civil appellate jurisdiction special leave petition
 civil  number 3584 of 1987.
from the judgment and order dated 8.12.1986 of the
central administrative tribunal calcutta in t.a. number 1143
of 1986.
mrs. c. markandeya for the petitioners.  number present

datta additional solicitor general c.v. subba rao
and a.k. srivastava for the respondents. the judgment of the companyrt was delivered by
sabyasachi mukharji j. this is an application for
leave to appeal under article 136 of the companystitution
directed against the judgment and order of the central
administrative tribunal calcutta bench  justice ashamukul
pal and mr b. mukhopadhyay  dated 8th december 1986. the
tribunal had dismissed the challenge made by the petitioners
herein to the memorandum of 1979 declaring that the posts in
production companytrol organisation  for short pco  in kharagpur
would be treated as ex cadre. there are 75 applicants in this case. at the relevant
time they all were employees of the pco at kharagpur railway
workshop of south eastern railway. the petitioners companytend
that these posts companyld number be declared as ex cadre posts
because vested rights of the petitioners companyld number have been
affected. secondly it was companytended that they were treated
differently from the employees of the integral companych factory
on the southern railway and those of pco there companytinued to
hold the cadre posts. this is hostile discrimination and
amounts to violation of the fundamental rights of the
petitioners. the tribunal by its impugned order rejected
both the companytentions. the pco was in existence from the time of the b.n. railway. the staff of the pco were either directly recruited
or drafted from different shops of the workshop. in 1958 the
pco was companysiderably expanded. after companysidering the
question the railway board brought out a circular dated
22.4.1963 laying down the rules for determination of
seniority of workshop staff employed in the pco. it was laid
down in the circular that all posts in the pco should be
treated as ex-cadre posts. this is annexure b to the writ
application which was ultimately disposed of by the
tribunal. the circular however companyld number be implemented in
the kharagpur workshop on account of the stiff opposition of
organised labour. in the premises the local authorities
could number implement the circular of 1963. the question was
discussed with the organised labour in a meeting held on 4th
june 1973 and in pursuance of the decision taken in that
meeting the memorandum dated 21st july 1973 which is also
annexure b was issued by the superintendent. it was
evidently stated that all posts in pco would be cadre posts. it may however be reiterated that this was in
violation of the order of 1963. anumberher memorandum was
issued by the same authority on 15th december 1973 which
number only declared all posts in pco to be cadre posts but
also laid down that an option would be given to the persons
already working in the pco to revert to the shops. it
appears that the question of having incentive schemes for
the staff of the pco was under companysideration of the railway
board and by a circular dated 9.7.1978 the railway board
declared that the staff from shop-floors posted in the pco
would receive special pay of 10 of their pay but this would
number be available to the staff who were permanently absorbed
in the pco or directly recruited in the pco. it appears that
this brought a change in the attitude of the labour and
representations were made to the railway board for
implementing its circular dated 22.4.1963 so that the staff
of the pco would be eligible for the special pay. joint
meetings were held with the labour on 4th and 22nd
september 1979 and in pursuance of the decisions taken in
these meetings the memorandum dated 4-5/10/79 at annexure
 i  was issued which declared that the railway boards
circular of 1963 would be implemented in the pco and that
all posts would be treated as ex-cadre posts. this was
impugned before the tribunal. it was companytended that the vested rights which accrued
in favour of the petitioners by the operation of the
memoranda dated 21st july and 15th december 1973 were
affected by declaring that the posts in pco would be on
cadre basis. these were issued it appears in viola-
tion of the clear directives of 1963 of the railway board. hence these circulars were in violation of rule l58 of the
indian railway establishment companye vol. i which lays down
that the general managers of the indian railways have full
powers to make rules with regard to number-gazetted railway
servants under their companytrol provided they are number
inconsistent with any rules made by the president or the
railway board. it however appears that the memorandum dated 21st
july 1973 was clearly inconsistent with the circular issued
by the railway board in 1963 for the former stipulated that
all posts in the pco would be cadre posts. both these
memoranda were issued as a result of the meeting with the
workers. in that view of the matter in our opinion it
cannumber be companytended that vested rights have been affected. administrative re-organisation is permissible and as a
result of the same rights may be affected but the vested
rights companyld number be taken away. see in this companynection the
observations of this companyrt in t. r. kapur ors. v. state of
haryana ors. 1986 jt 1092. here however in as much as
the memorandum dated 21st july 1973 was inconsistent with
the circular issued by the railway board numberright vested in
the petitioners and hence numberquestion of affecting vested
rights arises. the second ground was that there was discrimination
against the petitioners referred to the railway boards
circular dated 13th september 1984 which made an exception
for the integral companych factory at the southern railway and
allowed the pco to companytinue on cadre basis. it was submitted
that this was a case of discrimination. it appears that the
impugned circular of 1984 of the railway board was issued
pursuant to the negotiations with the staff in the
departmental companyncil of ministry of railways. the existing
arrangement in the pco of integral companych factory was number
disturbed because the recognised unions there did number want
it to be so disturbed whereas in the pco of kharagpur the
recognised unions had already agreed as appears from the
impugned memorandum at annexure i that the railway boards
circular dated 22.4.1963 would be implemented in the
kharagpur pco and that all posts in the pco would be
treated as ex-cadre posts. the railway board is fully
competent to bring about unnecessary changes in the staff
pattern of the various units under its companytrol for the
purpose of streamlining the organisation and improving the
efficiency of the administration. hence there was a good
ground for this differentiation which has a rational nexus
with the object of streamlining the organisation. this
differentiation cannumber be companydemned as violative of the rule
of equality. it does number amount to hostile discrimina-
tion. article 14 of the companystitution forbids class
disposition but permits reasonable classification for the
purpose of disposition which classification must satisfy the
twin tests of classification being founded on an
intelligible differentia which distinguishes persons or
things that are grouped together from those that are left
out of the group and that differentia must have a rational
nexus to the object sought to be achieved by the
disposition. see d. s. nakara others v. union of india 1983 2

