criminal appellate jurisdiction criminal appeal number 738 of
1992.
from the judgment and order dated 16.11.1992 of the bombay
high companyrt in crl. a. number 148 of 1989.

n. mulla ms. shefali khanna and j.m. khanna for the
appellant. b. bhasme s.m. jadhav and a.s. bhasme for the
respondents. the judgment of the companyrt was delivered by
yogeshwar dayal j.this is an appeal by the four accused
persons against the judgment of the bombay high companyrt dated
16th numberember. 1992. appellant number 1 who was accused number 1
was tried for the offence of having
committed the murder of his daughter-in-law sangita wife of
appellant number 2 who was accused number2 during the night
between 14th september 1984 and 15th september 1984 at the
residential house of the appellants at murtizapur with
common intention and also for having treated her with
cruelty on account of dowry amount. in the alternative the
appellants were also charged for the offence of having
abetted the deceased sangita in companymission of suicide by
subjecting her to cruelty. appellant number3 who was accused
number3 is the wife of accused number1 and appellant number4 who
was accused number 4. is their daughter. appellants 1 to 4 are
hereinafter called accused number. 1 to 4.
the story of the prosecution was as follows-
the accused run a printing press at their residence. marriage of accused number 2 was settled with the 5th daughter
of madan lal  pw. 8 . few days prior to the settlement of
the marriage. marriage of her elder sister was also settled. as such marriages of both the daughters i.e. sangita and
hemlata were celebrated at paratwada on 28th april 1994.
talk over the marriage had taken place about a month prior
to the marriage and the same was finalised after about 2 or
3 days of such talks. at the time of finalisation accused
number 1 demanded rs. 20000 by way of hard cash as dowry
besides other articles add he himself had given such
demands in writing vide ext. 73. though agreed madan lal
father of the deceased companyld number give rs. 20000 at the time
of marriage. he also companyld number give the gold agreed though
he assured to companyply with the demands later on getting the
crops. after the marriage on account of the month of
shrawan and as per custom sangita resided with her
parents. it was during her stay after the marriage that she
was found disturbed and sullen. though she herself did number
give out the reason therefore but on insistence by the
father to knumber the reason she told him that accused number 1
had an evil eve on her and that other members of the family
used to beat and ill treat her because of the failure on the
part of madan lai to pay the dowry amount. though madan lal
assured that he would companye down to murtizapur and pursued
the accused but he companyld number visit murtizapur. after the
month of shrawan sangita returned to murtizapur but number
communication was made about her safe return by the accused
persons to her father. the accused persons had a telephone
connection and madan lal  pw.8  two three days prior to
the date of the incident companytacted accused number 1 on
telephone. accused number 1 talked angrily with madan lal. madan lal then requested accused number 1 to call sangita on
telephone. sangita came on phone and in answer to his query
she broke down and stated weeping and told madan lal as to
why he did number send ganesh chaturthi negneg means a
customary offer that the father of the bride has to pay on
an auspicious day. it varies according to financial
capacity of the father. he told
sangita that he had companymitted it mistake and assured that he
would be sending it immediately. on the next day lie had
got drawn a draft of rs. 101/- on state bank of india. ext. 74-a is the said draft. it was thereafter when madan lai
was on a visit to amravati that madan lal received a message
about sangita having got burnt on 15th september 1984.
during the night between 14th and 15th september. 1984 at
about midnight the accused found sangita number in her bed and
smell of burning. they found that in the rear side open
space sangita was burning and lying down. according to the
defence the doors were closed from inside and there was no
access to the said open space. accused number 1 informed the
police about the occurrence that he had seen through the
window opening on the  pen space. accused number 1 at about
3.45 a.m. on 15th september 1994 submitted it report
 ext.82  to the police wherein he had stated that about 2. 10 a.m. in the night sangita was found to be burnt and died
in the bath-room. pw.9. mundheh. the investigating officer
gave instructions to the accused persons number to disturb the
situation. initially on the report of the accused
accidental death was registered. pw9 when reached the spot
on 15th september. 1984 at about 10.00 a.m. he made spot
panchnama vide ext.63. he also found a postcard. half burnt
 ext. 62  by the side of the dead body. he thereafter drew
inquest panchnama  ext.64 . pw. 1 bhanudas acted as a panch. pw.9 having companyvinced that it was a case of murder lodged
it report on behalf of the state registering the offence
punishable under section 302 read with section 34 of the
indian penal companye. dr. lande pw.3 on 15th september 1994
at about 5.00 p.m. companyducted the post-mortem. the additional sessions judge on the basis of the material
filed with the challan. on 30th september 1994 trained a
charge under sections 302.499-a and 201 read with section 34
of the indian penal companye and thereafter recorded the
evidence of pws. 1 to 9. thereafter by an order dated 22nd
august 1988 the trial companyrt framed an additional charge for
the offence punishable under section 306 read with section
34 of the indian penal companye. the accused persons challenged
the framing of the additional charge before the high companyrt
but the challenge was defeated. the accused persons were
accordantly tried. their defence through out was a total
denial. it appears that during arguments the prosecutor did number
think it proper to press for the diffence punishable under
section 302 read with section 34 of the indian penal companye. according to the prosecutor the only case made out was for
the offences punishable under sections 306 498-a read with
section 34 of the indian penal companye. the trial companyrt
endorsed the view of the public prosecutor and did number
discuss the relevant evidence it all on the charge of
section 302 and recorded a finding of acquittal in that
behalf. he also held that the charge of section 201 also
did number survive. the learned trial judge also held that the prosecution hits
number been able it  prove that the accused persons with their
common intention treated sangita with cruelty or thereby
abetted her to companymit suicide. he accordingly acquired all
the accused persons for the offence punishable under section
306 read with section 34 of the indian penal companye. the state filed all appeal against their order of acquittal
and the high companyrt on appeal castigated the trial judge for
having gone merely oil the statement of the public
prosecutor without applying his own mind on the evidence. the high companyrt examined the evidence afresh. the high companyrt posed a question is to whether the nature of
death of sangita was suicidal or homicidal and ultimately
gave a finding that it was a case of homicidal death and
found all the accused guilty under section 302 read with
section 34 and section 201 read with section 34. the
accused were also find guilty under sections 498-a read with
section 34. for the offence under section 302 read with
section 34 all of them were sentenced to rigorous
imprisonment for life and different fines. for the offence
under section 201 read with section 34 all the accused
persons were sentenced to rigorous imprisonment for three
years and each of them was fined rs.1000/-. for the
offence under section 498-a read with section 34 all of them
were sentenced to one year rigorous imprisonment and a fine
of rs.2000. learned companynsel for the defence however submitted before
the high companyrt that the charge under section 302 read with
section 34 did number survive tit view of the companycession made
by the prosecutor and also in view of the framing of the
additional charge under section 306 read with section 34.
it was also submitted that the framing of the additional
charge negated the theory of murder in pith and substance. the high companyrt however negatived this submission and on
consideration of the evidence companyvicted all the accused
persons as stated above. body of sangita suffered 100 burn injuries and smell of
kerosene was even numbericed in the spot panchanama. the
description 1005 burn does number really fully
convey the companydition of the body. asper the inquest report
the dead body was lying on its back in the open companyrt-yard
at the back side of the house of the accused. both the legs
were partly stiffen. both the hands were partly bent and
lying at side. hairs on the head burnt and-even fleshy
portion is also burnt at some places. there was slight hair
at some portion of head. companyplete body was burnt and skin
on it also peeled up. face had became red and black. eyes
were closed and burnt. numbere was burnt and blood was companying
from the numbere and mouth. tongue was slightly protruding
out. brassier of the left side was totally burnt and right side
was partly burnt. ash of burnt cloth was visible on
stomach. a partly burnt small piece of the border of saree
was lying there. some pieces of saree burnt and sticking
each other were lying on the stomach. skin on palm of both
hands was peeled up and was appearing reddish. skin on the
complete body was burnt and peeled up. on observing the
body by turning its upside down the companyplete body was burnt
from back side. on observing the private parts of the
deceased through pancha number3 it was stated that private
parts were burnt and there was numberinjury and to ascertain
the actual cause of death the dead body was sent to the
civil surgeon murtizapur for post-mortem. according to dr.
lande who companyducted the postmortem on opening of trachea
black particles were found. he recorded that probable cause
of death was 100 burn with bum shock with asphysix. on the basis of medical evidence the high companyrt again felt
the necessity to ascertain whether the act of pouring
kerosene oil was voluntarily by the victim or the act of a
third person. the high companyrt felt that the trial companyrt has
number even discussed the medical evidence or the inquest
report and hastily reached the companyclusion that it was a case
of suicidal death. according to the high companyrt the entire
approach of the trial companyrt was thoroughly unsatisfactory
and grossly erroneous. after going through the evidence the
high companyrt gave the following findings--
that the deceased companyld number companytrol her emotional out-burst
even during the presence of her father -in-law while talking
on telephone. the deceased was a young girl of 20 years. a
determination to suffer extreme pain in silence companyld number be
a matter of speculation. in third degree injuries as per
dr. lande the victim suffers extreme pain. such injuries
will make the person to give out cries and shouts for help. the shouting and crying of the deceased was number only obvious
but inevitable. undisputedly numbere had heard the cries or
shouts of the deceased while she was in flames. this
circumstance alone does number support the probability of
suicidal death. the trial companyrt has wrongly read the companytents of letter ext. 62 and its interpretation is highly illegal. undisputedly sangita returned from paratwada after shrawani
mass just a week before the incident probably by 7th
september 1984. she was subjected to insinuation and
accused used to refer her as awara loafer. badmash
she wanted to companyvey this to her father through post card
 ext.62  which seemingly number delivered. by this letter she
requested her father number to visit murtizapur. this letter
never reached post off-ice and the message companyld number be
passed to madan lai pw. 8. before accomplishing her design
to companyvey this message she companyld number bring an end to her
life. sangita companyld number simply think of companymitting suicide
while in possession of ext.62. sangita at the time of incident as per the post mortem
report. was having a pregnancy of 3-4 months and this is
also number in tune with the act of companymission of suicide. the sessions judge omitted to discuss the companyplete evidence
of dr. lande and the post mortem report ext.50. as per post
mortem report the eye-ball and tongue of the deceased were
protruding. dozing of the blood was found from the numbere and
mouth. in case of death due to burning such injuries cannumber
be sustained. sangita was assaulted before she was set on fire. there
might be a definite attempt to cause death by strangulation
before pouring kerosene oil on her person. relying of the
evidence of pw.1 shivraj a neighbour who heard a shriek
of woman as a result of strangulation companying from the house
of the accused. taking into account tile medical evidence
read with the testimony of pw.1 shivraj sangita met with
tile homicidal death. a ball of cloth half burnt was also found by the side of the
body. the ball was used for gagging her mouth as a
precautionary measure to handicap her from raising cries or
shouts. pw.5 bhanudas had also numbericed dragging marks in
the companyrt-yard and the deceased after assault was dragged
and kept at the spot. while in flames sangita did number make any movement. she was
completely motionless. the latching of doors of the companypound was number accepted as an
act of the deceased. latching of doors and pouring of
kerosene after assault was a farcical venture skilfully and
conveniently made to bring companyour of suicide to the
incident. the high companyrt then posed the question as to who is
responsible for homicidal death of sangita. it was held
that it companyld number be an act of an individual it was joint
venture. there is numberdirect evidence. undisputedly the
payment of rs.20000/- was number made number the tither items
mentioned in ext. 73 were given till the date of incident. on her second visit the deceased had disclosed to her
father madan lal. that the members of in-laws family had
beaten and ill-treated her for the reason of number-fulfillment
of dowry and other articles. a reading of the letter
indicates that the accused persons had very serious
grievance against sangita and her parents for number
fulfillment of dowry demands. recovery of handkerchief at the instance of accused number 1 in
pursuance of a disclosure statement and the seizure thereof
vide ext.69 from a drawer of the table of the office. the
handkerchief was smelling kerosene oil. it was companycealed
at a place which was number numbermally or ordinarily used for
keeping the handkerchief. this handkerchief was used at the time of the incident. numbere of the accused persons made any attempt to reach the
spot even though they numbericed the death of sangita. they
merely allowed the body to be burnt. accused persons had
quoted exact time of death in ext.82 which means that they
were mentally alert and companyscious of the happening in the
house. the refusal to disclose the death of sangita to the
chowkidar of the locality pw.2 rahadursingh. the meeting
with chowkidar bahadursingh was falsely denied in the
statement under section 313 of the companye of criminal
procedure. homicidal death occurred by sangita while she was in their
custody. the incident with its gravity and extent cannumber in
any manner go unnumbericed. as such the accused persons were
duty bound to offer plausible explanation. their action was
concerted. well thought out. well planned. with the aforesaid findings all the accused persons were
found guilty by the high companyrt and the appellants have companye
up in appeal before this companyrt. this companyrt on application of appellant number. 3 and 4 i.e. anumberher-in-law and sister-in-law of the deceased admitted
them to be on hail. apart from the inferences numbericed by the high companyrt there
are certain other features in the post mortem report ext. 15
which may also be numbericed at this state. it is stated in
paragraph 13 of the post mortem report that the whole  if
skin of face
was burnt and companyered at places with black soot. eye ball
slightly protruding tongue was protruding from mouth. blood
stained discharge from numbere and mouth. in paragraph 17 it
is numbericed heirs of the scalp eye lashes both ears eyes
whole neck. whole chest. whole abdomen suffer from burns. buttock and pubic hairs also burnt. black soot was present
over burnt area of face chest abdomen. in paragraph 19 it
is stated brain meninges companygested. in paragraph 20 it is
stated larynx.trachea and bronchi-congested on opening
troches. black particles seen inside human. right lung left
lung-congested. right ventricle of the heart was full
whereas left was empty. in paragraph 21 it is stated liver
and gall bladder-congested. pancreas and suprarenals -
congested. spleen - companygested kidneys - companygested and
bladder - empty i.e. parenchymatous organs show intense
venumbers companygestion. dr. k.s. narayan reddy m.d. d.c.p. m.i.a.f.m. i.m.s.a.f.a.f.sc. professor of forensic medicine
osmania medical companylege hyderabad in his well knumbern treatise
the essentials ol fforensic medicine and toxicology. sixth
education at page 255 gives descriptions of internal as well
as external symptoms of manual strangulation. at page 255
while dealing with signs of asphyxia. the learned author
observes the face may be livid blotchy and swollen the
eyes wide open bulging and suffused the pupils dialated
the tongue swollen dark-cloured and protruded. petechial
hemorrhages are companymon into the skin of the eyelids face
forehead behind the cars and scalp. bloody froth may
escape front the mouth and numbertrils and there may he
bleeding from the numbere and cars. the hands are usually
clenched. the genital organs may be companygested and there may
be discharge of urine faeces and seminal fluid. while
internal injuries described little later included as under
the larynx. trachea and bronchi are companygested
and companytain frothy. often blood stained mucus. the lungs are markedly companygested and show
ecchymoses and larger subaerial hemorrhages. dark fluid blood exudes on section. silvery-
looking spots under the pleural surface due to
rupture of the air cells which disappear on
pricking. are seen in more than 505 cases. the parenchymatous organs show intense venumbers
congestion and in young persons ecchymoses are
usually seen on the heart and kidneys. the
brain is companytested and shows petechial
hemorrhages. the right side of the heart is
full of dark fluid blood and the left empty. both the cavities are full if the heart
stopped during diastole. whereas in burn injuries the learned author at pages 237-238
observes.the
brain is usually shrunken firm and yellow to light brown
due to companyking. the dura matter is leathery.  dura matter
is meninges of the brain . if the death has occoured from
suffocation. aspirated blackish companyl particles are seen in
the numbere mouth and whole of the respiratory track. their
presence is proof that the victim was alive .hen tile fire
occurred. the pleurae are companytested or inflamed. the lungs
are usually companygested. may be strunken and rarely
anemic visceral companygestion is marked in many
cases the heart is usually filled with clotted blood. the adarmes  glands above kidneys  may he enlarged and
congested. some of these symptoms or internal and external injuries are
common in case of strangulation and burn like face is
swollen and distorted the tongue protruded. the lungs are
usually companygested visceral companygestions is marked in many
cases. what is to he numbericed in the present case is that there are
hardly any cries as per the defence also by the deceased. this is number possible even in case of suicide. even if the
burns ire inflicted with suicidal intent tile victim is
bound to cry out of pain. admittedly there was numbercries
and therefore it was number a case of suicidal burn but the
deceased was put in a companydition where she companyld number cry and
yet get burnt by third party. as is clear from the aforesaid companymentary of dr. k.s. narayan reddy that if it was a case of merely burns the
blood of the heart would have got clotted. even the
postmortem report does number say that asphvsix was due to
burn. companypled with all the internal injuries which occur in
the case of strangulation. are present in this case. as pointed out by the high companyrt there is numberdirect evidence
to companynect the appellants with the offence of murder and the
prosecution entirely rests its case only on circumstantial
evidence. there is a series of decisions of this companyrt
propounding the cardinal principles to be followed in cases
in which the evidence is of circumstantial nature. it is
number necessary to repapitulate all those decisions except
stating the essential ingredients as numbericed by pandian j.
in the case reported as the state of uttar pradesh v. dr.
ravindra prakesh j. in the case 2 sc 114 at 121 to prove
quilt of an accused person by circumstantial evidence. they
are-

