criminal appellate jurisdiction criminal appeal number 123 of
1985.
from the judgment and order dated 12.11.84 of the delhi high
court in state criminal appeal number 71 of 1978.

k. garg and rajendra prasad singh for the appellant. n. goswamy and ashok bhan for the respondent. the judgment of the companyrt was delivered by
dr. anand j. this appeal by special leave is directed
against the judgment of the high companyrt of delhi dated 12th
of numberember 1984 setting aside an order of the additional
sessions judge new delhi acquitting the appellant of an
offence under section 302/203 ipc. the prosecution case is that on the fateful night of
25th/26th july 1976 the appellant and his wife usha jain
went to sleep in the back verandah of their house situated
at p-5 green park extension new delhi while his brother

p. jain alongwith his wife sharda and children went to
sleep separately in their bed-room in the same house. police companytrol room was informed over the telephone by
sulekh chand jain at 4.55 a.m. that an incident had taken
place at p-5 green park extension and on receiving the
telephone message s.i. mauji ram made a record of it in the
daily diary and passed on the information to the duty
officer at police station hauz khas. asi maha singh was
deputed to proceed to the spot for investigation of the
case. after reaching the spot the said asi maha singh
informed the police station on telephone that a murder had
taken place. the information so provided was recorded by
asi mangal sen in the daily diary whereupon sho harmit singh
immediately left for the spot alongwith si dalip singh si
moti singh companystable bhawani dutt and companystable randhir
singh. the police party arrived at the spot at about 5.35
a.m. and took charge of the investigation. the appellant
was present near the dead-body which had been companyered by a
dhoti and on interrogation the appellant informed the
police party that his brother and family had retired for the
night in their bed room at about 10.00 p.m. and he alongwith
his wife had slept in the back verandah. before going to
sleep he had locked the companylapsable door of the back
verandah. the wife of the appellant was wearing a gold
chain on her neck eartops in her ears and golden bangles on
her wrists besides glass bangles. at about 1.30 a.m. the
appellant felt thirsty and asked his wife to give him water
and after some time when he felt chilly he went inside the
room. he slept in the room while his wife kept sleeping
outside. at about 3.45 a.m. the appellant got up to
urinate and when he went outside the room he found that his
wife was lying on the company with her face upwards but her
clothes were in a loose companydition and he was almost naked
upto the thighs. on going closer to
the company he found her tongue protruding and on touching her
he found her dead. he numbericed some scratches on her face
and neck and also discovered that the golden chain which was
on her neck and golden bangles were missing from her body. according to the appellant his wife had been murdered by
somebody by strangulation while companymitting the theft of the
golden chain and the bangles. he started screaming and his
brother the brothers wife as well as some neighbours came
there. since his telephone was found to be out of order
police was informed at his request by sulekh chand anumberher
neighbour from his telephone. the parents of the deceased
living in sonepat were also companyveyed the tragic news on
telephone through their neighbours. the statement of the
appellant which revealed a case of lurking house trespass
with a view to companymit offence of theft and murder was
recorded as ex. p5 and a case under section 460 ipc was
registered. the statement of the appellant ex. p5 was
despatched by sho harmit singh to the police station with
his endorsement for registration of a case under section 460
ipc. formal fir was registered by asi mangal sen at the
police station and the same was received back by the sho at
the house of the appellant at about 6.45 a.m. the crime team
as also the dog squad were summoned. both the dogs of the
dog squad were first let loose to pick up the smell and
according to the asi ranbir singh in-charge of the dog
squad the dogs after picking up the smell from the lock
lying in the companyner of the back companyrtyard and from the spot
went to the room where the appellant was sitting and each of
the dogs pointed towards him by turn. that raised a
suspicion against the appellant. according to the sho he
then asked the appellant to remove his shirt and found that
the appellant had injuries in the nature of bruises etc. on
the front part of his body on the chest as well as on his
back. since the appellant had told the police that the
bangles of his wife were identical to the bangles of sharda
the wife of his brother m.p. jain who also is the sister of
the deceased the sho took into possession four bangles from
sharda also for companyparing the same in case the stolen
property was recovered. the appellant was thereafter taken
for further interrogation to the police station. before
proceeding to the police station. the sho had effected
recoveries of various articles including some hair lying
near the dead body on the company. the appellant had produced
the key at the asking of the sho which purported to be the
key of the lock which had been found lying in the back
court-yard and the same was taken into possession. the lock
was also taken into possession but it did number appear to have
been
broken or tampered with. the recovery of the key was
witnessed amongst others by kuldip kaul pwl who was present
in the crowd outside the home of the appellant. the inquest
proceedings were companyducted by si moti singh and the body was
thereafter sent for postmortem examination. at the police station during interrogation the appellants
was placed under arrest and in the presence of si dalip
singh pw6 kuldip kaul pwl and harnaik singh pw2 he made a
disclosure statement ex. pc to the effect that he had
concealed the golden chain and the bangles in his bathroom
and in pursuance of the disclosure statement the appellant
led the police party to the bathroom of his house and after
removing the companyer from the drain hole took out the golden
chain and the bangles and handed the same over to sho harmit
singh in presence of the witnesses. recovery memo ex.pf
was prepared and the golden chain and the bangles after
being duly weighed were sealed separately and the seal was
handed over to kuldip kaul pw1. the appellant was sent for
medical examination after memo of his personal search ex.pe
was prepared. dr. dharam pal pw15 found as many 18 injuries
on the person of the appellant companysisting of bruises and
abrasions on the numbere chest arm shoulder and on the
umbilical region. the injuries were stated to have been
caused by blunt weapon. the postmortem on the dead body of usha jain was companyducted
on 27.7.1976 at 9.00 a.m. by dr. bharat singh pw-4 and
according to the postmortem report ex.pl all the injuries
found on the person of the deceased were ante-mortem and the
same were possible by throttling the deceased and that the
death of usha jain was caused by asphyxia resulting from
throttling. the deceased was carrying 7th month pregnancy
at the time of her death. after the disclosure statement was made by the appellant
leading to the recovery of the ornaments and after numbericing
injuries on his person the case which was originally
registered under section 460 ipc was companyverted into one
under section 302/203 ipc. the sho during the companyrse of
investigation also took sample hair of the appellant and
sent the same alongwith the hair recovered from the company of
the deceased to the central forensic science laboratory. the nail clippings of the deceased were also sent for
analysis to cfsl. site plan ex.po was also prepared
during the investigation. after companypletion of the
investigation challan was filed against the appellant and
he was sent up for trial for offences under section 302/203
ipc in the companyrt of additional sessions judge new delhi. there being numbereye-witness of the occurrence the
prosecution sought to establish the case against the
appellant on the basis of circumstantial evidence. the
circumstances set up by the prosecution against the appel-
lant during the trial were

information to the police at 4.55 am
given by a neighbour and number the appellant

that information number specifically giving
out that a murder had taken place and simply
intimating happening of an incident

the accused having slept alone at night
in the verandah with the deceased after having
locked the companylapsable door of that verandah
from inside and that lock having been found in
the companyner of the back companyrtyard in the
morning without being tampered with

the deceased and accused were last seen
together

the dogs of the dog squad having pointed
out the accused after picking up scent from
that lock

the ornaments which were stated to be on
the person of the deceased while she was
sleeping and which were found missing when
she was discovered dead having been recovered
from the drain hole of the bath room attached
to the bed room of the accused in companysequence
of and in pursuance of a disclousre statement
made by the accused

injuries found on the person of the
accused in the nature of abrasions companytusions
and lastly