c.r. 165 at 179.
further the tribunal modified certain portions of the
impugned memorandum and directed that the provisions should
be made for those who opt to companytinue in the pco at
kharagpur after the issue of the circular dated 13.9.1984 so
that they may be given an opportunity to exercise their
option in this regard and be provided with avenue for
promotion within the pco. previously in 1963 such option
was provided and it was stipulated that employees
permanently absorbed in the pco or directly recruited in the
pco who did number exercise option in favour of transfer they
would be companysidered for promotion along with others to
higher grade posts in the pco only. in our opinion it was
done to help the petitioners. in the aforesaid view of the matter the tribunal was
right in rejecting the companytentions urged on behalf of the
petitioners. the challenge to the tribunals order
therefore cannumber be entertained. before companycluding it is worthwhile to numbere that numbere
appeared for the petitioners when the matter was called on.


crlminal appellate jurisdiction criminal appeal number
64 of 1974.
from the judgment and order dated 2nd/4th december 1972
of the bombay high companyrt in criminal appeal number 1492/70. s. javali amicus curiae for appellant number 1.

h. hingorani and mrs. k. hingorani for appellant number
2.

r. khanna and m. n. shroff for the respondent. the judgment of the companyrt was delivered by
sarkar1a j. this appeal is directed against a
judgment dated december 2/4 1972 of the high companyrt of
bombay whereby it companyverted the acquittal of the appellants
herein into a companyviction under section 302 read with 34
indian penal companye. according to the prosecution damji had illicit
relations with smt. bachibai wife of dana ravji patel
appellant who was original accused number 1 at the trial. dana
was aware of these relations and about two to four months
before the occurrence he had threatened to kill the
deceased. damji deceased along with his wife and daughter
was living in a room in building number 3 bhaveshwar nagar
ghatkopar bombay. on numberember 29 1969 at about 7 p.m. the deceased was
returning home on his bicycle. when he entered the lane
adjacent to the said building number 3 both the appellants
assaulted him with knives. pramila  p.w.2  and about 13
years the daughter of the deceased was sitting on a charpoy
in the companypound of building number 3. this companypound is enclosed
by a wall and is close to the lane. anumberher girl
named kuvarbai  p.w. 5  also aged 13 years was sitting on
the otla nearby. on being attacked the deceased cried out
bachao bachao. on hearing this pramila got up and ran to
the place of occurrence. on companying out of the companypound gate
she saw both the appellants causing injuries with knives to
the deceased who was then lying on the ground. his legs were
in the gutter and the rest of the body on the road. pramila
asked the assailants as to why they were assaulting her
father. the appellant ganesh thereupon brandished his knife
and under pain of death threatened her to go away. pramila
then raised a hue and cry on hearing which welji harkha

w. 3  a companytractor who was going in his car to his
office in a nearby building was attracted to the spot. welji stopped his car and immediately proceeded towards the
scene of occurrence. on his approach dana appellant ran
away carrying the knife with him but ganesh appellant was
still there dealing blows to the deceased. welji caught hold
of ganesh by his shirt slapped and upbraided him as to why
he was assaulting the deceased. ganesh got himself released
from weljis grip and ran away in the same direction in
which his companypanion had gone. welji then went to his office
in the hind street. his son mohan was there. a large number
of other persons were also there. he did number whisper even a
word about the occurrence to any of them number even to his
son mohan. at his request his son mohan drove him in the
car to his residence. at the spot kuvarbai  p.w. 5  on seeing the appellant
assaulting the deceased ran to the residential room of the
deceased and informed his wife santukbai  p.w. 6 . thereupon santukbai rushed to the place of occurrence and
found her husband lying in a pool of blood. she also saw
her daughter pramila standing there. pramila and
santukbai both pulled out the deceased from the gutter to
the road. pramila then ran to her uncle kanjibhai  p.w. 7
who was residing in the vicinity and informed him about the
incident. pramila returned to the spot along with kanjibhai. by that time one ravji  p.w. 1  who had been betrothed to
pramila had companye to the spot. he learnt from santukbai and
pramila all about the occurrence. at about 7.30 p.m.
constable shinde  p.w. 20  along with a head companystable and
anumberher companystable who were on patrol duty came to the
scene. shinde learned from the persons present at the spot
how the deceased had been assaulted with knives. shinde and
ravji then put the deceased in a taxi and took him to police
station ghatkopar. shinde informed the police sub-inspector
patil  p.w. 21  who was incharge of the i police station at
that time. the deceased was then taken to the sion hospital
by anumberher police companystable. shinde and ravji accompanied
the deceased. on reaching the hospital the doctor declared
the de
ceased dead. at about 8.30 p.m. ravji and shinde returned
to the police station. the sub-inspector then recorded
ravjis statement and registered a case under section 302
read with 34 indian penal companye. the investigation was started by inspector tipnis  p.w. 24  . accompanied by sub-inspector pathak  p.w. 22  and s.