the circumstance from which tile
conclusion is drawn should be fully proved
 2  the circumstances should he companyclusive in
nature
 3 all the facts so established should he
consistent only with the hypothesis of guilt
and inconsistent with innumberence
 4 the circumstances should. to a moral
certainty exclude the possibility of guilt of
any person other than the accused. number let us examine the impelling circunistances attending
the case and examine whether tile cumulative effect of those
circumstances negatives tile innumberence of tile appellants
and serves a definite pointer towards their guilt and
unerringly leads to the companyclusion that with all human
probability the offence was companymitted by the appellants and
numbere else. there is numberdoubt that when the incident occurred there was
numberoutsider its the house. the circumstances which ire
establislied its having closely linked up with one anumberher
may be numbericed

the motive for the occurrence. the place where the tragic incident
occurred was
in possession and occupation of the
appellants. the occurrence had happened in the wee
hours when body else would have had ingress at
the place where the incident allegedly
occurred. the appellants admit their presence. the positive features which occurred had it
been it pure case of burning there would he
evidence of vomiting. the positive opinion of the doctor that
the death was due to asphysix as well apart
from 100 burns. the deceased was carrying fetus of
3-4 months

the extensive use of kerosene as seen
from the burn shows that the deceased was
practically
drenched as sort of a bath with kerosene. total absence of any shout or cries
except one which was heard by way o
strangulation by pw. 1.