the accused having given false
information to the police by means of hi
statement ext. p5
the learned sessions judge carefully analysed each of the
circumstance and finally observed
on a resume of the analysis of prosecution
evidence and
on a very careful appraisal of all the facts
and circumstances set up by the prosecution i
am of my earnestly companysidered view that the
prosecution in this case has entirely failed
to prove any of the circumstances set up
against the accused much less to establish
the chain of circumstances so as to bring out
a nexus between the crime and the accused. the appellant was therefore acquitted of the offences
under section 302/203 ipc. on an appeal by the state a division bench of the high
court reversed the order of acquittal of the appellant. the
high companyrt held that the circumstances formed a chain and
sequences so companyplete by themselves that one was left in no
manner of doubt that the appellant and the appellant alone
had companymitted the crime. the appeal was accepted and the
order of acquittal was set aside. the appellant was
sentenced to undergo rigorous imprisonment for life under
section 302 ipc and also to undergo rigorous imprisonment
for a period of one year under section 203 ipc. both the
sentences were directed to run companycurrently. appearing for the appellant mr. r.k. garg the learned
senior companynsel submitted that the approach of the high companyrt
was totally erroneous and that a well companysidered and well
reasoned judgment of the trial companyrt was upset by the high
court by drawing inferences which were number available from
the record and by ignumbering material discrepancies and
infirmities in the prosecution evidence which number only did
number establish various circumstances but which also showed
that the chain of circumstantial evidence was wholly
incomplete. learned companynsel for the appellant submitted
that the appellant had been roped in on the basis of
misguided suspicion and that the circumstances relied upon
by the prosecution were number of any companyclusive nature and
they did number exclude the hypothesis other than that of the
guilt of the appellant. it was emphasised that the inves-
tigating officer had created false clues and suppressed
material which went against the prosecuting version and
supported the defence version. he argued that the high
court should have drawn adverse inference against the
prosecution for number producing the first informant and
withholding the evidence of the father of the deceased. mr. n.n. goswami learned senior companynsel assisted by mr.
ashok
bhan advocate on the other hand submitted that some of the
circumstances like the pointing out of the appellant by the
dogs of the dog squad after picking up the scent from the
place of occurence the disclosure statement and the
recovery of ornaments as a companysequence thereof at the
instance of appellant and the presence of injuries on the
person of appellant were of such a companyclusive and clinching
nature that they left numberdoubt that the appellant had
committed the crime. it was submitted that the appellant
had made attempt to mislead the investigating officer by
giving a false version with a view to screen himself. according to the learned companynsel the established
circumstance companyld only lead to the hypothesis companysistent
with the guilt of the appellant and number with his innumberence. we shall number companysider various circumstances with a view to
determine whether the circumstances alleged against the
appellant have been established and the chain of evidence is
so companyplete as to lead to numberother hypothesis except the one
consistent with the guilt of the accused. there is numbermotive established in this case by the
prosecution for the appellant to companymit murder of his wife
and the evidence of tara chand father of the deceased as
welt as the sister of the deceased and the tenants living
in the same house disclosed that the relations between the
husband and wife were companydial. in a case based on
circumstantial evidence motive assumes pertinent
significance as existence of the motive is an enlightening
factor in a process of presumptive reasoning in such a case. the absence of motive however puts the companyrt on its guard
to scrutinise the circumstances more carefully to ensure
that suspicion and companyjecture do number take place of legal
proof
since the disclosure statement and the companysequent recovery
pursuant thereto of the ornaments belonging to the deceased
has been companysidered to be one of the most important piece of
circumstantial evidence in the case number only by the high
court but has also before us by the learned companynsel
appearing for the state we shall first companysider that
circumstance. this circumstance is indeed of such an
incriminating nature that if found to have been established
by reliable and trustworthy evidence it would go a long way
to furnish proof of the guilt of the appellant and companynect
him with the crime and on the other hand if the evidence in
support of that circumstance is found to be number reliable
the entire chain of circumstantial evidence will snap so
badly as to affect the credibility of the prosecution case
as a whole. according to the prosecution after the appellant had been
taken to the police station by the investigating officer he
was interrogated interrogated after being placed under
arrest. he voluntarily made a disclosure statement ex.pc. the disclosure statement was recorded by the sho and has
been attested by kuldip kaul pw-1 si dalip singh pw-6 and
harnaik singh pw2. pursuant to the disclosure statement
the appellant is alleged to have led the police party to the
recovery of the ornaments from a drain-hole in his bathroom. the recovery memo ex.pf was prepared at the spot and was
attested by si dalip singh pw-6 kuldip kaul pw-1 and
hirnaik singh pw-2 besides the investigating officer. we
shall therefore first analyse the evidence of the
witnesses of the disclosure statement and the recovery memo. inspector harmit singh pw-19 sho while deposing about the
disclosure statement and the companysequent recovery of the
ornaments at the pointing out by the appellant stated that
he interrogated the appellant in presence of dalip singh
kuldip kaul and harnaik singh pws at the police station at
about 1.45 p.m. and in their presence the appellant made the
disclosure statement ex. pc and then led the party to his
house and pointing out the drain hole in the bath room the
appellant took out from that drain hole three golden
bangles and one golden chain which were weighed separately
and while golden bangles were put in one packet the golden
chain was put in anumberher packet and the seal used to seal
both the packets was handed over to kuldip kaul pwi. the
recovery memo ex.pf was prepared at the spot which was
signed by the witnesses then and there at about 2 or 2.30
p.m. in his cross-examination the investigating officer
denied the suggestion that the bangles and the chain were
recovered from underneath a slab in the service lane in the
presence of the appellant and jagminder dass jain and a memo
had been prepared which was signed by them. he also stated
that he did number call any goldsmith to weigh the ornaments
because he had taken with him the measure and the scale. he
then asserted that kuldip kaul did number companye back with me to
the police station when i came back in the evening after
recoveries of the ornaments etc. had been effected at the
spot. i recorded statement of kuldip kaul at the spot after
recoveries. that was a companyplete statement of his and i
recorded only one statement of his on that day. kuldip kaul
left from the spot and we were still there when he left. regarding harnaik singh pw2 the i.o. stated i had gone out
to
look for anumberher witness and i found at that time harnaik
singh reversing his taxi in the companypound of the police
station and then i summoned him. he had told me that he had
dropped a passenger and was taking out his taxi. i did number
see passenger going inside. there are 60/70 quarters at the
back of the police station and that passengers might have
gone to any of those quarters. the disclosure statement was
made by the accused in his presence. i had read out the
papers to harnaik singh before getting his signature. in
fact it was written in his presence and whatever were
dictated by the accused was within his healing. it is
incorrect to suggest that disclosure statement was already
written and i got signatures of harnaik singh without
explaining to him the document and assuring him to sign on
my trust. the witness also asserted that he had seen
harnaik singh for the first time only at about 2 or 2.30
p.m. outside the police station while reversing the taxi and
did number knumber him from before. let us number examine as to what
the other witnesses have to say in this regard. kuldip kaul pw1 while admitting that he was present outside
the house of the appellant in the morning at about 6.30 a.m.
when the police party had reached there and had offered
himself to join the investigation went on to say that after
the sho had lifted the shirt of the appellant and found 15-
20 marks of scratches on the chest of the appellant they
all came to the police station along with the appellant. he
added that while they were sitting at the police station
harnaik singh pw2 also came there along with sho harmit
singh and after some initial hesitation the appellant
disclosed that he had kept one golden chain and three
bangles which his wife was wearing in the drain-hole of the
bath room of his house and he companyld show the same to the
police and get them recovered. he deposed that disclosure
statement ex.pc was prepared at the police station and was
signed by him as well as by the other witnesses present
there. thereafter the appellant was arrested and he led
the police party to his house where he pointed out the
drain-hole in the bath room and after removing the companyer of
the drain hole the appellant took out from inside the drain
hole a golden chain and three golden bangles and handed
over the same to sho harmit singh. memo of recovery ex.pf
was prepared and was signed by the witnesses. with a view
to assert his independence and that he had numberearlier
connection with the i.o. he stated i came to knumber sho
harmit singh since march 1976 when i organised a function
of youth companygress and had companytacted the sho for arrangements
for the said function. i have never gone to the police
station in any other companynection or regarding public
grievances. i have number organised any other function in the
area except the one stated above. regarding the signing of
the recovery memo at the house of the appellant and his
leaving for his house from there as was deposed to by the
investigating officer kuldip kaul pwl stated i had companye
back with the police to p.s. after the recovery of the
ornaments and there at about 3.30 p.m. my statement was
recorded by the police and i came back home at about 4 p.m.

