before.

It is difficult to place any reliance on the above news item for the purpose of concluding that the Collector, Raipur had been informed about the defect in the notice issued under Rule 4(1) of the Rules by October 21, 1978.

The other documents produced alongwith the writ petition referred to omissions of certain names from the electoral roll.

They do not show that any 497 of the petitioners had raised any objection with regard to the date within which the claims and objections could be preferred to the electoral roll mentioned in the notice.

We have, therefore, to proceed on the basis that it was only on December S, 1978 for the first time that the attention of the Collector was drawn to the said error and that the writ petition itself was presented on December 28, 1978.

No satisfactory reason for the delay was set out in the petition.

It is well settled that the power of the High Court under Article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is not satisfactory explanation far the inordinate delay, it may reject the petition if it finds that the issue of Writ will lead to public inconvenience and interference with rights of others.

This rule applies also to a case in which the validity of an election to a local authority is challenged.

The question whether in a given case the delay involved is such that it dissentients a person to relief under Article 226 is a matter within the discretion of the High Court which as in all matters of discretion has to exercise it judiciously and reasonably having regard to the surrounding circumstances.

We are not, therefore, impressed by the argument that the petitioners were entitled to the issue of the writ prayed for as of right and the delay in filing the petition should have been ignored.

On the facts and in the circumstances of the case, we are of the view that the writ petition was rightly dismissed by the High Court as there was no satisfactory explanation for the delay in preferring it.

We, therefore, find it unnecessary to deal with the other points urged before us.

For the foregoing reasons, the appeals fail and arc dismissed.

We make no order as to costs.

Summary: On September 30, 1978 the Collector published the preliminary electoral roll under Rule 4(1) of the Madhya Pradesh Municipal Corporation (Preparation, Revision and Publication of Electoral Rolls and Selection of Councillors) Rules, 1963 for the purpose of holding elections in December, 1978 to the Municipal Corporation, and also issued a notice under the said rule inviting claims or objections to be filed within twenty days from the date of publication of the notice.

Summary: A period of 30 days was however actually provided in the rule.

Summary: The final publication of the electoral roll was made on November 16, .1978.

Summary: After November 25, 1978 a large number of nominations were received by the Returning officer arid the final list of candidates for the elections with their symbols was published on December 20, 1978 and the poll took place on December 31, 1978.

Summary: The appellants (Petitioners 1, 5 and 6) along with some others in their writ petition filed on December 28, 1978 contended that the entire election process had become vitiated on account of the defect in the notice issued by the Collector under Rule 4 (1) providing 20 days for preferring claims and objections while the rule prescribed 30 days and that by non compliance with this mandatory requirement, the entire election process held on the basis of the defective electoral roll, became a nullity and therefore the declaration of results of the successful candidates was liable to be quashed.

Summary: The High Court held that the appellants were not entitled to any relief as they had approached the Court after undue delay.

Summary: Dismissing the appeals this Court, ^ HELD: 1.

Summary: It is well settled that the power of the High Court under article 226 of the Constitution to issue an appropriate writ is discretionary and if the High Court finds that there is no satisfactory explanation for the inordinate delay, it may reject the petition if it finds that the issue of writ will lead to public inconvenience and interference with rights of others.

Summary: The question whether in a given case.

Summary: the delay involved .

Summary: is such that it dissentients a person to relief .

Summary: under article 226 is a matter within the discretion of the High Court which as in all matters of 492 discretion has to exercise it judiciously and reasonably having regard to The surrounding circumstances.

Summary: [497C D] 2.

Summary: If the appellants felt that the notice under Rule 4(3) suffered from any illegality, they could have brought it to the notice of the Collector immediately Thereafter.

Summary: It was open them to move the State Government under Rule 6 of the Rules to make an order directing the Collector to follow the provisions governing the preparation or the electoral roll.

Summary: None of the above courses was adopted by the appellants.