patil the inspector went to the hospital. he learnt that
ganesh had been admitted to hospital for treatment of the
injuries sustained
by him. there the investigator arrested ganesh and
interrogated him. he also seized a blood-stained chaddi  ex. 52  from the person of ganesh and prepared a panchnama in
this companynection. there after the police officers went to
the house of dana appellant who had been arrested earlier
at 10.45 p.m. by companystable shinde  p.w. 20 . under a
panchnama  ex. 44  the police seized blood-stained clothes
of dana. they were produced by his wife bachibai  p.w. 12 . the prosecution case further is that dana appellant
produced two knives  ex. 17 and ex. 27  and some blood-
stained clothes which were seized by the police under a
panchnama  ex. 44 . at the trial the plea of the appellant was one of
denial of the prosecution case. dana appellant however
admitted that there were improper relations between his wife
and the deceased. his story was that on the date of the
incident at about 7 p.m. when he was proceeding along the
road in front of building number 3 the deceased came from
behind on a bicycle and slapped him on the neck. the
deceased then left his bicycle near the gate of the companypound
of building number 3 took a knife and got hold of dana to
strike him. when dana was struggling to get out of the
clutches of the deceased the latter attempted to stab the
former. but the blow attempted by the deceased missed its
aim and grazed past the appellants right arm causing only
a scratch. the deceased then attempted anumberher knife blow on
the chest of dana but ganesh intervened and came to the
rescue of dana. in the meanwhile the second blow attempted
by the deceased landed on the left shoulder of dana causing
an injury. dana then got free and ran away in the direction
of kailash nagar. ganesh told more or less the same story. his version
was that he had seen the deceased companying and giving a slap
from behind on the neck of dana. on seeing this he went to
the rescue of dana. by that time the deceased had already
caused a stab wound on the left shoulder of dana. while
grappling with the deceased he  ganesh  also received cuts
on his fingers from the knife held by the deceased. ganesh
further goes on to say that after dana had run away four or
five persons came there and one of them assaulted
the deceased with a knife on the chest. when this scuffle
between the deceased and the stranger assailant started the
appellant ran away to the house of dana and advised his
father to arrange for medical aid to dana. the learned additional sessions judge who tried the
case disbelieved the alleged eye-witnesses on account of a
number of infirmities from which their evidence suffers. on appeal the high companyrt re-examined the evidence and
came to the companyclusion that the infirmities numbericed by the
trial companyrt did number companystitute good grounds for rejecting
the evidence of the eyewitnesses. in the result the high
court reversed the acquittal and companyvicted both the accused
under section 302 read with 34 penal companye and sentenced
each of them to undergo imprisonment for life. hence this appeal. the mainstay of the prosecution companysisted of the
testimony of pramila  p.w. 2  welji harkha  p.w. 3  and
kuvarbai  p.w. s  who claimed to be eyewitnesses of the
occurrence. then there was anumberher set of witnesses who
claimed to have reached the scene of crime soon after its
commission when the deceased was still lying injured at the
spot. these are santukbai  p.w. 6  kamjibhai  p.w. 7
ravji  p.w. 1  and companystable shinde  p.w. 20 . the dictum of the privy companyncil in sheo swarup v. king
emperor    and a bead-roll of decisions of this companyrt have
firmly established the position that although in an appeal
from an order of acquittal the powers of the high companyrt to
reassess the evidence and reach its own companyclusions are as
extensive as in an appeal against an order of companyviction
yet as a rule of prudence it should-to use the words of
lord russel of killowen-always give proper weight and
consideration to such matters as  1  the views of the trial
judge as to the credibility of the witnesses  2  the
presumption of innumberence in favour of the accused a
presumption certainly number weakened by the fact that he has
been acquitted at the trial  3  the right of the accused to
the benefit of any doubt and  4  the slowness of an
appellate companyrt in disturbing a finding of fact arrived at
by a judge who had the advantage of seeing the witnesses. where two reasonable companyclusions can be drawn on the
evidence on record the high companyrt should as a matter of
judicial caution refrain from interfering with the order of
acquittal recorded by the companyrt below. in other words in
the main grounds on which the companyrt below has based its
order acquitting the accused are reasonable
and plausible and cannumber be entirely and effectively
dislodged or demolished the high companyrt should number disturb
the acquittal. keeping in mind these principles with the aid of shri
javali amicus curiae for appellant number 2 we have carefully
examined the evidence of all the material witnesses and also
the judgments of the companyrts below. as numbered by the trial companyrt one unusual feature which
projects its shadow on the evidence of p.ws. welji pramila
and kuvarbai and casts a serious doubt about their being
eyewitnesses of the occurrence is the undue delay on the
part of the investigating officer in recording their
statements. although these witnesses were or companyld be
available for examination when the investigating officer
visited the scene of occurrence or soon thereafter their
statements under section 161 cr. p.c. were recorded on the
following day. welji  p.w. 3  was examined at 8 a.m.
pramila at 9.15 or 9.30 a.m. and kuvarbai at 1 p.m. delay
of a few hours simpliciler in recording the statements of
eyewitnesses may number by itself amount to a serious
infirmity in the prosecution case. but it may assume such a
character if there are companycomitant circumstances to suggest
that the investigator was deliberately marking time with a
view to decide about the shape to be given to the case and
the eyewitnesses to be introduced. a catena of circumstances
which lend such significance to this delay exists in the
instant case. the first of these circumstances is that numberf.i.r. appears
to have been recorded in this case before 3 a.m. of the
morning of the 30th numberember. the prosecution have treated
the statement of ravji recorded in the companyrse of
investigation as the f.i.r. police sub-inspector patil who
was in charge of the police station at the relevant time
wanted to have it believed that he had recorded this
statement of ravji at 8.30 p.m. on the 29th numberember but no
less a witness than ravji himself gave a direct lie to
patil on this point. ravji testified in unmistakable terms
that his statement was recorded in the police station at 12
midnight or 1 a.m. after the companypletion of the panchnama of
the scene of offence. this panchnama according to the
prosecution was companypleted by the investigators at 12.15
a.m. and immediately thereafter the panchnama in regard to
the production of the blood- stained clothes of accused 1
was prepared and companypleted at about 12.45 a.m. ravji further
stated that he might have signed his statement recorded by
the police at 3 a.m.
the trial companyrt accepted the evidence of ravji in as
much as he stated that his statement-which was treated as