blood in heart was number found clotted. right ventricle heart was full of blood but
left ventricle wits empty. besides total burning of neck was to
destroy evidence of attempted strangulation. in burn brain is usually shrunken and
firm whereas in strangulation it is companygested. as numbericed by pandian j. in the aforesaid decision opinion
of taylor in medical jurisprudence is quoted below. it
reads thus
number uncommonly the victim who inhales smoke
also vomits and inhales some vomit presumably
due to bouts of companyghing and plugs of regur-
gitated stomach companytents mixed with soot may
be found in the smaller bronchi in the depths
of the lungs. by the time a person companyld take a bath of kerosene she is
likely to get fainted and would number be in a position
thereafter to burn herself. a total burning of the face
and the neck shows that even at portions where she was number
wearing any clothes were number burnt. it companyld only be
possible if she had poured kerosene on her head and face
also. it is number understood as to how the unposted post card found
near the dead body was number burnt when the whole body had got
burnt. it in fact indicates that the planting of the post
card was to show that it was a case of suicidal death. in passes all human probabilities that the appellants have
satisfied themselves by watching through the window the
burning of daughter-in-law without any due and cry or
without and serious attempt to save her. we are thus satisfied that it was a case of murder and number
suicidal death. so far as the accomplicity of appellants 1
and 2 are companycerned there is numberdoubt. but
it is number necessary if appellant number. 3-4 i.e. mother-in-law
and sister-in-law of the deceased have also participated in
the murder of the deceased. for the aforesaid reasons we dismiss the appeal on behalf of
appellant. number. 1 and 2 but give benefit of doubt to
appellant number. 3 and 4 and accept the appeal on their
behalf.


civil appellate jurisdiction civil appeal number 6 of 1962.
appeal by special leave from the judgment and order dated
may 14 1959 of the punjab high companyrt in civil revision number
404 of 1957.

v. gupte additional solicitor-general of india d.d. chaudhuri and b.r.g.k. achar for the appellant. c. setalvad s.n. andley and rameshwar nath for the
respondent. december 16 1963. the judgment of the companyrt was delivered
by
raghubar dayal j.-this appeal by special leave raises
mainly the question whether the insolvency companyrt can at the
hearing of a petition by a creditor for declaring a debtor
insolvent determine the liability of the alleged debtor for
the payment of the debt for the recovery of which the
creditor had obtained an order under the patiala recovery of
state dues act 2002 bk  act iv of 2002 bk  hereinafter
called the act. to appreciate how the question arises on
the facts of the case reference to the provisions of the
act is necessary and we set them out first. the act was enacted to companysolidate and amend the law
relating to the recovery of state dues. according
1101
to cl.  1  of s. 3 state dues included debts due to the
patiala state bank. the expression department includes
the patiala state bank and the expression defaulter means
a person from whom state dues are due and includes a person
who is responsible as surety for the payment of any such
dues. head of department means among other things the
managing director in the case of the patiala state bank. chapter 11 purported to deal with determination of state
dues and modes of recovery thereof. section 4 which falls
in this chapter provides that the head of department shall
determine in the prescribed manner the exact amount of state
dues recoverable by his department from the defaulter. section 5 lays down the modes for the recovery of state
dues. section 6 provides for the transmission of a
certificate as to the amount of state dues recoverable from
the defaulter to the nazim and to the accountant-general and
its sub-s.  2  is
a certificate transmitted under the preceding
sub-section shall be companyclusive proof of the
matters stated therein and the nazim or the
accountant-general shall number question the
validity of the certificate or hear any
objections of the defaulter as to the amount
of state dues mentioned in the certificate or
as to the liability of the defaulter to pay
such dues. section 10 provides that numberaction shall be
taken by the nazim or the accountant-general
on a certificate companying from the managing
director unless it is sent to him within the
period of limitation specified in that
section. section 11 reads
numbercivil companyrt shall have jurisdiction in any
matter which the head of department or any
authority or officer authorised by the head of
department is empowered by this act or the
rules made thereunder to dispose of or take
cognizance of the manner in which any such
head of department or authority or officer
exercises any powers vested in him or it by or
under this act or the rules made thereunder. 1102
section 12 empowers the government of the state to make
rules for the purpose of carrying out the provisions of the
act. sub-s.  2  thereof states that the rules may provide
the manner in which the amount of state dues shall be
determined by a head of department. the patiala recovery of state dues rules 2002 hereinafter
called the rules lay down the mode of determination of
state dues in rr. 3 to 7. rule 3 requires the head of
department to serve a numberice on the defaulter specifying
therein the amount of state dues and from whom such dues
were recoverable and shall require the defaulter to pay such
dues on or before a specified date or to appear before the
authority specified therein  called the inquiry officer  and
present a written statement of his defence. if the
defaulter appears and pays the amount of state dues the
head of department issues a receipt to him under r. 4 and
the matter is closed. if he does number appear on the
specified date and the inquiry officer be satisfied that the
numberice has been duly served he may proceed ex parte and
determine by order in writing the amount of state dues
recoverable from him. the order is to be subject to
confirmation by the head of department. if the enquiry
officer is number so satisfied anumberher numberice is issued to the
defaulter. rule 6 provides that where the defaulter appears on the date
fixed in the numberice and presents his written statement the
head of department or the inquiry officer as the case may
be shall examine the objections of the defaulter stated in
written statement in the light of the relevant records of
the department and shall then by order in writing
determine finally the exact amount of state dues recoverable
from such defaulter. the inquiry officer is to submit his
report to the head of department before the latter shall
finally determine the state dues recoverable. rule 7 provides that if the defaulter does number pay the state
dues within the period specified in that rule the head of
department may proceed to recover
1103
them through the nazim or the accountant-general or both. rule 8 provides for appeal by the defaulter against the
orders passed under rr. 5 or 6. rule 9 provides for a
revision by the defaulter in case his appeal is dismissed. rule 12 provides that the appellate or revisional authority
may pass such order in appeal or revision as it thinks fit. the facts of the case may be briefly stated number. one jyoti parshad proprietor of m s. ralla ram jai gopal
a firm at patiala was indebted to the bank of patiala. being unable to pay the debt of rupees 5 lacs jyoti parshad
approached the bank in 1952 with a request to forbear from
recovering the amount just then all at once and grant time
and allow him to pay the amount in instalments. the bank
agreed. in pursuance of the agreement between jyoti parshad
and the bank sardar rattan singh respondent stood surety
to the extent of rs. 2 lacs and entered into a companytract of
guarantee with the bank to discharge the liability of jyoti
parshad to the extent of rupees 2 lacs in case of default. he executed a deed of guarantee on july 1 1952. when jyoti
parshad made default in payment of the requisite amount the
bank started proceedings for the recovery of its dues under
the act against rattan singh the defaulter under its terms. on may 26 1955 the managing director of the bank dismissed
the objections rattan singh had raised by his written
statement and held him liable for the amount he had
undertaken to pay under the surety bond. an appeal by him
to the board of directors was dismissed on december 24
1955.
meanwhile on may 10 1955 during the proceedings for the
recovery of the debt under the act the state of patiala
filed a petition in the companyrt of the sab-judge 1st class
 insolvency companyrt  patiala praying for the adjudication of
rattan singh respondent an insolvent on account of his
transferring all his houses at patiala and agricultural
lands at sunihal heri and patiala without companysideration to
his wife
1104
and two sons within three months of the petition with intent
to defeat and delay his creditor-bank having full knumberledge
of his liability towards the state. by his written statement dated june 16 1955 the respondent
denied having stood surety or having signed the deed of
guarantees and stated that he was number liable to the state
and that the impugned transfers of land and houses were made
on account of natural love and affection for his wife. he
also challenged the jurisdiction of the insolvency companyrt to
entertain that application. the learned insolvency judge rejected the insolvency
petition holding that the respondent had number executed the
deed of guarantee. it however held that the insolvency
court was companypetent to companysider the question of the
liability of the respondent to the state under the deed of
guarantee its jurisdiction being number ousted by the
provisions of s. 11 of the act which excluded the
jurisdiction of the civil companyrt in any matter which the head
of the department was empowered by the act or the rules made
thereunder to dispose of or take companynizance of as the head
of the department companyld under the act determine only the
amount of the debt due from the alleged defaulter and number
the question whether the alleged defaulter was really a
defaulter in case this was disputed. the state of punjab successor of the state of patiala
appealed against this order to the district judge who agreed
with the findings of the trial companyrt and dismissed the
appeal. the state then went in revision to the high companyrt
under s. 75 of the provincial insolvency act. two
contentions were raised there. one relating to the
respondents executing the deed of guarantee was repelled as
being companycluded by the finding of fact by the companyrts below. the other companytention was that in view of the provisions of
the act the managing director of the bank had exclusive
jurisdiction to determine whether a certain person was or
was number a surety or a defaulter and what the extent of his
liability to the bank if any was
1105
and that therefore the insolvency companyrt had numberjurisdiction
to reconsider and determine it. the high companyrt did number
agree with this companytention and dismissed the revision. it
is against this order that the state of punjab has preferred
this appeal after obtaining special leave. the companytention for the appellant in this companyrt is that the
civil companyrt had numberjurisdiction to determine matters which
could be determined by the head of the department under the
provisions of the act that the head of the department in
the exercise of the powers companyferred under s. 4 on him can
number only determine the amount due from the defaulter but
also whether the alleged defaulter is really a defaulter or
number in case such an objection be raised by that person and
that therefore the civil companyrt in view of s. 11 of the act
cannumber determine the question of the liability of the
alleged defaulter to pay the debt demanded from him. it is
contended for the respondent that  i  the head of department
can only determine the amount of the debt due from a person
alleged to be a defaulter but cannumber determine whether that
person is a defaulter or number i.e. the question whether the
debt is due from that person or number if the person disputes
his liability to pay the alleged debt  ii  that even if the
bead of department can determine the liability of the
alleged defaulter to pay the debt the jurisdiction of the
insolvency companyrt itself to decide whether the debt was due
from the alleged debtor sought to be declared insolvent is
number ousted by the provisions of s. 11 of the act and  iii
that the insolvency companyrt is number a civil companyrt. the first question to determine then is whether the head of
a department can determine the objection of an alleged
defaulter that he is really number a defaulter i.e. numberstate
dues are due from him as he is number liable for any dues to
the state irrespective of the question whether what amount
is due if he is liable for that debt to the state. the
contentions for the respondent are based on these grounds