Summary: Persons whole claims were rejected could have filed an appeal under Rule 5 before the Collector.

Summary: No such appeal was presented.

Summary: [495H 496B] 3.

Summary: It was only on December 5, 1978 for the first time a letter was addressed by one of the petitioners to the Collector drawing his attention to the error that had crept into the notice under Rule 4(1) of the Rules.

Summary: By that time, the nominations had all been received.

Summary: The final list of candidates for the election with their symbols was published on December 20, 1978.

Summary: The writ petition itself was filed on December 28, 1978 when the poll had to take place on December 31, 1978.

Summary: No satisfactory explanation was given in the course of the petition by the petitioners as to why they delayed the filing;, of the petition till December 28, 1978, even though they knew that there was an error in the notice issued under Rule 4(1).

Summary: [496C E]


N: Criminal Appeal No. 34 of 1970.

Appeal by certificate under Article 134(1)(c) of the Constitution of India from the judgment and order dated 18 3 1969 of the Andhra Pradesh High Court in Criminal Revision Case No. 360 of 1968.

F. section Nariman, Additional Solicitor General of India and A. V. Rangam, for the appellants.

L. N. Sinha, Solicitor General of India and A. V. V. Nair, for the Advocate General Andhra Pradesh.

The Judgment of the Court was delivered by ALAGIRISWAMI, J.

This is an appeal against the judgment of the Full Bench of the Andhra Pradesh High Court reported in A.I.R. (1970) A.P. 70.

It arises out of a complaint filed against the 1st respondent company and its directors for failure to Me with the Registrar of Companies on or before 30 10 1967 the balance sheet and profit and loss account of the company as required under section 220(1) of the , which is punishable under sub section (3) of that section.

Admittedly no general body meeting had been held and, therefore, the balance sheet and profit and loss account had not been laid before a general body meeting nor could it be so laid.

The Full Bench speaking through Jaganmohan Reddy, C.J., as our learned brother then was, held that if no balance sheet is laid before a general body, there can be no question of that balance sheet not being adopted nor of complying with the requirements of section 220 and though wilful omission to call a general body meeting and to lay the balance sheet and profit and loss account before it may expose the person responsible to punishment under other provisions of the Act, it certainly does not make him liable under the provisions of section 134(4) of the Companies Act, 1913 or section 220 of the .

In this the Bench was taking a view contrary to that of most of the High Courts after the decision of this Court in The State of Bombay vs Bandhan Ram Bhandani & Ors.(1) In that case this Court (1) ; , 412 had taken the.

view that a person charged with an offence cannot rely on his default as an answer to the charge and so, if he was responsible for not calling the general meeting, he cannot be heard to say in defence to the charges brought against him that because the general meeting had not been called, the balance sheet and profit and loss account could not be laid before it.

In that case the directors of a company were prosecuted under sections 32(5) and 133(3) of the Companies Act, 1913, for breaches of sections 32 and 131 of that Act for having knowingly and wilfully authorized the failure to file the summary of share capital for the year 1953 and being knowingly and wilfully parties to the failure to lay before the company in general meeting the balance sheet and profit and loss account as at March 31, 1953.

The Bombay High Court, however, following its earlier decision in Imperator vs The Pioneer Clay and Industrial Works Ltd.(1) had upheld the acquittal of the directors by the Presidency Magistrate.

Referring to the decision of the Bombay High Court in that case this Court pointed out that decision turned on section 134 of the Companies Act, 1913 the language of which was to a certain extent different from the language used in sections 32 and 131 and refrained from going into the question whether the difference in language in section 134 on the one hand and sections 32 and 131 on the other made any difference to the decision of the case.

After referring to the decisions in Gibson vs Barlon(2) Edmonds vs Foster(3) and Park vs Lawton(4 )where it was held that a person charged with an offence could not rely on his own default as an answer to the charge, and so, if the person charged was responsible for not calling the general meeting, he cannot be heard to say, in defence to the charge that the general meeting had not been called, and that the company and its officers were bound to perform the condition precedent if they could do that, in order that they might perform their duty, this Court considered that as the correct view to take.