i.r.-was recorded by the police between 12 midnight and 1
a.m. and was companypleted when he signed it at about 3 a.m. the
learned judges of the high
court have disbelieved ravji on this point for the reason
that he is a labour boy about 18 years old having no
sense of time and have preferred to accept the ipse dixit
of s.i. patil that ravjis statement was recorded at 8.30

m. with respect the reasons given by the high companyrt for
brushing aside the testimony of ravji on this point appear
to us manifestly unsustainable. the very fact that ravji
was a labour boy aged about 18 far from being a reason
for doubting his veracity on this point was a guarantee of
the truth of his version. he was an unsophisticated witness
who was number fully aware or bosted about the twists and
distortions introduced by the investigating officer. he
therefore unwittingly blurted out the truth on this point. as against him s.i. patil besides being highly interested
in the prosecution was supposed to be aware that in order a
statement should be treated as f.i.r. it must be recorded
first in point of time before the companymencement of
investigation. in this companynection the second circumstance which
enhances the potentiality of this delay as a factor
undermining the prosecution case is the order of priority
or sequence in which the investigating officer recorded the
statements of witnesses. numbermally in a case where the
commission of the crime is alleged to have been seen by
witnesses who are easily available a prudent investigator
would give to the examination of such witnesses precedence
over the evidence of other witnesses here the natural order
of priorities seems to have been reversed. the investigating
officer first recorded the statement of ravji in all
probability between 12.45 and 3 a.m. on the 30th of
constable shinde at 4 a.m. and thereafter of walji
kanjibhai  p.w. 7  santukbai  p.w. 6  pramila and
kuvarbai between 8 a.m. and 1 p.m.
the investigating officers made a futile attempt to
explain away their companyduct in number promptly recording the
statements of the alleged eyewitnesses. inspector tipnis and
sub-inspector pathak stated that after the companypletion of the
panchnamas at the spot they made efforts to companytact the
material witnesses including pramila santukbai and
kuvarbai. santukbai was actually questioned by the
investigating officers but they did number then record her
statement because she was in an anguished state of mind and
was wailing. with regard to pramila and kuvarbai the investigators
said that these girls were then asleep and therefore they
did number think it proper to disturb them. inspector tipnis
tried to give an additional reason for delaying the
examination of these witnesses till the following day. he
stated that he did number want the girls and the women-folk to
be present in the police station at that hour of the night. the trial
judge rejected this explanation and we think rightly. santukbai herself had knumberked the bottom out of these
explanations. she stated that she was questioned by the
investigating officers during the night and she had answered
all their questions. even if she was then in a state of
anguish it is number understandable why the answers given by
her to the questions of the investigating officer were number
recorded. if she answered those questions which even
according to s.i. pathak she did it companyld number be said that
she was number in a position to make a statement. ravji  p.w.1  further falsified the explanations
given by the investigating officers. he stated that pramila
kuvarbai and santukbai all the three were actually called
out and questioned during the night by the investigating
officers. if the untruth of any aspect of these explanations
remained in the penumbral zone hidden from judicial
scrutiny the same was fully exposed by companystable kakde

w. 18  of this very police station. in cross-examination kakde let the cat out of the bag
in as much as he stated that about 2.30 a.m. he had seen

ws. pramila kuvarbai santukbai kanjibai and ravji in
the police station. a third circumstance to be numbered in the companytext which
enhances the suspicion about welji pramila and kuvarbai
having been introduced as eye-witnesses at a late stage of
the case is that their names as such witnesses were number
mentioned anywhere in the investigation record before the
morning of the 30th numberember. in this companynection it may be
mentioned that ravji and shinde reached the scene of crime
soon after its companymission. ravji came a few moments earlier
than companystable shinde. damji was then alive and lay injured
at the spot. it was companystable shinde who accompanied by
ravji removed the injured in a taxi first to the police
station and from there to the sion hospital. at the trial. shinde stated that on reaching the police
station he had reported the matter to s.i. patil who was
incharge of the police station. shinde did number say that he
had mentioned the names of the assailants of damji or the
witnesses to the sub-inspector on this occasion. further
shinde did number vouch that ravji had made any report about
the incident to s.i. patil. i. patil  p.w. 21  also did number say that shinde had
told him that damji had been according to his information
assaulted by the accused ganesh and dana. number did patil say
that shinde had mentioned the names of the witnesses of the
occurrence. all that patil stated on this point was that at
about 7.30 a.m. companystable shinde
came to the police station and informed the witness that one
person who had been assauled by two others with knives was
lying injured in a taxi outside and that he was accompanied
by ravji. in variance with shindes version however s.i. patil stated that he had questioned ravji on this occasion
and the latter told him that damji had been assaulted with
knives by ganesh and dana accused. ravji directly
contradicted s.i. patil on this point and stated that on
this occasion he was number at all questioned by s.i. patil
number did the witness himself give any information about the
incident to the sub-inspector. ravji had numbermotive to tell a
lie on this point. he was a would-be son-in-law of the
deceased. he was in numberway hostile to the prosecution. on
the companytrary he was playing the active role of a
complainant in this case. the trial companyrt was fully
justified in accepting his testimony on this point in
preference to the bare oral word of s.i. patil
particularly when ravjis version was and patils was number
consistent with the surrounding circumstances and
probabilities of the case. the most important of these circumstances is the
conduct of s.i. patil in number recording that first
information allegedly given by shinde and ravji on that
occasion. s. i. patil admitted that he did number record the
information given to him by shinde and ravji about the
occurrence on that occasion. the information which he then
received was about the companymission of a companynizable offence. it was therefore the duty of s.i. patil  who was incharge
of the police station  to record it in accordance with the
provisions of section 154 cr. p.c. but he did number do so. the explanation given by him was that it was the practice of
his police station number to record such information until a
message was received from the hospital with regard to the
condition of the injured person. this explanation of patils
failure to do what was his statutory duty. was mere
moonshine and was rightly repelled by the learned trial
judge. it will bear repetition that the learned judges of the
high companyrt have disbelieved ravji and accepted s.i. patils
bare word of mouth both with regard to the time of
recording ravjis statement and ravjis having informed
patil in the police station at 7.30 p.m. about the accused
being the assailants of the deceased when ravji and shinde
took the injured there in a taxi. as numbericed already one of
the reasons given by the high companyrt for rejecting ravjis
testimony on this point is that he was a mere labour boy
having numbersense of time. with respect this reason appears
to us manifestly unsound. labourers masons and artisans
who work on daily wages for fixed hours have an acute sense
of time. there was numberhing indefinite or unbelievable in
ravjis version to the effect that his statement was
recorded by the police
sub-inspector between 12 midnight and 1 a.m. while his
signature was obtained on that statement probably at 3 a.m.
numberquestion was put to him to test his sense of time. number
was any attempt made in re-examination to elicit a
clarification if one was needed with a view to reconcile
this version of the witness with that of the prosecution
case as laid by s.i. patil about the time of recording
ravjis statement treated as the f.i.r. thus companysidered in the light of the surrounding
circumstances this inumberdinate delay in registration of the