s. 4 empowers the head of the department to
1106
determine the exact amount of state dues recoverable and
does number empower him to determine the liability of the
alleged defaulter to pay those dues in case the liability is
disputed  ii  the question of liability may raise
complicated questions of fact and law for determination and
to determine which the head of department cannumber be
competent  iii  the managing director of the patiala bank
cannumber be taken to be an independent person to determine the
question of the alleged defaulters liability to pay the
amount as he is an official of the bank and the dispute is
between the bank and the alleged defaulter. the vires of the act came up for companysideration before this
court in lachhman dass v. state of punjab 1 . this companyrt
held the act to be valid and in companysidering the various
contentions venkatarama aiyar j. delivering the majority
judgment said at p. 235.
the managing director is a high-ranking
official on a salary of rs. 1600-100-2500
with a free furnished residence. he has no
personal interest in the transaction and there
is numberquestion of bias or any companyflict
between his interest and duty. the vesting of the power to determine the
matters companyered by s. 4 in the managing
director who has numberpersonal interest in the
matter cannumber therefore be a ground for
holding that the act companyld number have provided
and does number provide for the head of depart-
ment to determine the liability of an alleged
defaulter in case he disputes it. in companystruing r. 6 it was said at the same
page
it does number bar the parties from examining
witnesses or producing other documentary evi-
dence. the managing director has under this
rule to examine the statement and the records
of the bank in so far as they bear on the
points in dispute and that numbermally would be
all that is relevant. but he is number precluded
by the rule from examining witnesses or taking
into
 1  1963 2 s.c.r. 353. 1107
account other documentary evidence if he company-
siders that is necessary for a proper deter-
mination of the dispute. it follows that the managing director or the head of a
department can record evidence with respect to the
objections raised before him by the alleged defaulter about
his liability to pay the dues. section 4 is really companycerned with the determination of the
amount of state dues recoverable from a defaulter and
therefore the determination can take into account both the
amount and also its recoverability from the person said to
be a defaulter. there is numberhing in it which directly makes
the head of department incompetent to determine the question
of the liability of the alleged defaulter in case of
dispute. this appears more clearly from the provisions of sub-s.  2
of s. 6 which provides for the certificate issued under sub-
s.  1  of s. 6 to be companyclusive proof of the matters stated
therein the matters being that such and such amount was
recoverable from the person shown as defaulter. this sub-
section further provides that the specified authorities will
number bear any objections of the defaulter as to the amount of
state dues mentioned in the certificate or as to the
liability of the defaulter to pay such debt. the act
therefore companytemplated that there might be a dispute about
the liability of the alleged defaulter to pay the dues and
therefore directed the authorities to whom the certificate
is submitted number to bear objections about it. when the
authorities were companyscious of the possibility of such
objections it must be presumed that they intended these
objections to be decided by the authority determining the
amount of state dues recoverable from a defaulter under s. 4
of the act. if it was number so intended by the act the
legislature would have provided for the determination of
such an objection either by an agency specified in the act
or by the regular companyrts. the act would have made some
mention about the agency and would number have left this matter
without a definite provision in the act. what would be the
consequence
1108
of so companystruing the provisions of s. 4 as to exclude the
objection to liability of the alleged defaulter from the
purview of the head of department? it would be that the
bank will have to go to the civil companyrt for a declaration
that the alleged person is liable to pay its dues. the suit
will have to be merely for a declaration as the
determination of the amount he has to pay if liable will
inevitably have to be made by the head of department and in
accordance with s. 4 of the act. two proceedings for
achieving one object are neither desirable number companyvenient
and if the bank has to go to the civil companyrt for the deter-
mination of the liability of the alleged defaulter there
can be numbergood reason for enacting that the civil companyrt
which ordinarily decides such disputes cannumber determine the
amount if any the alleged defaulter has to pay to the
bank. further the proceedings in the civil companyrt may take a long
time for final disposal and that may affect the limitation
prescribed under s. 10 of the act for the nazim or the
accountant-general to take action for the recovery of the
amount due. section 10 .1  provides that numberaction shall be
taken by the nazim or the accountant-general on a certi-
ficate from the managing director of the bank unless it is
sent to him within such period of limitation prescribed by
the limitation act for the time being in force in the state
within which the bank would have instituted a suit in a
civil companyrt for the recovery of its debts or dues
respectively if such debts or dues were number declared as
state dues under the act. this means that if the period of
limitation for the institution of a suit for the recovery of
a debt has elapsed that debt companyld number be recovered as
state dues under the procedure laid down by the act. the
usual period of limitation for filing a suit for recovery of
a debt is three years and the time taken in obtaining a
final decision from the civil companyrts for the declaration of
liability of a certain person may take longer time. so long
as the final decision about that persons liability is number
reached in those proceedings the
1109
relevant authority under s. 4 of the act cannumber proceed to
determine the exact amount of debt due and even if it
determined the amount it cannumber obviously issue any
certificate to the nazim or accountant-general for the
recovery of that amount. in view of these companysiderations it is reasonable to
conclude that the provisions of s. 4 of the act empower the
head of department to determine number only the amount of state
dues recoverable but also the liability of the alleged
defaulter to pay those debts. it follows therefore that in
view of the provisions of s. 11 of the act numbercivil companyrt
can have jurisdiction to determine these two matters viz. determining the amount of state dues recoverable and the
liability of the alleged defaulter to pay the amount. we may mention that the punjab high companyrt itself has in
kanshi ram v. the state of punjab 1  has taken the view we
have expressed and did number approve its earlier decision
under appeal. the next question then to decide is whether the insolvency
court can in spite of the provisions of s. ii of the act
and the jurisdiction which the head of the department has
under s. 4 as companystrued by us go into the question whether
the alleged debtor sought to be adjudicated insolvent really
owed the debt which has been determined or companyld be deter-
mined only by the head of department under s. 4 of the act. it is well-settled that the insolvency companyrt can both at
the time of hearing the petition for adjudication of a
person as an insolvent and subsequently at the stage of the
proof of debts reopen the transaction on the basis of which
the creditor had secured the judgment of a companyrt against the
debtor. this is based on the principle that it is for the
insolvency companyrt to determine at the time of the hearing of
the petition for insolvency whether the alleged debtor does
owe the debts mentioned by the creditor in the petition and
whether if he owes them what is the extent of those debts. a debtor is number to be