As we have noticed, this Court was not dealing there with the provisions of section 134 of 1913 Act which corresponds to section 220 of the 1956 Act.

That question now directly arises for decision in this case.

As we said earlier, most of the High Courts which have considered this question after the decision of this Court have proceeded on the basis that the decision necessarily led to the conclusion that even in a prosecution under section 134 of the 1913 Act (corresponding to section 220 of the 1956 Act) the company and its directors could not rely upon their failure to call the general body meeting as a defence to the prosecution.

Under this category fall the decisions in Dulal Chandra Bhar vs Slate of West Bengal,(5) and Gopal Khaitan vs State (6) of the Calcutta High Court.

Ramachandra & Sons (P) Ltd. vs State(T) of the Allahabad High Court, State vs T. C. Printers (P) Ltd. (8) of the Rajasthan (1) I.L.R. ; (2) [1875] L. R. 10 Q. B. 329.

(3) (1875) 45 Law J. Rep. M. C. 41.

(4) (5) (6) (7) , J. 92 & (8) A.I.R. 413 High Court, India Nutriments Ltd. vs Registrar of Companies(1) and P.S.N.S.A. Chettiar & Company vs Registrar of Companies(2) of the Madras High Court.

The Orissa High Court had taken a similar view in Registrar of Companies vs Misra (3) but in a latter decision in Vulcan Industries (P) Ltd. vs Registrar of Companies, Orissa(4) it has taken a contrary view and followed the decision of the Andhra Pradesh High Court in the judgment under appeal.

That decision is also pending in appeal before this Court.

The Patna High Court in State vs Linkers Private Ltd.(5) and the Kerala High Court in Registrar of Companies vs Gopala Pillai & Ors.

(6) have also taken a similar view.

We may now refer to some of the earlier decisions on this Point.

The earliest decision is the one in Debendra Nath Das Gupta vs Registrar of Joint Stock Companies.

(?) In that case the principle laid down in Park vs Lawton(8) was applied and it was held that it is not open to the petitioner to plead in answer to a charge under sections 134 his prior default in respect of the calling of the prescribed general meeting and of placing before the company at such meeting a duly prepared and audited balance sheet.

The decision in Ballav Dass vs Mohan Lal Sadhu(9) did not refer to the wording of the section but merely stated that the provisions of section 134 were not complied with.

The same court in Bhagirath vs Emperor(10) took the same view.

In re Varaszmha Rao(11) a learned Single Judge of the Madras High Court took the view that the same persons cannot be charged in respect of the same years with offences punishable both under sections 131 and 134, Companies Act because section 134 clearly contemplates the sending of a copy of the balance sheet only after it has been placed before the company at a general meeting under section 131 and that where in a case there is no such placing of the balance sheet before the company at a general meeting, the offence under section 134 cannot ',be committed.

In re Gangipati Appayya(12) a view contrary to the one taken earlier by a Judge of that High Court was taken.

We may now set out the reasoning which weighed with the Andhra Pradesh High Court in the decision under appeal : "The reference to Section 210 by the use of the word aforesaid" and the emphasis indicated by the words "were so laid" make the filing of copies of those balance sheets and the profit and loss accounts which are laid before the general body meeting an essential prerequisite.

If no general body meeting is held, it is obvious that no copies of the balance sheet (1) (3) A.I.R. 1969 Orissa 234.

(5) A.I.R. 1969 Patna 445 & (1970) 40 C.C. 17.

(6) 1961 K.L.J. 490.

(8) (10) A.I.R. 1948 Calcutta 42.

(12) A.I.R. 1952 Madras 800.

(2) A.T. R. 1966 Madras 415.

(4) I.L.R. 1972 Cuttack 373.

(7) I.L.R. 1918 Calcutta 486.