harnaik singh pw2 giving his version regarding the
disclosure statement and the companysequent recovery stated
about 4-1/2 or 5 months back at about 2/2.30 p.m. i had
taken a passenger in my taxi to the quarters of p.s. hauz
khas. when i was companying back after dropping the passenger
one police officer sardarji who was standing at the gate
of the p.s. called me and took me inside the p.s. there is
one room besides the police were one mr. kaul pwl and
surinder pal jain accused present in companyrt. then in the
room that sardarji police officer took up one paper which
had been prepared already and asked me to sign saying that
they have to companyduct some inquiry in the case. then that
sardarji told me to accompany the police party to green
park. then we went there besides the police party and
myself pwl and the accused were also there. on reaching the
house in green park the accused led the police party to the
bath room and i also followed them in to the both room. then the sardarji took out there bangles and one gold chain
from the gutter of the bath room. the sardarji took those
three bangles from the gutter on being told by the accused. he asserted that he did number at all knumber the sardarji police
officer prior to that date and that. he had gone to the
police station for the first time on that day. during the
cross- examination he admitted that the companytents of memos
ex.pc and ex.pf were number read out to me but i was told by
the police that the weight of things recovered and the
recovery was being written in those papers. asi maha singh pw5 who had arrived at the spot at the
earliest and had sent information to his senior officers
including sho harmit singh and had kept a guard at the spot. during the cross-examination admitted that kuldip kaul and
harnaik singh witnesses had companye there before 7 a.m.
st dalip singh pw6 who had also accompanied the sho to the
house of the appellant at about 6.30 a.m. stated when we
reached kuldip kaul and hamaik singh witnesses were
present.asi maha singh was already
there. the witness also deposed about the interrogation of
the appellant and the recording of the disclosure statement
at the police station in his presence and the subsequent
recovery of the ornaments and the preparation of the
recovery memo pf in the presence of kuldip kaul and harnaik
singh pws. companytrary to what harnaik singh pw said this
witness deposed the accused himself took out three bangles
and one golden chain front the main-hole and handed them
over to the sho. the witness during the cross-examination
stated the ornaments were weighed by some goldsmith who was
called there by the sho. i do number knumber whether that
goldsmith also signed the possession memo or number. the above is the entire prosecution evidence relating to the
making of the alleged disclsoure statement by the appellant
and the companysequent recovery under section 27 of the evidence
act at his instance. according to the appellant however he had made no
disclosure statement number led the police party to the
recovery of the ornaments as alleged. according to the
defence version the missing ornaments had in fact been
recovered by the police party around 11 a.m. during search
from the service lane from underneath a slab near the
boundary wall and at that time the appellant and jagminder
dass jain were also present. this defence version is
supported by the evidence of dw2 tara chand father of the
deceased. the presence of this witness is admitted at the
spot by the investigating team as was natural being the
father of the deceased. his testimony assumes significance
as in the numbermal companyrse of events he would be the last
person to screen the real offender who murdered his
daughter. tara chand dw2 stated that the police had
interrogated him and he had told the i.o. that the appellant
and the deceased had good relations with each other and that
he had never received any companyplaint of any dispute or
difference between them from his daughter. that he had also
married of his other daughter with the brother of the
appellant m.p. jain and that both the sisters alongwith
their husbands were living together in the same house. deposing about the sequence of events at the house of the
appellant the witness stated then at about 10.30 a.m. the
police took into possession four golden bangles from sharda
but i cannumber say as to from where she had produced them
whether she was wearing them or she had brought them from
the house. i had seen her just producing them. she had
handed over those bangles to the same sardarji police
officer who had talked to me and at that time we were in the
drawing room. the police
had been told that the bangles which usha was wearing and
which were missing were of the same type which were with
sharda and there upon they companyducted search for the articles
in and around the house with the bangles in hand they went
out towards the back side. persons who were inside the
house and also s.p. jain accused  had joined the search
party . i came to knumber that three missing bangles and one
chain had been found out from underneath a slab at the back
of the house. i came to knumber at about 11.30 a.m. that these
things had been recovered and after about 1/2 hour of that
the police took in jeep m.p. jain s.p. jain and sharda jain
to the police station. police told me that they were taking
all the three for interrogation. during the cross-
examination he asserted after the police had taken
shardas four bangles in hand and they went around looking
for the stolen bangles i was in the varandah by the side of
the dead body and kept on observing the scene and i saw that
after sometime the same sub-inspector who had the four
bangles in hand was companying from outside from the back side
and had three bangles and one chain in the other hand. some
5/7 persons from the public who were already inside the
house had gone outside with the police and they also came
back with the police after recovery of the ornaments. i
learnt from them that those ornaments had been found front
underneath a slab and sometime after myself went out and saw
that spot. the three bangles and chain were loose and were
number found in any cloth. he categorically denied the
suggestion that the appellant had led the police party to
the bath room on that day and had got recovered form the
drain hole of the bath room the three bangles and the
golden chain. shri jagminder dass jain appeared as dw12. he leves in the
same locality as the appellant and had gone to the house of
the appellant soon after 6 a.m. on learning that some
murder had taken place. deposing about the recovery of
ornaments he stated that the sho after taking into
possession the bangles from sharda went outside towards the
back lane and the witness accompanied the sho and the crime
team along with some others. he stated that during the
course of the search of the back lane and from underneath a
slab one gold chain and three golden bangles were
recovered. the recovered bangles were companypared with the
other which had been earlier produced by sharda and a memo
of the recovery was prepared by the police and was signed by
the witness as well as the appellant. the learned sessions judge carefully companysidered the evidence
led by the prosecution with regard to the disclosure
statement and the recovery
of ornaments. she found the evidence of harnaik singh pw2
who according to dw11 sunder lal companystable of police station
defence companyonly had been earlier also cited as a witness
for the prosecution in a case investigated by harmit singh
the then sub-inspector of police and the present
investigating officer was number reliable and that the
investigating officer had number told the truth when he had
deposed that he did number knumber harnaik singh earlier. that
harnaik singh had on his own showing signed the disclosure
statement after it had already been written and that the
appellant bad number made any disclosure statement in the
presence of harnaik singh pw2 who had been introduced being
a companyvenient witness. the learned sessions judge also found the evidence of pwl
kuldip kaul as number reliable or trustworthy and disbelieved
his testimony by giving companyent reasons after properly
appreciating the evidence led by the prosecution. she found
the defence version with regard to the recovery as more
probable and opined that the investigating officer had
created false clues and fabricated false evidence. the
learned sessions judge observed
i therefore cannumber bring myself at all to
accept the prosecution case about any
disclosure having been made by the accused or
having led to recovery of missing ornaments in
pursuance to this disclosure and i am company-
strained to say that the i.o. has made
unabashed attempt to fabricate false evidence
to bring on record incriminating evidence
against the accused whom he had tied down for
the offence u s 302 ipc and went to the extent
of introducing false witnesses preparing
fabricated recoveries replacing them by
original recoveries. the high companyrt on the other hand did number deal with the
various discrepancies and companytradictions appearing in the
prosecution evidence relating to the making of the
disclosure statement and the recovery of the ornaments.the
high companyrt placed reliance on the testimony of kuldip kaul
pwl and harnaik singh pw2 to hold that the disclosure
statement and the recovery had been made in the manner
suggested by the prosecution. in our opinion the high
court did number properly appreciate the prosection evidence
while reversing the well companysidered judgment of the learned
sessions judge. on our independent appraisal of the evidence we find that
the prosecution evidence relating to the disclosure
statement and the recovery of ornaments is number only
discrepent and companytradictory but also suffers from glaring
infirmities and improbabilities rendering it unsafe to rely
upon the same. there is companytradiction between the evidence of kuldip kaul
pw1 and the i.o. as to the place where kuldip kaul signed
the recovery memo. according to the 1.0. it was signed at
the spot while according to kuldip kaul pw1 he had returned
to the police station and there signed the recovery memo. again while kuldip kaul attempted to show that he had met
the i.o. just once and did number knumber him earlier the i.o. has given a direct lie to it. after carefully analysing the
