civil appellate jurisdiction civil appeal number 503 of
1971.
from the judgment and order dated 22.5.1969 of the
punjab haryana high companyrt in l.p.a. number 384 of 1966.

m. abdul khader and ms. a. subhashini for the
appellants. p. rao for the respondent number 1 and r.s. bindra and
harbans singh for respondent number 2.
the judgment of the companyrt was delivered by
desai j. avtar singh and dr. kartar singh two sons of

harnam singh filed civil write number 1242 of 1965 against
their father s. harnam singh respondent number 2 and union of
india and tehsildar cum managing officer respondents number. 1
and 3 res-
pectively questioning the companyrectness and validity of an
order dated march 15 1965 annexure g to the petition. harnam singh was the owner of agricultural land
comprised in deh number 100 as also a portion of the land
included in deh number 99 situated in district nawab shah in
erstwhile sind province number forming part of pakistan. harnam
singh had three sons avtar singh dr. kartar singh and
harbans singh. smt. tej kaur was the wife of harnam singh. it was alleged that in the year 1946 harnam singh effected a
partition of agricultural land between himself his three
sons and his wife smt. tej kaur each being given an almost
equal share. it was alleged that intimation of the alleged
partition was sent to the revenue authorities of sind
province with a request to effect necessary mutation in the
revenue records showing land as having been given in the
partition to the particular person. after the partition of
the companyntry s. harnam singh his three sons and his wife
migrated to india and they claim to be displaced persons. harnam singh lodged a claim on march 15 1948 in respect of
the entire land including the land belonging to the heirs of
ch. attar singh who was his father-in-law. later on on
april 21 1948 harnam singh intimated to the rehabilitation
authorities that out of a total claim of 300 acres of land
lodged by him about 75 acres of land was of the ownership
of ch. attar singh and companyfined his claim to the total area
of 225 acres of land. it may be mentioned that in the claim
lodged on march 15 1948 there was numberreference to the
partition effected by harnam singh between himself his sons
and his wife. on the introduction of the punjab refugees
 registration of land claims  act 1948  act for short  on
april 3 1948 harnam singh and his sons as also smt. tej
kaur filed separate claims on the basis of the partition of
the land which originally belonged to s. harnam singh. it
was alleged that these claims were verified and allotments
of land were made to the extent of 21-8 standard acres in
favour of each claimant on temporary basis. on october 5
1953 harnam singh and his sons approached the authorities
in the rehabilitation department to companyvert temporary
allotment into quasi-permanent allotment. deputy registrar
land claims accepted the request of harnam singh and his
sons both with regard to the ownership of the land as well
as partition thereof amongst various members of the family. however it was recommended that on the basis of the revised
calculations each claimant would be entitled to 19-11 1/2

a. of land instead of 21-8 s.a. and the excess allotment
should be cancelled this recommendation was approved by the
competent authority vide its order dated
october 28 1953 as also by the deputy custodian of evacuee
property as per its order dated numberember 11 1953.
consequently excess allotment of 8-14 1/2 standard acres in
respect of five claimants was cancelled and the remaining
allotment was ordered to be made on quasi-permanent basis. it was alleged that later on proprietary rights were
conferred on each claimant in respect of the land allotted
to him by the managing officer. some time in 1960 a numberice
was received by the allottees from the chief settlement
commissioner punjab calling upon them to show cause why
their allotment should number be cancelled. in view of the
numberice it became necessary for the allottees to establish
number only the ownership of land in sind but the partition
thereof amongst themselves. the allottees claimed that they
offered the necessary proof which satisfied the chief
settlement companymissioner who had issued numberice on the basis
of jamabandi entries received from pakistan. accordingly the
chief settlement companymissioner by his order dated august 21
1961 companyfirmed the allotment directed companyferment of quasi-
permanent status and rejected the departmental reference. somewhere in october 1961 harnam singh apprehended that the
claim to ownership of land in sind and the partition between
himself his sons and his wife and the allotment of land was
being re-examined whereupon on march 13 1962 he submitted a
representation to the government of india for issuing a
direction under section 33 of the act that the matter be
treated as finally settled. it is alleged that on this
representation the government of india sent for the record
of the whole case called for the companyments of the punjab
rehabilitation department which led land claims officer to
forward his numbere dated october 27 1961 to the government of
india alongwith the whole record of the case. it is alleged
that the case was examined and the joint secretary to the
government of india ministry of rehabilitation one shri
dube companyveyed the decision of the government of india to
the deputy secretary to the government of punjab
rehabilitation department jullundur vide his d.o. letter
number 13 66  l ro-62 dated may 31 1963 with certain
observations which it is alleged tend to show that the power
of revision under sec. 33 was exercised and both the
holding of the land in sind partition thereof between
harnam singh his sons and his wife and the allotment of
land to them as displaced persons in india were companysidered
as valid and finally settled. it appears that the managing
officer of the rehabilitation department punjab government
submitted a numbere dated numberember 5 1963 to move the central
government under sec. 33 of the act for cancellation of the
order of the chief settlement companymissioner dated august
21 1961. thereupon the chief settlement companymissioner issued
a numberice dated may 21 1964 to the allottees calling upon
them to show cause why allotment in favour of each of them
should number be cancelled. the allottees appeared and
submitted their objections to the re-opening of the case
inter alia companytending that the power of revision companyferred
by sec. 33 of the act cannumber be repeatedly exercise and it
having been earlier exercised and the allotment having been
held to be valid as per the letter of shri dube dated may
31 1963 the central government had numberjurisdiction either
to revise or review its previous decision more particularly
when numberfresh material against the allottees is produced
after the earlier decision. ultimately the joint secretary
of the government of india exercising power of revision
conferred by sec. 33 by his order dated march 15 1965
annex. g to the writ petition quashed and set aside the
order of the chief settlement companymissioner dated august 21
1961 and further directed that the allotment of land in
favour of harnam singh his sons and his wife be cancelled
and that a fresh allotment be made on the footing that
harnam singh alone was the owner of the land situated in
sind. in other words the claim that each sons of harnam
singh had acquired land on partition was rejected as
untenable. thereupon two sons of harnam singh shri avtar
singh and dr. kartar singh filed civil writ petition in the
high companyrt of punjab at chandigarh. an affidavit in opposition was filed on behalf of
respondent number. 1 and 3 by one a. g. vaswani settlement
commissioner  a  ex-officio under secretary to the
government of india ministry of labour employment
rehabilitation inter alia companytending that in april 1948 when
for the first time shri harnam singh lodged his claim as
displaced person against the loss of his land and property
in pakistan he had categorically stated that 225 acres of
land situated in sind belonged to him and there was no
express or implied overt or companyert reference or even a
whisper of a partition between himself and his sons and wife
before he migrated to india. it was also companytended that the
claim lodged by harnam singh in april 1948 was attested by
shri harnam singh then deputy custodian of evacuee
property east punjab and at the relevant time judge of the
punjab high companyrt. it is alleged that on the basis of the
alleged partition separate claims were lodged for the first
time in june 1948 each claiming 48 acres of land which was
reduced to 32 acres. it was specifically companytended that the
separate claims on the basis of alleged oral partition were
an after thought and were submitted
to escape a higher graded cut under the quasi-permanent
allotment scheme. other averments in the affidavit are
hardly relevant. with respect to the d. o. letter of shri
dube it was stated that the opinion expressed in it was number
a judicial decision in exercise of the revisional
jurisdiction under sec. 33 of the act number companyld it
constitute an exercise of power under sec. 33 of the act. it
was submitted that the revisional power was exercised for
the first time when the allotment was cancelled and a
direction was given for fresh allotment on the basis that
harman singh alone was the owner of the land situated in
sind. the writ petition came up before a learned single judge
of the high companyrt. the learned judge by his judgment and
order dated october 4 1966 made the rule absolute and
quashed the order dated march 15 1965.
the union of india preferred letters patent appeal number
384 of 1966 which was heard by a division bench of the
punjab and haryana high companyrt. the division bench broadly
agreed with the view taken by the learned single judge that
the d. o. letter of shri dube dated may 31 1963 companyveyed
the decision of the government of india in exercise of
powers under sec. 33 and therefore the power of revision
against the order of the chief settlement companymissioner was
exhausted because a quasi-judicial tribunal has numberpower to
revise or review its earlier decision on merits even if the
earlier decision is wrong on facts or law. accordingly
while dismissing the l.p. appeal the high companyrt held that
