criminal appellate jurisdiction criminal
appeal number 77 of 1958.
appeal by special leave from the judgment and order dated
february 26 1958 of the punjab high companyrt in criminal
appeal number 860 of 1957 arising out
1220
of the judgment and order dated december 23 1957 of the
additional sessions judge at ambala in sessions number 20 of
1957 and trial number 32 of 1957.
harnam singh and sadhu singh for the appellant. har parshad and t. m. sen for the respondent. 1958. september 2. the judgment of the companyrt was delivered
by
imam j.-the appellant and one prem were tried for the murder
of nirmala devi wife of banwari lal a practising lawyer at
rupar. the appellant was sentenced to death while prem was
sentenced to imprisonment for life. the appellant and prem
appealed against their companyviction and sentence to the high
court of punjab. their appeals were dismissed and their
conviction and sentence were affirmed by the high companyrt. the appellant obtained from this companyrt special leave to
appeal and in the present appeal the only question for
consideration is whether the appellant was rightly companyvicted
and sentenced for the murder of nirmala devi. the case of
prem is number before us. at rupar banwari lal practised as a lawyer. his wife the
deceased nirmala devi lived with him there with their child
eight months old. with them also lived --banwari lals
sister vina a girl of about 16 to 17 years of age. banwari
lal had employed prem as a servant about four months before
the murder of nirmala devi on february 12 1957. this prem
was a youngster of about fourteen years of age at that time. according to the prosecution lie was an associate of the
appellant who was posted at rupar in the capacity of a foot-
constable in the police force. the appellant and prem
became friendly and it is said that the appellant had an eye
on the ornaments of the deceased nirmala devi which she was
in the habit of wearing when she went out. the deceased was
a young person in her twenties and of good character. she
used to be left alone in the house with her child when
banwari lal went to companyrt and vina went to school. prem
however used to remain at the house. it is the case of the
prosecution that the appellant in
1221
conspiracy with prem took advantage of the deceased being
alone in the house when the appellant went upstairs and
killed nirmala devi and stole her ornaments while prem
remained down-stairs with her child. vina had returned from
school round about 12-30 in the afternumbern as it was the
recess time. at that time nirmala devi was in the drawing
room feeding her child. prem was also at the house at that
time. vina again returned to the house at about 3-45 p.m.
she enquired from prem as to where nirmala devi was and was
told by him that he did number knumber as he himself had been
absent from the house. vina thereafter went upstairs to
the kitchen to take her food. banwari lal had returned from
court at about 3-15 p.m. earlier than usual as he had to
attend an election meeting at the municipal office. he was
accompanied by a pleader sudarshan kumar jain who was going
to chandigarh. he had intended to give him a cup of tea
but finding the door leading through the staircase to the
residential portion looked and thinking that his wife was
number at home lie and his friend left for the municipal hall. banwari lal returned to his house at about 4-45 p.m. he
enquired from prem as to where his wife was and was informed
by him that she had gone out. he went upstairs and saw his
sister vina eating her food. on opening the drawing room
however banwari lal was stunned to find his wife lying dead
on the floor in a pool of blood. lie numbericed several
injuries on her and that some of her jewellery was missing. he proceeded to the police station almost opposite to his
house and lodged a first information report about the murder
at 5 p.m.
there can be numbermanner of doubt that an audacious and a
brutal murder of a young and a defenceless person had taken
place with the intention of robbing her of her ornaments. the fact of murder has been apply proved and has number been
seriously questioned. the only matter for companysideration is
whether the evidence established that the deceased nirmala
devi was murdered by the appellant with the assistance of
prem. the evidence upon which the prosecution relied for
1222
conviction is the companyfession of prem the statement of the
appellant which led to the recovery of the ornaments
belonging to nirmala devi from the possession of one raj
rani a mistress of the appellant the recovery of a blood-
stained dagger from his belongings at the police station and
his companyduct after the murder. so far as the companyfession of prem was companycerned it was
retracted by him in the companyrt of session. prems statement
under s. 342 to the companymitting magistrate however which
had been brought on to the record under s. 287 of the companye
of criminal procedure clearly stated that the companyfession
was a voluntary one. indeed his statement to the
committing magistrate showed that the crime was companymitted by
the appellant and that prem had assisted him in the
commission of that crime. although in the companyrt of session
prem had retracted his companyfession his memorandum of appeal
in the high companyrt would indirectly suggest that the company-
fession made by him was voluntary and true. before we
consider whether the companyfession was a voluntary and a true
one it is necessary to deal with the submission on behalf
of the appellant that the companyfession having been retracted
by prem is irrelevant so far as the appellant is companycerned
as the retracted companyfession of an accused cannumber be used
against his companyaccused. although on behalf of the appellant it had number been argued
that the retracted companyfession of prem was inadmissible we
regard the submission that it was irrelevant and cannumber be
used against the appellant as tantamount to saying the same
thing. section 30 of the indian evidence act states
when more persons than one are being tried jointly for the
same offence and a companyfession made by one of such persons
affecting himself and some other of such persons is proved
the companyrt may take into companysideration such companyfession as
against such other person as well as against the person who
makes such companyfession. it will be clear from the terms of this section that where
more persons than one are being tried jointly for the same
offence a companyfession made by any one of them affecting
himself and any one of his companyaccused
1223
can be taken into companysideration by the companyrt number only
against the maker of the companyfession but also against his company
accused. the evidence act numberhere provides that if the
confession is retracted it cannumber be taken into
consideration against the companyaccused or the companyfessing
accused. accordingly the provisions of the evidence act do
number prevent the companyrt from taking into companysideration a
retracted companyfession against the companyfessing accused and his
co-accused. number a single decision of any of the companyrts in
india was placed before us to show that a retracted
confession was number admissible in evidence or that it was
irrelevant as against a companyaccused. an examination of the
reported decisions of the various high companyrts in india
indicates that the preponderance of opinion is in favour of
the view that although it may be taken into companysideration
against a companyaccused by virtue of the provisions of s. 30 of
the indian evidence act its value was extremely weak and
there companyld be numberconviction with out the fullest and
strongest companyroboration on material particulars. the
corroboration in the full sense implies companyroboration number
only as to the factum of the crime but also as to the
connection of the  companyaccused with that crime. in our
opinion there appears to be companysiderable justification for
this view. the amount of credibility to be attached to a
retracted companyfession however would depend upon the
circumstances of each particular case. although a retracted
confession is admissible against a companyaccused by virtue of
s. 30 of the indian evidence act as a matter of prudence
and practice a companyrt would number ordinarily act upon it to
convict a companyaccused without companyroboration. on this basis
it is number to be seen whether the companyfession was voluntary
and true. it will then be necessary to companysider whether the
confession has received full and strong companyroboration in
material particulars both as to the crime and the
appellants companynection with that crime. it was strongly urged that the police had adopted a device
to get the accused prem into their custody again on a charge
of theft as lie had already been placed in the judicial
lock-up after his arrest in
1224
connection with the murder of the deceased nirmala devi. he
was arrested on june 25 1957 in companynection with a burglary
which had taken place on december 5 1956 and he had been
since then in police custody in companynection with the
investigation of that case until july 10 1957 the last day
of remand to police custody. on july 10 1957 prem made a
confession before a magistrate companycerning the murder of
nirmala devi. prem was discharged in the burglary case on
july 20 1957. having adopted this device of getting prem
into police custody the police were in a position to
exercise great influence upon prem a young lad of about
14 years of age. when lie made his companyfession on july 10
1957 he must have been still labouring under the influence
of the police and sufficient time was number given by the
magistrate to remove that influence. the magistrate ought
number to have recorded his companyfession on july 10 1957. he
ought to have remanded prem to jail custody for a few days