(9) [1934 35] 39 Calcutta Weekly Notes 1152.

(11) A.I.R. 1937 Madras 341. 414 and profit and loss account can be filed even though the default may be wilful.

Both under section 134 of the Old Companies Act and Section 220 of the Act, the laying of the balance sheet and the profit and loss account before an annual general meeting is a condition precedent to the requirement that copies of such documents so laid should be filed before the Registrar.

The intention is made further clear by the provision under sub section (2) of the respective sections of both the Acts that if the balance sheet is not adopted at the general meeting before which it is laid, a statement of that fact and of the reasons therefore have to be annexed to the balance sheet and to the copies thereof required to be filed with the Registrar.

If no balance sheet is laid before a general body, there can be no question of that balance sheet not being adopted nor of complying with the requirements of the Sub section (2) of Section 134 of the Old Companies Act or Section 220 of the Act as the case may be, while wilful omission to call a general body meeting and omit to lay the balance sheet and profit and loss account before it may expose the person responsible to punishment under other provisions of the Act, it certainly does not make him liable udder aforesaid provisions.

The punishment under these sections is for default in filing copies of the balance sheet or the profit and loss account which are laid before a general body and for not sending a statement of the fact that the balance sheet was not adopted.

It may be that copies of the balance sheet so laid before the general body may have been forwarded under sub section (1) of Section 134 of the Old Companies Act or sub section (1) of section 220 of the Act but nonetheless if the requirements of sub section (2) of the respective sections have not been complied with even then, the persons concerned would be liable for punishment for that default.

In our view, these provisions unmistakably indicate, as we said earlier, that the holding of the annual general meeting and the laying before it of the balance sheet and the profit and loss account is a sine qua non for filing of the copies thereof before the Registrar.

If no general body meeting is held, the persons concerned cannot be said to have committed a default in complying with those provisions.

" In this state of difference of opinion among the various High Courts and the absence of a decision of this Court on section 134 this appeal has been filed.

Though the respondent was not represented before this Court the learned Addl.

Solicitor General who appeared for the State of Andhra Pradesh and the learned Solicitor General who appeared for the Advocate General of Andhra Pradesh fairly placed before this Court all the decisions for and against, which we have already referred to, and also placed before us all the relevant considerations.

It was urged before us that the principle accepted by this Court in The State of Bombay vs Bandhan Ram Bhandani & Ors.

(supra) that a company or its directors in a prosecution under section 32 and section 133 of the 1913 Act could not in defence to such prosecution rely upon their own 415 failure to call the general body meeting, applies with equal force to a prosecution under section 134 of the Act.

But it appears to us that there is a very clear distinction between sections 32 and 133 on the one hand and section 134 on the other.

Section 32 relates to the preparation of a list of members of the company and of persons who have ceased to be members as well as a summary, and also provides that it shall be completed within 21 days after the day of the first or only ordinary general meeting in the year.

It also provides that the company shall forthwith file with the registrar a copy of the list and summary, and any default hi complying with the requirements of the section is made punishable.

Under section 131 the laying of a balance sheet and profit and loss account before the company in the general meeting is made obligatory.

Under section 133 the failure to comply with section 131 is made punishable.

But section 134 lays down that after balance sheet and profit and loss account or the income and expenditure account, as the case may be, have been laid before the company at the general meeting three copies thereof shall be filed with the registrar, and a failure to do so is made punishable under sub section (4) of that section.

The difference in language is very clear and pointed.

The responsibility of sending three copies of the balance sheet and profit and loss account or the income and expenditure account, as the case may be, arises only after they have been laid before the company at the general meeting.

Without so laying copies could not be sent to the Registrar and even if they are sent it would not be a compliance with the provisions of the section.

It is possible to conceive of the law providing that the balance sheet and profit and loss account shall be sent to the registrar even without the necessity of their being laid before the general body meeting of the company.