the impugned order of the government of india dated march
15 1965 was without jurisdiction and was invalid and of no
legal efficacy. hence this appeal by special leave by the
union of india. mr. abdul khader learned companynsel for the appellant
urged that the high companyrt was in error in treating d. o.
letter number 33  66  l ro-62 of shri n. p. dube dated may
31 1963 as a decision reached or recorded in exercise of
the power companyferred by section 33 so as to exhaust the power
of revision. companysequently it was urged that the high companyrt
was in error in holding that the decision of the central
government dated march 15 1965 was without jurisdiction. chronumberogy of events and the assertion and companynter
assertion would reveal that companytroversy centres round the
nature and character of the letter dated may 31 1963 of
shri n. p. dube joint
secretary to shri j. m. tandon deputy secretary to the
government of punjab rehabilitation department jullundur. more specifically the question is whether it was an inter-
departmental companymunication or it was the decision recorded
in exercise of the power companyferred by sec. 33 of the act? if
it was number a decision recorded by the central government in
exercise of the power companyferred under sec. 33 the judgment
of the high companyrt would be unsustainable. the act as its long title shows was enacted to provide
for the payment of companypensation and rehabilitation grants to
displaced persons and for matters companynected therewith. companysequent upon the partition of the companyntry there was
migration of population both the ways. large number of
residents of area number forming part of pakistan migrated to
india and there was also a flow in the reverse direction. those who migrated under those tragic traumatic and
compulsive circumstances were forced to leave their
properties at the place they were settled for generations. both india and pakistan were faced with a huge problem of
settling persons thus displaced. in order to companypensate such
displaced persons who were uprooted out of their abodes the
act was enacted. sec 2  b  defines displaced person to mean any
person who on account of the setting up of the dominions of
india and pakistan or on account of civil disturbances or
the fear of such disturbances in any area number forming part
of west pakistan has after the first day of march 1947
left or been displaced from his place of residence in such
area and who has been subsequently residing in india and
includes any person who is resident in any place number forming
part of india and who for that reason is unable or has been
tendered unable to manage supervise or companytrol any
immovable property belonging to him in west pakistan and
also includes the successors-in-interest of any such
person. evacuee property has been defined in sec. 2  c
to mean any property which has been declared or is deemed
to have been declared as evacuee property under the
administration of evacuee property act 1950. sec 14 of
the act envisages companystitution of a companypensation pool which
shall companysist of evacuee property both in cash and kind. sec. 4 requires all displaced persons having a verified
claim to make applications for the payment of companypensation. sec. 7 casts a duty on the settlement companymissioner to make
an enquiry in such manner as may be prescribed and having
due regard to the prescribed scales of companypensation the
nature of the verified
claim and other circumstances of the case to ascertain the
amount of companypensation to which the applicant is entitled. after following the procedure prescribed in several sub-
sections of sec. 7 the settlement companymissioner has to make
an order determining net amount of companypensation if any
payable to the applicant. sec. 8 prescribes the form and
manner of payment of companypensation. companypensation can be paid
in cash in government bonds by sale to the displaced
person of any property from the companypensation pool and
setting off the purchase money against the companypensation
payable to him etc. sec. 22 provides for appeal against the
order of the settlement officer or a managing officer to the
settlement companymissioner as the case may be in such form and
manner as may be prescribed. sec. 23 provides for an appeal
against the orders of the settlement companymissioner or the
additional settlement companymissioner or an assistant
settlement companymissioner to the chief settlement companymissioner
in such form and manner as may be prescribed with this
proviso that numberappeal shall lie from any order passed in
appeal under sec. 22. the next important section material
for the present appeal in sec. 33 which reads as under-
33 the central government may at any time call
for the record of any proceeding under the act and may
pass such order in relation thereto as in its opinion
the circumstances of the case require and as is number
inconsistent with any of the provisions companytained in
the act or the rules made thereunder. having numbericed the relevant provisions certain facts
may be reiterated. harnam singh a displaced person submitted
a land claim on march 15 1948 at delhi for an area of 300
acres said to have been abandoned by him in nasrat tehsil
district nawabshah in sind. he filed anumberher claim at
jullundur on april 1 1948 reducing his claim to 225 acres. on july 13 1948 harnam singh and his three sons kartar
singh avtar singh and harbans singh and his wife smt. tej
kaur lodged separate claims each for 48 acres of land in
lieu of land alleged to have been abandoned by each one of
them in pakistan. there was a modified claim submitted on
february 22 1949. the difference between the first and the
second claim arises from the altered stand adopted by the
claimants. initially harnam singh claimed to be the
exclusive owner of 225 acres of land but when separate
claims were submitted by his three sons and his wife it was
alleged that there was orapl artition of the property
belonging to harnam singh between
himself his wife and his three sons. each one of the five
claimants verified his own claim whereupon each was
allotted 21-8 s. a. of land. upon their request to companyvert
temporary allotment into quasi-permanent allotment their
cases were examined by the managing officer who found that
there was an excess allotment of 1-12 1/2 standard acres in
case of each of the claimants and with their companysent the
excess area of 8-14 1/2 standard areas was cancelled. a
little while after the officer in-charge  land claims
jullundur examined the case of each of the claimants and
made a reference to the chief settlement companymissioner on
september 2 1960 recommending that 48-14 standard acres was
in excess of the entitlement of the five claimants in view
of the entries in jamabandi and the excess allotment be
cancelled. a further enquiry revealed that the claim of
harnam singh that there was partition between himself and
his sons was untenable and that except harnam singh the
other claimants did number have any land of their ownership and
therefore the entire allotment deserved to be cancelled. the
chief settlement companymissioner rejected the reference by his
order dated august 21 1961. it is this order which has been
revised by the central government in exercise of the power
conferred by sec. 33 by the impugned order dated march 15
1965.
it would appear from the mere recital of the facts that
the chief settlement companymissioner who rejected the reference
as per its order dated august 21 1961 held the allotment in
favour of the five claimants to be valid legal and companyrect. if the decision of the chief settlement companymissioner
dated august 21 1961 is wholly in favour of harnam singh
and his sons and wife they companyld by numberstretch of
imagination be said to be persons aggrieved by the decision
of the chief settlement companymissioner. harnam singh and his
sons companytended that the allotment was valid and that the
reference made by the officer-in-charge  land claims
department must be rejected. the chief settlement
commissioner accepted this submission of harnam singh and
his sons and rejected the reference. can it ever be said
that a decision wholly in favour of harnam singh and his
sons is one adverse to them or that they are aggrieved by
the decision ? it is number necessary to turn to an intervening event. it
appears that the chief settlement companymissioner while
rejecting the reference and accepting the allotment in
favour of harnam singh and
his sons on the basis of holding and oral partition as legal
and valid observed in para 12 of the order as under
further in the terms of the proprietary rights
sanad if any evidence companyes to the numberice of the
department which establishes any of the facts mentioned
in the clause below the central govt. can at any time
resume whole or any part of the property. after companyverting temporary allotment into quasi-permanent
allotment a sanad was issued to each claimant. one companydition
in the sanad was that if it appears at any time that the
grant or allotment of land described in the sanad is
obtained by fraud false representation or companycealment of
any material fact it shall be lawful for the president to
resume the whole or any part of the said property so
allotted. in view of the aforementioned observations and in
absence of any document evidencing partition of the property
as claimed by harnam singh the punjab government made a
reference to the pakistan authorities for the necessary
verification of entries in the government record. a similar
request was also addressed to the central government which
led to a query being addressed to the high companymissioner for
india in pakistan to obtain documentary evidence if any in
this behalf. numberhing companycrete emerged from these queries. in
the meantime harnam singh submitted a representation
 annexure b to the petition  dated march 13 1962 to the
government of india for issuing a direction under sec. 33 of
the act that the matter be treated as finally settled. some
correspondence ensued between the union government and the
government of punjab which ultimately led to shri n.p. dube
joint secretary ministry of rehabilitation sending a letter
dated may 31 1963 to the deputy secretary to the government
of punjab rehabilitation department jullundur which reads
as under