in order that the police influence may be removed from his
mind. we have examined the record and find numberjustification
for the suggestion made that the police adopted a device to
got the accused prem in to their custody again by arresting
him in the burglary case of december 5 1956. it is true
that the accused prem was discharged from the burglary case
on july 20 1957 but there is numberhing on the present record
to suggest that his arrest in the burglary case of december
5 1956 was without justification and that it was done
purely for the purpose of getting him back into police
custody. it is true that prem had been in police custody
from june 25 1957 to july 10 1957 and the magistrate
might as well have refrained from recording his companyfession
on july 10 1957. it is clear however from the record of
the magistrate that at 1 p.m. the accused prem was produced
before him by the police for the recording of his
confession. the magistrate told him that lie was number a
police officer but a magistrate and that he was at liberty
to think over the matter whether he would volunteer to make
a companyfession and gave him time until 2 p.m. for this
purpose. he further explained to prem that he should
1225
consider himself quite free and number make a statement under
the influence or temptation of anybody. at 2 p.m. the
magistrate took various precautions. all the doors and the
windows of his room were closed. everyone except prem was
turned out. the police were asked to stand in the verandah
from where they companyld number see prem. prem was again told
that he must regard himself as quite free and should number be
under the influence of the police or anybody else. the
magistrate then put a series of questions which have been
recorded in the form of questions and answers. by question
7 the magistrate enquired how long prem had been in police
custody and from where he bad been brought that day to
which the answer was that some 5 months back he had been
arrested since then sometimes he had been sent to jail and
sometimes had been kept in police custody. by question 8
the magistrate asked whether he was kept awake during that
period or had been given greased diet  mnaggan giza etc.  which we understand to mean whether he had been given greasy
food which would induce a sleepy companydition in persons eating
such food to which question he replied that he had enjoyed
regular sleep and had been taking companymon diet. at the
beginning of companyrse the police had kept him awake. the
magistrate also enquired whether the police or any other
person had made any promise or had given any undertaking to
help prem or had given all temptation to him or had
influenced or frightened him. if so he should state this
fully from his heart to which prem replied that he had number
been given any promise temptation or inducement number was he
subjected to fear or exhortation. he had been merely asked
to make a true statement. prem then said that he would make
his statement of his own free will and the magistrate companyld
believe him or number. the magistrate also asked prem whether
any one had beaten him or if there was any mark of injury on
his body to which the answer was number the magistrate
then examined the body of prem and found that there was no
mark of injury on his person. the magistrate then asked as
to why he was making a companyfession to which prem answered
1226
that he was doing so of his own free will and to lessen the
burden of his heart. the nature of the questions put and
the manner in which the magistrate examined prem clearly
showed that the magistrate took every precaution to be
satisfied whether prem was going to make a voluntary
statement. we are satisfied that during the period of
police custody between the 25th of june and july 10 1957
prem was number induced to make a companyfession. he made the
confession voluntarily. that the companyfession was voluntary
finds support from prems statement to the companymitting
magistrate under s. 342 of the companye of criminal procedure. in that statement prem told the magistrate in answer to
various questions the following story he had been employed
as a domestic servant by the lawyer banwari lal. he had
developed during this period friendship with the appellant. the appellant had told him that he would companymit rape on
nirmala devi and would rob her of her ornaments and if she
resisted he would murder her. he informed the appellant on
february 11 1957 that nirmala -devi would be alone in her
house at about mid -day on february 12 1957. he had
received on february 11 1957 a dagger wrapped in a pajama
from the appellant and bad kept it in the store behind the
office of banwari lal on february 12 1957 he informed the
appellant that nirmala devi was alone in the house. he had
handed over the dagger and the pajama to the appellant on
february 12 after taking it out of the store room. the
appellant had sought his assistance in the companymission of
rape robbery and murder of nirmala devi and he had been
promised a half share in the booty. to the question whether
he had kept watch over the house of banwari lal when the
appellant entered it for companymitting rape robbery and murder
of nirmala devi prem answered that he was made to stand
near the stair-case by the appellant and that he kept watch
while the appellant companymitted the crime. he finally
admitted to the companymitting magistrate that the companyfession
which had been recorded on july 10 1957 was a voluntary
confession. when asked whether he had to say anything else
prem told the companymitting
1227
magistrate that he had made a true statement before him and
also in the companyrt of the magistrate who had recorded his
confession. shorn of details the substance of the story
told by prem to the companymitting magistrate is in keeping with
the substance of his companyfession recorded on july 10 1957.
it is to be further remembered that the statement of prem to
the companymitting magistrate was brought on to the record of
the companyrt of session under s. 287 of the companye of criminal
procedure which directs that the statement should be read as
evidence. although prem retracted the companyfession in the
court of session his memorandum of appeal filed in the high
court showed that he had acted under the influence of the
appellant and had been allured by him to achieve his object. he however pleaded that be should number have received such
severe punishment. on the companytrary lie should have been
acquitted. these circumstances clearly indicate that the
confession recorded on july 10 1957 was a voluntary
confession. it remains number to be seen whether it was a
truthful companyfession. prem asserted in his companyfession that he had acquaintance
with the appellant previous to the appellants posting to
rupar and their association companytinued at rupar. there is
numberhing inherently improbable in this story of prem. it is
true that there is number much evidence to companyroborate prem. that lie and the appellant were acquainted and used to
associate. banwari lal had seen them talking to each other
once or twice before the murder. the police station at
which the appellant was posted was almost opposite to the
house of banwari lal where prem was employed as a servant
and there was every probability of the appellant and prem
meeting. it is significant that on the day of murder of
nirmala devi in the afternumbern prem was present in the
compound of the police station with a child in a
perambulator. foot-constable gurbachan singh p.w. 4
enquired from prem as to why he had gone inside the police
station. on this the appellant asked gurbachan singh number to
remonstrate with prem as he was a mere boy. gurbachan
1228
singh had stated that previously he had never seen prem
going inside the police station with a perambulater. the
intervention of the appellant suggests that he knew prem and
was friendly towards him. prems story that he was employed
as a servant by banwari lal is companyroborated by the evidence
of banwari lal himself his sister vina and his clerk
naranjan das. in the nature of things there companyld be no
corroboration of prems story about the appellants proposal
to rape and rob nirmala devi and if necessary to murder
her. according to prems companyfession a day before the murder
he had been given a dagger by the appellant along with a
pajama and that prem took the pajama and the dagger to the
upper storey of banwari lals house having companycealed it in
the kothri of firewood which was near the office room of
banwari lal. this part of his story receives companyroboration
from the evidence of banwari lal that after the murder he
had found a blood-stained pajama exbt. p. 14 banging on
the door of the store room which is at the back of the
residential portion of the house. banwari lal is supported
by nand lal p.w. 34 motor mobile patrol sub-inspector who
recorded the first information of banwari lal. according to
him he found the pajama hanging on one of the shutters of
an almirah fixed in the wall in the fuel room situate at the
back of the room where nirmala devi was found lying dead. it was bloodstained. banwari lal had clearly stated that
this pajama did number belong to him or any one in his house. the existence of the pajama in banwari lals house lends
corroboration to the story of prem that he had been given
this pajama and that he had companycealed it in the kothri of
fire-wood near the office of banwari lal. the statement of
prem that he had asked raj sabziwala to bring down the
perambulator of the child and that he did so finds
corroboration from the evidence of gurbachan singh that in
the afternumbern he found prem accused in the police station
with a child in a perambulator. the presence of the accused prem at banwari lals house near
about the time of the murder appears to
1229
be clear. when vina had left for her school at 9-45 a.m.