evidence we find kuldip kaul pwl was a companyvenient witness
and his evidence does number appear to be trustworthy. same is
our opinion about harnaik singh pw2. whereas both harnaik
singh pw2 and the i.o. want the companyrt to believe that they
did number knumber each other earlier and that i.o. had seen
harnaik singh for the first time on that day only at the
police station there is abundant material on the record to
show only that harnaik singh had earlier been cited as
witness by the same i.o. while posted as sub-inspector at
anumberher police station harnaik singh pw2 was also present
outside the house of the appellant alongwith kuldip kaul pwl
as early as on 6.30 am on that day. harnaik singh pw2 also
exposed his unreliability when he admitted during the cross-
examination that the disclosure statement had number been made
by the appellant in his presence at the police station but
that he had signed a statement which had already been
prepared thus giving a lie number only to kuldip kaul pwi but
also to the i.o. who have deposed to the companytrary. as regards the recovery of ornaments also there is a very
serious infirmity which emerges from the testimony of
harnaik singh pw2. companytrary to what the i.o. and the other
witnesses stated harnaik singh pw2 deposed that the
ornaments were taken out by the sardarji i. o. from the
drain hole and number by the appellant. this probabilises the
defence version that the ornaments had been recovered during
the search and were with the i.o. when the ritual of the
recovery under section 27 of the evidence act was performed. the companytradictions in the evidence of the i.o. and s.i. dalip singh pw6 as to who had weighed the ornaments after
their alleged recovery also casts doubt on the companyrectness
of the prosecution story and the bonafides of the
investigation. the learned judges of the high companyrt numbericed the evidence of
harnaik singh as regards the manner of his signing the
disclosure statement and the alleged recovery of ornaments
and observed
harnaik singh pw2 even though cited as a
witness of the disclosure statement does number
subscribe to it and obviously as stated by
harmit singh he was only brought to the
police station after the first interrogation
was companyducted. in any event we think that a
person like harnaik singh pw2 who is number
prepared to subscribe to a part of the
prosecution case to which he was number a witness
could number but be a truthful witness and there
is absolutely numberreason number to believe his
version that these ornaments were recovered at
the pointing out of the accused and were drawn
from the drain hole by the accused himself. we are unable to appreciate this approach of the high companyrt. the companyrt seems to have made a virtue out of a vice. while
deposing about the recovery of the ornaments from the drain
hole of the bath room harnaik singh pw2 belied the entire
prosecution case when he stated that after the appellant had
led the police party to the bath room the sardarji took out
three bangles and one golden chain from the gutter of the
bath room. the high companyrt did number advert to this aspect of
the evidence at all. kuldip kaul pwl who was also
disbelieved by the learned sessions judge and in our opinion
rightly had also exposed the extent of falsehood indulged
into by the investigating officer with regard to the time
and place where the witness attested the memo of recovery of
the ornaments but the high companyrt did number deal with the said
circumstance also in its proper perspective and on the other
hand unjustifiably criticised the sessions judge for her
adverse companyments on the veracity of the prosecution case. obviously the investigating officer had associated kuldip
kaul pwi number only because he was knumbern to the sho but also
because he was a companyvenient witness who was prepared to sign
the recovery memo at the police station at 3.30 pm after
the police party had returned from the house of the
appellant. the glaring discrepancies and companytradictions
numbericed above have rendered the evidence of kuldip kaul pw1
harnaik singh pw2 and the investigation officer harmit singh
pw19 untrustworthy and unreliable. on the other hand we
find that the defence version regarding the recovery of
ornaments is more probable and is supported by independent
witnesses including tara chand
dw2 father of the deceased whom the i.o. did number produce as
a prosecution witness. despite searching cross-examination
numberhing was elicited to created any doubt on the veracity of
tara chand dw2 the father of the deceased who as already
stated would be the last person to screen the real murderer
of his daughter. the evidence of tara chand dw2 has
impressed us and we find that the version given by him in
the facts and circumstances of the case was more probable. in view of the serious discrepancies companytradictions and the
attempt of the investigating officer harmit singh to create
false clues and fabricate evidence we are of the opinion
that the learned sessions judge was perfectly justified in
rejecting the prosecution evidence relating to the
disclosure statement ex. pc and the companysequent recovery of
the ornaments. the prosecution has failed to establish that
the appellant did make the disclosure statement as alleged
by the prosecution or led to the recovery of the ornaments
belonging to the deceased in the manner suggested by the
prosecution. this piece of circumstantial evidence
therefore has number at all been established much less
conclusively. in a case based on circumstantial evidence the settled law
is that the circumstances from which the companyclusion of guilt
is drawn should be fully proved and those circumstances must
be companyclusive in nature. moreover the established facts
should be companysistent only with the hypothesis of the guilt
of the accused alone and totally inconsistent with his
innumberence. though with the ruling out of the recovery of the ornaments
as circumstances relating to the been established
conclusively the chain of the circumstantial evidence snaps
badly we find that there are some other circumstances also
in the prosecution case which militate against its
correctness. admittedly the nail clippings of the nails of
the deceased had been taken by the police. there was also
recovery of the hair from near the company where the dead body
was lying and the romoval of the hair from the scalp of the
appellant by the i.o. for the purpose of their companyparison. the report of the chemical examiner has number companynected the
hair recovered from the company with those of the appellant. there is numbermaterial on the record either to show that the
nail clipping had any blood which companyld have tallied with
the blood group of the appellant. thus both the nail
clippings and the hair have failed to companynect the appellant
with the crime. the information about the incident was given by sulekh chand
jain dw13 an immediate neighbour of the decased who
informed the police at 4.55 am on the request of the
appellant about the occurrence. sulekh chand jain was number
examined by the prosecution and was instead examined by the
defence and has appeared as dw13. he deposed that he had
conveyed the information as given to him by the appellant
and other inmates of that house regarding the murder of the
deceased to moti ram pw11 at police station hauz khas on
telephone. the record of the information companyveyed by him at
the police station was however cryptic and numberexplanation
has been furnished as to why the recorded report was so
cryptic. in answer to a question in the cross-examination
the witness naturally expressed his ignumberance as to why the
report had been recorded in the manner in which it was
recorded. that was natural. this explanation was required
to be furnished by the police witnesses rather than dw13. though he was subjected to incisive cross-examination
numberhing emerged from the evidence of dw13 which may show
that he had number companyveyed the information of murder having
been companymitted to the police. under these circumstances
the argument of mr. garg that the report was designedly left
vague to enable the investigating agency to fill in the
blanks latter cannumber be dismissed as wholly unplausible
particularly when we have numbericed the companyduct of the
investigating officer during the investigation. the
possiblility that the entire case was built up after the
dogs of the dog squad pointed towards the appellant cannumber
be ruled out. since the appellant had slept in the
verandah near the company where the dead body of his wife was
found had locked the companylapsable door with the recovered
lock before going to sleep and had himself been close to the
dead body before the police came the picking up of the
smell by the dogs and pointing towards the accused companyld number
be said to be a circumstance which companyld exclude the
possibility of guilt of any person other than that of the
appellant or be companypatible only with hypothesis of guilt of
the appellant. the pointing out by the dogs companyld as well
lead to a misguided suspicion that the appellant had
committed the crime. the explanation of the appellant
regarding the injuries on his person as having been caused
by the police is also quite plausible because according to
the father of the deceased the sister of the deceased the
tenants of the house and other neighbours who had reached
the spot the appellant was wearing only a vest and the
pyjama and numbershirt and there were numbermarks of injuries on
his body before he was
taken to the police. station. the prosecution case
regarding the presence of injuries on the person of the
deceased also therefore is quite doubtful. on an independent appraisal of the evidence on the record
we have therefore unhesitatingly companye to the companyclusion that
the learned sessions judge was perfectly justified in
acquitting the appellant of all the charges and the
reasoning given and the findings recorded by her are sound
cogent and reasonable. the high companyrt was number justified to
set aside those findings on surmises and companyjectures. the
finding of guilt recorded against the appellant by the high
court is number sustainable in law and we agree with the
learned sessions judge that the prosecution has number
established the case against the appellant beyond a
reasonable doubt.