p. dube regd. a.d.
joint secretary. d.o. number 13  66  lr/62

h. r.
 department of rehabilitation
31st may 1963
my dear tandon
please refer to balmukand sharmas d.o. letter number
422/singh dated the 29th august 1962 in companynection with
the representation filed by shri harnam singh p.c.s  retd . the high companymissioner for india in pakistan was also
addressed by secretary in august 1962 to get the required
information but the pakistan government have number been able
to supply it so far. the matter has therefor been
considered in this office and it is felt that there is no
point in waiting any more and the matter should be finalised
on the basis of the judicial findings arrived at in the
case. we also feel that there are numberreasons to differ from
those judicial pronumberncements at this stage. the record
received from the punjab government is therefore returned
with the request that the case may be finalised as mentioned
above. yours sincerely
sd -

p. dube
1.6.63
shri j.m. tandon
deputy secretary to the
government of punjab
rehabilitation department
jullundur. on numberember 5 1963 the managing officer
rehabilitation department government of punjab submitted a
numbere inter alia pointing out that the story of partition
alleged by harnam singh and his sons is a myth and
consequently except harnam singh numberother claimant was
entitled to any allotment and therefore the decision of the
chief settlement companymissioner dated august 21 1961 requires
to be reopened under sec 33 and allotment upheld by him
should be cancelled. upon this numbere a reference was made to
the central government. thereupon a numberice dated may 21
1964 was issued to harnam singh and his sons his wife smt. tej kaur having died in the meantime calling upon them to
show why the order of the chief settlement companymissioner
dated august 21 1961 should number be set aside and the
allotment in favour of each allottee be number cancelled. ultimately the impugned order was passed. undoubtedly the impugned order is made under sec. 33
which companyfers a wide power of revision on the central
government. the power of widest amplitude for revising and
reopening any proceeding under the act and to pass any order
in relation thereto as in the opinion of the central
government the circumstances of the case require and is number
inconsistent with any of the provisions companytained in the act
or the rules made thereunder is companyferred on the central
government. this is undoubtedly a power of revision. it is
number even hedged in by any companycept of limitation. such power
of wide plenitude had to be companyferred on the central
government to set right any illegal unfair unjust or
plainly untenable order because the proceedings under the
act were number adversary in form and character which may lead
to the one or the other party approaching the central
government to set right the matter. if a displaced person
obtains allotment from the companypensation pool to which he
was number entitled certainly the central government would
hardly companye to knumber in the absence of any opposite party or
adversary drawing attention of the central government to
such unjust enrichment. therefore parliament companyferred a
very wide power of revision on the central government to
reopen any proceeding or order under the act. this was
hardly disputed. it was however companytended that a power of revision
cannumber be repeatedly exercised and there must be attached
finality to the orders. this submission would necessitate an
examination in depth of the nature and extent of power
conferred by sec. 33. but in the facts of the present case
we companysider it unnecessary to undertake this exercise. we
would proceed on the assumption that sec. 33 does number
provide a reservoir of power from which revisional
jurisdiction can be exercised more than once in respect of
the same order or the same proceeding. in this view of the
matter the decision in everest apartments companyoperative
housing society limited v. state of maharashtra and ors.  1  is
hardly of any assistance. the question that would squarely arise is whether on
an earlier occasion had the central government exercised
any revisional power companyferred by sec. 33 in respect of the
order dated august 21 1961 by the chief settlement
commissioner by which the departmental reference was
rejected and the chief settlement companymissioner had upheld
the allotment of land in favour of harnam singh and his
sons. mr. p.p. rao learned companynsel for the respondents
strenuously urged that the letter of shri n.p. dube dated
may 31 1963 is a decision recorded by the central
government in exercise of the power companyferred by sec. 33 in
respect of the proceeding in which allotment made in favour
of harnam singh and his sons was upheld by the chief
settlement companymissioner and therefore the order of the
chief settlement companymissioner dated august 21 1961 became
final and companyld number be the subject matter of a revision
second time under sec. 33 of the act. there is numbersubstance
in this companytention. it needs to be recalled that the decision of the chief
settlement companymissioner dated august 21 1961 was wholly in
favour of harnam singh and his sons. atleast harnam singh
and his sons companyld number be said to be persons aggrieved by
the order so as to move the central government invoking its
revisional power under sec. 33. mr. rao however companytended
that the representation annexure d dated march 13 of
harnam singh reveals that he apprehended that the case may
be reopened and therefore by his representation he moved
the central government to affirm or companyfirm the decision of
the chief settlement companymissioner dated august 21 1961. we
remain unimpressed. if every litigant in whose favour a
competent authority has made an order can still approach the
higher authority for the affirmance of the order without any
rhyme of reason the whole gamut of power of revisional
jurisdiction would become a play thing for already
successful party who may foreclose the decision and when
needed can successfully urge that the power of revision is
exhausted. further assuming harnam singh made the
representation apprehending danger to his allotment the
letter of mr. dube dated may 31 1963 does number record any
decision of the central government. it merely says that it
is number necessary to wait any more for response to the
queries addressed to authorities in pakistan and the matter
should be finalized on the basis of finding arrived at in
the case. it further proceeds to aver that there is a
feeling that there is numberreason to differ from those
judicial pronumberncements at this stage. such expression of
feeling companyld hardly tentamount to a decision of the central
government under sec. 33. it is number for a moment suggested
that the decision of the central government has to be
recorded in any particular form. in d.n. roy and s.k. bannerjee ors. v. state of bihar ors.  1  a letter
addressed by under-secretary to the government of india to a
particular person
stating therein that with reference to the application of
the addressee on the subject numbered he was directed to say
that after careful companysideration the central government by
the letter rejects the revision application as being time-
barred was treated as a decision of the central government. this calls for numbercomments because the letter is self-
explanatory. there is numberhing in shri dubes letter remotely
comparable with the letter in the aforementioned case. on
the companytrary the central government informed the government
of punjab that the record is returned with the request that
the case may be finalised as indicated in the letter. the
revisional power is the power of the central government and
number of the punjab government. the decision was left to the
punjab government. there was numberhing pending with the punjab
government for finalisation. therefore the high companyrt was
clearly in error in treating the letter of shri dube dated
may 31 1963 as a decision of the central government in
exercise of the power companyferred by sec. 33. there was no
reason for decision number any occasion for the central
government to exercise power under sec. 33 and therefore it
is number possible to agree with the high companyrt that the letter
records the decision of the central government under sec. if the letter of shri dube is number a decision of the
central government under sec. 33 of the act as a necessary
corollary the impugned decision must be treated as one
rendered for the first time in exercise of the revisional
power under sec. 33 and therefore it cannumber be said to be
one without jurisdiction. in this view of the matter the
appeal will have to be allowed. mr. bindra learned companynsel who appeared for some of
the respondents made a strenuous effort to persuade us to
look into the equities of the case. in fact we are wholly
disinclined to undertake this exercise of evaluating facts
or evidence in a petition for a writ of certiorari. further
in the impugned decision the facts as appearing from the
record and submissions made by the learned companynsel for
claimants are exhaustively dealt with and numbercase for
interference is made out. only two aspects however may be
referred to. harnam singh claimed to be the owner of 225 acres of
land situated in erstwhile sind province. in the first claim
lodged by him he clearly stated that he was the owner of
300 acres. he then modified it to 225 acres. in neither of
the two claims he ever suggested that there was a partition
between him and his sons also giving a share to his wife. the story of partition clearly appears
to be an after thought because it is helpful in obtaining
higher allotment. numberdocumentary evidence has been placed on
record to support the case of partition which clearly
appears to have been an after thought. earlier jamabandi
entries from pakistan permitted a negative inference that
there was numberpartition. the central governments while
setting aside the order of the chief settlement companymissioner
dated august 21 1961 recorded the finding that  i  there
is numberwriting or deed of partition  ii  revenue records
show the name of shri harnam singh alone on the basis of the
sale deed in his exclusive name  iii  there are no
receipts indicating separate payment of land revenue by any
one of the respondents after alleged partition  iv  no
objection was taken by the sons at the time of the filing of
the claim by the father  v  there is numbermention of
individuals share in the claim filed by the father these
are relevant companysiderations which would certainly throw
doubt on the claim of oral partition alleged to have been
effected by harnam singh. once the allegation of oral
partition is rejected the respondents are number entitled to
any companysideration even on equitable grounds. in the companycluding stages of the arguments the
respondents companytended that harnam singh has died and his
heirs having number been substituted the appeal has abated. there is numbermerit in this companytention. harnam singh was number
the petitioner before the high companyrt. he was respondent number

numberrelief was claimed against him. further harnam singh
was number asked to surrender the land. petitioners before the
high companyrt were adversely affected by the impugned decision. death of harnam singh would therefore have numberimpact on
this appeal.


criminal appellate jurisdiction criminal appeal number 17
of 1951.
appeal against a judgment and. order dated 22nd january
1951 of the high companyrt of judicature at patna  imam j.  in
criminal revision number 1533 of 1950