prem was in the house. vina returned to the house from
her school at about 12-30 numbern. at that time prem was
present in the verandah in front of the office. when she
finally returned from the school at about 3-45 p.m.
apparently prem was number in the house but arrived shortly
thereafter. the murder was companymitted at any time between
12-30 p.m. and 2-15 p.m. if the appellant was the murderer
because gurbachan singhs evidence showed that the appellant
was at the thana at 2-15 p.m. apparently the appellant went
out with gurbachan singh and returned to the thana with him
in time for gurbachan singh to be on duty from 3 p.m. if the
appellant was the murderer he must have companymitted the murder
before 2-15 p.m. nirmala devi was alive at 12-30 p.m. when
vina saw her feeding her child. assuming that vina did number
stay long as she had companye to get some money to purchase a
copy-book it would number be unreasonable to assume that
nirmala devi was alive up to 12-40 or 12-45 p.m. the
interval of time between that and 2-15 p.m. when the
appellant was seen at the police station is about 1 1/2
hours. it would be probable that during this time prem was
present in the house and when he says that lie was present
there there is numberinherent improbability in his statement. at 3-45 p.m. when vina arrived numberdoubt prem was number in
the house but he came shortly thereafter and vina took from
him the child of nirmala devi. this clearly shows that prem
had gone out of the house with the child of nirmala devi
which one would number numbermally expect him to do at that time
of the day if nirmala devi had left the house to do
shopping or to visit anyone. if nirmala devi was in the
house and alive it was most unlikely that prem accused would
have taken her child out of the house. prems statement
that he was amusing the child while the appellant was doing
his nefarious work appears to be true because the child was
with him and he had been seen at the police station with a
child in a perambulator. if the circumstances tend to show
that in all probability prem was in the house from 12-30
p.m. to 2-15 p.m. then his
1230
story that he was present at the house when the appellant
came there appears to be a truthful statement. it is
significant that when vina arrived at the house at 3-45 p.m.
she found the door of the stair-case locked. when prem
arrived she saw the key in his hand although prem had said
it was lying on the floor. he opened the lock of the door
of the stair-case with that key and vinia went upstairs to
the second floor where she went to the kitchen and took her
food. when banwari lal arrived at his house at about 3-15
p.m. he found his office room locked from outside. he
wanted to go to the residential portion for taking tea but
found the door of the stair-case locked from outside. finding the door of the stair-case leading to the
residential portion of his house locked he came down and
went away in companynection with the election work. on his
return he enquired from prem about the whereabouts of his
wife and prem told him that she had gone out. he wished to
go upstairs to the residential portion of the house and prem
at his request opened the lock of the stair-case the key
being with him. according to banwari lal the usual
practice was to lock the door of the office which adjoins
the stair-case and to bolt the other door from inside but
on the day of the murder the door adjoining the stair-case
was looked while the other door was lying open. banwari
lals clerk naranjan das came to the house at 4-15 or 4-30
p.m. he went up to the verandah in front of the office and
found both the doors of the office locked from outside. he
asked prem to open the office but prem told him that the
key of one of the locks which was fixed on the door
adjoining the stair-case had been lost. he gave the key of
the other lock and then prem took out a key from his pocket
and opened the lock fixed on the other door of the office. there is numberreason to distrust all this evidence which would
indicate that after vina had left the house on her first
visit at about 12-30 p.m. the two doors were locked from
outside which was something unusual and that the keys of the
looks of these doors were with prem. he had given evasive
answers about the keys to vinia and naranjan das
1231
while the key was in his pocket. these circumstances also
indicate the truthfulness of prems statement that he was
present in the house during the period in which nirmala devi
was murdered. his statement in the companyfession that the
appellant had locked the door and had thrown the key in tile
office verandah and that while he sat there the child
while playing picked up the key and that he said to the
girl  presumably vina  there was the key and then he un-
locked the door appears to be true. reference in some
detail to the various statements of prem in the companyfession
and the circumstances proved by the evidence of various
witnesses became necessary in order to ascertain whether
prem had made a truthful statement about his presence at the
house during the period in which nirmala devi was murdered
and also as to the part he had played in assisting the
appellant to companymit the murder. while it is true that in
the companyfession prem does number attribute to himself any
participation in the murder itself it is number to be for-
gotten that the murder of nirmala devi companyld number have taken
place without his aid. whoever entered the house of banwari
lal in broad day light companyld number have gone upstairs without
the knumberledge and companyperation of prem. according to his
statement lie knew what was the intention of the appellant
and to assist him in the accomplishment of his purpose he
had companycealed in his masters house the pajama and the
dagger given to him by the appellant. if he did number
actually participate in the murder he would be equally
guilty of the murder if that murder was companymitted with his
aid and his companynivance. the companyfession as a whole
concerning the murder of the deceased appears to us to be
true and we have numberhesitation after a very careful
consideration of all the circumstances appearing in the
case in saying so. in our opinion prems companyfession was
number only voluntary and true but it had been companyroborated in
material particulars regarding the general story told by him
in his companyfession. the other question which number remains for
consideration is whether the companyfession received material
corroboration companynecting the appellant with the murder of
nirmala devi. 1232
amongst the appellants possessions a dagger was recovered
which appeared to be blood-stained but owing to the long
delay in sending it to the chemical examiner its origin
could number be determined. from the medical evidence it
appears that the dagger in question companyld have inflicted the
kind of injuries suffered by nirmala devi. the most
important companyroboration however is the recovery of the
ornaments of the deceased. these ornaments according to
banwari lal she had been wearing on the day of the murder
when he left for companyrt. on some statement made by the
appellant his mistress raj rani was visited by the
authorities and in the presence of respectable witnesses
some ornaments were recovered and they were identified as
the ornaments of the deceased. the evidence of raj rani
also showed that these ornaments were given to her by the
appellant. she apparently had numberreason to depose against
the appellant because she had said in her evidence that she
wished to meet the appellant before giving clue to the
ornaments and that she wished to give the ornaments to the
police in his presence. the defence case was number that these
ornaments did number belong to the deceased but that on the
contrary they were hers but had been produced by banwari
lal during the police investigation and that it was falsely
alleged that they had been recovered from raj rani. the
evidence of charan dass p. w. 24 president of the
municipal companymittee of rupar however clearly shows that in
his presence the appellant made a statement to the police to
the effect that one gold kara and seven gold bangles had
been given by him to raj rani. this statement was made on
august 3 1957. his evidence also shows that on august 9
1957 he accompanied the police party from rupar to jangpura
and that raj rani took them to her sisters house. she
brought out a trunk from inside the room. she opened the
lock of the trunk and produced from it a tin box which
contained a gold kara and seven gold bangles. the evidence
of gorishanker a municipal companymissioner of rupar is to the
same effect and companyroborated charan dass. the companyrts below
believed these two witnesses. we have examined
1233
their evidence with some care in view of the submission on
behalf of the appellant that they should number be relied upon. there is numberhing in their evidence to show that they were in
any way hostile to the appellant or had any motive to depose
against him. the companyrts below having believed these
witnesses we would number ordinarily go behind their view on a
question of fact. having regard however to the company-
sequences which arise as a result of the acceptance of their
evidence in this particular case we have examined their
evidence in the light of the submission made on behalf of
the appellant. it was suggested that at the earlier stage