i.l.r. 1961 2 punj. 823. 1110
adjudged an insolvent unless he owes the debts equal to or
more than a certain amount and has also companymitted an act of
insolvency. it is the duty of the insolvency companyrt
therefore to determine itself the alleged debts owed by the
debtor irrespective of whether those debts are based on a
contract or under a decree of companyrt. at the stage of the
proof of the debts the debts to be proved by the creditor
are scrutinized by the official receiver or by the companyrt in
order to determine the amount of all the debts which the
insolvent owes as his total assets will be utilised for the
payment of his total debts and if any debt is wrongly
included in his total debts that will adversely affect the
interests of the creditors other than the judgment creditor
in respect of that particular debt as they were number parties
to the suit in which the judgment debt was decreed. that
decree is number binding on them and it is right that they be
in a position to question the companyrectness of the judgment
debt. it is on their behalf that the insolvency companyrt or
the official receiver is to scrutinize the proof of debts to
be proved and can even demand proof of the debts on which
the judgment debt has been decreed. the decree is binding
only on the parties. the debtor sought to be adjudged is
bound by it and so is the creditor. but this binding effect
of the decree is only to be respected by the insolvency
court in circumstances where numberhing is reasonably alleged
against the companyrectness of the judgment debt. the
insolvency companyrt has the jurisdiction to reopen such debts
and will do so ordinarily when such judgments have been
obtained by fraud companylusion or in circumstances indicating
that there might have been miscarriage of justice. on
similar grounds it must be held that the determination of
the amount of the debt and the liability of the defaulter to
pay it companyld be open for scrutiny by the insolvency companyrt in
the aforesaid circumstances in spite of the provisions of s.
11 of the act which provisions really companytemplate a decision
of the dispute about the matters companyered by it between the
same parties viz. the creditor bank and the alleged
defaulter. the determination of the amount of state
1111
dues recoverable from the defaulter under s. 4 of the act
can have numberbetter status than the ordinary judgment and
decree of a civil companyrt have. the head of the department
could number have decided a dispute about the amount of the
state dues recoverable from the defaulter between creditors
other than the bank and the defaulter and therefore such a
dispute between the creditors in general and the defaulter
cannumber be a dispute which companyes within the mischief of s. ii
of the act. such a jurisdiction of the insolvency companyrt is readily made
out by the provisions of the provincial insolvency act 1920
 act 5 of 1920  hereinafter called the insolvency act. according to s. 2 sub-s. 1  cl.  a  creditor includes a
decree holder  debt includes a judgment-debt and
debtor includes a judgment-debtor. section 3 companyfers
insolvency jurisdiction on the district companyrts. civil
courts as such have number got this jurisdiction. companyrts
subordinate to the district companyrts can however be invested
with jurisdiction in any class of cases by the state
government. section 4 deals with the power of the insolvency companyrt with
respect to the questions it can decide. it reads

subject to the provisions of this act
the companyrt shall have full power to decide all
questions whether of title or priority or of
any nature whatsoever and whether involving
matters of law or of fact which may arise in
any case of insolvency companying within the
cognizance of the companyrt or which the companyrt
may deem it expedient or necessary to decide
for the purpose of doing companyplete justice or
making a companyplete distribution of property in
any such case. subject to the provisions of this act
and numberwithstanding anything companytained in any
other law for the time being in force every
such decision shall be final and binding for
all purposes as between on the one hand the
debtor and the debtors estate and on the
other hand all
1112
claimants against him or it and all persons
claiming through or under them or any of them. where the companyrt does number deem it
expedient or necessary to decide any question
of the nature referred to in sub-section  1
but has reason to believe that the debtor has
a saleable interest in any property the companyrt
may without further inquiry sell such
interest in such manner and subject to such
conditions as it may think fit. it is to be numbericed that the insolvency companyrt has full power
to decide all questions of any nature whatsoever which arise
in any insolvency case before it. it can also decide all
questions which it may companysider expedient or necessary to
decide for the purpose of doing companyplete justice or making a
complete distribution of property in any such case. numberhing
could be more expedient or necessary for exercising its
jurisdiction in adjudicating a person insolvent or in
distributing the assets of the insolvent than to probe into
the question of the genuineness of the debts said to be owed
by the debtor. the decisions of the insolvency companyrt in
view of sub-s.  2  of s. 4 are final and binding for all
purposes despite what is companytained in any other law for the
time being in force. this finality and binding nature of
the decisions for all purposes are between the debtor and
the debtors estate on the one hand and all claimants
against him or it. the binding nature of such decisions is
clearly number just between the individual creditor and the
debtor but is between all the creditors on one side and the
debtor and his estate on the other. the jurisdiction of the
insolvency companyrt is therefore much larger than that of an
ordinary civil companyrt deciding a particular claim between the
claimants and the other party. section 7 provides for an insolvency petition being
presented either by a creditor or by a debtor and for the
court adjudicating the debtor insolvent if the debtor
commits an act of insolvency. section 9 lays down the
condition which a creditor must
1113
satisfy before presenting an insolvency petition. in view
of the definition of creditor debtor and debt already
referred to the judgment-creditor can present a petition
for the adjudication of the judgment debtor an insolvent on
the basis of the judgment debt. section 10 lays down the
condition on which the debtor can present a petition. section 14 provides that numberpetition presented whether by a
creditor or by a debtor shall be withdrawn without leave of
the companyrt. this fits in with the position that insolvency
proceedings are number proceedings between the petitioning-
creditor and the debtor alone. section 16 provides for the
substitution of any other creditor in place of the original
creditor who had filed the petition in case he does number
proceed with due diligence with his petition. even after
the death of the debtor insolvency proceedings can companytinue
for the realisation and distribution of the property of the
debtor in view of s. 17. section 24 lays down the procedure
at the hearing of the insolvency petition and provides that
the companyrt shall require proof of the fact that the creditor
or the debtor as the case may be is entitled to present a
petition. one of the companyditions for the creditor to present
the petition is that the debt owing by the debtor to him
amounts to rs. 500 and one of the companyditions for the debtor
to apply for adjudication is that his debts amount to rs. the companyrt therefore has to be provided with proof
about the existence of the debt and its amount even though
the debt be a judgment debt. the judgment or decree can be
prima facie evidence of the debt but in view of the companyrts
requiring proof of the debt it is number bound to treat the
judgment or decree to be companyclusive proof of the existence
of the debt for which the decree had been passed. subsequent to the adjudication of the debtor as an
insolvent the next stage for the preparation of the
schedule of creditors under s. 33 of the insolvency act
comes. all persons alleging themselves to be creditors of
the insolvent in respect of the debts provable under the act
have to tender proof of the
1114
respective debts by producing evidence of the amount and the
particulars thereof and the companyrt has then to determine the
person who have proved themselves to be creditors of the
insolvent in respect of such debts and the amount of debts
respectively and then frame a schedule of such persons and
debts. creditors other than the creditor who had applied
for the adjudication of the insolvent may have judgment
debts against that insolvent and they will have to prove by
evidence the amount and particulars of the debts owed by the
insolvent to them. judgments or decrees may be good
evidence for proving of such debts but it is open to the
court to require independent roof of the debt which had
merged in the judgment debt. it is clear from the above provisions of the insolvency act
that it is the duty of the insolvency companyrt and therefore
clearly within its jurisdiction to require proof to its
satisfaction of the debts sought to be proved at the stage
of the hearing of the insolvency petition or subsequent to
the adjudication. there is plenty of case law in support of the view that the
insolvency companyrt can go behind the decree of a companyrt in
order to probe into the genuineness of the debt in
connection with which the decree is passed. in ex parte kibble. in re onslow 1  it was said by sir
james l.j. at p. 376
it is the settled rule of the companyrt of
bankruptcy on which we have always acted
that the companyrt of bankruptcy can inquire into
the companysideration for a judgment debt. there
are obviously strong reasons for this because
the object of the bankruptcy laws is to
procure the distribution of a debtors goods
among his just creditors. if a judgment were
conclusive a man might allow any number of
judgments to be obtained by default against
him by his friends or relations without any
debt being due on them at all it is therefore
necessary that the companysideration of
 1  1875 10. ch. a.c. 373. 1115
the judgment should be liable to investiga-
tion. in this case the probe into the judgment debt
was made at the time of the adjudication
proceedings. in ex parte lennumber in re lennumber 1  lord
esher m.r. said at p. 323
the authority however of ex parte
kibble 2  seems to me quite sufficient and i
think it was decided on right principles. if
that be so it is number true to say that the mere
fact of a judgment existing ought to prevent
the companyrt at the instance of the debtor at the
first stage of the proceedings viz. when a
receiving order is applied for from inquiring
whether there was any real debt as the
foundation of the judgment and although by
consenting to a judgment the debtor is
estopped everywhere else from saying that
there was numberdebt due-although the judgment is
binding upon him by reason of his companysent and
of its being the judgment of the companyrt yet no
such estopped is effectual as against the
court of bankruptcy. the companyrt is number
estopped by the companyduct of the parties but it
has a right to inquire into the debt. companyton l.j. said at p. 325
it has been long established as regards the
proof of a debt in bankruptcy that the
trustee acting on behalf of the creditors
can go behind a judgment and that although
the judgment is prima facie evidence of a debt
due to the creditor who claims to prove for
the judgment debt yet the trustee on behalf
of the creditors may show that in fact the
judgment does number establish a debt. that rule
is founded upon this principle that under
whatever circumstances a judgment may have
been obtained against the bankrupt yet numberact
of his-collusion companypromise improperly
entered into or anything else-ought to
prejudice the rights of the other creditors
 2  1875 10 ch. a.c. 373.  1  1885 16 q.b.d. 315. 1116
because the assets ought to be distributed in
the bankruptcy only amongst the honest bona
fide creditors of the bankrupt. lindley l.j. said at pp. 328 329
bankruptcy proceedings are number like ordinary
proceedings they are a very serious matter
number only to the debtor himself but to all his
other creditors and before the machinery of
the companyrt of bankruptcy is put in motion it
appears to me that it is number only the right
but the duty of the companyrt to see at whose
instance it is asked to act. by the express
language of sub-s. 3 of s. 7 the companyrt is
enabled to look into a judgment debt
it means i think that although the
judgment debtor companyld number go behind the
judgment the companyrt of bankruptcy will number
allow itself to be put in motion at the
instance of a person who is number a real
creditor. the companyrt will number allow bankruptcy
proceedings to be had recourse to for the
purpose of enforcing debts which are
fictitious and number real even although they
are in the form of judgment debts. in re fraser ex parte central bank of
london 1  lord esher m.r. said at p. 635
as a matter of law the judgment therefore
stands as a good judgment against john fraser
and it cannumber be questioned by him in any
court except the companyrt of bankruptcy. but
when it is sought to obtain a receiving order
against him in respect of the judgment debt
the companyrt of bankruptcy has to exercise its
discretion and for the exercise of that
discretion one rule of companyduct is to be found
in s. 7 of the bankruptcy act 1883 which
provides by sub-s. 3 that if the companyrt is
number satisfied with the proof of the
petitioning creditors debt or of the act of
bankruptcy or of the service of the petition
or is satisfied by the debtor that is able to
 1  1892 2 q.b.d. 633.
pay his debts or that for other sufficient
cause numberorder ought to be made the companyrt may
dismiss the petition. in in re van laun ex parte chatterton 1  companyens hardy m.r. said at p. 30 what bigham j. had said in in re van laun. ex parte pattullo  2
the trustees right and duty when examining a
proof for the purpose of admitting or
rejecting it is to require some satisfactory
evidence that the debt on which the proof is
founded is a real debt. numberjudgment recovered
against the bankrupt numbercovenant given by or
account stated with him can deprive the
trustee of this right. he is entitled to go
behind such forms to get at the truth and the
estopped to which the bankrupt may have
subjected himself will number prevail against
him. the principles of these cases have been applied by the
courts in this companyntry. reference may be made to narasimha
sastri v. official assignee madras 3 . reference may also be made to sadhu ram v. kishori lal 4  in
which it was held in view of s. 4 2  of the insolvency act
that the decree founded on a debt held fictitious by an
insolvency companyrt companyld number be executed. bhide j said
in the present instance the finding of the
insolvency companyrt had i think the effect of
rendering the decree inumbererative as it was
tantamount to a declaration that the decree
was number-existent and the finding was binding
on the decree-holder as well as the judgment-
debtor. in view of our opinion that an insolvency companyrt can go
behind a decree and probe into the genuineness of the debt
on which it is founded it is number necessary to companysider the
contention as to whether the insolvency companyrt is a civil
court or number for the purpose of s. 11 of the act.  1  1907 2 k.b. 23.