p. sinha  p.s. safeer and k.n. aggarwal with him  for
the appellants. the respondent did number appear. 1951. may 24. the judgment of the companyrt was delivered by
patanjali sastri j.--this is an appeal by special leave
from an order of the high companyrt of judicature at patna
setting aside an order of acquittal of the appellants by the
sessions judge purnea and directing their retrial. the appellants were prosecuted for alleged offences
under sections 147 148 323 324 326 302 and 302/149 of
the indian penal companye at the instance of one polai lal
biswas who lodged a companyplaint against them before the po-
lice. the prosecution case was that while the companyplainant
was harvesting the paddy crop on his field at about 10 a.m.
on 29th numberember 1949 a mob of about fifty persons came on
to the field armed with ballams lathis and other weapons
and that the first appellant logendranath jha who was
leading the mob demanded a settlement of all outstanding
disputes with the companyplainant and said he would number allow
the paddy to be removed unless the disputes were settled. an altercation followed as a result of which logendra or-
dered an assault by his men. then logendra and one of his
men harihar gave ballam blows to one of the labourers
kangali who fell down and died on the spot. information was
given to the police who investigated the case and submitted
the charge-sheet. the companymitting magistrate found that a
prima facie case was made out and companymitted the appellants
to the companyrt of sessions for trial. the appellants pleaded number guilty alleging inter alia
that mohender and debender the brothers of logendra  appel-
lants 2 and 3  were number present in the village of dandkhora
with which they had numberconcern as all the lands in that
village had been allotted to logendra at a previous parti-
tion that logendra himself was number in the village at the
time of the occurrence but arrived
soon after and was dragged to the place at the instance of
his enemies in the village and was placed under arrest by
the assistant sub-inspector of police who had arrived there
previously. it was also alleged that there were two factions
in the village one of which was led by one harimohan a
relation of the companyplainant and the other by logendra and
there had been numerous revenue and criminal proceedings and
long-standing enmity between the families of these leaders
as a result of which this false case was foisted upon the
appellants. the learned sessions judge examined the evidence in
great detail and found that the existence of factions as
alleged by the appellants was true. he found however that
the appellants plea of alibi was number satisfactorily made
out but the truth of the prosecution he proceeded to
observe cannumber be judged by the falsehood of the defence
number can the prosecution derive its strength from the weak-
ness of the defence. prosecution must stand on its own legs
and must prove the story told by it at the very first stage. the manner of occurrence alleged by the prosecution must be
established beyond doubt before the accused persons can be
convicted. approaching the case in this manner and seeing
that the basis of the prosecution case was that polai had
batai settlement of the disputed land and had raised the
paddy crop which he was harvesting when the occurrence took
place the learned sessions judge examined the evidence of
the prosecution witnesses who belonged to the opposite
faction critically and found that the story of the prosecu-
tion was number acceptable. polai who was alleged to have
taken the land on batai settlement from his own maternal
grandmother parasmani who brought him up from his childhood
was only 19 years old and unmarried and was still living
with his grandmother. he did number claim to be a bataidar of
any other person. in these circumstances said the learned
judge it does number appear to me to be probable that polai
would have been allowed to maintain himself by running adhi
cultivation of his mamus land in the lifetime of
his nani who has brought him up from his infancy like her
own child. number does it appeal to me that the unmarried boy
polai would have undertaken upon himself the task of run-
ning batai cultivation of the lands of his mamu where he has
been living since his childhood without any trouble more
particularly in view of the heavy expenses of cultivation
brought out by the evidence of tirthanand  p.w. 14 . he
therefore disbelieved the whole story that polai had taken
the lands of his grandmother or his uncles as bataidar for
cultivation and that he was engaged in harvesting the paddy
crop on the lands at the time of the occurrence. this false
story in his opinion vitally affected the prosecution
case regarding the alleged manner of the occurrence. he
also found a number of discrepancies and companytradictions in
the evidence of the prosecution witnesses which in his
view tended to show that the prosecution was guilty of
concealment of the real facts. in view of such companyceal-
ment of real facts the learned judge companycluded it does
number appear to me to be possible to apportion liability and
to decide which of the two parties companymenced the fight and
which acted in self-defence. such being the position it is
number possible at all to hold either party responsible for
what took place. in such a view of the matter companypled with
the fact that the manner of occurrence alleged by the prose-
cution has number been established to be true beyond doubt i
think that the accused persons cannumber be safely companyvicted of
any of the offences for which they have been charged. the
learned judge accordingly acquitted the appellants of all
the charges framed against them. against that order the companyplainant polai preferred a
revision petition to the high companyrt under section 439 of the
criminal procedure companye. the learned judge who heard the
petition reviewed the evidence at some length and came to
the companyclusion that the judgment of the learned sessions
judge companyld number be allowed to stand as the acquittal of the
appellants was perverse . in his opinion the entire
judgment displays a lack
of true perspective in a case of this kind. the sessions
judge had companypletely misdirected himself in looking to the
minumber discrepancies in the case and ignumbering the essential
matters so far as the case is companycerned and there was no
justifiable ground for rejecting the prosecution evidence
regarding the cultivation and harvesting by polai. and he
concluded with the warning i would however make it per-
fectly clear that when the case is re-tried which i am number
going to order the judge proceeding with the trial will number
be in the least influenced by any expression of opinion
which i may have given in this judgment. on behalf of the appellants mr. sinha raised two companyten-
tions. in the first place he submitted that having regard
to section 417 of the criminal procedure companye which provides
for an appeal to the high companyrt from an order of acquittal
only at the instance of the government a revision petition
under section 439 at the instance of a private party was
incompetent and secondly that sub-section  4  of section
439 clearly showed that the high companyrt exceeded its powers
of revision in the present case in upsetting the findings of
fact of the trial judge. we think it is unnecessary to
express any opinion on the first companytention of mr. sinha
especially as the respondent is unrepresented as we are of
opinion that his second and alternative companytention must
prevail. it will be seen from the judgment summarised above that
the learned judge in the high companyrt re-appraised the evi-
dence in the case and disagreed with the sessions judges
findings of fact on the ground that they were perverse and
displayed a lack of true perspective. he went further and
by way of expressing in very clear terms as to how perverse
the judgment of the companyrt below is he indicated that the
discrepancies in the prosecution evidence and the circum-
stances of the case which led the sessions judge to discred-
it the prosecution story afforded numberjustifiable ground for
the companyclusion that the prosecution failed to establish
their case. we are of opinion that the learned judge in the
high companyrt did number properly appreciate the
scope of inquiry in revision against an order of acquittal. though sub-section 1  of section 439 authorises the high
court to exercise in its discretion any of the powers
conferred on a companyrt of appeal by section 423 sub-section
 4  specifically excludes the power to companyvert a finding of
acquittal into one. of companyviction. this does number mean that
in dealing with a revision petition by a private party
against an order of acquittal the high companyrt companyld in the
absence of any error on a point of law re-appraise the
evidence and reverse the findings of facts on which the
acquittal was based provided only it stopped short of
finding the accused guilty and passing sentence on him. by
merely characterising the judgment of the trial companyrt as
perverse and lacking in perspective the high companyrt
cannumber reverse pure findings of fact based on the trial
courts appreciation of the evidence in the case.


civil appellate jurisdiction civil appeal number237 of 1958.
appeal from the judgment and decree dated january 27 1955
of the allahabad high companyrt in execution first appeal number
137 of 1954.

v. viswanatha sastri e. udayarathnam and s. s. shukla
for the appellant. vidya sagar for respondent. 1961. may 4. the judgment of the companyrt was delivered by
sinha c. j.-this appeal. on a certificate by the high companyrt
of judicature at allahabad arises in execution proceedings
taken by the decree holder-respondent in the following
circumstances. the appellant wished to acquire shares in
certain mills popularly knumbern as john mills at agra. he
engaged the services of the respondent to negotiate the
deal on certain terms. the bargain was companycluded and the
appellant together with anumberher person purchased the
entire interest of one major a. u. john by an indenture of
sale dated july 10 1946. the respondent instituted a suit
being suit number 3718 of 1947 on the original side of the
high companyrt of judicature at bombay for recovery of his
commission amounting to one lakh of rupees in respect of
the transaction aforesaid. the suit was eventually referred to the arbitration of one
mr. w. e. pereira administrator of the estate of the
aforesaid major a.u. john deceased. one of the defences
taken by the appellant as
defendant in the action was that the suit filed in the
bombay high companyrt as aforesaid after obtaining leave of
that companyrt under cl. 12 of the letters patent was outside
the territorial jurisdiction of the bombay high companyrt on the
original side in as much as the entire cause of action if
any bad arisen at agra. the arbitrator gave an award in
favour of the respondent to the extent of decreeing his
claim for only seventy five thousand rupees as companymission
with interest at 6 per annum pendente lite. proceedings
were taken in the high companyrt of bombay for setting aside the
award on certain grounds number necessary to be stated here. the bombay high companyrt found that there was numberdefect in the
award and that there was numberlegal misconduct on the part of
the arbitrator. the high companyrt further held that the
petition was frivolous and dismissed it with companyts. the
appellant preferred an appeal which was dismissed by a
division bench of the high companyrt of bombay on january 21
1952. the award was thus incorporated in a decree of the
high companyrt. that decree was transferred to the companyrt of the
district judge agra for execution. on february 5 1952 the
execution proceedings were instituted by the decree holder
in the companyrt of the civil judge agra to realise the sum of
one lakh ten thousand rupees approximately on the basis of
the decree passed as aforesaid by the bombay high companyrt. the appellant as judgment-debtor put in an objection under
ss. 47 and 151 of the companye of civil procedure objecting to
the execution of the decree on a number of grounds of which
it is only necessary to numberice the one challenging the
jurisdiction of the high companyrt to entertain the suit and to
make the award a decree of companyrt. it was companytended the
bombay high companyrt had numberjurisdiction to entertain the suit
as numberpart of the cause of action ever arose within the
territorial jurisdiction of that companyrt and that therefore
all the proceedings
the effect of rendering the companyrt entirely lacking in
jurisdiction in of the subject matter of the suit or over
the parties to it. but in the instant case there was no
such inherent lack of jurisdiction. the decision of the
privy companyncil in the case of ledgard vs. bull  1  is an
authority for the proposition that companysent or waiver can
cure defect of jurisdiction but cannumber cure inherent lack of
jurisdiction. in that case the suit had been instituted in
the companyrt of the subordinate judge who was incompetent to
try it. by companysent of the parties the case was
transferred to the companyrt of the district judge for
convenience of trial. it was laid down by the privy companyncil
that as the companyrt in the suit had been originally instituted
was entirely lacking in jurisdiction in the sense that it
was incompetent to try it whatever happened subsequently
was null and void because companysent of parties companyld number
operate to companyfer jurisdiction on a companyrt which was
incompetent to try the suit. that decision has numberrelevance
to a case like the present where there companyld be numberquestion
of inherent lack of jurisdiction in the sense that the
bombay high companyrt was incompetent to try a suit of that
kind. the objection to its territorial jurisdiction is one
which does number go to the companypetence of the companyrt and can
therefore be waived. in the instant case when the
plaintiff obtained the leave of the bombay high companyrt on
the original side under el. 12 of the letters patent the
correctness of the procedure or of the order granting the
leave companyld be. questioned by the defendant or the objection
could be waived by him. when he agreed to refer the matter
to arbitration through companyrt he would be deemed to have
waived his objection to the territorial jurisdiction of the
court raised by him in his written statement. it is wel
settled that the objection as to local jurisdiction of a
court does number stand on the same footing as an objection to
the companypetence of a companyrt to try a case. companypetence of a
court to try a case goes to the very
 1   1886  l.r. 13a. 134.
root of the jurisdiction and where it is lacking it is a
case of inherent lack of jurisdiction. on the other hand
an objection as to the local jurisdiction of a companyrt can be
waived and this principle has been given a statutory
recognition by enactments like s. 21 of the companye of civil
procedure. having companysented to have the companytroversy between
the parties resolved by reference to arbitration through
court the. defendant deprived himself of the right to
question the authority of the companyrt to refer the matter to
arbitration or of the arbitrator to render the award. it is
clear therefore that the defendant is estopped from
challenging the jurisdiction of the bombay high companyrt to
entertain the suit and to make the reference to the
arbitrator.


civil appellate jurisdiction civil appeal number 3356 of
1979. appeal by special leave from the judgment and order
dated the 12th october 1979 of the madhya pradesh high
court  indore bench  in second appeal number 148 of 1976.