i.r. and further delay in recording the statements of
the material witnesses casts a cloud of suspicion on the
credibility of the entire warp and woof of the prosecution
story. keeping in mind this all-clouding infirmity the trial
judge scrutinised the evidence of the witnesses. the first infirmity numbered by the trial judge in regard
to pramilas evidence was that her name or her presence at
the scene of offence was number mentioned in the record of the
investigation till 9.15 or 9.30 a.m. of the 30th numberember. even welji in his police statement recorded at about 8 a.m.
on the 30th numberember did number mention pramilas name or her
presence at the scene of offence. companystable shinde while
reporting to s.i. patil at the police station at about 7.30
p.m. did number mention either the name of the accused or the
eye-witnesses. even in his statement before the police
alleged to have been recorded at about 4 p.m. shinde did
number mention that he had got the information from pramila or
that pramila wars present on the spot when he reached
there. apart from the vitiating circumstance that pramila the
13 year old daughter of the deceased was introduced by the
investigator as a witness as late as 9.15 a.m. on the
following day the trial judge numbered that her companyduct was
unnatural and inconsistent with her being an eyewitness. pramila admitted in unmistakable terms that on seeing
accused 2 assaulting her father she did number immediately
raise an alarm she simply stated that on reaching the spot
she asked the accused why he was assaulting her father. the
accused then pointed his knife towards her and asked her to
go away otherwise she would be killed. it was at this stage
that she raised the outcry bachao bachao on hearing
which welji harka came to the spot. the l rial judge who
had the occasion to observe- the demeanumberr of pramila in
the witnessbox thought this companyduct on her part was very
unnatural because the numbermal instinctive reaction of such a
child on seeing her parent being attacked should have been
to raise an instant alarm to attract the
inhabitants of the locality for help and her shouting
bachao bachao as she alleges-at a stage when the assault
on her father was over was very artificial and appeared
to have been introduced only for making weljis version that
he was attracted by such shouts to the spot plausible. the third circumstance which in the opinion of the
trial judge throws a cloud on the veracity of pramilas
evidence was this. the occurrence took place at about 7 p.m.
which was number an unusual hour in an inhabited locality
there being several big residential buildings in the
vicinity each having numerous one-room tenements. building
number 3 in a room of which pramila lived with her parents
had three s storeys and each storey had 10 or 12 rooms
each room being in the occupation of a different family. the
lane must have been frequented at that hour by the numerous
residents of the locality or passers-by if there was any
out-cry by the victim or alarm by pramila a large number of
persons should have been attracted to the scene of
occurrence. but according to pramila and santukbai even
after the attack was over only two or three strangers came
there who helped them in pulling out the deceased from the
gutter. according to ravji the number of the persons who
had companylected there was four or five. numbere of those
independent witnesses whose attraction to the spot was
probable or whose companylecting on the scene immediately after
the occurrence was admitted was examined by the
prosecution. pramilas version that numbere other came on the
scene of occurrence excepting welji and kuvarbai was
improbable. the fourth infirmity numbered by the trial companyrt was that
pramila was a highly interested witness and the amenability
to tutoring of a girl of such tender age cannumber be ruled
out. the trial judge further pointed out several
contradictions between what she stated at the trial and what
she had earlier stated in the companymittal companyrt. these
contradictions related to  a  whether accused 1 had run
away and accused 2 alone was at the spot stabbing the
deceased when welji came  b  whether kuvarbai was sitting
on that very company on which pramila was sitting or was
sitting at some distance on an otla when the shouts of
bachao bachao were heard from the scene of occurrence and
 c  whether santukbai her mother came to the spot alone or
whether she was then accompanied by pramila and whether it
was after the arrival of shantukbai that pramila want from
the spot to fetch her uncle kanjibhai. as regards the evidence of kuvarbai  p.w.5  the
learned trial judge reasoned that if pramilas presence
itself at the scene of crime
was doubtful there was hardly anything that this girl
 kuvarbai  would companyroborate with regard to what pramila had
said he again stressed that kuvarbais statement was
recorded by the police after a delay of 40 hours and no
satisfactory explanation of this delay was companying forth. he
further numbered that kuvarbai also a child hardly 13 or 14
year old and the possibility of her having been tutored
could number be ruled out. he further reasoned that kuvarbai
had according to her own admission seen the incident for a
brief moment over the companypound wall from a distance of about
24 or 25 feet. it was 7 p.m. and the month was numberember. there was numbernatural light at that time. the street lamp
which was then on was at a distance of about 35 feet from
the spot and the lamp-post was according to the evidence of
ramrao jadhav  p.w. 4  25 feet high. according to pramila
she caught only a momentary glimpse of the backs of the
assailants. she never saw their faces. she companyld number
describe the companyour or the kind of the clothes that the
assailants were wearing although she claimed to have seen
them assaulting with knives. she companyld number however say
whether the knives were big or small. taking into
consideration all these factors the learned trial judge
concluded- and in our opinion rightly- that the chances of
her identifying clearly and without mistake the two
assailants as the two accused before the companyrt appears to
be rather meagre. a further reason given by the trial
judge for doubting kuvarbais veracity was that in her
statement before the police she did number mention accused 2
at all. being a material omission it amounted to a
contradiction. the last two infirmities numbered by the trial judge ion
kuvarbais evidence were weighty and companyld number be lightly
overlooked. we number companye to the evidence of welji harkha  p.w. 3 . the story told by him at the trial was that he was returning
in his car driven by himself from the municipal garden on
tilak road where he had gone as usual heart a discourse
on the geeta. the witness was proceeding towards his office
situated in bhaveshwar nagar building number3 in the third
street on mahatma gandhi road. when he in his car came in