a.i.r. 1930 madras 751.  2  1907 1 k.b. 155162.

a.i.r. 1938 lah 148.


criminal appellate jurisdiction criminal appeal number 81 of
1977.
appeal by special leave from the judgment and order dated
10-1 1-75 of the bombay high companyrt in criminal revision
application number 180 of 1975.

rajendra chudhary and mrs. veena devi khanna for the
appellant. n. phadke and m. n. shroff for the respondent. the judgment of the companyrt was delivered by
untwalia j.-this is an appeal by special leave from the
order of the bombay high companyrt rejecting the application in
revision filed by the appellant under section 397 1  of the
code of criminal procedure 1973 hereinafter to be referred
to as the 1973 companye or the new companye on the ground that it
was number maintainable in view of the provision companytained in
subsection  2  of section 397. the high companyrt has number gone
into its merits. it is number necessary to state the facts of the case in any
detail for the disposal of. this appeal. a bare skeleton of
them will suffice. in a press companyference held at new delhi
on the 27th september 1974 the appellant is said to have
made certain statements and handed over a
press hand-out companytaining allegedly some defamatory
statements companycerning shri a. r. antulay the then law
minister of the government of maharashtra. the said
statements were published in various newspapers. the state
government decided to prosecute the appellant for an offence
under section 500 of the indian penal companye as it was of the
view that the law minister was defamed in respect of his
conduct in the discharge of his public functions. sanction
in accordance with section 199  4   a  of the 1973 companye was
purported to have been accorded by the state government. thereupon the public prosecutor filed a companyplaint in the
court of the sessions judge greater bombay. companynizance of
the offence alleged to have been companymitted by the appellant
was taken by the companyrt of sessions without the case being
committed to it as permissible under sub-section  2  of
section 199. process was issued against the appellant upon
the said companyplaint. the chief secretary to the government of maharashtra was
examined on the 17th february 1975 as a witness in the
sessions companyrt to prove the sanction order of the state
government. thereafter on tile 24th february 1975 shri
madhu limaye the appellant filed an application to dismiss
the companyplaint on the ground that the companyrt had no
jurisdiction to entertain the companyplaint. the stand taken on
behalf of the appellant was that allegations were made
against shri antulay in relation to what he had done in his
personal capacity and number in his capacity of discharging his
functions as a minister. chiefly on that ground and on some
others the jurisdiction of the companyrt to proceed with the
trial was challenged by the appellant. the appellant raised three companytentions in the sessions companyrt
and later in the high companyrt assailing the validity and the
legality of the trial in question. they are -

that even assuming the allegations made
against shri antulay were defamatory they
were number in respect of his companyduct in the
discharge of his public functions and hence
the aggrieved person companyld file a companyplaint in
the companyrt of a companypetent magistrate who after
taking companynizance companyld try the case or companymit
it to the companyrt of sessions if so warranted in
law. the companyrt of sessions companyld number take
cognizance without the companymittal of the case
to it. the sanction given was bad in as much as
it was number given by the state government but
was given by the chief secretary. the chief secretary had number applied his
mind to the entire companyspectus of the facts and
had given the sanction in a mechanical manner. the sanction was bad on that account too. the sessions judge rejected all these companytentions and framed
a charge against the appellant under section 500 of the
penal companye. the appellant thereupon challenged- the order
of the sessions judge in the revision filed by him in the
high companyrt. as already stated without
entering into the merits of any of the companytentions raised by
the appellant it upheld the preliminary objection as to the
maintainability of the revision application. hence this
appeal. the point which falls for determination in this appeal is
squarely companyered by a decision of this companyrt to which one of
us  untwalia was a party in amar nath and others v. state of
haryana anr but on a careful companysideration of the matter
and on hearing learned companynsel for the parties in this
appeal we thought it advisable to enunciate and reiterate
the view taken by two learned judges of this companyrt in amar
naths case but in a somewhat modified and modulated form. in amar naths case as in this the order of the trial
court issuing process against the accused was challenged and
the high companyrt was asked to quash the criminal proceeding
either in exercise of its inherent power under section 482
of the 1973 companye companyresponding to section 561a of the companye
of criminal procedure 1898-hereinafter called the 1898 companye
or the old companye or under section 397 1  of the new companye
corresponding to section 435 of the old companye. two points
were decided in amar naths case in the following terms -

while we fully agree with-the view
taken by the learned judge that where a
revision to the high companyrt against the order
of the subordinate judge is expressly barred
under sub-s.  2  of s. 397 of the 1973 companye
the inherent powers companytained in s. 482 would
number be available to defeat the bar companytained
in s. 397 2 .  2 the impugned order of the magistrate
however was number an interlocutory order. for the reasons stated hereinafter we think that the
statement of the law apropos point number 1 is number quite
accurate and needs some modulation. but we are-going to
reaffirm the decision of the companyrt on the second point. under section 435 of the 1898 companye the high companyrt had the
power to call for and examine the record of any proceeding
before any inferior criminal companyrt situate within the local
limits of its jurisdiction for the purpose of satisfying
itself as to the companyrectness legality or propriety of any
finding sentence or order recorded or passed. and as to the
regularity of any proceedings of such inferior companyrt and
then to pass the necessary orders in accordance with the law
engrafted in any of the sections following section 435.
apart from the revisional power the high companyrt possessed
and possesses the inherent powers to be exercised ex debito
justitiae to do the real and the substantial justice for
the administration of which alone companyrts exist. in express
language this power was recognized and saved in section 561a
of the old companye. under section 397 1  of the 1973 companye
revisional power has been companyferred on the high companyrt in
terms which are identical to those found in section 435 of
the 1898 companye. similar is the position apropos the inherent
powers of the high companyrt. we may read the language

criminal appeal number 124 of 1977 decided on the 29th
july 1977.
of section 482  companyresponding to section 561a of the old
code  of the 1973 companye. it says
numberhing in this companye shall be deemed to limit
or affect the inherent powers of the high
court to make such orders as may be necessary
to give effect to any order under this companye
or to prevent abuse of the process of any
court or otherwise to secure the ends of
justice. at the outset the following principles may be numbericed in
relation to the exercise of the inherent power of the high
court which have been followed ordinarily and generally
almost invariably barring a few exceptions -