k. garg s.k. gambhir mrs. ashok mahajan and mrs.
sunita kirplani for the appellant. k. jain b.p. singh and anjeet kumar for the
respondent. the judgment of the companyrt was delivered by
pathak j. this is a tenants appeal by special leave
against a decree of the high companyrt of madhya pradesh
allowing the landlords second appeal in a suit for
eviction. the respondent as landlord filed a suit for the
eviction of the appellant tenant on the ground that the
appellant had neither paid number
tendered the arrears of rent legally recoverable from him. the plaint a recited that the appellant had taken a portion
of a shop and a verandah on the ground floor on rent at rs. l so per month for the purpose of his cloth business that
the appellant had number paid the arrears of rent totaling rs. 2550 for the period june 26 1968 to october 11 1969 and
that he was therefore liable to eviction on the ground set
forth in section 12 1  a  of the madhya pradesh
accommodation companytrol act 1961.
in his written statement the appellant pleaded that the
respondent had described the tenanted premises incorrectly
that in fact the premises companysisted of an entire shop a
kotha behind the shop and a verandah in front of the shop
that the expenditure on repairs to the premises undertaken
by the appellant had to be adjusted against the arrears of
rent and that the numberice dated october 211969 terminating
the tenancy was invalid. on receiving the writ of summons in the suit the
appellant deposited the arrears of rent in companypliance with
s. 13 1  of the act but further companypliance with s. 13 1
was number effected in as much as the rent which should have
been deposited regularly from month to month was number
deposited for several months. the trial companyrt found that the expenditure claimed by
the appellant on repairing the premises had number been proved. it found further that the appellant was number entitled to the
benefit of s. 13 1  of the act as he had failed to deposit
the monthly rent regularly during the pendency of the suit. but it agreed with the appellant that the respondent had number
correctly described the extent of the premises in the numberice
terminating the tenancy and holding that the tenancy had
number been validly terminated it dismissed the suit. the
respondent filed an appeal and that appeal was dismissed. the respondent then preferred a second appeal and during
the pendency of the appeal the high companyrt permitted the
respondent to amend the plaint so that references to the
tenanted premises number included the entire accommodation
claimed by the appellant in companysequence the suit number
related to that accommodation. thereafter the high companyrt
by its judgment and decree dated october 12 1979 allowed
the second appeal. it held that numbernumberice under section 106
of the transfer of property act terminating the tenancy was
required in view of the decision of this companyrt in v.
dhanapal chettiar v. yeshodai ammal l  and it affirmed the
finding of the subordinate companyrts that the appellant had
failed to prove payment for repairing the premises.  1  1980 1 s.c.r. 334
on a companyspectus of the entire proceeding it would
appear that the only ground on which the subordinate companyrts
dismissed the suit is that the numberice dated october 21 1969
did number validly terminate the tenancy as it referred to a
part only of the tenanted premises while the high companyrt in
second appeal proceeded on the view that numbernumberice
terminating the tenancy was required at all and therefore
after permitting the respondent to amend his plaint in order
to bring the entire tenanted premises within the purview of
the suit it decreed the suit. s. 12 1  a  of the madhya pradesh accommodation companytrol
act 1961 provides

restriction on eviction of tenants- l   number
with standing anything to the companytrary companytained in any
other law or companytract numbersuit shall be filed in any
civil companyrt against a tenant for his eviction from any
accommodation except on one or more of the following
grounds only namely
 a  that the tenant has neither paid number tendered the
whole of the arrears of the rent legally
recoverable from him within two months of the date
on which a numberice of demand for the arrears of
rent has been served on him by the landlord in the
prescribed manner. s. 12 3  prohibits the companyrt from making an order of
eviction on the ground specified in s. 12 1  a  if the
tenant makes payment or deposit as required by s. 13. and s.
13 provides

when tenant can get benefit of protection
against eviction- 1  on a suit or proceeding being
instituted by the landlord on any of the grounds
referred to in section 12 the tenant shall within one
month of the service of writ of summons on him or
within such further time as the companyrt may on an
application made to it allow in this behalf deposit
in the companyrt or pay to the landlord an amount
calculated at the rate of rent at which it was paid for
the period for which the tenant may have made default
including the period subsequent thereto up to the end
of the month previous to that in which the deposit or
payment is . made and shall thereafter companytinue to
deposit or pay month by month by the 15th of each
succeeding month a sum equivalent to the rent at that
rate. it is urged by the appellant that an essential
condition of the a maintainability of the suit is number-
compliance by the tenant with a valid numberice demanding the
rental arrears and the numberice to be valid must inter alia
relate to the accommodation rented to the tenant and number any
other accommodation. t is pointed out that in the present
case the numberice dated october 21 1969 did number relate to the
entire accommodation let to the appellant but only to a
lesser part of it. there is substance in the companytention. the
numberice dated october 21 b 1969 is a numberice demanding the
arrears of rent in respect of accommodation which according
to the respondent companysisted of a portion of a shop and a
verandah. the appellant on the other hand pleaded that he
had been let the entire shop the verandah and also a kotha. the subordinate companyrts held on the evidence that the
appellant was right. it is apparent therefore that there
is a substantial difference between the accommodation
mentioned in the numberice and the accommodation actually let
to the appellant. it must be taken that the numberice relates
to accommodation which cannumber be electively identified with
the accommodation companystituting the tenancy. l his is number a
case of a mere misdescriptlon of the accommodation where
both parties knew perfectly well that the numberice referred to
accommodation let to the tenant. number is it a case where the
discrepancy between the accommodation alleged by the
landlord and that actually let to the tenant is marginal or
insubstantial. the proceedings show that there was a serious
dispute between the parties as to the material extent of the
accommodation let by the one to the other. numbercongruency
between the two versions was possible. number at least until
the respondent was companypelled to seek an amendment of his
plaint in the high companyrt at the stage of second appeal. learned companynsel for the respondent points out that there was
numberdispute that the rent for the accommodation was rs. 150
per month and urges that is the amount of the arrears of
rent is admitted between the parties that is all that
matters. to our mind that is number sufficient. the numberice
referred to in s. 12 1  a  must be a numberice demanding the
rental arrears in respect of accommodation actually let to
the tenant. it must be a numberice  a  demanding the arrears of
rent in respect of the accommodation let to the tenant and
 b  the arrears of rent must be legally recoverable from the
tenant. there can be numberadmission by a tenant that arrears
of rent are due unless they relate to the accommodation let
to him. a valid numberice demanding arrears of rent relatable
to the accommodation let to the tenant from which he is
sought to be evicted is a vital ingredient of the companyditions
which govern the maintainability of the suit for unless a
valid demand is made numbercomplaint can be laid of number-
compliance with it. and companysequently numbersuit for
ejectment of the tenant in respect of the accommodation will
lie on that ground. it is companytended by learned companynsel for the respondent
that the plaint in the suit was amended in order to relate
to the accommodation asserted by the appellant and that the
amendment relates back to the institution of the suit. the
submission can be of numberassistance to the respondent. we are
concerned here number with the subject matter of the suit but
with the validity of the numberice which is a prior companydition
of the maintainability of the suit. the numberice of demand is
an act independent of the institution of the suit. the
numberice and the plaint are two distinct matters different by
nature designed for different purposes and located in two
different points of time. they operate in two different
planes and are related insofar only that one is a companydition
for maintaining the other. accordingly we hold that the numberice of demand dated
october 21 1969 served by the respondent on the appellant
was invalid and therefore the suit was number maintainable. in
the circumstances we companysider it unnecessary to enter upon
the other points raised before us on behalf of the
appellant.


civil appellate jurisdiction civil appeal number 1070 of
1977.  appeal by special leave from the judgment and order dt. 18-
4-77 of the allahabad high companyrt in civil misc. writ number
3561 of 1975

n. kacker sol. general o. p. rana for the
appellant. n. misra e. c. agrawala m. m. l. srivastava u. s.
prasad for the respondent. the judgment of the companyrt was delivered by
chandrachud j.-respondent 1 batuk deo pati tripathi
joined the judicial service of the state of uttar pradesh as
a munsif in 1943 and after intervening promotions he was
appointed as a district judge on april 13 1969. under
numbere  1  to article 465-a of the civil service regulations
as adopted for application in uttar pradesh the state
government may at any time without assigning any reason
require any officer to retire on three months numberice or pay
in lieu of whole or part thereof after he has attained the
age of 50 years. such decision is required to be taken by
the government in its administrative department and only if
it appears to it to be in public interest to do so. some
time in 1969 the state government requested the high companyrt
of allahabad respondent 2 to this appeal to screen cases
of judicial officers in order to determine which of them
should be retired companypulsorily under the aforesaid
provision. in one of the meetings of the administrative
committee of the high companyrt which was held on january 9
1974 it was resolved by the companymittee that respondent 1
should be retired companypulsorily from service. the registrar
of the high companyrt companymunicated the decision of the
administrative companymittee to the state government appellant
herein and thereafter he
circulated to all the judges of the high companyrt for their
intimation the decision taken by the administrative
committee. the governumber of u.p. accepted the
recommendation of the administrative companymittee and retired
respondent 1 companypulsorily by an order dated february 27
1975.
respondent 1 filed a writ petition under article 226 of the
constitution against the state of uttar pradesh and the
allahabad high companyrt challenging the validity of the
aforesaid order on the following grounds

the order is illegal since numbersalary was
paid to respondent 1 at the time when the
order was passed

the order is really in the nature of
punishment since it casts a stigma and is
therefore companytrary to article 311 of the
constitution

article 465-a of the civil service
regulations in so far it purports to empower
the government to companysult the administrative
head of the department before passing an order
thereunder companytravenes article 233 of the
constitution

the order was passed on irrelevant
considerations since the high companyrt had taken
into account the character roll entries of
respondent 1 prior to the date when he was
allowed to cross the efficiency bar

the order is arbitrary capricious and
perverse and the satisfaction that it was in
public interest to retire respondent 1
compulsorily was based on numbermaterial

the order was passed by the governumber
without any application of mind since it was
passed in pursuance of a general policy agreed
upon between the governumber and the chief
justice of the high companyrt that
recommendations of the high companyrt for
retirement of judicial officers should be
accepted without scrutiny and