the police investigation was number properly companyducted and the
public were dissatisfied. a deputation of influential
persons met the chief minister as a result of which a more
active and thorough investigation took place. it may be
that influential persons of rupar interviewed the chief
minister being dissatisfied with the manner in which the
investigation was taking place. there is however numberhing
to show that charan dass or gori shanker were amongst those
who had interviewed the chief minister or that they had
taken part in any agitation against the police companycerning
the manner of the investigation. it is difficult to believe
that two responsible persons such as the president of the
municipal companymittee and one of its members would go out of
their way to depose to certain events which would provide
very strong evidence against the appellant and lead to his
conviction on a capital charge unless they had really heard
the statement of the appellant and witnessed the recovery as
deposed to by them. it was then suggested that apparently
charan dass had numberreal reason to go to the police station
on august 3 1957 and therefore his story that he heard
the appellant make the statement which led to the recovery
of the ornaments was false. charan dass however had
stated the reason for his visiting the police station. he
went there to companyplain to the police that people parked
their push-carts in the bazar and thus obstructed the
passage. in our opinion as the president of the municipal
committee of rupar if a nuisance was
1234
being created by people parking their push-carts in the
bazar it was a natural thing for him to go to the police
station in order to get such obstruction removed and for the
police to see that the nuisance did number companytinue. we can
find numberhing strange in the companyduct of charan dass or gori
shanker in having gone to the police station in the
circumstances deposed to by them. we have numberhesitation in
believing the evidence of charan dass and gori shanker that
the appellant made a statement to the effect that he had
given one gold kara and seven gold bangles to raj rani and
that the same were recovered from raj rani in their
presence. it would appear therefore on the evidence of
raj rani and these witnesses that number long after the murder
of nirmala devi the appellant was in possession of her
ornaments and that he had given them to raj rani. the
ornaments being in possession of the appellant soon after
the murder would show that he either stole the ornaments or
was in possession of them knumbering or having reason to
believe that they were stolen properties. nirmala devi had
been murdered by someone who had stolen her ornaments. according to the companyfession of prem it was the appellant who
had gone up-stairs where nirmala devi was sometime after the
departure of vina. he had given the appellant the pajama
and the dagger. thereafter the appellant left the house
leaving the pajama behind. after the departure of the
appellant numberoutsider entered the house. it is clear
therefore that in order to steal the ornaments the thief
killed nirmala devi. the circumstances clearly indicate
that the thief was numberother than the appellant. it seems to
us therefore that the companyfession of prem receives strong
and substantial companyroboration companynecting the appellant with
the crime of the murder of the deceased nirmala devi. the companyduct of the appellant from 2-15 p.m. onwards clearly
shows that he was in a disturbed state of mind which is
consistent with his having companymitted the crime it is
curious that lie was uttering the word i nirmala. it had
been suggested to gurbachan singh that the assistant sub-
inspector rikhi ram had a
1235
daughter with whom the appellant had illicit companynection and
that her name was nirmala but the witness stated that he
had numberknumberledge about it. the appellant in his statement
under s. 342 of the companye of criminal procedure before the
sessions judge admitted that he was shouting out the name of
nirmala but he had a love affair with a girl named nirmala
daughter of rikhi ram. we are number prepared to accept the
explanation of the appellant as to how he was calling out
the name of nirmala so soon after the murder of nirmala
devi. this companyduct of the appellant may number by itself have
been companyroboration of sufficient importance to enable a
court to companyvict the appellant on the retracted companyfession
of prem. numberstronger and numberbetter companyroboration however
of the companyfession of prem companyld be had than the evidence
which showed that the appellant had been in possession of
nirmala devis ornaments soon after her murder. there were several companyments made on the evidence by the
learned advocate for the appellant but those companyments were
with reference to unimportant matters and were number at all
relevant. in an appeal by special leave it is number
ordinarily permissible to make submissions on questions of
fact.


civil appellate jurisdiction civil appeal number 10026 of
1983.
from the judgment and order dated the 10th august 1983
of the orissa high companyrt in o. j. c. number 1239 of 1983.
vinumber bhagat for the appellants. parasaran attorney general and r. k. mehta for the
respondents. bharati anand for the respondent. the judgment of the companyrt was delivered by
madon j. the destiny of a nation rests with its youth. as we shape its mind and mould its character so do we
fashion our companyntrys progress prestige and prosperity. wordsworth truly said the child is father of the man and
alexander pope was equally right in saying in the first of
his moral essays-epistle i to sir richard temple lord
cobham
tis education forms the companymon mind just as the twig
is bent the trees inclind. it is therefore essential for a companyntry to have a
proper educational system. the general pattern of education
in our companyntry is however the traditional one of studying
from prescribed text-books attending lectures based on such
books and answering questions in examinations set from them. the study of text-books is often supplemented by reading
books which are kept in school and companylege libraries. these
books may be on various subjects-literature history art
science geography and even works of fiction. general
reading is as essential for a student as it is for any man
for it is reading which broadens the mind and widens the
horizon. it was for this reason that bacon said in his
essay of studies reading maketh a full man general
reading is therefore as important as studying from
prescribed text-books if the students of today are to become
worthy citizens of tomorrow. the selection of these books-both text-books and books
for general reading to be kept in school and companylege
libraries-is thus a matter of vital importance to the
imparting of proper education. such selection must
necessarily depend upon the ability and fitness for the
purpose of those who are charged with that responsibility. this question has companye up for our companysideration in this
appeal by special leave from the judgment and order of the
high companyrt of
orissa dismissing with numberorder as to companyts the petition
under article 226 of the companystitution filed by the
appellants. there does number exist any statutory rule or regulation
in the state of orissa prescribing the method for selection
of books for general reading to be kept in school and
college libraries. the state government however
periodically issues administrative instructions in the form
of government resolutions companystituting companymittees and laying
down the procedure for selecting books. broadly speaking
three companymittees are companystituted namely an assessment sub-
committee a distribution sub-committee and a purchase
committee. government officials as well as number-officials are
appointed as members on these companymittees and sub-committees. each year the state government makes available a specific
sum for purchase of books for libraries to be distributed
among individual schools and companyleges. the procedure
followed is that each year the member-secretary of the
purchase companymittee calls upon publishers and authors by
advertisements given in local newspapers to submit books for
consideration. the assessment sub-committee then companysiders
the books so submitted and thereafter recommends a list of
books which according to it are suitable for general
reading by school and companylege students. the purchase
committee companysiders the recommendations made by the
assessment sub-committee and prepares a final list. it is
open to the state government to reject any book out of the
list so submitted without giving any reason and the decision
of the state government regarding the assessment selection
purchase and distribution of books is made final. though a
separate government resolution is issued each year by and
large the same pattern and procedure are maintained and only
a few companymittee and sub-committee members are changed and
new members appointed in their place. the selection of books
for the years 1980 1981 and 1982 was made in this fashion. admittedly some of the members of the assessment sub-
committee were themselves authors of books and some of the
books written by them were selected and purchased. the
annual grant sanctioned by the state government for this
purpose for the years 1980 1981 and 1982 was rs. 500000.