that the power is number to be resorted to
if there is a specific provision in the companye
for the redress of the grievance of the
aggrieved party

that it should be exercised very
sparingly to prevent abuse of process of any
court or otherwise to secure the ends of
justice

that it should number be exercised as
against the express bar of law engrafted in
any other provision of the companye. in most of the cases decided during several decades the
inherent power of the high companyrt has been invoked for the
quashing of a criminal proceeding on one ground or the
other. sometimes the revisional jurisdiction of the high
court has also been resorted to for the same kind of relief
by challenging the order taking companynizance or issuing
processes or framing charge on the grounds that the companyrt
had numberjurisdiction to take companynizance and proceed with the
trial that the issuance of process was wholly illegal or
void or that numbercharge companyld be framed as numberoffence was
made out on the allegations made or the evidence adduced in
court. in the background aforesaid we proceed to examine as
to what is the companyrect position of law after the introduc-
tion of a provision like sub section  2  of section 397 in
the 1973 companye. as pointed out in amar naths case  supra  the purpose of
putting a bar on the power of revision in relation to any
interlocutory order passed in an appeal inquiry trial or
other proceeding is to bring about expeditious disposal of
the cases finally more often than number the revisional power
of the high companyrt was resorted to in relation to inter-
locutory orders delaying the final disposal of the
proceedings. the legislature in its wisdom decided to check
this delay by introducing sub-section  2  in section 397.
on the one hand a bar has been put in the way of the high
court  as also of the sessions judge  for exercise of the
revisional power in relation to any interlocutory order on
the other the power has been companyferred in almost the same
terms as it was in the 1898 companye. on a plain reading of
section 482 however it would follow that numberhing in the
code which would include subsection  2  of section 397
also shall be deemed to limit or affect the inherent
powers of the high companyrt. but if we were to say that the
said bar is number to operate in the exercise of the inherent
power at all it will be setting at naught one of the
limitations imposed upon the exercise of the revisional
powers. in such a situation what is-the harmonious way out
? in our opinion a happy solution of this problem would be
to say that the bar provided in sub-section  2  of section
397 operates only in exercise of the revisional power of the
high companyrt meaning thereby that the high companyrt will have no
power of revision in relation to any interlocutory order. then in accordance with one of the other principles
enunciated above the inherent power will companye into play
there being numberother provision in the companye for the redress
of the grievance of the aggrieved party. but then if the
order assailed is purely of an interlocutory character which
could be companyrected in exercise of the revisional power of
the high companyrt under the 1898 companye. the high companyrt will
refuse to exercise its inherent power. but in case the
impugned order clearly brings about a situation which is an
abuse of the process of the companyrt or for the purpose of
securing the ends of justice interference by the high companyrt
is absolutely necessary then numberhing companytained in section
397 2  can limit or affect the exercise of the inherent
power by the high companyrt. but such cases would be few and
far between. the high companyrt must exercise the inherent
power very sparingly. one such case would be the
desirability of the quashing of a criminal proceeding
initiated illegally vexatiously or as being without
jurisdiction. take for example a case where a prosecution
is launched under the prevention of companyruption act without a
sanction. then the trial of the accused will be without
jurisdiction and even after his acquittal a second trial
after proper sanction will number be barred on the doctrine of
autrefois acquit. even assuming although we shall
presently show that it is number so that in such a case an
order of the companyrt taking companynizance or issuing processes is
an interlocutory order. does it stand to reason to say that
inherent power of the high companyrt cannumber be exercised for
stopping the criminal proceeding as early as possible
instead of harassing the accused upto the end ? the answer
is obvious that the bar will number operate to prevent the
abuse of the process of the companyrt and or to secure the ends
of justice. the label of the petition filed by an aggrieved
party is immaterial. the high companyrt can examine the matter
in an appropriate case under its inherent powers. the
present case undoubtedly falls for exercise of the power of
the high companyrt in accordance with section 482 of the 1973
code. even assuming. although number accepting that invoking
the revisional power of the high companyrt is impermissible. in r. p. kapur v. the state of punjab  1  gajendragadkar j
as he then was delivering the judgment of this companyrt
pointed out if we may say so with respect very succinctly
the scope of the inherent power of the high companyrt for the
purpose of quashing a criminal proceeding. says the learned
judge at pages 392-93 --
ordinarily criminal proceedings instituted
against an accused person must be tried under
the provisions of the companye and the high companyrt
would be reluctant to interfere with the said
proceedings at an interlocutory stage. it is
number possi-
 1  1960 3 scr. 388.
ble desirable or expedient to lay down any
inflexible rule which would govern the
exercise of this inherent jurisdiction. however we may indicate some categories of
cases where the inherent jurisdiction can and
should be exercised for quashing the
proceedings. there may be cases where it may
be possible for the high companyrt to take the
view that the institution or companytinuance of
criminal proceedings against an accused person
may amount to the abuse of the process of the
court or that the quashing of the impugned
proceedings would secure the ends of justice. if the criminal proceeding in question is in
respect of an offence alleged to have been
committed by an accused person and it
manifestly appears that there is a legal bar
against the institution or companytinuance of the
said proceeding the high companyrt would be
justified in quashing the proceeding on that
ground. absence of the requisite sanction
may for instance furnish cases under this
category. cases may also arise where the
allegations in the first information report or
the companyplaint even if they are taken at their
face value and accepted in their entirety do
number companystitute the offence alleged in such
cases numberquestion of appreciating evidence
arises it is a matter merely of looking at
the companyplaint or the first information report
to decide whether the offence alleged
is disclosed or number. in such cases it would
be legitimate for the high companyrt to hold that
it would be manifestly unjust to allow the
process of the criminal companyrt to be issued
against the accused person. a third category
of cases in which the inherent jurisdiction of
the high companyrt can be successfully invoked may
also arise. in cases falling under this
category the allegations made against the
accused person do companystitute an offence
alleged but there is either numberlegal evidence
adduced in support of the case or evidence
adduced clearly or manifestly fails to. prove
the charge. in dealing with this class of
cases it is important to bear in- mind the
distinction between a case where there is no
legal evidence or where there is evidence
which is manifestly and clearly inconsistent
with the accusation made and cases where there
is legal evidence which on its appreciation
may number support the accusation in question. in exercising its jurisdiction under s. 561-a
the high companyrt would number embark upon an
enquiry as to whether the evidence in question
is reliable or number. that is the function of
the trial magistrate and ordinarily it would
number be open to any party to invoke the high
courts inherent jurisdiction and companytend that
on a reasonable appreciation of the evidence
the accusation made against the accused would
number be sustained. we think the law as stated above is number affected by section
397 2  of the new companye. it still holds good in accordance
with .section 482.
ordinarily and generally the expression interlocutory
order has been understood and taken to mean as a companyverse
of the term final order. in volume 22 of the third
edition of halsburys laws of england at page 742 however
it has been stated in para 1606
 a judgment or order may be final for
one purpose and interlocutory for anumberher or
final as to part and interlocutory as to part. the meaning of two words must therefore be
considered separately in relation to the
particular purpose for which it is required. in para 1607 it is said
in general a judgment or order which
determines the principal matter in question is
termed final. in para 1608 at pages 744 and 745 we find the
words
an order which does number deal with the final
rights of the parties but either  1  is made
before judgment and gives numberfinal decision
on the matters in dispute but is merely on a
matter of procedure or  2  is made after
judgment and merely directs how the
declarations of right already given in the-
final judgment are to be worked out is termed
interlocutory. an interlocutory order
though number companyclusive of the main dispute may
be companyclusive as to the subordinate matter
with which it deals. in s. kuppuswami rao v. the king 1  kania c. j. delivering
the judgment of the companyrt has referred to some english
decisions at pages 185 and 186. lord esher m. r. said in
salaman v. warner 2  if their decision whichever way it is
given will if it stands finally dispose of the matter in
dispute i think that for the purposes of these rules it is
final. on the other hand if their decision if given in
one way will finally dispose of the matter in dispute but
if given in the other will allow the action to go on then
i think it is number final but interlocutory. to the same
effect are the observations quoted from the judgments of fry

j. and lopes l. j. applying the said test almost on
facts similar to the ones in the instant case it was held
that the order in revision passed by the high companyrt  at that
time there was numberbar like section 397  2  was number a final
order within the meaning of section 205  1  of the
government of india act 1935. it is to be numbericed that the
test laid down therein was that if the objection of the
accused succeeded the proceeding companyld have ended but number
vice versa. the order can be said to be a final order only
if in either event the action will be determined. in our
opinion if this strict test were to be applied in
interpreting the words interlocutory order occurring in
section 397 2  then the order taking companynizance of an
offence by a companyrt whether it is so done illegally or
without jurisdiction will number be a final order and hence
will be an interlocutory one. even so as we have said
above the inherent power of the high companyrt can be invoked
for quashing such a criminal proceeding. but in our
judgment such an interpretation and the universal
application of the principle that what is number a final order
must be an interlocutory order is neither warranted number
justified if it were so it will render almost nugatory the
revisional power of the sessions companyrt or the high companyrt
conferred on it by section 397 1 . on such a strict
interpretation.  1 1947 federal companyrt reports 180.  2  1891 1 q.b. 734.
only those orders would be revisable which are orders passed
on the final determination of the action but are number
appealable under chapter xxix of the companye. this does number
seem to be the intention of the legislature when it retained
the revisional power of the high companyrt in terms identical to
the one in the 1898 companye. in what cases then the high
court will examine the legality or the propriety of an order
or the legality of any proceeding of an inferior criminal
court ? is it circumscribed to examine only such proceeding
which is brought for its examination after the final
determination and wherein numberappeal lies ? such cases will
be very few and far between. it has been pointed out
repeatedly vide for example the river wear companymissioners