In that case any failure to do so would be punishable and the question whether a general body meeting had been held and the balance sheet and profit and loss account have been laid before it Will not arise.

Therefore the condition precedent or the essential prerequisite of the balance sheet and the profit and loss account being laid before the general meeting of the company not being fulfilled, the requirement of section 134 cannot be complied with.

While the appeal to a question of principle might be attractive we cannot ignore the clear words of the section.

Where the words of the section are very clear it is unnecessary to consider whether it embodies any principle and whether that principle is consistent with the principle as embodied a certain other sections which are differently worded.

In interpreting a penal provision it is not permissible to give an extended meaning to the plain words of the section on the ground that a principle recognised in respect of certain other provisions of law requires that this section should be interpreted is the same way.

We may also point out that in Park vs Lawton (supra) the principle laid in which has been adopted in this Court ' , decision in The State of Bombay vs Bandhan Ram Bhandani & Ors.

(supra) it is realised that there might be circumstances where the principle laid down in that decision will not apply.

The court there observed : "If it were the case that everything required to be inserted in the list was dependent on the fact of the general meeting having been held, it might perhaps have been contended with 416 some force that it is impossible to calculate a continuing penalty from a day which has never come into existence; but when one sees that section 25 requires a number of most important matters to be included in the list of members which are entirely independent of the holding of a general meeting, this very much weakens the contention that no list need be compiled if, owing to the failure to hold a general meeting, it is impossible to say what day is the fourteenth day thereafter." This observation may provide no defence to a prosecution under section 133 but it might well do so in a prosecution under section 134.

This was what the learned Solicitor General was fair enough to point out with regard to the difficulty of working out the daily penalty under section 162 after the thirtieth day mentioned in section 220(1) of the 1.956 Act.

He pointed out that where no meeting has been held it was not possible to calculate the period of 30 days specified in that section and it would not be possible to give effect to the provisions of that section.

The Bombay High Court pointed out in Emperor vs Pioneer Clay & In dustrial Works(1) that the decision in Park vs Lawton(2) is based on section 36 (it is a mistake for section 26) of the English Act, which in its scheme and terms is entirely different from the section with which they (the Bombay High Court) were concerned, and that the section in the English Act is a composite one which lays down various requirements which are to be complied with by the company under its first four sub clauses and sub cl.

(5) is the penal sub section which penalises the failure to comply with any of the requirements contained in any of the four preceding sub sections.

In our Act various stages have to be gone through before we reach the stage of a copy of the balance sheet and the profit and loss account being filed with the Registrar and the failure to reach any one of the stages within the time prescribed is made penal by the 'Act.

The court pointed out that this is not a case where an accused person relies on his default and pleads his innocence.

What he says is, I may have committed an offence, but the offence that I have committed is not the one with which I am charged.

On the facts proved by the prosecution an offence is not disclosed under section 134(4).

A different offence might have been committed either under section 76(2) or under section 133(3).

It is interesting to note that it was argued in Park vs Lawton(2) that the fact that section 26 makes the offence a continuing one also shows that the obligation to file the list is independent of the holding of a general meeting.

The observations which we have extracted earlier will show that the submission on behalf of the prosecution that provisions (1) I.R.L. : (2) [1911] 1 K.E. 417 of section 26 show that the, obligation to file the list is independent of the holding of the general meeting was accepted.

But under section 134 of the 1913 Act the obligation to send a copy of the balance sheet and profit and loss account is dependent completely on its being laid be, fore a general meeting.

It is clear, therefore, that on principle and authority it should be held that no offence was committed by the directors in this case under section 134.

They might have been guilty of offences under sections 76 and 133 but not under section 134.

We say nothing about section 32 about which this Court has already laid down the law.

The appeal is dismissed.

V.P.S. Appeal dismissed.

Summary: Section 220 of the , which corresponds to section 134 of the 1913 Act, provides that within thirty days after the balance sheet and profit and loss account, as the case may be, have been laid before the company at the general meeting.