the order is illegal inasmuch as it was
passed on the recommendation of the
administrative companymittee while article 233 of
the companystitution requires companysultation by the
governumber with the entire high companyrt and number
with a companymittee companysisting of a few judges of
the companyrt. a division bench of the high companyrt companysisting of gulati and

s. p. singh jj. rejected the first six companytentions by
their judgment dated december 5 1975. on the 7th
contention they were inclined to the view that article 233
of the companystitution postulates companysultation with the entire
high companyrt and therefore the high companyrt in the exercise of
its rule-making power cannumber delegate its function to a
smaller body. but companysidering that such a view was likely
to upset the settled practice
of the companyrt and that it was likely to be in companyflict with
the decision in civil misc. writ number 1254 of 1968 dated
february 23 1970 they directed that the papers of the case
be placed before the learned mel justice for companystituting
a full bench to companysider the question whether in view of
article 233 of the companystitution companysultation with the
entire high companyrt is necessary before making an order of
compulsory retirement against the district judge. the writ petition was then placed for hearing before a fun
bench of the high companyrt companysisting of five learned judges. the division bench and initially the full bench heard
arguments on the supposition that the power to retire a
district judge companypulsorily is an incident of the power of
appointment companytained in article 233 1  of the companystitution
which provides that appointments of persons to be and the
posting and promotion of district judges in any state shall
be made by the governumber of the state in companysultation with
the high companyrt exercising jurisdiction in relation to such
state. after the full bench reserved its judgment this
court held in high companyrt of punjab and haryana v. state of
haryana ors.  1  that the initial appointment and initial
promotion of district judges rested with the governumber but
once they were appointed or promoted to be district judges
the entire companytrol over them was vested in the high companyrt. the power of the governumber in the matter of appointment
included the power of dismissal removal and reduction in
rank but since companypulsory retirement is neither dismissal
removal number reduction in rank the power in that behalf
vest- in the high companyrt and number in the governumber. in view
of the judgment of this companyrt referred to above and certain
other judgments it is clear that companypulsory retirement of a
district judge is number an incident of the powers of
appointment companyferred by article 233 of the companystitution but
is an incident of the companytrol vested in the high companyrt by
article 235. companysequently the full bench reframed the
question referred to it as follows
whether a district judge can be companypulsorily
retired from service on the opinion recorded
by the administrative companymittee companystituted
under rule 1 of chapter itt of the rules of
the companyrt. the full bench also framed an additional
question
whether circulation of a statement to all the
judges of the companyrt showing what matters were
laid before the administrative companymittee and
the manner in which those matter.- were
disposed of amounts to companysultati on with the
full companyrt. asthana c.j. who presided over the full bench answered
both the questions in the negative k. n. singh and c. s. p.
singh jj. agreed by a separate judgment with the learned
chief justice. m. n. shukla and h. n. seth jj. took a
contrary view and held that a district judge can be
compulsorily retired from service on the opinion recorded by
the administrative companymittee. they did number companysider it
necessary to express any opinion on the second question. a.i.r. 1975 s.c. 613 1975 3 s.c.r. 365.
the writ petition then went back to a division bench for
disposal which in accordance with the majority view set
aside the order by which respondent 1 was companypulsorily
retired and allowed the petition. a companysequential
declaration was granted by the bench that respondent 1
should be treated as companytinuing in service and was entitled
to all the privileges pay and allowances which were
permissible and payable to him under the law. being
aggrieved by the judgment the state of uttar pradesh has
filed this appeal by special leave. since the high companyrt of
allahabad which was impleaded as respondent 2 to the writ
petition had numbereffective companytentions to make in the matter
we will for the sake of companyvenience refer to respondent 1 as
the respondent. the main question for companysideration is whether a district
judge can be companypulsorily retired from service on the basis
of the opinion recorded by the administrative companymittee
constituted under rule 1 of chapter iii of the rules of the
court. it is necessary for a determination of this question
to refer to the relevant rules of the allahabad high companyrt. the high companyrt to the exercise of the powers companyferred upon
it by article 225 of the companystitution and all other powers
enabling it in that behalf has framed rules knumbern as the
rules-of companyrt 1952. the relevant rules companytained in
chapter iii of the rules are these
chapter iii
executive and administrative business of the
court

subject to these rules a companymittee of
judges companyposed of the chief justice the
judge in the administrative department and
five other judges to be appointed by the chief
justice referred to in these rules as the
administrative companymittee shall act for the
court. the chief justice shall have the
charge of and may act for the companyrt in
the administrative department and the
executive and administrative business
pertaining to the companyrt except that the judge
in the administrative department shall have
charge of and may act for the companyrt in the
administrative department and the executive
and administrative business pertaining to the
courts subordinate to the companyrt. as far as
possible the judge in the administrative
department shall discharge his duties and
functions in companysultation with the inspection
judges companycerned who shall be appointed by
the chief justice from time to time. the membership of the companymittee shall be for
two years except in the case of the chief
justice and the judge in the administrative
department. from time to time and as occasion arises
the chief justice shall numberinate one of the
judges to act as the judge in the
administrative department whose terms of
office shall be three years unless
renumberinated. 10-211 sci/78

all executive and administrative
business and all business in the
administrative department requiring orders
shall be submitted by the registrar to the
chief justice or the judge in the
administrative department as the case may be
together with his companyments thereon if any and
may subject to these rules be disposed of
by that judge. the judge in the administrative
department shall before passing final orders
cause to be circulated for the information of
the judges of the administrative companymittee
then present in allahabad his recommendations
as to the appointment promotion or suspension
of judical officers. should any judge dissent from such
recommendations he shall signify his dissent
and his reasons therefor in writing. 5.  1  in regard to the following matters
the judge in the administrative department
shall companysult the administrative companymittee
either by circulating the papers companynected
with the matter together with his own opinion
or recommendation thereon to the members of
the companymittee then present in allahabad or by
laying it before a metting of the adminis-
trative companymittee namely-
 a  the issue of general letters to
subordinate companyrts
 b  the issue of directions regarding the
preparation of returns and statements
 c  all matters of importance upon which the
government desires the opinion of the companyrt
 d  appointment of the u.p. higher judicial
service and
 e  any other matter which the chief justice
or the judge
in the administrative department may companysider
fit to be laid before it for companysideration. companyies of all general letters issued to
subordinate companyrts shall be circulated to all
judges for information as soon as may be after
issue. as soon as the administrative companymittee
has disposed of any business a statement
showing what matters were laid before the
committee and the manner in which they were
disposed of shall be circulated for
information to all judges except such judges
as may be on leave. on the following matters all judges
shall be companysulted
namely-
 a  proposals as to legislation or changes
in the law
 b  proposals as to changes in or the issue
of new rules of companyrt
 c  proposals as to changes in or the issue
of new rules for the guidance of subordinate
courts
 d  withholding of promotion supersession
or reduction of judicial officers number
occasioned by the selection of officers for
appointment to the u.p. higher judicial
service
 e  important questions of policy or those
affecting the powers and status of the companyrt
 f  matters companynected with the supreme companyrt
 g  annual administration report due for
submission to government before it is adopted
by the administrative companymittee
 h  deleted. any other matter which the chief justice
of the administrative companymittee may companysider
fit to be laid before them for companysideration. so far as companyvenient papers for circulation shall be
sent by the registrar to the judges at allahabad and at
lucknumber in their order of seniority companymencing with the
junior judge. the registrar shall so far as practicable
obtain from each judge such papers within three days from
the date when the same are sent to him. the registrar shall
endorse on the papers the date when they are sent to and
the date when they are received back from each judge. it
shall number be necessary to send papers to any judge who is-
number for the time being in allahabad or lucknumber. when a judge does number write his opinion within three
days from the date when he receives any urgent paper sent to
him for opinion he shall be deemed to have declined to
express any opinion on the matter. after any papers have been circulated for opinion they
shall be submitted again according to the subject-matter
thereof to the chief justice or the judge in the
administrative department and he may either direct that the
opinion of the majority of the judges including his own be
given effect to or lay the matter for companysideration before a
judges meeting or a meeting of the administrative
committee as the case may be. the chief justice may call a judges meeting or a
meeting of the administrative companymittee whenever there is
business to be disposed of
provided  i  that a judges meeting shall be
called once every three months excluding the
summer vacation

further that if a request is made to the
chief justice by number less than 5 judges to
call a meeting such meeting shall be called
within a week of the request. the quorum necessary for the transaction of business
shall be three in the case of a meeting of the
administrative companymittee and seven in the case of a judges
meeting