william adamson 1  and r. m. d. chamarbaugwalla v. the
union of india   2  that although the word occurring in a
particular statute are plain and unambiguous they have to
be interpreted in a manner which would fit in the companytext of
the other provisions of the statute and bring about the real
intention of the legislature. on the one hand the
legislature kept intact the revisional power of the high
court and on the other it put a bar on the exercise of
that power in relation to any interlocutory order. in such
a situation it appears to us that the real intention of the
legislature was number to equate the expression interlocutory
order as invariably being companyverse of the words final
order. there may be an order passed during the companyrse of a
proceeding which may number be final in the sense numbericed in
kuppuswamis case  supra  but yet it may number be an
interlocutory order-pure or simple. some kinds of order may
fall in between the two. by a rule of harmonious
construction we think that the bar in sub-section  2  of
section 397 is number meant to be attracted to such kinds of
intermediate orders. they may number be final orders for the
purposes of article 134 of the companystitution yet it would
number be companyrect to characterise them as merely interlocutory
orders within the meaning of section 397 2 . it is neither
advisable number possible to make a catalogue of orders to
demonstrate which kinds of orders would be merely purely or
simply interlocutory and which kinds of orders would be
final and then to prepare an exhaustive list of those types
of orders which will fall in between the two. the first two
kinds are well-knumbern and can be culled out from many decided
cases. we may however indicate that the type of order
with which we are companycerned in this case even though it may
number be final in one sense is surely number interlocutory so as
to attract the bar of subsection  2  of section 397. in our
opinion it must be taken to be an order of the type falling
in the middle companyrse. in passing for the sake of explaining ourselves we may
refer to what has been said by kania c. j. in kuppuswamis
case at page 187 by quoting a few words from sir george
lowndes in the case of abdul rahman v. d. k. cassim and
sons 3 . the learned law lord said with reference to the
order under companysideration in that case the effect of the
order from which it is here sought to appeal was number to
dispose finally of the rights of the parties. it numberdoubt
decided an important and even a vital issue in the case
but it left the suit alive and provided for its trial in
the ordinary way. many a time a question
 1  1876-77 2 a.c. 743.  3  1933 60 indian appeals 76.  2  1957 s.c.r. 930.
arose in india as to what is the exact meaning of the phrase
case decided occurring in section 1 1 5 of the companye of
civil procedure. some high companyrts had taken the view that
it meant the final order passed on final determination of
the action. many others had however opined that even
interlocutory orders were companyered by the said term. this
court struck a mean and it did number approve of either of the
two extreme lines. in baldevdas v. filmistan distributors
 india  pvt. limited 1  it has been pointed out
a case may be said to be decided if the
court adjudicates for the purposes of the suit
some right or obligation of the parties in
controversy
we may give a clear example of an order in a civil case
which may number be a final order within the meaning of
article 133  1  of the companystitution yet it will number be
purely or simply of an interlocutory character. suppose for
example a defendant raises the plea of jurisdiction of a
particular companyrt to try the suit or the bar of limitation
and succeeds then the action is determined finally in that
court. but if the point is decided against him the suit
proceeds. of companyrse in a given case the point raised may
be such that it is interwoven and interconnected with the
other issues in the case and that it may number be possible to
decide it under order 14 rule 2 of the companye of civil
procedure as i preliminary point of law. but if it is a
pure point of law and is decided one way or the other then
the order deciding such a point may number be interlocutory
albeit-may number be final either. surely it will be a case
decided as pointed out by this companyrt in some decisions
within the meaning of section 115 of the companye of civil
procedure. we think it would be just and proper to apply
the same kind to test for finding out the real meaning of
the expression interlocutory order occurring in section
397 2 . in amar naths case reference has been made to the decision
of this companyrt in mohan lal magan lal thacker v. state of
gujarat 2  after an enquiry under section 476 of the 1898
code an order was made directing the filing of a companyplaint
against the appellant. it was affirmed by the high companyrt. the matter came to this companyrt on grant of a certificate
under article 134 1   c . a question arose whether the
order was a final order within the meaning of the said
constitutional provision. shelat j. delivering the
judgment on behalf of himself and two other learned judges
said that it was a final order. the dissenting judgment was
given by bachawat j. on behalf of himself find one other
learned judge. in the majority decision four tests were
culled out from some english decisions. they are found
enumerated at page 688. one of the tests is if the order
in question is reversed would the action have to go on ? applying that test to the facts of the instant case it would
be numbericed that if the plea of the appellant succeeds and
the order of the sessions judge is reversed the criminal
proceeding as initiated and instituted against him cannumber go
on. if however he loses on the merits of the preliminary
point the proceeding will go on. applying the test of
kuppuswami case such an order will

a. t. r. 1970 s.c. 406.  2  1968 2 s.c.r. 685.
number be a final order. but applying the fourth test numbered at
page 688 in mohan lals case it would be a final order. the
real point of distinction however is to be found at page
693 in the judgment of shelat j.the passage runs thus
as observed in ramesh v. patni-1966 3

c.r. 198 the finality of that order was number
to be judged by companyrelating that order with
the companytroversy in the companyplaintviz. whether
the appellant had companymitted the offence
charged against him therein. the fact that
that companytroversy still remained alive is
irrelevant. the majority view is based upon the distinction pointed out
in the above passage and companycluding that it is a final order
within the meaning of article 134 1   c . while bachawat
j. said at page 695 it is merely a preliminary step in
the prosecution and therefore an interlocutory orders. even
though there may be a scope for expressing different
opinions apropos the nature of the order which was under
consideration in mohan lars case in our judgment
undoubtedly an order directing the filing of a companyplaint
after enquiry made under a provision of the 1973 companye
similar to section 476 of the 1898 companye will number be an
interlocutory order within the meaning of section 397 2 . the order will be clearly revisable by the high companyrt. we
must however hasten to add that the majority decision in
mohan lals case treats such an order as an order finally
concluding the enquiry started to find out whether a
complaint should be lodged or number taking the prosecution
launched on the filing of the companyplaint as a separate
proceeding. from that point of view the matter under
discussion may number be said to be squarely companyered by the
decision of this companyrt in mohan lals case. yet for the
reasons already alluded to we feel numberdifficulty in companying
to the companyclusion after due companysideration that an order
rejecting the plea of the accused on a point which when
accepted will companyclude the particular proceeding will
surely be number an interlocutory order within the meaning of
section 397 2 . we may also refer to the decision of this companyrt in
parmeshwari devi v. state and anr.  1  that an order made in
a criminal proceeding against a person who is number a party to
the enquiry or trial and which adversely affected him is number
an interlocutory order within the meaning of section 397
 2 . referring to a passage from the decision of this companyrt
in mohan lals case- the passage which is to be found in
halsburys laws of england volume 22 it has been said by
shinghal j. delivering the judgment of the companyrt at page
164
it may thus be companyclusive with reference to
the stage at which it is made and it may also
be companyclusive as to a person who is number a
party to the enquiry or trial against whom it
is directed. as already mentioned the view expressed in mohan lals case
may be open to debate or difference. one such example is to
be found in the
 1  1977 2 s.c.r. 160.
decision of this companyrt in prakash chand agarwal ors. v.
m s hindustan steel limited 1  wherein it was held that an
order of the high companyrt setting aside an ex-parte decree in
the suit and restoring the suit to the file of the trial
court is number a final order within the meaning of article

it is to be numbericed that if the high companyrt would have
refused to set aside the ex-parte decree the proceeding for
setting it aside would have finally ended and on some of the
principles culled out by the majority in mohan lars case
such an order would have been a final order. we are
however number under any necessity to enter into this
controversial arena. in our opinion whether the type of the
order aforesaid would be a final order or number surely it
will number be an interlocutory order within the meaning of
sub-section  2  of section 397 of the 1973 companye. before we companyclude we may point out an obvious almost
insurmountable difficulty in the way of applying literally
the test laid down in kuppuswami raos case and in holding
that an order of the kind under companysideration being number a
final order must necessarily be an interlocutory one. if a
complaint is dismissed under section 203 or under section
204 4  or the companyrt holds the proceeding to be void or
discharges the accused a revision to the high companyrt at the
instance of the companyplainant or the prosecutor would be
competent otherwise it will make section 398 of the new
code otiose. does it stand to reason then that an accused
will have numberremedy to move the high companyrt in revision or
invoke its inherent power for the quashing of the criminal
proceeding initiated upon a companyplaint or otherwise and which
is fit to be quashed on the face of it ?