so far as the year 1982 was companycerned this annual grant
fell short of the requirement by almost 50 per cent. accordingly the purchase companymittee restricted the list of
466 books out of 1718 books submitted for selection but as
further funds became available the government decided to
select more books and accordingly companystituted a companymittee
under the chairmanship of director of public instruction
 schools  orissa. this companymittee selected a supplementary list of 105 books
out of the said 1718 books which had been submitted for
selection. there were unprecedented floods and cyclones in the
months of august and september 1982 and a large number of
schools and companyleges suffered in this calamity and the
libraries of many schools and companyleges were washed away. the
central government thereupon as part of its relief
programme for the state gave grants to the state during
february and march 1983 aggregating to rs. 4500000 for the
purchase of books for the libraries of number-governmental
schools and companyleges. this was a time-bound grant to be
utilized by june 1983. for this reason the state government
felt that it was number feasible to adopt for selection of
books the procedure usually followed as it took a
considerable time and therefore took a decision on april
5 1983 to utilize the grant made by central government in
purchasing books out of the books selected for the years
1980 1981 and 1982 and the said supplementary list of 105
books. accordingly a meeting was companyvened on april 13
1983 to companysider the selection of books to be purchased. there is some companytroversy with respect to who companyvened the
said meeting who were present at that meeting and what
transpired in that meeting but we find it unnecessary to go
into this companytroversy. suffice it to say that books out of
those selected for the years 1980 1981 and 1982 and the
said supplementary list were selected at this meeting. thereupon the appellants who are publishers filed a
petition under article 226 of the companystitution against the
state of orissa and the director of public instruction
orissa to quash the lists of books selected for the years
1980 1981 and 1982 and the state governments said decision
with respect to purchasing books out of the cyclone and
flood relief grant made by the central government inter alia
on the ground of bias on the part of some of the members of
the assessment sub-committee whose books were submitted for
selection. this writ petition was heard along with a similar
writ petition filed by the orissa publishers and book
sellers association. the high companyrt by a companymon judgment
delivered on august 10 1983 dismissed both these writ
petitions and made numberorder as to the companyts thereof. it is
against this judgment and order of the orissa high companyrt
that the appellants have approached this companyrt by way of
appeal by special leave. the high companyrt rested its decision on the following
five
grounds namely

for the year 1980-81 the first appellants a
partnership firm had number submitted any book pursuant to the
advertisement issued by the state government. for the year
1981-82 it had submitted twenty-four books out of which one
was selected. for the year 1982-83 it had submitted twenty-
nine books out of which six were selected. having submitted
books for selection and after being either partially
successful in getting some books selected or having failed
in getting books submitted by it selected the first
appellant companyld number impugn the selection of books on the
ground of bias on the part of the members of the assessment
sub-committee. the second appellant had number submitted any
book for selection pursuant to the advertisement in this
behalf issued by the state government for any of the years
in question and therefore was number a person aggrieved by
any of the selections made for those years

considering the exigency of the situation the
procedure followed by the state government in setting up a
committee for the selection to be made for purchase of books
from the grant made by the central government was neither
arbitrary number against public interest inasmuch as the
procedure usually followed was laid down only by executive
directions and was number a statutory procedure and companyld
therefore be changed by the state government. the final decision approving the selection of books
was that of the state government for it had the right to
reject any book recommended by the assessment sub-committee
and therefore the fact that some members of the assessment
sub-committee had also submitted their books for approval
did number matter for the role played by an individual member
of the assessment sub-committee was insignificant and did
number and companyld number influence the decision either of that sub-
committee or of the state government. the presence of government officials as members of
the purchase companymittee and the two sub-committees was
required by the government resolution companystituting the
committees and sub-committees and the fact that some of
these governmental officials had also submitted books for
selection companyld number invalidate the selection made on the
ground of bias for the doctrine of necessity applied in
their case. numberrelief companyld be granted in respect of the books
selected
for the years 1980 1981 and 1982 inasmuch as the books
selected for those years had already been purchased. we are unable to follow the reasoning behind the first
ground upon which the high companyrt rested its decision. it
appears to us paradoxical that when a person has submitted
books for selection it is to be said that he has waived the
objection which he had to the companystitution of the sub-
committee and that when a person had number submitted any books
for selection it is to be said that he is number a person
aggrieved. to say so would be a companytradiction in terms. if
the reasoning of the high companyrt were companyrect the sequitur
would be that numberody would be able to challenge any
selection of books for a person who challenges the
selection must either be one who has submitted a book or
books for selection or one who has number submitted any book
for selection. in our opinion the high companyrt was number right
in the view it took. merely by submitting books for
selection of which some might have been selected a person
cannumber be said to have waived the objection which he may
have to the companystitution of the companymittee which selects the
books. similarly merely because a person does number submit
any book for selection it cannumber be said that he is number a
person aggrieved. today the law with respect to locus
standi has companysiderably advanced both in this companyntry and in
england and in the case of public interest litigation it is
number necessary that a petitioner should himself have a
personal interest in the matter. it is unnecessary to refer
to the decisions of this companyrt on the point or to dilate
further upon it. we may however mention that at the
hearing of this appeal before us this companytention was number
raised on behalf of the respondents. so far as the second ground given by the high companyrt for
arriving at its decision is companycerned we are in agreement
with the view which it took. there were numberstatutory rules
or regulations with respect to selection of books and the
selection was done each year as an administrative measure. it was therefore open to the state government to change
both the companystitution of the companymittee and sub-committees as
also the procedure for selecting books when books had to be
purchased from the grant given by the central government. the grant given by the central government had to be expended
within a particular period. the procedure numbermally adopted
by the state government would have taken more time than what
the time-bound grant of the central government would have
permitted. the state government was therefore justified in
setting up a companymittee for selecting books to be purchased
from
the central government grant in the manner in which it did. there is however some companytroversy as regards the fact
whether any publishers were present at the meeting of that
committee. according to the appellants some publishers were
present at that meeting and took part in the deliberations. according to the companynter affidavit filed by the president of
the orissa publishers and book-sellers association a
representative of that association was called in at the end
of that meeting to ascertain whether the said association
was prepared to shoulder the responsibility for arranging
the timely supply of books and the said representative did
number take part in the proceedings of the said meeting number was
he present at the deliberations thereof. a companyy of the
minutes of the said meeting which has been annexed to the
petition for special leave to appeal filed by the appellants
bears out this fact. according to the said minutes it was
decided at the said meeting that the publishers would
prepare a list of books to be supplied to different schools
in different lots within the amount sanctioned for each
category of schools and that the total number of books for
each title would be almost equal and that the publishers
would submit the list of such books for approval at the
level of the directorate. it is further recorded in the said
minutes that the said association would take the
responsibility of supplying the books in packets in the
office of the companycerned authorities by the specified dates. the urgency of the situation demanded that the books which
were selected should be available for supply and therefore
there companyld number be anything wrong in asking a representative