civil appellate jurisdiction civil appeal number 2546-
2547 of 1983.
from the judgment and order dated the 13th february
1981 of the andhra pradesh high companyrt in writ petitions number. 5458 and 5459 of 1980.
with
writ petition number. 6051-64 8226-28 8284-97 8321-37
3952 7569 7572 7574 and 7577 of 1983.  under article 32 of the companystitution of india

v. s. n. chari for the appellant. r. gupta b. r. kapoor s. r. srivastava and n. n.
sharma for the petitioners. k g. bhagat additional solicitor general shanti
bhushan p. r. mridul dr. y. s. chitale k n. bhatt p. k
pillai r. n. poddar r. b. datar a. subba rao n. nettar

g. mehta and mrs. h. wahi for the appearing respondents. the judgment of the companyrt was delivered by
chinnappa reddy j. the andhra pradesh high companyrt has
declared sec. 129-a of the motor vehicles act
unconstitutional and void as offending art. 19  1   g  of
the companystitution of india. we may straight away say that the
judgment of the high companyrt suffers from serious infirmities
number the least of which is the total failure to numberice and
consider the applicability of the provisions of the companye of
criminal procedure to the situation. on an oral application by the advocate general the
high companyrt granted leave to appeal to the supreme companyrt. presumably by leave the high companyrt meant a certificate as
provided under the companystitution. the order of the high companyrt
regarding the grant of leave to appeal to this companyrt is in
the following terms an oral application for leave to
appeal to the supreme companyrt has been made by the learned
advocate general. the question whether 129-a of the motor
vehicles act is ultra-vires the companystitution on the ground
that it infringes art. 19  1   g  of the companystitution
relates to the interpretation of the companystitution and is
also a substantial question of law of general importance
which requires to be decided by the supreme companyrt. therefore we grant leave to appeal to the supreme companyrt. the order of the high companyrt states  i  that the
question relates to the interpretation of the companystitution
and  ii  the question is also a substantial question of law
of general importance which requires to be decided by the
supreme companyrt. the order of the high companyrt while saying that
the question relates to the interpretation of the
constitution refrained from certifying that the case
involved a substantial question of law as to the
interpretation of the companystitution. we cannumber therefore
treat the certificate as one under art. 132 of the
constitution. on the other hand the high companyrt has certified
that the case involves a substantial question of law of
general importance and it requires to be decided by the
supreme companyrt employing the precise language used in
clauses  a  and  b  respectively of art. 133  1  of the
constitution. the certificate therefore was clearly one
under art. 133 of the companystitution. we are mentioning these
circumstances because at the very companymencement our
attention was invited to art. 145  3  of the companystitution
which provides that the minimum number of judges who are to
sit for the purpose of deciding any case involving a
substantial question of law as to the interpretation of the
constitution or for the purpose of hearing any reference
under art. 143 shall be five. the high companyrt had number
certified that the cases involved a substantial question of
law as to the interpretation of the companystitution and we are
also satisfied that the cases do number involve a substantial
question of law as to the interpretation of the
constitution. we proceeded to hear the appeals and writ
petitions after the position was clarified when the cases
were opened by the learned companynsel. section 129 a of the motor vehicles act may be
extracted here. it is as follows-
129-a power to detain vehicles used without
certificate of registration or permit.- any police
officer authorized in this behalf or other person
authorized in this behalf by the state government
may if he has reason to believe that a motor
vehicle has been or is being used in companytravention
of the provisions of sec. 22 or without the permit
required by sub-section  1  of sec. 42 or in
contravention of any companydition of such permit
relating to the route on which or the area in
which or the purpose for which the vehicle may be
used seize and detain the vehicle and for this
purpose take or cause to be taken any steps he may
consider proper for the temporary safe
custody of the vehicle. provided that where
any such officer or person has reason to believe
that a motor vehicle has been or is being used
without the permit required by subsection  1  of
section. 42 he may instead of seizing the
vehicle seize the certificate of registration of
the vehicle and shall issue an acknumberledgement in
respect thereof. provided further that where a
motor vehicle has been seized and detained under
this section for companytravention of the provisions
of section 22 such vehicle shall number be released
to the owner unless and until he produces a valid
certificate of registration under this act in
respect of that vehicle. it is seen that section 129-a companytemplates three
situations where the police officer or authorized person may
seize and detain the vehicle. the three situations are  i
where he has reason to believe that the motor vehicle has
been or is being used in companytravention of the provisions of
sec. 22  ii  where he has reason to believe that the motor
vehicle has been or is being used without the permit
required by sec. 42  1  and  iii  where he has reason to
believe that the motor vehicle has been or is being used in
contravention of any companydition of such permit relating to
the route on which or the area in which or the purpose for
which the vehicle may be used. these are precisely the three
situations companytemplated by sec. 123  1  of the motor
vehicles act and made punishable under that provision. section 123  1  which may also be extracted is as
follows-
s 123. using vehicle without registration or
permit.  1  whoever drives a motor vehicle or
causes or allows a motor vehicle to be used in
contravention of the provisions of section 22 or
without the permit required by sub section  1  of
section 42 or in companytravention of any companydition of
such permit relating to the route on which or the
area in which or the purpose for which the vehicle
may be used or to the maximum number of passengers
and maximum weight of luggage that may be carried
on the vehicle shall be punishable for a first
offence with fine which may extent to two thousand
rupees and for any second or subsequent offence
with imprisonment. it is therefore clear that the power given to seize and
detain the vehicle under sec. 129- a  is to be exercised by
the police officer or
the authorised person when he has reason to believe that an
offence punishable under sec. 123  1  has been or is being
committed. number after detecting the companymission of an offence
punishable under sec. 123  1  of the motor vehicles act the
next appropriate step for the police officer or the
authorised person would be to companysider the question whether
the offence should be companypounded as provided by section 127-
 b  of the motor vehicles act and any numberification issued by
the government in that behalf. section 127-b may also be
extracted here and it is as follows .-
127-b  1  any offence  whether companymitted
before or after the companymencement of section 26 of
the motor vehicles  amendment act 1982
punishable under section 112 section 113 section
113a section 113b section 114 sub-section  1
and  2  or section 115 section 116 section 118
section 120 section 122 section 123 section 124
section 125 or section 127 may either before or
after the institution of the prosecution be
compounded by such officers or authorities and for
such amount as the state. government may by
numberification in the official gazette specify in
this behalf. where an offence has been companypounded
under sub-section  1  the offender if in
custody shall be discharged and numberfurther
proceedings shall be taken against him in respect
of such offence. thereafter the next logical and appropriate step for the
police officer or the authorised person would be to lay a
complaint before the companyrt companypetent to take companygnizance of
the offence subject to the over-riding provision of section
132 of the motor vehicles act which provides that numbercourt
inferior to that of a metropolitan magistrate or a
magistrate of the second class shall try any offence
punishable under the motor vehicles act or any rule made
thereunder. section 4  2  of the companye of criminal procedure
provides that all offences under any law other than the
penal companye shall also be investigated inquired into tried
and otherwise dealt with according to the same provisions
that is the provisions of the criminal procedure companye
subject to any enactment for the time being in force
regulating the manner or place of investigating inquiring
into trying or otherwise dealing with such offences. chapter xiii of the companye of criminal procedure deals with
jurisdiction of the criminal companyrts in inquiries and
trials. so subject to section 132 of the motor vehicles
act
the companyrt before which the companyplaint may be laid has to be
determined in accordance with the provisions of chapter xiii
of the companye of criminal procedure. after the companyplaint is
laid the case has to be tried in accordance with the
provisions of the companye of criminal procedure. this again is
subject to one special provision of the motor vehicles act
namely section 130. sec. 130 is in the following terms-
the companyrt taking companynizance of an offence
under this act- i  may if the offence is an
offence punishable with imprisonment under this
act and  ii  shall in any other case state upon
the summons to be served on the accused person
that he- a  may appear by pleader and number in
person or  b  may by a specified date prior to
the hearing of the charge plead guilty to the
charge by registered letter and remit to the companyrt
such sum  number exceeding the maximum fine that may
be imposed for the offence  as the companyrt may
specify
provided that numberhing in this sub-section
shall apply to any offence specified in part a of
the fifth schedule. where the offence dealt with in accordance with
sub-section  1  is an offence specified in part of the
fifth schedule the accused person shall if he pleads
guilty to the charge forward his licence to the companyrt
with the letter companytaining his plea in order that the
conviction may be endorsed on the licence. where an accused person pleads guilty and remits 1
the sum specified and has companyplied with the provisions
of sub-section  2  numberfurther proceedings in respect
of the offence shall be taken against him number shall he
be liable to be disqualified for holding or obtaining a
licence by reason of his having pleaded guilty. that is how the offender is dealt with. but what happens to the vehicle seized under the
provisions of s. 129-a ? to begin with we numberice that a
pre-condition to the seizure and detention of the vehicle is
that the police officer or authorised person must have
reason to believe that one or the other of the offences
specified punishable as we have seen under s. 123
has been or is being companymitted. whenever property involved
in the companymission of an offence is seized the seizure is
generally expected to serve a manifold purpose such as to
prevent repetition of the offence to use the thing seized
as material evidence in the prosecution to preserve the
property so as to enable the companyrt to pass appropriate
orders for its disposal by way of destruction companyfiscation
or delivery to any person claiming to be entitled to
possession thereof or otherwise. there ii numberreason to
assume that the seizure under s. 129-a is any different and
is number to serve any of these purposes or any purpose at all. we then numberice that the police officer or the authorised
person may seize and detain the vehicle- and for this
purpose take or cause to be taken any steps he may companysider
proper for the temporary safe custody of the vehicle. clearly therefore the detention by the authorised officer
or person is to be temporary. for how long then ? obviously
until appropriate orders regarding its disposal are made. quite obviously the vehicle may be released if the owner of
the vehicle satisfies the authorised officer or person that
numberoffence such as that mentioned in s. 129-a had been or
was being companymitted. this is subject to tho second proviso
to s. 129-a which bars the release of a vehicle seized for a
contravention of the provisions of s. 22 unless the owner of
the vehicle produces a valid certificate of registration
under the act in respect of the vehicle. companyversely in the
contest it implies 15 that a vehicle seized for a
contravention of s. 22 is to be released if the certificate
of registration is produced. again since the detention is
for temporary safe custody until appropriate orders are
made the police officer or authorised person seizing the
vehicle may arrange for the temporary safe custody of the
vehicle with the owner of the vehicle by releasing the
vehicle to him subject to suitable security j and so
undertaking to produce the vehicle when called upon to do
so. we have indicated that the next step in the process of
dealing with tho offender is to companysider whether the offence
may number be companypounded. if the offence is companypounded the
vehicle has naturally to be returned to the owner. if it is
number companypounded a companyplaint has to be laid before the companyrt
empowered to take companynizance of the case and the case
proceeded with. as soon as the companyplaint is laid the companyrt
acquires jurisdiction to pass appropriate orders regarding
the custody and the the disposal of the vehicle. we have
already numbericed how section 4  2  of the companye of the
criminal procedure stipulates that offences under laws other
than the penal companye also are to be investigated inquired
into tried and otherwise dealt with in accordance with the
provisions of the companye of criminal procedure
the provisions of chapter xxxiv of the companye relating to
disposal of property are also therefore attracted in
dealing with offences under the motor vehicles act. section
452 of the companye enables the companyrt at the companyclusion of an
inquiry or trial to make such order as it thinks fit for
the disposal by destruction companyfiscation or delivery to
any person claiming to be entitled to possession thereof or
otherwise of any property or document produced before it or
in its custody or regarding which any offence appears to
have been companymitted or which has been used for the
commission of any offence. the companyrt thus has the power at
the companyclusion of the case to make appropriate orders
regarding the disposal of the motor vehicle regarding which
an offence appears to have been companymitted. so far as the
custody of the vehicle pending the companyclusion of the case is
concerned the companyrt may either treat the arrangement made
by the officer or person acting under s. 129-a as sufficient
or may itself make further or other orders. section 451 of
the companye of criminal procedure empowers the companyrt when any
property is produced before it during any inquiry or trial
to make such order as it thinks fit for the proper custody
of such property pending the companyclusion of the inquiry or
trial. we think that a motor vehicle regarding whose
temporary custody arrangements have been made under sec. 129-a of the motor vehicles act by the police officer or the
authorised person seizing the vehicle must be companysidered to
have been produced before the criminal companyrt as soon as a
complaint is filed before the companyrt alleging the companymission
of an offence under sec. 123 regarding the vehicle. in any
case the companyrt has ample power under chapter vii of the
code section 91 in particular to companypel the production of
the vehicle before the companyrt. thus if the provisions of the
motor vehicles act are read in companyjunction with the
provisions of the companye of criminal procedure and there is no
getting away from the provisions of both the laws-it is seen
that there is numberlacuna whatsoever in regard to the proper
custody and disposal of the motor vehicle seized under sec. 129-a of the motor vehicles act. the custody of the vehicle
in the hands the police officer or the authorised person is
but temporary and he is therefore obliged to act and take
all further steps in the matter with all expedition. if he
releases the vehicle on being satisfied that numberoffence has
been companymitted or if he releases the vehicle on the offence
being companypounded numberfurther question arises. if instead
he lays a companyplaint before the companyrt the companyrt acquires
instant jurisdiction over the vehicle to pass suitable
orders. in the remote event of the police officer or the
authorised person number taking any further action after
seizing and detaining the vehicle the owner of the vehicle
is number without remedy. art. 226 is always available but one
does number have to presume that the police officer or the
authorised person may number act according to law. the andhra pradesh high companyrt appeared to think that
sec. 129-a of the motor vehicles act was an unreasonable
restriction on the fundamental right guaranteed by art. 19
 1   g  of the companystitution because  i  there was no
provision in the act providing for companyfiscation of the
vehicle  ii  there was numberprovision in the act indicating
what should be done after seizing and detaining the vehicle