front of the residence of damji in building number 3 he heard
pramila shouting bachao bachao. the witness stopped. by
the time he stopped his car and alighted accused 1 ran away
with a knife in hand while accused 2 was stabbing damji
with a knife. the witness went to accused 2 caught him by
his shirt and slapped him but the accused managed to free
himself and run away. as rightly pointed out by the trial companyrt the most
glaring infirmity which vitiates weljis evidence was his
unnatural companyduct. welji was
8-817 sci/78
the leader of the companymunity of artisan that lived in this
locality. welji admitted that damji was his child-hood
acquaintance. since his childhood the deceased had worked
as an artisan or labourer for the witness in companynection with
the latters business as a companytractor. they knew each other
in pakistan where they were residing before their migration
to india. but on seeing the brutal assault on his child
hood acquaintance or friend welji left him bleeding
profusely in the gutter. he did number even care to see whether
damji was dead or alive. he had a car with him. he did number
suggest or offer his car for removal of damji to the
hospital number did anything else to arrange for medical aid
to the injured who according to the other witnesses was
still alive. after seeing all this he callously and number-
challantly drove away to his office without having even a
look at the dying man. according to the witness on reaching
his office he found there a number of his workmen and his
son mohan. he did number inform any of those persons number even
his son anything about the occurrence much less did he ask
his son or any of those persons present there to inform the-
police or to go and arrange for medical aid or other
assistance to damji and his relatives. he had a telephone in
his office and also at his residence. yet he did number give or
cause to be given and information about the crime to the
police. the explanation given by welji for his indifferent
and strange companyduct was that he had got frightened and upset
and the persons present in his office had already companye to
knumber about the occurrence. the explanation was manifestly
untenable and was in our opinion rightly repelled by the
trial companyrt. after the assailants had run away from the
spot there remained numbercause for welji to fear them. on the
departure of the assailants it was expected of him to have
at least a glance at his childhood fellow to ascertain
whether he was dead or alive. according to him his office
was nearby in the third street. this means he reached his
office only seconds after tine incident. this being the
case the trial companyrt very rightly remarked that the news
about the assault companyld number have travelled faster than his
car. welji claims to be the leader of the labour companymunity
who were inhabitants of that locality. the least which was
expected from such a labour leader was that he should
arrange for the immediate removal of his injured fellow-man
to the hospital. we have therefore numberhesitation in agreeing with the
learned trial judge that this strange companyduct of the witness
comes in the way of accepting his story as true. apart from the. fact that weljis companyduct was strange
and inconsistent with the numbermal companyduct of an eye-witness
and the inumberdinate delay in recording his statement by the
police his evidence suffers
from other material flaws also. in his statement before the
police welji did number specifically name pramila  p.w. 2  as
person by whose shouts he was attracted to the scene of
occurrence. in variance with what he stated at the trial
his version before the police was that he had heard some
ladies  that means more than one person  shouting bachao
bachao. admittedly he knew pramilas name prior to the
occurrence. his version in the witness-box that he was
attracted to the spot on hearing the shouts of pramila was
therefore an improvement deliberately made to fit in the
prosecution story at the trial. again welji stated that when he caught hold of accused
2 his pyjama got blood-stains upto a height of 5 or 6
inches. numbersuch pyjama was produced before the police or
even in the trial companyrt. questioned why he failed to do so
the witness stated that he did number want that the accused
should be involved at his instance as both the accused and
the victim were equal to him like his two eyes. this
explanation was obviously unacceptable because at the
trial he did appear as a witness for the prosecution and
against the other party that is the accused. anumberher admitted circumstance which blemished the
evidence of welji was that the father of accused 2 was in
the employ of the witness as a motor-driver for about seven
or eight years. his services were dispensed with by the
witness about 2 months prior to the occurrence on the ground
of irregularity in service. the case put to him by the
defence was that the father of accused 2 had raised a
dispute by demanding a higher pay. last but number the least welji was admittedly operated
upon for cataract only a companyple of months before the
occurrence. his eye- sight was weak. he was old and infirm
and a heart-patient. he was a companytractor and a man of means
and had in his employment a motor-driver for 7 or 8 years. moreover his adult son who admittedly knew car driving
well was available to drive the ear for him. in these
circumstances the trial companyrts observation to the effect
that it was most unlikely that this old man of 69 years with
a weak eye-sight and a weak heart would be driving his car
himself at 7 p.m. when it was pretty dark without there
being any emergency cannumber be rejected out of hand. in sum we find that the over-all view of the evidence
taken by the trial companyrt was reasonable. while it is true
that some of the reasons given by the trial companyrt if taken
individually do number appear to be substantial or impeccable
but taken in their totality they cer-
tainly render the evidence of the material prosecution
witnesses unsafe to be acted upon. all the infirmities and flaws pointed out by the trial
court assumed importance when companysidered in the light of
the all-pervading circumstance that there was inumberdinate
delay in recording ravjis statement on the basis of which
the f.i.r. was registered  and further delay in recording
the statements of welji pramila and kuvarbai. this
circumstance looming large in the background inevitably
leads to the companyclusion that the prosecution story was
conceived and companystructed after a good deal of deliberation
and delay in a shady setting highly redolent of doubt and
suspicion. this all-vitiating circumstance we say so with great
respect companyld number be and has number been effectively
dispelled by the high companyrt except by a blind acceptance of
the ipse dixit of sub-inspector patil on this point in
preference to the testimony of ravji  p.w.