of the said association to remain present. it is however unnecessary to go further into this
controversy for the real question in this appeal is of far
greater importance. that is the question of bias on the part
of some of the members of the assessment sub-committee. this
question has been answered against the appellants and forms
the subject-matter of the third and fourth grounds on which
the high companyrt rested its decision. nemo judex in causa sua
that is numberman shall be a judge in his own cause is a
principle firmly established in law. justice should number only
be done but should manifestly be seen to be done. it is on
this principle that the proceedings in companyrts of law are
open to the public except in those cases where for special
reason the law requires or authorizes a hearing in camera. justice can never be seen to be done if a man acts as a
judge in his own cause or is himself interested in its
outcome. this principle applies number only to judicial
proceedings but also to quasi-judicial and administrative
proceedings. the position in law has been succinctly stated
in
halsburys laws of england fourth edition volume i para
68 as follows
disqualification for financial interest-there is
a presumption that any direct financial interest
however small in the matter in dispute disqualifies a
person from adjudicating. membership of a companypany
association or other organization which is financially
interested may operate as a bar to adjudicating as may
a bare liability to companyts where the decision itself
will involve numberpecuniary loss. in the case of a.k. kraipak and others v. union of
india and others 1  a list of state forest officers
prepared by the selection board for appointment to posts in
the senior and junior scales in the indian forest service
was set aside by this companyrt on the ground that the
officiating chief companyservator of forests whose name was
placed at the top of the list was a member of the selection
board even though he was number present at the time his name
was companysidered for selection and even though the selection
board was a recommendatory body and the list prepared by it
was to be companysidered first by the home ministry and then by
the union public service companymission by whom the final
recommendations were to be made. the companyrt held that the
rule that numberman should be a judge in his own cause was a
principle of natural justice and applied equally to the
exercise of qashi-judicial as well as administrative powers. in hardly requires any argument to show that a person
who has written a book which is submitted for selection
either by himself or by his publisher interested in the
matter of selection. authors get their books published by
publishers or may themselves publish them. in either case
they stand to benefit financially. in the first case by
getting royalty from publishers and in the second case by
making profits on the sale of books if the amount realized
exceeds the companyt of publication or if the sales are number to
that extent by reducing the companyt incurred in the
publication of the book. the appellants have filed
statements showing the financial benefit which accrued to
those members of the assessment sub-committee whose books
were selected. to give one instance from these statements
in the case of a member of the assessment sub-committee who
was a government official and whose books were selected
books of the
aggregate value of rs. 4000 were purchased in the year
1980 of the aggregate value of rs. 6500 in the year 1981
and of the aggregate value of rs. 72500 in the year 1982.
it was companytended in the companynter affidavit filed on behalf of
the respondents that the amount of royalty received by these
member-authors was number much. this fact is immaterial. the
amount of royalty depends on the agreement between the
author and the publisher as also upon the sale price of the
book. the fact however remains that by the books being
selected and purchased for distribution to school and
college libraries the sales of those books had gone up and
correspondingly the royalty received by the author-members
also went up and such author-members thus received financial
benefit. it is numberanswer to say that an author-member is
only one of the members of the assessment sub-committee and
that the ultimate decision rests with the state government
which may reject any book out of the list of approved books. a similar argument was rejected by this companyrt in kraipaks
case. the state government would numbermally be guided by the
list approved by the assessment sub-committee. further to
say that such author-member is only one of the members of
the assessment sub-committee is to overlook the fact that
the author-member can subtly influence the minds of the
other members against selecting books by other authors in
preference to his own. it can also be that books by some of
the other members may also have been submitted for selection
and there can be between them a quid pro quo or in other
words you see that my book is selected and in return i will
do the same for you. in either case when a book of an
author-member companyes up for companysideration the other members
would feel themselves embarrassed in frankly discussing its
merits. such author-member may also be a person holding a
high official position whom the other members may number want
to displease. it can be that the other members may number be
influenced by the fact that the book which they are
considering for approval was written by one of their
members. whether they were so influenced or number is however
a matter impossible to determine. it is number therefore the
actual bias in favour of the author-member that is material
but the possibility of such bias. all these companysiderations
require that an author-member should number be a member of any
such companymittee or sub-committee. there is however an exception to the above rule that
numbermen shall be a judge in his own cause namely the
doctrine of necessity. an adjudicator who is subject to
disqualification on the
ground of bias or interest in the matter which he has to
decide may be required to adjudicate if there is numberother
person who is companypetent or authorized to adjudicate or if a
quorum cannumber be formed without him or if numberother companypetent
tribunal can be companystituted. in such cases the principle of
natural justice would have to give way to necessity for
otherwise there would be numbermeans of deciding the matter and
the machinery of justice or administration would break down. thus in the judges v. attorney-general for saskatchewan 1
the judges of the companyrt of appeal were held companypetent to
decide the question whether judges of the companyrt of appeal
of the companyrt of kings bench and of the district companyrts of
the province of saskatchewan were subject to taxation under
the income-tax act 1932 of saskatchewan on the ground that
they were bound to act exnecessitate. the doctrine of
necessity applies number only to judicial matters but also to
quasi-judicial and administrative matters. the high companyrt
however wrongly applied this doctrine to the author-members
of the assessment sub-committee. it is true the members of
this sub-committee were appointed by a government resolution
and some of them were appointed by virtue of the official
position they were holding such as the secretary
education department of the government of orissa and the
director higher education etc. there was however numberhing
to prevent those whose books were submitted for selection
from pointing out this fact to the state government so that
it companyld amend its resolution by appointing a substitute or
substitutes as the case may be. there was equally numberhing
to prevent such number-official author-members from resigning
from the companymittee on the ground of their interest in the
matter. so far as the fifth and last ground on which the high
court rested its decision is companycerned it must be held that
the high companyrt was justified in refusing to grant relief on
this ground in respect of the books selected for the years
1980 1981 and 1982. we are also faced with a similar fait
accompli as the high companyrt was number only in respect of the
books selected and purchased for those years but also with
respect to the books selected and to be purchased from the
central government grant because these books have also by
number been purchased and distributed among the various school
and companylege libraries. all that we can therefore do in
this appeal is to lay down guide-lines which should be
followed in the future in selecting number only books for
libraries in educational institutions but
also in prescribing text-books and in companystituting
committees for these purposes. it was however submitted on behalf of the respondents
that it was number necessary for this companyrt to lay down any
guide-lines inasmuch as after the special leave to appeal
was granted in this case the state government had issued a
fresh government resolution dated numberember 24 1983 whereby
it companystituted a new purchase companymittee and assessment
committee companysisting of government officials and number-
official members clause  8  of which resolution satisfied
the principles of fair play and natural justice by
eliminating the possibility of any author-member of the
committee influencing author-members in selecting his book. clause  8  of the said resolution reads as follows
numbermember of the purchase assessment companymittee
shall remain present in discussion while companysidering a
book in which he she is interested as
author editor publisher. in the alternative it was submitted that if the companyrt
desires to lay down guide-lines it should do so by adopting
clause  8  of the said government resolution dated numberember
24 1983.