the seizure by the police officer or the authorised
person was based on his subjective satisfaction  iv  there
was numberdiscernible purpose behind the seizure  v  there was
numberobligation on the seizing authority to produce the
vehicle in companyrt  vi  number was there any purpose to be
served by producing the vehicle before the companyrt as the
court did number possess the power to companyfiscate the vehicle or
to pass any orders regarding its temporary custody vii  no
appeal was provided against the seizure and  viii  no
maximum period was prescribed for the detention of the
vehicle. numbere of these reasons bears any scrutiny if properly
examined in the light of the provisions of both the motor
vehicles act and the companye of criminal procedure as we are
bound to. indeed whenever an offence under a law other than
the penal companye is companymitted and that law does number itself
regulate the procedure to be followed there is numberoption
but to look to the provisions of the criminal procedure companye
for further action and to weave into a single texture the
provisions of the companye and the special law. the high companyrt
has totally ignumbered the provisions of the criminal procedure
code and the judgment stands vitiated on that account. it
has therefore to be set aside. we have explained the
context of sec. 129-a in the scheme emerging from the inter-
lacing of the provisions of the motor vehicles act and the
criminal procedure companye. we do number have the slightest
hesitation in rejecting the companytention that there is any
infringement of the fundamental right guaranteed by art. 19
 1   g  of the companystitution and in upholding the vires of
sec. 129-a of the motor vehicles act. one of the learned companynsel submitted that when a
tourist motor vehicle was seized under sec. 129-a there
should be some safeguard in regard to the several removable
items which are usually
found in tourist vehicles such as spare tyres spare parts
radio video etc. it was suggested that in the absence of a
provision similar to that found in the criminal procedure
code sec. 129-a should be held to be unreasonable. there is
numbersubstance in this companytention. sec. 100 of the criminal
procedure companye to which reference was made by the companynsel
deals with searches and number seizures. in the very nature of
things when property is seized and number recovered during a
search it is number possible to companyply with the provisions of
sub-sections  4  and  5  of sec. 100 of the criminal
procedure companye. in the case of a seizure under the motor
vehicles act there is numberprovision for preparing a list of
the things seized in the companyrse of the seizure for the
obvious reason that all those things are seized number
separately but as part of the vehicle itself. but it is in
the interests of the very officer or person seizing the
vehicle so that they may number be open to any charge being
laid against them later that such officer or person takes
care to prepare a list of detachable things which are
ordinarily number part of the vehicle and give a companyy of the
list to the person in-charge of the vehicle at the time of
the seizure. in view of the discussion the appeals are allowed with
cost and the writ petitions filed in high companyrt are
dismissed.


civil appellate jurisdiction civil appeal number.3465-69 of
1988.
from the judgment and order dated 26.10.1987 of the punjab
and haryana high companyrt in c.w.p. number. 755 5141 3659/87
3138/88. shanti bhushan and prem malhotra for the appellants. ms. nisha bagchi for ms. indu malhotra u.s. chowdhary and
ravindra bana for the respondents. bhal singh malik and s.m. hooda for the intervenumber. the judgment of the companyrt was delivered by

p. jeevan reddy j. this batch of appeals is preferred
against a companymon judgment of punjab an haryana high companyrt
dismissing a batch of six writ petitions. there are three wings branches in the public works
department of the government of haryana viz. irrigation
roads and buildings and public health. we are companycerned
herein with the irrigation branch. the engineering service
in the irrigation branch companyprises both class-i and class-
ii services. recruitment to and companyditions of service of
class-i are governed by the haryana service of engineers
class-i p.w.d. irrigation branch rules 1964 whereas
recruitment to and companyditions of service of class-11 is
governed by haryana service of engineers class-11 p.w.d.  irrigation branch  rules 1970. the lowest category in
class-i is that of assistant executive engineers. above it
is the category of executive engineers and above it
superintending engineers. recruitment to the category of
assistant executive engineers is only by direct recruitment. recruitment to the category of executive engineers is  a  by
direct recruitment  b  by transfer of an officer already in
class-i service of the government of india or of a state
government and  c  by promotion from class-11 service. sub-
rule  2  of rule 5 of the class-i rules says recruitment
to the service shall be so regulated that the number of
posts filled by promotion from class-11 service shall number
exceed 75 of the number of posts in the service excluding
the posts of assistant executive engineers for the first 10
years from the date of companymencement of these rules and
thereafter shall number exceed 50 of the number of posts in
the service excluding the post of assistant executive
engineers. the proviso to this sub-rule however says that
in case an adequate number of assistant executive engineers
who are eligible and companysidered fit for promotion are number
available the actual percentage of officers promoted from
class-11 service may be larger than 75 or 50 as the case
may be. in other words after the year 1974 the share of
class-11 officers in the promotion quota to the category
of executive engineers categroy shall number exceed 50 the
balance being allocated to the assistant executive engineers
who are also entitled to be promoted to the categroy of
executive engineers. but in case adequate number of
executive engineers are number available the said ceiling can
be exceeded. though the assistant executive engineers are in class-i and
assistant engineers are in class-ii both these categories
discharge similar functions duties and responsibilities. members of both these categories are posted as sub-
divisional officers sub-divisional engieers. both are
eligible for promotion to the category of executive
engineers as stated above but while the cadre strength of
assistant engineers is very large the cadre strength of
assistant executive engineers is quite small with the
consequence that in the matter of promotion to the category
of executive engineers the assistant executive engineers
enjoy a marked advantage in view of the inter se quota
prescribed by sub-rule  2  of rule 5. the assistant
executive engineers get promoted far sooner than the
assistant engineers. the cadre strength of assistant
executive engineers is stated to be 49. while the cadre
strength-of assistant engineers is number stated before us it
is admittedly far larger. in the year 1985 the haryana public service companymission
issued a numberification stating that a companybined companypetitive
examination for recruitment to the post of assistant
executive engineers  c  in the p.w.d. will be held by the
haryana public service companymission in august september 1985
in accordance with the rules of haryana p.w.d. irrigation
br and public health branches as amended from time to
time. then followed the table of particulars which must be
numbericed
reserved reserved reserved
name of post number of for s.c.of for b.c. post for ex. haryana haryana service
----------------------------------------------------------
1 2 3 4 5
----------------------------------------------------------

haryana service
of engineers 15 4 2 1
class i  junior sca-
les  in p.w.d. public
health branch. haryana service of 8 2 1
enginners class i enginee-
rs class i  junior scales
in p.w.d. b r. br. -----------------------------------------------------------

haryana service of
engineers class i  junior
scale  posts in the p.w.d. irrigation branch are also
likely to be filled from
the suitable candidates
from this very advertisement
after the receipt of demand
from the government. ----------------------------------------------------------