civil appellate jurisdiction civil appeal number 680 of
1974.
from the judgment and order dated 12.12.1973 of the
bombay high companyrt in misc. petition number 285 of 1972.

c. manchanda dr. gauri shankar and miss a.
subhashini for the appellants. h. parekh and miss divya bhalla for the respondent. the judgment of the companyrt was delivered by
tulzapurkar j. this appeal seeks to raise the
following question of law for our determination
did the appellate assistant companymissioner of
wealth-tax have the power to rectify his
predecessors order dated june 26 1970 in view of
the fact that there was numbererror apparent on the
face of the record because the question as to
whether the amending act applied to assessments
which were already companypleted was a debatable
question? the high companyrt certified the question to be of general
public importance which required a decision of this companyrt
but in our view on the facts of the case it is unnecessary
to decide that question as the appeal companyld be disposed of
briefly on the basis that the assessment in question companyld
number be regarded as having become final or companyplete and
therefore the postulate being absent the question does number
arise. the facts which are said to give rise to the question
raised in the appeal are these. for the assessment year
1969-70 the respondent-assessee was assessed for wealth-tax
purposes on the total wealth of rs. 607690 which included
jewellery and ornaments of the value of rs. 415942 by an
assessment order made by the wealth tax officer on february
11 1970. in an appeal preferred by the assessee the aac by
his order dated june 26 1970 excluded for her net wealth
the said jewellery and ornaments of the value of rs. 415942 on the ground that they were intended for personal
use of the assessee under s.5 1   viii  of the wealth tax
act 1957. in doing so the aac followed the decision of this
court in companymissioner of wealth-tax v. arundhati balkrishna
77 i.t.r. 505. numberfurther appeal was filed against that
decision of the a.a.c. by either side and in a sense the
order became final as the period provided for appeal against
it was allowed to expire. section 5 1   viii  of the wealth-
tax act was amended by the finance  number 2  act of 1971 which
received the assent of the president on august 10 1971 but
it was brought retrospectively into effect from april 1
1963. by s. 32 of the
amending act in s.5 1   viii  the words but number including
jewellery were added at the end of that clause and these
words as stated earlier were deemed to have been inserted
right from april 1 1963. in view of this amended provision
the assessee was served with a numberice dated january 25 1972
by the a.a.c. whereby he proposed to rectify her wealth-tax
assessment under s. 35 of the act withdrawing the exemption
already granted to her in respect of the jewellery and
ornaments. the assessee appeared and objected to the
proposed rectification but the aac held that his predeessor
has companymitted a mistake apparent on the fact of the record
is excluding the said jewellery and ornaments and he was
therefore entitled to rectify the order passed by his
predecessor and actually passed the rectification order
against the assessee on february 22 1972. the assessee
challenged the said order by filing a writ petition in the
high companyrt. the companynsel for the assessee companytended before the high
court that the aac had numberpower to rectify his predecessors
order dated june 26 1970 in view of the fact that there was
numbererror apparent on the face of the record because  a  the
original assessment when made was in accordance with law and
 b  the question as to whether the amending act applied to
assessments which were already companypleted was in any event
a debatable question. at the hearing companynsel for the
assessee companyceded that so far as the first ground was
concerned the matter was companycluded by a decision of this
court in m.k. venkatachalam income-tax officer v. bombay
dyeing and manufacturing company limited  34  i.t.r. 143 and
therefore he did number press that ground. he however
strenuously urged that since the original assessment had
been companypleted long before the amending act was passed and
since the same had become final as numberappeal had been
preferred against the order dated june 26 1970 by either
side the amending act companyld number reach or affect such
completed assessment and in any event the question whether
the amending act companyered companypleted assessments or number was
debatable question and therefore the aac had numberpower to
rectify his predecessors order. as regards the first ground the high companyrt took the
view that the matter had been companycluded by this companyrts
decision in bombay dyeing and manufacturing company s case
 supra . but as regards the second ground though it was
pointed out by mr. joshi companynsel for the revenue to the
high companyrt that even that aspect had been companycluded by the
same decision the learned judges felt that the point companyld
number be said to have been finally companycluded by that decision
because of this companyrt s subsequent
decision in income-tax officer v circle madras anr. v.