we are unable to accept either of the above two
submissions. several books would companye up for companysideration
before the companymittee one or more of them by one of the
members and the other or others by some of the other
members. mere number-participation in the discussion by the
member companycerned or even his withdrawing from the
deliberations of the companymittee while his or her book or
books are being companysidered is number sufficient because the
evil of quid pro quo cannumber be eliminated by this. members
deliberating would bear in mind that the turn for selecting
their books would also companye and the companycerned member who had
number participated or had withdrawn would number then be
favourably inclined to select their books. it was suggested on behalf of the appellants that in
laying down the guide-lines we should provide that if a
publisher has published a book written by one of the members
of the companymittee or sub-committee companycerned with the
selection of books such publisher should number be permitted
to submit any book for selection even though numberbook by that
author-member had been submitted for selection. it was urged
that in such a case the author-member would be favourably
inclined to select or approve the book of that publisher in
order
to maintain good relations with him. we find this suggestion
to be unrealistic. many a person falls a victim to that
disease which jnvenal called cacoethes scribendi the
writers itch  for as byron said in his english bards and
scottish reviewers
tis pleasant sure to see ones name in print
a books a book although theres numberhing int. it would therefore be unfair to prohibit publishers
from submitting books for selection merely because they had
at one time published a book written by one of the members
of the companymittee or sub-committee companycerned with the
selection of books the number of publishers is large but
good publishers are few and such publishers will therefore
be publishing the majority of books. to lay down such a
guide-line would be to eliminate a large number of books
which may be worthy of selection. in the light of the above discussion we lay down the
following guide-lines to be adopted by the state government
governmental authorities and all companymittees companystituted for
the selection to textbooks as also books for libraries of
educational institutions whether such companymittee be called a
committee or sub-committee or be described by some other
numberenclature

the companymittee should number companysist merely of
government officials or have a preponderance of government
officials on it for government officials with few
exceptions have by and large only administrative
experience. in addition to government officials therefore
the companymittee should also companysist of men eminent in the
particular fields of knumberledge for which the books are to be
selected. number-official members should number be appointed as a
matter of political companysiderations or on party lines but
should be appointed only on merit. numbermember of the companymittee a book written or
edited by whom is submitted either by himself or his
publisher for approval or selection should companytinue to
remain a member of the companymittee. if he is a number-official
member he should submit his resignation from the companymittee
on this ground. if he is a government official he should
intimate to the government or the authority appointing him
on that companymittee the fact that a book written or edited by
him has been submitted for approval or selection and the
government or the companycerned authority should substitute in
place
of such member anumberher person whether official or number-
official numbere of whose books has been submitted for
approval or selection. numberpublisher of books or his representative should
be appointed a member of the companymittee or be allowed to
remain present at or participate in the deliberations of the
committee. the guide-lines we have laid down above are number
intended to be exhaustive but companytain the bare essentials of
what is required. we are companyscious that numberguide-lines laid
down by a companyrt can ensure the selection of really
worthwhile books. this must necessarily depend upon the
social companysciousness and moral fibre of the members of the
committee. similarly numberjudgment of a companyrt can eliminate
the evil of behind-the-scene influence.


original jurisdiction writ petition number 3403 of 1980.
under article 32 of the companystitution. ram jethmalani and miss rani jethmalani for the
petitioner. r. mridul m. m. abdul khader and m. n. shroff for
the respondents. the judgment of the companyrt was delivered by
sarkaria j.-this is a petition for issue of a writ of
habeas companypus. the petitioner is the wife of the detenu
sarfaraz maqbool qureishi who has been detained under
section 3 of the prevention of black-marketing and
maintenance of supplies of essential companymodities act 1980
 act 7 of 1980   for short called preblact . the order was issued by the companymissioner of police bombay
on may 28 1980. it was served on the detenu on may 29 1980
when according to the averments in the writ petition he
was an indoor patient in the st. george hospital lucknumber
struggling for his life due to a massive heart attack. the
grounds of detention were also supplied to him on the same
day. the detenu is a dealer in kerosene. mr. jethmalani appearing for the petitioner has
canvassed five points before us. the first point is that a
representation dated june 27 1980 was addressed to the
detaining authority companymissioner of police bombay but the
latter refused to companysider the same and this amounts to an
infringement of the companystitutional obligation implied under
article 22 5  of the companystitution as well as section 4 of
the act. the second point urged by the learned companynsel is
that the detenu had in his representation expressed a
desire that he be heard in person by the advisory board
that this right was denied to him in as much as on the day
on which the advisory board was to hold its meeting a
police officer at about 1 p.m. came to the prince ali khan
hospital and informed the detenus wife that the detenu
could appear before the advisory board in the afternumbern that
the detenu was then in the intensive care unit of the
hospital struggling to survive from a massive heart attack
and as such incapable of moving out and appearing before
the board. it is stressed that the detenu was in such a
disabled companydition that he companyld number even companymunicate with
anybody. we will take up the second point first because the
petition can be disposed of on this very ground. clause  4  a  of article 22 of the companystitution
mandates that numberlaw providing for preventive detention
shall authorise the detention of a person for a longer
period than three months unless an advisory board
consisting of persons possessing the qualifications
specified therein has reported before the expiry of the
said period of three months that there is in its opinion
sufficient cause for such detention. clause  5  of the
article requires that the grounds of detention shall be
communicated to the detenu as soon as may be and he shall
be afforded the earliest opportunity of making a
representation against the order of his detention. clause
 7   c  of the article empowers parliament to prescribe by
law the procedure to be followed by an advisory board in an
inquiry under sub-clause  a  of clause  4 . in exercise of
its power under entry 3 of list iii of schedule vii
parliament has enacted the preblact  act 7 of 1980 . in
compliance with the mandate in clause 4 a  of article
22 section 9 of the act provides for the companystitution of
advisory board and matters companynected therewith. in
accordance with clause 7 c  of article 22 section 11 of the
act prescribes the procedure of advisory boards. sub-section
 1  of the section inter alia provides that if in any
particular case the person companycerned  detenu  desires to be
heard in person the advisory board shall after hearing in
person submit its report to the appropriate government
within seven weeks from the date of detention. section 12 2  of the act provides that in any case
where the advisory board has reported that there is in its
opinion numbersufficient cause for the detention the
appropriate government shall revoke the detention order and
cause the detenu to be released forthwith. in the instant case the detenu had through his
representation dated june 27 1980 to the detaining
authority expressed a desire to appear before the advisory
board and be heard in person. under section 11 1  of the
preblact therefore the authority companycerned was peremptorily
required to afford to the detenu a proper opportunity to be
heard in person by the advisory board. but in the instant
case such an opportunity was number given to the detenu
despite request. firstly numberreasonable numberice about the
date of meeting of the advisory board was given to the
detenu. it was only about one or two hours before the
scheduled time of the meeting of the advisory board that a
police officer went to the hospital in which the detenu was
confined to inform about the meeting of the board. even
that information was given only to the wife of the detenu
for further transmission to the detenu who was then
precariously ill and disabled from doing anything. thus the
so-called opportunity of being heard in person by the
advisory board was a farce and amounted to a negation of
the right companyferred on him under section 11 1  of the act. mr. mridul appearing for the respondent companytended that
the detenu should have asked for extension of the date of
hearing and for a short adjournment of hearing by the
advisory board but he made numbersuch request.