the number of posts given against each category is liable
to variation. three posts  two for s.c.of haryana and one

c. of haryana  in p.w.d. b r branch are reserved failing
with other shall be companysidered. seven posts  four for s.c.
of haryana two for b.c. of haryana and one for ex-
servicemen  in p.w.d. public health branch are reserved
failing whom others will be companysidered. it is significant to numberice the wording of item  iii  in the
table. it is clear therefrom that the public service
commission had numberified the vacancies in the category of
assistant executive engineers  referred in the rules and in
the numberification as engineers class-i  junior scale   even
without a requisition from the government. the-commission
by stating that posts in the said category are also likely
to be filled from the suitable candidates from this very
advertisement after the receipt of demand from the govern-
ment had made it knumbern to the candidates-of the absence of
authority. admittedly numbersuch demand or requisition was
ever received by the government at any time after the
issuance of the said numberification. it is equally relevant
to point out that under the numberification applications for
selection to the category of assistant executive engineers
in all the three wings of the p.w.d. were called for. the
eligibility criteria and the qualifications required for
appointment to the said category is stated to be indentical
in all the three wings though they are governed by different
sets of rules. it is also stated before us that numberseparate
applications were necessary and that one companyld apply for
appointment in all or any of the three wings indicating his
choice and subject to his fulfilling the prescribed
qualifications. in response to the numberification aforesaid several engineers
including
the appellants herein applied. a written test was. companyducted followed by an oral interview. on the basis of
the marks obtained in the written test and the oral
interview certain persons were selected for public health
and buildings roads wings. numberselections were made for
the irrigation wing evidently for the reason that even by
the date of finalisation of selections numberrequisition or
demand had companye from the government. it is only then that
the appellants approached the punjab and haryana high companyrt
with a batch of writ petitions praying for the issuance of
an appropriate writ order or direction to the respondents
 government of haryana and the haryana public service company-
mission  to fill up 44 vacancies of assistant executive
engineers and others falling to the quota of direct recruits
from amongst the applicants who had applied in pursuance of
the advertisement they asked for a further direction
to the state of haryana to send requisition to the
respondent-commission to fill up all the vacancies in the
class-i service which are meant for direct recruits
forthwith and to make appointment to the class-i service by
the method of direct recruits as required by the rules. the
appellants challenged the method of selection followed by
the companymission as also the refusal failure of the government
to fill up the vacancies in the category of assistant
executive engineers. the writ petitions were opposed by the public service
commission as also by the state government. the high companyrt
dismissed the writ petitions rejecting the several
contentions urged by the appellants. in this appeal sri shanti bhushan the learned companynsel for
the appellants urged the following companytentions

the cadre strength of assistant executive engineers in
the irrigation wing is 49. as against the said strength
there were only 5 persons holding the posts which means the
vacancies are 44 in number. there has been numberrecruitment
to this category since 1979. in that year the government
had sent a requisition for 22 posts but only 8 were selected
by the companymission. from out of these eight only five were
appointed to the category. in the year 1983 the government
sent a requisition to the companymission for 23 posts but numbere
were selected or appointed. it is in this situation that
the numberification issued by the companymission in the year 1985
envisaged a selection to the category of assistant executive
engineers in the irrigation branch as well. the companymission
expected that in view of the vacancies earlier numberified the
government would be sending a requisition and with
a view to save time and effort it included the vacancies in
irrigation wing as well in the numberification which pertained
to the vacancies in the very same category in the other two
wings of the p.w.d. for which requisition was received. the government acted arbitrarily and unreasonably in no
sending the requisition inspite of the fact that 44
vacancies have been existing in this category in irrigation
branch since a long number of years. this refusal to fill
up the said vacancies is mala fide and is designed to help
and promote the interest of class-ii officers. though
according to the rules the number of promotees from class-
11 in the category of executive engineers should number exceed
50 the fact is that practically all the promotion posts in
the category of executive engineers are held by erstwhile
class-ii officers for the reason that the category of
assistant executive engineers in this branch is being kept
practically empty. when the statutory rules have created a
particular category and a cadre strength is also fixed
therefor and more particularly when a quota is reserved for
them in the channel of promotion to the category of
executivie engineers it is number open to the government to
nullify the spirit and object behind the rules by refusing
to make appointment to the said category. if these 44 posts
are filled up many of the appellants if number all are
likely to be selected and appointed. the procedure adopted by the haryana public service
commission is companytrary to statutory rules. whereas the
rules say that a candidate obtaining 50 marks in the
written test is entitled to be called for viva-voce the
commission has arbitrarily prescribed a threshold of 65
which it had numberjurisdiction to do. as a result of the said
arbitrary stipultion several of the appellants have been
denied the opportunity of selection. the companymission must
number be directed to make selection afresh for all the three
wings branches in the public works department. with a view to clear the ground it would be appropriate to
deal with the second companytention first. it is based upon the
proviso to sub-rule  2  of rule 7 of the 1964 rules. rule 7
deals with direct appointment. for the sake of companyvenience
we may set out sub-rules  1  and  2  of rule 7
direct appointment-  1  a candidate for
direct appointment shall number be less than 20
years and more than 25 years on age of or
before the first day of august next precedin
the last date of submission of applications to
the companymission
provided that-
 a  in the case of candidates who are
displaced persons and in whose case the age
limit for admission to engineering companylege had
been relaxed and in the case of candidates
belonging to the scheduled castes scheduled
tribes and other backward classes the upper
age limit shall be such as may be fixed by the
government from time to time.  b  in the case of candidates possessing the
requisite qualifications who are already in
the service of the state government the upper
age limit shall be 30 years

the selection of candidates including
those belonging
to scheduled castes scheduled tribes or
backward classes shall be made by the
commission after holding a companypetitive
examination the syllabus for which shall be
such as may be prescribed by the government
from time to time. the companymission shall
recommend the required number of candidates
after arranging their names in the order of
merit and indicating which out of them belong
to scheduled castes scheduled tribes or
backward classes
provided that a candidate shall number be
considered qualified for appointment unless
he obtains number less than forty per cent marks
in each subject and also number less than fifty
per cent marks in the aggregate and no
candidate who does number obtain the qualifying
marks shall be called for interview by the
commission. provided further that where a vacancy has been
reserved for a person belonging to scheduled
castes scheduled tribes or backward classes
who secures the highest marks in the aggregate
and has qualified for an appointment shall be
selected irrespective of his position with
respect to the other candidates. a reading of the first proviso to sub-rule  2  of rule 7
shows that it prescribes a minimum percentage of marks in
the written test hoth for appointment as well as for being
called for interview  viva voce . it does number create a
right in the candidate who has obtained the prescribed
percentage of marks to be called for interview. this is
how a similar rule has been understood by a companystitution
bench of this companyrt in ashok kumer yadav v. state of
haryana a.i.r. 1987 s.c. 454. regulation 3 in the appendix
to the haryana civil service  executive  and other allied
services read as follows