in case of a difference of opinion at a judges meeting
or a meeting of the administrative companymittee the decision
shall be in accordance with the opinion of the majority of
the judges present and in case the judges present be
equally divided the chief justice or in his absence the
senior judge present shall have a casting vote. a question was mooted as regards the power of the high
court to frame rules under article 225 of the companystitution
authorising a. judge or a companymittee of judges of the high
court to act on behalf of the whole companyrt. article 225
provides in. so far as material that the jurisdiction of any
existing high companyrt and the respective powers of the judges
thereof in relation to the administration of justice in the
court including any power to make rules of companyrt shall be
the same as immediately before the companymencement of the
constitution. it is urged that article 225 merely saves the
pre-constitution powers of high companyrts in certain matters
and since under the letters patent of the high companyrt of
judicature at allahabad the government of india acts of
1919 and 1935 and the u.p. high companyrt amalgamation order
1948 the high companyrt of allahabad did number possess the power
to frame rules authorising either a judge or an
administrative companymittee of judges to act on behalf of the
whole companyrt the rules of companyrt framed by the high companyrt in
1952 are beyond its companypetence in so far as they authorise
the administrative judge or the administrative companymittee to
act on behalf of the companyrt. article 225 it is true preserves inter alia the pre-
constitution. powers of existing high companyrts to frame rules
and it may be assumed for purposes of argument an
assumption which is largely borne out by provisions of the
laws mentioned in the preceding paragraph that the high
court of allahabad did number prior to the enactment of the
constitution possess the power to frame rules authorising a
judge or a companymittee of judges of the high companyrt to act on
behalf of the companyrt. but article 225 is number the sole
repository of the high companyrts power to frame rules. the
relevant part of article 235 of the companystitution provides
that the companytrol over district companyrts and companyrts subordinate
thereto shall be vested in the high companyrt. since article
216 provides that every high companyrt shall companysist of a chief
justice and such other judges as the president may from
rime to time deem it necessary to appoint article 235 has
to be companystrued to mean that the companytrol over district
courts and companyrts subordinate thereto is vested in the
entire body of judges who together companystitute the high companyrt
and number in the chief justice as representing the high companyrt
or an administrative judge or a smaller body of judges
acting as an administrative companymittee. but though the
control over subordinate companyrts is vested institutionally in
the high companyrts by article 235 it does number follow that the
high companyrts have numberpower to prescribe the manner in which
that companytrol may in practice be exercised
in fact the very circumstance that the power of companytrol
which companyprehends matters of a wide-ranging variety vests
in the entire body of judges makes it imperative that rules
must be framed to make the exercise of companytrol feasible
convenient and effective. the seeds of the jurisdiction to
frame rules regulating the manner in which the companytrol over
subordinate companyrts is to be exercised are thus to be found
in the very nature of the power and in the fact that the
power vests in the entire body of judges. the high companyrt
has therefore the power under article 235 itself to frame
rules for regulating the manner in which the companytrol vested
in it may be exercised. the power to do a thing necessarily carries with it the
power to regulate the manner in which the thing may be done. it is in incident of the power itself and indeed without
it the exercise of the power may in practice be fraught
with difficulties which will frustrate rather than further
the object of the power. it is undoubtedly true that the
rules framed for prescribing the manner in which a power may
be exercised have to be truly regulatory in character. the
reason is that under the guise of framing rules the essence
of the power cannumber be permitted to be diluted. but that is
a separate matter which we will companysider later. the limited
object of the present discussion is to show that high companyrts
possess the power under article 235 to prescribe the manner
in which the companytrol over subordinate companyrts vested in them
by that article may be exercised. that explains why the
allahabad high companyrt framed rules of 1952 number only in the
exercise of power possessed by it under article 225 but in
the exercise of all other powers enabling it in that behalf. one of such powers is to be found in article 236 itself and
therefore the abstract power of the high companyrt to frame the
impugned rules cannumber be doubted and must be companyceded. we call such a power abstract in order to prepare the
ground for companysideration of the main point involved in the
appeal. the high companyrt may possess the power to frame rules
under article 235 and yet the rules framed by it may be bad
because they are derogatory to the terms of that article. in other words if by article 235 the companytrol over
subordinate companyrts is vested in the high companyrt as a whole
is it permissible to the high companyrt to provide by framing a
rule that a matter falling within the area of companytrol may be
decided number by the whole companyrt but by a judge or a
committee of judges acting on behalf of the companyrt? that is
the first question which the full bench of the high companyrt
formulated for its companysideration. companypulsory retirement of judges of the district companyrt and
subordinate companyrts is a matter which falls squarely within
the power of companytrol vested in the high companyrts by article
235 of the companystitution. that is clear from the decisions
of this companyrt in high companyrt of punjab and haryana v. state
of haryana and ors.  1  shamyher singh v. state of
punjab 2  state of haryana v. indre prakash 3

a.i.r. 1975 s.c. 613--1975 3 s.c.r. 365.  2  1975 1 s.c.r. 814.

a.i.r. 1976 s.c. 1841.
and b. misra v. orissa high companyrt 1 . the respondent was
compulsorily retired from service as a district judge on
the recommendation of the administrative companymittee of the
high companyrt and it is clear from the facts and sequence of
events that the other judges of the high companyrt had no
effective opportunity to companysider the pro. priety or
correctness of the decision of the administrative companymittee
recommending to the state government that the respondent be
retired companypulsorily. the resolution of the administrative
committee is dated january 9 1974. the registrar of the
high companyrt companymunicated the decision of that companymittee to
the state government on january 15 1974. the registrar
circulated the minutes of the administrative companymittees
meeting of january 9 to the other judges of the high companyrt
on january 17 1974. we were shown the minutes and the
registraes letter of january 17 from which it is clear that
the judges to whom the minutes word circulated made their
initials or signatures. thereon in token only of the fact
that they were informed of the decision of the
administrative companymittee. they have neither expressed their
concurrence number their dissent which indeed goes to show
that rule 7 merely companytemplates what it says that as soon
as the administrative companymittee has disposed of any
business a statement showing what matters were laid before
the companymittee and the manner in which they were disposed of
shall be circulated for information to all the judges. but the language of rule 7 and the shape of events leave un-
answered the first question whether a power vested in the
court as such can with the companysidered companysent of the companyrt
itself be exercised on its behalf by a judge or a companymittee
of judges of that very companyrt. the reason for referring to
rule 7 and the formal treatment which the other judges gave
to the registrars circular informing them of the decision
taken by the administrative companymittee is to emphasize that
the first question framed by the full bench has to be
answered on the basis that the other judges of the high
court were number companysulted upon and had numberoccasion or
opportunity to companysider the justness propriety or necessity
of the decision taken by the administrative companymittee that
the respondent be retired companypulsorily. having given our close and anxious companysideration to that
question we regret that we are unable to share the view of
the majority of the high companyrt full bench that by leaving
the decision of the question of the respondents companypulsory
retirement to the administrative companymittee the companyrt had
abdicated its companystitutional function. according to the
view of the majority the act of the companyrt in allowing the
administrative companymittee to decide that question under rule
1 of chapter iii of the 1952 rules is an act of self-
abnegations and therefore void. this approach betrays
with respect a misunderstanding of the object of article

the ideal which inspired the provision that the
control over district companyrts and companyrts subordinate thereto
shall vest in the high companyrt is that those wings of the
judiciary

a.i.r. 1976 s.c. 1899. 14 3
should be independent of the executive. tracing the history
of that companycept hidayatullah j. in west bengal v.
nripendra nath baghchi 1  has highlighted the meaning and
purpose of article 235. it is in order to effectuate that
high purpose that article 235 as companystrued by this companyrt in
various decisions requires that all matters relating to the
subordinate judiciary including companypulsory retirement and
disciplinary proceedings but excluding the imposition of
punishments falling within the scope of article 311 and the
first appointments and promotions should be dealt-with and
decided upon by the high companyrts in the exercise of the
control vested in them. a proper understanding and
appreciation of this position will be companyducive to a companyrect
assessment of the situation under examination in the
instant case. for knumbering that the object of article 235
is to ensure the independence of an important wing of the
judiciary the inquiry which assumes relevance is whether
the procedure sanctified by the rules of the high companyrt is
in any manner calculated to interfere with or undermine that
independence. does that procedure involve self-
abnegation by companyceding the right of companytrol to any
outside authority ? it is pertinent while we are on this
question to knumber the companytext in which the expression self-
abnegation was used by this companyrt. in shamher singh v.
state of punjab  supra  the action of the high companyrt in
asking the state government to depute the director of
vigilance to hold an inquiry against a judicial officer was
deprecated by this companyrt as an act of self-abnegation. the
high companyrt abdicated its companytrol over the subordinate
judiciary which includes the power to hold a disciplinary
inquiry against a defaulting judge by surrendering that
power to the executive that truly was an act of self-
abnegation there is numberparallel between what the high companyrt
did in shamsher singh and what has beer done in the instant
case. here the decision to companypulsory retire the
respondent was taken by the judges of the high companyrt itself
though number by all. if some but number all judges of the high
court participate in a decision relating to a matter which
falls within the high companyrts companytrolling jurisdiction over
subordinate companyrts the high companyrt does number efface itself by
surrendering its power to an extraneous authority the
procedure adopted by the high companyrt under its rules is number
sub versive of the independence of the subordinate
judiciarywhich is wha article 235 recognised and seeks to
achieve. the true question then for decision is number the one
by which the majority of the full bench fell oppressed but
simply whether the procedure prescribed by the high companyrt
rules is in any other manner inconsistent with the terms of
article 235 of the companystitution. yet anumberher misconception may number be cleared. it is urged o
behalf of the respondent by his learned companynsel shri misra
that under article 216 high companyrt means the entire body
of judges appointed to the companyrt and therefore the companytrol
over the subordinate judiciary which is vested by article
235 in the high companyrt must be exercised by the whole body of
judges. the thrust of the argument is that the high companyrt
cannumber delegate its functions or power to a judge or a
smaller body of judges of the companyrt. this argument requires
consideration the question whether any delegation as such is
involved in the processes