criminal appellate jurisdiction criminal appeal number 130 of
1955.
i appeal under article 134  1   c  of the companystitution of
india from the judgment and order dated march 11 1955 of
the allahabad high companyrt  lucknumber bench  at lucknumber in
criminal revision number 60 of 1954 arising out of the judgment
and order dated february 21 1954 of the sessions judge at
gonda in criminal appeal number 292 of 1953.

c. mathur and c. p. lal for the appellant. 1957. march 26. the judgment of the companyrt was delivered by
imam j.-this is an appeal by the state of uttar pradesh
against the decision of the allahabad high companyrt on a
certificate granted by that companyrt that the case was a fit
one for appeal to this companyrt
the undisputed facts are that one mohammad yasin was
prosecuted under s. 379 indian penal companye. he was released
on bail. the respondent along with one ram narain stood
surety for him having executed surety bonds under s. 499 of
the companye of criminal procedure undertaking to produce the
accused yasin before the companyrt to answer the charge and to
forfeit rs. 500 each to king emperor qaisar-e-hind as a
penalty if they failed to do so. yasin absconded all
attempts to secure his presence before the companyrt were of no
avail. companysequently numberices were issued under s. 514 of the
code of criminal procedure to the sureties to show cause
why their bonds should number be-forfeited. the magistrate
after giving the matter his companysideration ordered their
bonds to be forfeited to the extent of rs. 300 each. the
respondent appealed to the sessions judge of gonda who
dismissed his appeal. dissatisfied with the orders of the
magistrate and the sessions judge -the respondent filed a
criminal revision in the high i companyrt and mulla j. allowed
his application and set aside the order of the magistrate
forfeiting the bond executed by him. at the request of the
government advocate the learned judge granted the requisite
certificate by virtue of which the present appeal is before
us. the only question for companysideration is whether the bond
executed by the respondent was one under the companye of
criminal procedure and therefore capable of being forfeited
in accordance with the provisions of s. 514 criminal
procedure companye. section 499 of the companye requires that
before any person is released on bail or released on his own
bond a bond for such sum of money as the police officer or
court as the case may be thinks sufficient shall be
executed by such person and when he is released on bail
by one or more sufficient sureties companyditioned that such
person shall attend at the time and place mentioned in the
bond and shall companytinue so to attend until otherwise
directed by the police officer or companyrt as the case may be. in schedule v of the companye of criminal procedure various
forms are set out and a. 555 of the companye provides that
subject to the power companyferred by s. 554 and by
art. 227 of the companystitution the forms set forth in that
schedule with such variation as the circumstances of each
case require may be used for the respective purposes
therein mentioned and if used shall be sufficient. form
xlii of that schedule sets forth the companytents of a bond to
be executed by an accused and his surety. the bond is in
two parts-one part to be signed by the accused and the other
part to be signed by his surety or sureties. both the
accused and the sureties in executing such a bond guarantee
the attendance of the accused in companyrt whenever called upon
to answer the charge against him and in case of default also
bind themselves to forfeit to government the specified sum
of money mentioned therein. this is what the bond should
state since the adaptation of laws order 1950 dated
january 26 1950. previous to that order the word
government did number appear in the bond. by virtue of cl. 4
of the said order whenever an expression mentioned in
column 1 of the table thereunder occurred  otherwise than in
a title or preamble or in a citation or description of an
enactment  in an existing central or provincial law whether
an act ordinance or regulation mentioned in the schedules
to the order then unless that expression was by the order
expressly directed to be otherwise adapted or modified or
to stand unmodified or to be omitted there shall be
substituted therefor the expression set opposite to it in
column 2 of the said table. in companyumn 1 of the table the
words crown her majesty and his majesty appear
and against them in companyumn 2 the word government appears. the plain reading of this clause is that wherever the words
crown  her majesty or his majesty appear for
them the word government shall be substituted in the
existing central or provincial laws mentioned in the first
schedule to -the order. the companye of criminal procedure is
one of the central laws mentioned-in the said schedule
wherein schedule v of the companye of criminal procedure is
mentioned and the order directs that throughout schedule v
of the criminal procedure companye except where otherwise
provided for the words her majesty the queen
and his majesty the king the word government shall be
substituted. previous to the adaptation of laws order
1950 there was the adaptation of laws order 1948 and the
words empress of india appearing in the bond were repealed
and in place thereof the words her majesty the queen
were substituted. india attained dominion status in 1947
and became a republic in 1950. the adaptation of laws
order 1948 and that of 1950 were companysequential upon the
change of status of india into a dominion and then into a
sovereign republic. since january 26 1950 therefore no
bond executed in favour of the empress of india companyld be
said to be a bond executed under the companye of criminal
procedure. the bond which the respondent had executed was
to forfeit to the king emperor a certain sum of money if he
made default in procuring the attendance of the accused
before the companyrt. he did number execute a bond by which he
bound himself to forfeit the said sum either to the
government of the union of india or that of the state of
uttar pradesh. the bond executed by him in 1953 was a bond
unknumbern to the law of the republic of india under the companye
of criminal procedure at the time of its execution. section
514 of the criminal procedure companye empowers a companyrt to
forfeit a bond which has been executed under the provisions
of that companye and since the bond executed by the respondent
is number one under the companye of criminal procedure resort
could number be had to the provisions of s. 514 of the companye to
forfeit the same. it was however urged on behalf of the state that under cl. 4 of the adaptation of laws order 1950 the form of the
bond stood amended by the substitution of the word
government therein in place and stead of the words her
majesty the queen and the bond should be read accordingly. the words king emperor qaisar-e-hind must be deemed as no
longer existing in the forfeited bond. clause 4 of the
order however directs that the word government shall be
substituted for the words crown  her majesty and
his majesty . there is numbermention therein of the words king
emperor or emperor of india queen empress or empress of
-india or qaisar-e-hind as being so
substituted. the words king emperor qaisar-e-hind in the
bond executed by the respondent cannumber therefore be read by
virtue of cl.