numbercandidate shall be eligible to appear
in the viva voce test unless he obtains 45 per
cent marks. in the aggregate of all subjects
including at least 33 per cent marks in each
of the language papers in hindi  in devanagri
script  and hindi essay provided that if at
any examination a sufficient number of
candidates do numberobtain 45 per cent marks in
the aggregate the companymission may at their
discretion lower this percentage to number below
40 per cent for the language papers remaining
unchanged. companystruing the said regulation the companyrt
held
it is clear on a plain natural companystruction
of regulation 3 that what is prescribes is
merely a minimum qualification for eligibility
to appear at the viva voce test. every can-
didate to be eligible for appearing at the
viva voce test must obtain at least 45 per
cent marks in the aggregate in the written
examination. but obtaining of minimum 45 per
cent marks does number by itself entitle a
candidate to insist that he should be called
for the viva voce test all candidates who
satisfy the minimum eligibility requirement. it is open to the harvana public service
commission to say that out of the candidates
who satisfy the eligibility criterion of
minimum 45 per cent marks in the written
examination only a limited number of
candidates at the top of the list shall be
called for interview. and this has
necessarily to be done because otherwise the
viva voce test would be reduced to a farce. it is indeed difficult to- see how a viva voce
test for properly and satisfactorily measuring
the personality of a candidate can be carried
out if
over 1300 candidates are to be interviewed for
recruitment to a service. if a viva voce test
is to be carried out in a thorough and
scientific manner as it must be in order
arrive at a fair and satisfactory evaluation
of the personality of a candidate the
interview must take anything between 10 to 30
minutes. in view of this decision we do number think it necessary to
deal wit the decisions cited by sri shanti bhushan namely
umesh chandra v. union of india 1985 3 s.c.c. 721 nilima
shangla v. state of haryana 1986 4 s.c.c. 268 and p.k
ramachandra iyer ors. etc. etc. v. union of india ors. 1984 2 s.c.c. 141. suffice it to say that neither of them
lays down any principle companytrary to the one quoted above
from ashok kumar yadav. companying to the first submission of sri shanti bhushan the
defence of the government is to the following effect
it is also admitted. that cadre strength of
assistant executive engineer was fixed on
22.1.82 and is 49 out of which 5 persons are
in position. however at present there is no
vacant post of assistant executive engineer in
the department. the true facts are that
during the year 197980 some major projects
viz. drainage projects jawahar lal nehru
project and linning etc. under the world bank
schemes were taken into hand and there was
immediate requirements of technical staff. for this purpose and to take up the time bound
works 212 assistant engineers were recruited
on adhoc basis and 178 sub divisional officers
were promoted from junior engineers draftsmen
etc. on adhoc basis to meet the immediate
requirement during the aforesaid period till
their replacement by the joining of regular
assistant engineers through haryana public
service companymission. the haryana public
service companymission recommended 176 number of
assistant engineers in december 1981 for
regular appointment against the posts of
those who were appointed promoted as
assistant engineer sub divisional officers on
adhoc basis. they were given offer of
appointment on 29.1.1982.on joining of regular
assistant engineers the
services of about 45 adhoc assistant
engineers were terminated by the government. the adhoc assistant engineers whose services
were terminated by the government filed
civil writ petition number 1529/89 amarjeet singh
and others v. state of haryana and other
writs involving the same cause of action
challenging their termination orders. upon
regular hearing the above civil writ petition
the punjab and haryana high companyrt  honble
justice mr. i.s. tiwana  in its orders dated
3.9.84 decided the matter in favour of the
adhoc assistant engineers recruited during the
year 1980. thus the services of adhoc
assistant engineers companyld number be terminated
and they companytinued to hold the posts of
assistant engineers till date. however
government have filed letter patent appeal
number186-90 of 1985 and 374-381 of 1985.amarjeet
singh etc. v. state and the same is pending
for decision in the honble punjab and haryana
high companyrt. similarly the sub divisional
officers who are promoted on adhoc basis in
the year 1979-80 in excess of their quota
could number be reverted by the government for
want of finalisation of ranking list for the
purpose of promotion to the post of sub-
divional officers in pursuance of the directio
given by the honble punjab and haryana high
court in civil writ petition number 5630-5631 of
1981. j.p. gupta and shri krishan v. state
1524/76 m.l. verma v. state and 4489/82 shri

k jain v. state. the learned companynsel appearing for the government of haryana
explains that 176 assistant engineers selected by the
commission in december 1981 for regular appointment are in
addition to 390 officers  212 assistant engineers recruited
on adhoc basis and 178 sub divisional officers promoted from
the category of junior engineers draftsment etc. on adhoc
basis . this statement is however disputed by learned
counsel for the appellants. be that as it may the
submission of the learned companynsel for the government of
haryana is this both the assistant engineers and assistant
executive engineers are posted as sub-divisional
officers sub-divisional engineers. there is numberother
posting available for them. in the circumstances explained
in the companynter-affidavit a large number of assistant
engineers are in surplus over and above the cadre strength. they have to be posted some-
where and they can be posted only as sub divisional
officers sub.divisional engineers. if assistant executive
engineers are also appointed as demanded by the appellants
they will be in further surplus inasmuch as they too can be
posted only as sub divisional officers sub divisional
engineers and there are numberposts available to post them. the government is finding it difficult to give postings to
the already existing assistant engineers who have been
recruited promoted on adhoc basis as stated above and who
could number be ousted because of the orders from companyrts. it
is for this reason that the government did number send
requisition for filling up the 44 posts of assistant
executive engineers in irrigation branch. the said
decision is a bona fide decision actuated by relevant
considerations. there are absolutely numbermala fides on the
part of the government in number filling up the said posts of
assistant executive engineers. it is also brought to our
numberice that though a requisition was sent to the companymission
in the year 1983 for 23 posts of assistant executive
engineers in the irrigation branch the government had
withdrawn the said requisition on may 20 1983 itself i.e. even before any selection companyld be made. it was for this
reason that numberone was selected or appointed to the said
category in that year. companynsel submitted supported by the
counsel for the companymission that in these circumstances the
commission was justified in number selecting anyone against the
post of assistant executive engineers in the irrigation
wing more particularly when the expectation of the
commission that the government may send a requisition
therefor did number materialise even by the date of
finalisation of selections. the question that arises in the above circumstances is
whether the government can be companypelled to send a
requisition to the companymission for the selecting assistant
executive engineers in respect of 44 vacant posts? and if
it can be so companypelled would it be appropriate to direct
that those posts shall be filled by the candidates who
applied for and appeared at the selection held in the year
1985? the first thing to numberice is that the public service
commission had numberauthority to include the vacancies in the
irrigation branch in the numberification issued by it when the
government had number asked for it. the requisition from the
government was to select assistant executive engineers only
for the other two wings viz. buildings and roads and public
health. may be the companymission did so bona fide. even so
the fact remains that numbere were selected against the
vacancies in the irrigation branch evidently because no
demand requisition ever arrived from the government. merely
because the
appellants appeared at such selection they did number get any
right to companype either the companymission or the government to
select and appoint them. in deed it is number as if the
appellants appeared only for the vacancies in irrigation
branch. it was a companyposite numberification for all the three
wings. the appellant do number say that they companyfined their
applications to irrigation wing alone those selected for the
other two wings had admittedly scored more marks at the
selection. because the appellants companyld number get selected
against the vacancies in the other wings they have turned
their attention to irrigation wing. the relevance of their
attack upon the selection procedure adopted by the
commission becomes clearer in this companytext. be that as it
may the mere appearance at the selection does number clothe
them with the right to selection and or appointment. this
is the principle affirmed by this companyrt in state of haryana

subhash chandra marwaha 1974 3 scc 220 and i.j. divakar v. government of andhra pradesh a.i.r. 1982 s.c.
1555. at the same time we are companystrained to observe that
where the rules have created a particular category fixed
its cadre strength and have also prescribed a quota for such
category in the matter of promotion to the higher category
the government would number be justified in number making
appointments to such category for over a decade unless there
are very strong and good reasons therefor. the government
would number be justified in nullifying though number in word
but in spirit the rules in this manner. we are also number
persuaded that the defence put forward by the government in
this case is acceptable. there is numberreason why the
government did number think it fit to make some adhoc
appointments to the category of assistant executive
engineers when it was recruiting such a large number on
adhoc basis to the category of assistant engineers. the
situation in which the government finds itself today is
really of its own making. the problem is numberdoubt real. the companyrts have to think twice before adding the numbers to
the already over-loaded service. it is number so much a
question of punishing the errant but one of what to do
with the surplus personnel and the companysequent unwarranted
burden upon the public exchequer. on balancing the
contending rights and equities we are of the opinion that
at least part of the cadre strength of assistant executive
engineers in the irrigation branch should be filled up in
the near future. the question then arises whether the selection held in 1985-
86 at which the appellants had appeard should be directed
to be finalised. we do number think so. the situation is number
similar to the one companysidered by this companyrt in divakar. that was a case where the companymission called for. applica-
tions pursuant to the requisition from the government held
the interviews
and was about to finalise the select list that the
government withdrew the requisition. in those
circumstances this companyrt while holding that the candidates
who appeared for the selection had numberright to companypel the
commission or the government to select and appoint them yet
gave a direction in the interest of justice to finalise
the selection process and forward the select kg to the
government.the situation in this case as already explained
hereinbefore is totally different. the only direction that
can properly be made herein is to direct the government to
take steps for filling up the vacancies existing in the
category of assistant executive engineers in the irrigation
branch as early as possible atleast half the vacancies
therein should be filled within a period of one year from
today. before companycluding we must refer to certian letters relied
upon by sri shanti bhushan to justify the numberification
issued by the companymission. he relied upon the letters of the
engineer-in-chief dated 16.8.1985 16/ 20.5.1986 and anumberher
letter written in between  the date of this letter is number
given  addressed to the government of haryana outing that
while at the moment there was numbervacancy of assistant
executive engineer there was a possibility of some
vacancies arising on amount of retirement etc. he there-
fore requested the government to take. steps to select
persons therefor firstly it may be numbericed that the
appointing authority for this category being the government
only the government companyld send the requirsition demand to
the companymission and number the engineer-in-chief. the aforesaid
letters are merely in the nature of recommendation to the
government. secondly all the three letters are subsequent
to the numberification issued by the companymission calling for
applications. these letters therefore do number justify the
commission calling for applications in respect of vacancies
in the irrigation branch. for the above reasons the appeals are allowed partly a
direction shall issue to the government of haryana to take
steps for filling up the vacancies in the category of
assistant executive engineers in irrigation branch of p.w.d. as early a possible. in accordance with law atleast half
the vacancies shall be filled up within am year from today.