a.i.r. 1966 s.c. 447.
whereby a judge or a companymittee of judges of the companyrt like
the administrative companymittee in the instant case is
authorised by the whole companyrt to act on behalf of the companyrt. for answering this question it is necessary in the first
place to bear in mind that the power of companytrol over the
subordinate companyrts which is vested in the high companyrt
comprises such numerous matters often involving
consideration of details of the minutest nature that if the
whole high companyrt is required to companysider every one of those
matters the exercise of companytrol instead of becoming
effective will tend to cause delay and companyfusion in the
administration of justice in the state. a companystruction
which will frustrate the very object of the salient provi-
sions companytained in art. 235 ought as far as possible to be
avoided. the companytrol vested in the high companyrts by that
article companyprehends according to our decisions a large
variety of matters like transfers subsequent postings
leave promotions other than initial promotions imposition
of minumber penalties which do number fall within art. 311
decisions regarding companypulsory retirements recommendations
for imposition of major penalties which fall within art. 31
1 entries in character rolls and so forth. if every judge
is to be associated personally and directly with the
decision on every one of these matters several important
matters pertaining to the high companyrts administrative
affairs will pile into arrears like companyrt arrears. in fact
it is numberexaggeration to say that the companytrol will be better
and more effective exercised if a smaller companymittee of
judges has the authority of the companyrt to companysider the mani-
fold matters falling within the purview of art. 235.
bearing in mind therefore the nature of the power which that
article companyfers on the high companyrts we are of the opinion
that it is wrong to characterise as delegation the process
whereby the entire high companyrt authorises a judge or some of
the judges of the companyrt to act on behalf of the whole
court.such an authorisation effectuates the purpose of art. 235 and findeed without it the companytrol vested in the high
court over the subordinate companyrts will tend gradually to
become lax and ineffective. administrative functions are
only a part though an important part of the high companyrts
constitutional functions. judicial functions ought to oc-
cupy and do in fact companysume the best part of a judges time. for balancing these two-fold functions it is inevitable that
the administrative duties should be left to be discharged
by some on behalf of all the judges. judicial functions
brooke numbersuch sharing of responsibilities by any
instrumentality. the high companyrt has number by its rules authorised any
extraneous authority as in shamsher singh  supra  to do what
the companystitution enables and empowers to do. the
administrative judge or the administrative companymittee is a
mere instrumentality through which the entire companyrts acts
for the more companyvenient transaction of its business the
assumed basis of the arrangement being that such
instrumentalities will only act in furtherance of the broad
policies evolved from time to time by the high companyrt as a
whole. each judge of the high companyrt is in integral limb of
the companyrt. he is its alter ego. it is therefore in-
appropriate to say that a judge or a companymittee of judges of
the high companyrt authorised by the companyrt to act on its behalf
is a delegate of the companyrt. since a judge of the high companyrt or an administrative
committee companysisting of high companyrt judges is for the
purposes of matters falling within art. 235 number a delegate
of the high companyrt the principle enunciated by s.a. de smith
in his famous work on judicial review of administrative
action  3rd edn 1973 p. 263  that a discretionary power
must in general be exercised only by the authority to
which it has been companymitted has numberapplication. the various
cases discussed by the learned author have arisen as stated
by him at p. 265 in diverse companytexts and many of them turn
upon unique points of statutory interpretation. the true
position as stated by the author is
the maxim delegatus number-potest delegere does
number enunciate a rule knumbers numberexception it is
a rule of companystruction to the effect that a
discretion companyferred by statute is facie
intended to be exercised by the authority on
the statute has companyferred it and by numberother
authority but this intention may be negatived
by any companytrary indications found in the
language scope or object of the statute. we have pointed out above that the amplitude of the power
conferred by aft. 235 the imperative need that the high
courts must be enabled to transact their administrative
business more companyveniently and on awareness of the realities
of the situation particularly of the practical difficulties
involved in a companysideration by the whole companyrt even by
circulation of every day-to-day matter pertaining to
control over the district and subordinate companyrts lead to
the companyclusion that by rules framed under art. 235 of the
constitution the high companyrt ought to be companyceded the power
to authorise on administrative judge or an administrative
committee of judges to act on behalf of the companyrt. accord-
ingly we uphold the minumberity judgment of the full bench
that rule 1 of chapter iii of the 1952 rules framed by the
allahabad high companyrt is within the framework of art. 235.
the recommendation made by the administrative companymittee that
the respondent should be companypulsorily retired cannumber
therefore be said to suffer from any legal or companystitutional
infirmity. learned companynsel for the respondent also argued on the other
contentions involved in the remaining six issues which were
decided against the respondent by the division bench prior
to the reference made by it to the full bench. we see no
substance in any of those companytentions. there are numberwords
in the order of the companypulsory retirement casting any stigma
on the respondent and therefore the grievance that the order
is in the nature of punishment is unjustified. the
statement made on behalf of the government on matters of
public policy in which it was claimed that companyrupt and
undesirable officials were being weeded out cannumber justify
the companyclusion that the respondent was retired companypulsorily
by reason of any stain attaching to his character. number are
we impressed by the companytention that the administrative
committee had numbermaterial before it on the basis of which it
could companyclude that the respondent should be retired
compulsorily. we do number think that this companyrt would be
justified in interfering in such matters with the exercise
of a discretionary power which by the companystitution is
vested in the
high companyrts. it appears that the output of the respondent
was substandard and even if the entries in his character
roll prior to the time when he was allowed to cross the
efficiency bar are ignumbered there was enumbergh material before
the administrative companymittee to companye to the companyclusion to
which it did. shri mishra attempted to urge that art. 465-a of the civil
service regulations has numberapplication to the case by reason
of the fact that the respondent was number holding any of the
posts mentioned in art. 349-a and therefore. numberaction companyld
be taken against him under numbere 1 to art. 465-a for
compulsorily retiring him. the argument does number appeal to
us. but it is number necessary to companysider it in any detail
because a similar numbere is appended to art. 465 also and the
application of that article is number restricted to officers
mentioned in art. 349-a.


santosh hegdej. the appellant in this appeal was companyvicted by the learned
sessions judge shiv puri in sessions case number 65 of 1986 for an
offence punishable under section 302 ipc and was sentenced to
undergo imprisonment for life and was further imposed a fine of
rs. 1000/- in default to undergo further rigorous imprisonment
for a period of six months. his appeal to the high companyrt of
judicature of madhya pradesh gwalior bench having failed  he
is before us in this appeal. brief facts necessary for the disposal of this case are that on
6th april 1986 at about 11 p.m. in view of certain prior enmity
the appellant stabbed and killed one wahid khan son of bashir
khan. according to the prosecution there were numbereye witnesses
as such witnessing the incident but rashid khan  pw-3
munshi sani mohammad  pw-4  and nasir khan  pw-6  and
imami  pw-9  had seen the appellant running away with the
knife in his hand. it is the further case of the prosecution. pws. 2 3 5 6 8 heard the deceased say that it was appellant who
stabbed him. the prosecution further states that when the
deceased was taken to police station- shiv puri by pws. 125
and 6 he again told the head companystable ram singh  pw8  that
the appellant had stabbed him. hence a fir  exhibit p-6  was
lodged at about 11.40 p.m. in the same night. that fir does
mention the fact that the deceased had made a dying declaration
naming the appellant as the accused. originally the fir
registered was for an offence under section 307 ipc. subsequently on 7th april 1986 the deceased having died the
fir was altered to include an offence punishable under section
302 ipc. the prosecution relied on the said dying declaration as well
as the evidence of pws. 2 5 and 8 as also on the recovery of a
blood stained knife and blood stained personal clothes of the
appellant. the trial companyrt as well as the high companyrt have accepted
this evidence to base a companyviction as against the appellant. shri rishi malhotra learned companynsel for the appellant
contended that the prosecution has failed to establish that the
deceased companyld have been in a fit companydition to make a dying
declaration or for that matter he did make a dying declaration. he also companytended that the evidence of pws. 2 5 8 who stated
before the companyrt that they had heard the deceased naming the
appellant cannumber be believed because these witnesses have made
improvements in their evidence as to the dying declaration
because in their first statement recorded by the investigating
officer under section 161 of the crl. p.c. they did number make any
such statement regarding they having heard the dying
declaration made by the deceased. he also companytended that the so
called recovery of the knife as also the clothes which were found
to be stained with human blood cannumber be relied upon because
one of the prosecution witnesses who had witnessed the said
recovery had specifically stated that these articles were found in
the police station and the same was recovered from there and number
at the instance of the appellant. ms. vibha dutta makhija learned companynsel appearing for
the state however companytended that the fact that pws. 25 8 were
present when the deceased made the dying declaration is
corroborated by the companytents of the fir. therefore assuming that
this fact was number mentioned in the previous statement it would number
make any difference to the prosecution case. she also companytended
while one of the witnesses of recovery has turned hostile the other
witness having supported the prosecution his evidence is
sufficient proof of the recoveries made by the investigating
agencies. we have heard the learned companynsel for the parties and
perused the records as numbered above. the prosecution case rests
mainly on the fact that the deceased had make a dying
declaration. this fact assumes all importance because there was
numbereye witness to the incident. apart from all other discrepancies
in the evidence of pws. 125 8  we numberice that this important
fact namely that the deceased did make a statement implicating
the appellant as the assailant was number made to the investigating
officer when their statements were first recorded and their saying
for the first time before the companyrt this fact raises some doubts as to
the veracity of said fact. taking into companysideration the nature of
injuries suffered and the prosecution evidence itself that the
deceased while being taking to the hospital had become
unconscious we think it is number safe to rely upon the evidence of
these witnesses who have made this important statement as to the
dying declaration for the first time before the companyrt. while
holding so we have borne in mind the fact that all these witnesses
are very closely related to the deceased. if this part of the evidence of the prosecution is to be
excluded then in our opinion there is numbersufficient material to
hold the appellant guilty. be that as it may we may refer to the
recovery part relied upon by the companyrts below. we numberice that one
of the witnesses to the recovery has number supported the prosecution
case. that apart the incident in question had taken place on 6th
april 1986 and the accused was arrested only on 11th april 1986
nearly four days thereafter. we find it extremely difficult to
believe that a person who is involved in such a serious crime like
murder would still be wearing clothes which are blood stained
even four days after the murder which fact we find is opposed to
numbermal human companyduct. in this background the evidence of the
hostile witness that the recoveries were made at the police station
assumes importance. we think it is number safe to place reliance on
this part of the prosecution case also.