Summary: three copies thereof shall be filed with the registrar and that failure to do so is punishable.

Summary: The respondent company and its directors were prosecuted for failure to file with the Registrar of Companies on or before 30th October 1967, the Balance sheet and profit and loss account of the company.

Summary: By 30th September, 1967, admittedly, no general body meeting had been held.

Summary: The High Court held that since no general body meeting was held, there could be no question of laying the balance sheet before the general body meeting and complying with the requirements of the section; and that, though the willful omission to call a general body meeting and of laying the balance sheet and profit and loss account before it may expose the persons responsible to punishment under other provisions of the Act, it would not make them liable either under section 134(4) of the 1913 Act or section 220 of the 1956 Act.

Summary: Dismissing the appeal to this Court, HELD : On principle and authority it should be held that no offence was committed under section 220 of the .

Summary: [417B] (a) The principle accepted by this Court in State of Bombay vs Bandhan Ram Bhandani [1961] 1 S.C.R_ 801, that a company or its directors in a prosecution under sections 32 and 133 of the 1913 Act, could not, in defence to such prosecution, rely upon their own failure to call the general body meeting would not apply to a prosecution under section 134 of the 1913 Act or section 220 of the 1956 Act.

Summary: Unlike sections 32 and 133, the responsibility of I sending to the Registrar the copies of the balance sheet and profit and loss account arises only after they have been laid before the company at the general meeting, the obligation to do so being completely dependent on its being laid before a general meeting.

Summary: [414H 415E] (b) Where the words in the section are clear it is unnecessary to consider whether it embodies any principle and whether that principle is consistent with the principle as embodied in other sections which are differently worded.

Summary: In interpreting a penal provision it is not permissible to give an extended meaning to the plain words of the section on the ground of a principle recognised in certain other provisions.

Summary: [415F G] (c) This is not a case where an accused person relies on his default and pleads his innocence.

Summary: In the , various stages have to be gone through before we reach the stage of a copy of the balance sheet and the profit and loss account being filed with the Registrar.

Summary: The failure to reach any one of the stages within the time prescribed is made penal by the Act.

Summary: The respondents may be guilty of any of those offences but not of the offence with which they were charged.

Summary: [416E G] (d) Further a daily penalty is provided after the thirtieth day mentioned in section 220 (1) of the 1956 Act.

Summary: When no general body meeting was held it is not possible to calculate the period of 30 days and there would be diffi culty in working Cut he daily penalty.

Summary: [416C D)] 411 Dulal Chandra Bhar vs State of West Bengal, Gopal Khaitan vs State , Ramachandra & Sons (P) vs State, Ltd., A.I.R. India Nutriments Ltd. vs Registrar of Companies, 1934 34.

Summary: Companies Cases 160 P. section N. SAA.

Summary: Chettiar & Company vs Registrar of Companies, A.I.R. 1966 Madras 415, Registrar of Companies vs H. Mishra, A.I.R. 1969 Orissa 234, State vs Linkers Private Ltd. A.I.R. 1969 Patna 445 & (1970) 40 C.C. 17, Registrar of Companies vs Gopala Pillai & Ors.

Summary: 1951 K.L.J. 490 Debendra Nath Das Gupta vs Registrar of Joint Stock Companies, I.L.R. 1918 Calcutta 486, Ballev Dass vs Mohan Lal Sadhu, 1934 35 39 Calcutta Weekly Notes 1152 and Bhagirath vs Emperor, A.I.R. 1948, Calcutta 42 and re Cangipati Appayya, A.I.R. 1952 Madras 800, disapproved.

Summary: Imperator vs The Pioneer Clay and Industrial Works Ltd., I.L.R. , Vulcan Industries (P) Ltd. vs Registrar of Companies Orissa, I.L.R. (1972) Cuttack 373 and re Narasimha Rao, A.I.R. (1937) Madras 341, approved.