k. habibullah 44 i.t.r. 809 and the observations made
therein and in fact one of the learned judges who decided
the matter expressed the view that if that decision  in
bombay dyeings case had stood alone i might have been
disposed to record the question that arises in the present
case as companycluded by the supreme companyrt  by reason of that
decision  and to decide this petition in favour of mr.
joshi. the companyrt further felt that the question as to
whether the retrospectivity given by the amending act would
cover cases of companypleted assessment was itself a debatable
question and following the decision of this companyrt in volkart
brothers v. income tax officer 82 i.t.r. 50 the companyrt did
number express any opinion on that point but took the view that
since it was a debatable question it companyld number be said to be
an error apparent on the face of the record and therefore
the aacs order was liable to be quashed. the high companyrt
therefore set aside the impugned order of the aac whereby
the rectification had been effected. the revenue has
challenged this view of the high companyrt before us in this
appeal. it is clear that the ground which was urged before the
high companyrt and which seemed to find favour with it was that
the question whether the amending act applied to assessments
which were already companypleted was a highly debatable question
and therefore it was number a case of an error apparent on the
face of the record which entitled the aac to rectify his
predecessors order but the question thus raised would in
our view arise only if it is really a case of companypleted
assessment in the literal sense of the word. it may be
pointed out that this very aspect of the matter was pressed
in service in the bombay dyeing case  supra  and this companyrt
while negativing the companytention has taken the view that the
assessment order that had been initially passed in that case
 which was under s. 18a 5  of the income tax act 1922
could number be said to have become final in the literal sense
of the word and in that behalf this companyrt pointed out that
irrespective of the question whether any appeal had been
preferred or number against it that initial order was liable to
be modified or rectified under s. 35 of the act and
therefore companyld number be said to have become final or
complete and as such the companytention raised would number be of
much assistance to the assessee. after referring to the
decision of the privy companyncil in delhi cloth and general
mills company limited v. income tax companymissioner a.i.r. 1927 pc
242 as also to the boards decision in companyonial sugar
refining company v. irving 1905 a.c. 369 this companyrt with
reference to the precise argument observed thus
the same argument was put in anumberher form by
contending that the finality of the order passed
by the income-tax officer cannumber be impaired by
the retrospective operation of the relevant
provision. in our opinion this argument does number
really help the respondents case because the
order passed by the income tax officer under
section 18a 5  cannumber be said to be final in the
literal sense of the word. this order was and
continued to be liable to be modified under
section 35 of the act. what the income-tax officer
has purported to do in the present case is number to
revive his order in the light of the retrospective
amendment made by section 13 of the amendment act
alone but to exercise his power under section 35
of the act and so the question which falls to be
considered in the present appeal centres round the
construction of the expression mistake apparent
from the record used in section 35. that is why
we think that the principle of the finality of the
orders or the sanctity of the existing rights
cannumber be effectively invoked by the respondent in
the present case. we feel the aforesaid observations apply with equal
force to the facts of the present case. the aacs original
order whereby the jewellery and ornaments had been excluded
from the companyputation of the total wealth of the assessee had
been passed on june 26 1970. after the amendment had companye
into force with retrospective effect from april 11963
proceedings for rectification were undertaken by the aac in
january 1972. it was well within four years of period of
limitation available to him under section 35 of the wealth
tax act. this is number a case where the resort to the
rectification power was required to be made by reference to
any provision in the amending act but de horse the amending
act power was sought to be exercised under the original
section namely 35 7  of the wealth tax act. if that be so
following the observations quoted above it must be held
that the aacs order dated june 26 1970 had number become
final in the literal sense of the word numberhwithstanding the
fact that numberappeal had been preferred against that order or
that the requisite period for appeal was allowed to expire. the said order was and companytinued to be liable to be modified
under s. 35 7  of the act and in this view of the matter the
assessee herein also would number be in a position to invoke
the principle of finality of orders or the sanctity of the
existing right which are said to have acquired by her under
the initial order. if therefore the order which has been rectified had
number received a finality the companytention that the amending
provision would number be available for the purpose of
effecting rectification on the ground that there was no
error apparent on the face of the record would number be
available to the assessee and therefore though that question
was the basis on which the certificate was issued by the
high companyrt for preferring this appeal to this companyrt we do
number think it is necessary to decide that question and the
appeal is capable of being allowed on this short ground. we would however like to observe that in habibullahs
case  supra  the companyrt was really companycerned with the aspect
of retrospectivity of the provisions companytained in the new
sub-section  6  of s. 35 of the income-tax act 1922
inserted by s. 19 of the income-tax  amendment  act 1953
 25 of 1953  and the question of giving a greater
retrospective operation than intended by its language was
considered by the companyrt in the companytext of the peculiar
provisions companytained in the amending enactment.


original jurisdiction writ petition  crl.  number 2989 of
1983.  under article 32 of the companystitution

l. panjwani manumber saxena and r.d. upadhaya for the
petitioners. the order of the companyrt was delivered by
chandrachud c.j the question raised in this petition
is whether the government can ask the police number to enter a
place of worship even if criminals are reported to be
hiding or harboured therein. it is impossible and
undesirable for any companyrt to issue a general writ of
mandamus to the effect that whenever a criminal is suspected
to have taken shelter in a place of worship the police must
enter that place regardless of the overall situation of law
and order. speaking generally companyrts cannumber enforce law and
order by issuing general directions without reference to
specific instances. the government has to assess in the
context of the prevailing companyditions the impact of the
steps taken to enforce law and order. and it is the
executive which has to take a policy decision as regards the
steps to be taken in a given situation after
taking into account the demands of the prevailing situation. we do number companymend or suggest that the police should be
silent spectators to wanton destruction of life but we
cannumber as men of some little experience of law and life
commend that the police must enter places of worship
forcibly.


civil appellate jurisdiction civil appeal number 479 of
1986.
from the judgment and order dated 18.3. 1985 of the
assam high companyrt in civil rule number 139 of 1979.

k. ganguli a. mariarputham a.d. sikri and dilip
tandon for the appellant. kapil sibal additional solicitor general rajiv dhawan
gopal singh c.v.s. rao adv.  np  and r.b. misra for the
appearing respondents. hardev singh and s. ravindra bhat for the intervenumber. the judgment of the companyrt was delivered by
ranganath misra j.this appeal by special leave calls in
question the judgment of the guwahati high companyrt dated march
18 1985 dismissing the appellants writ petition. the
appellant is a resident of tripura state. in his application
in a representative capacity before the high companyrt he main-
tained that he belonged to the laskar companymunity which had
always been treated in the erstwhile state of tripura as a
scheduled tribe and on that basis in the state records was
included in the deshi tripura companymunity long before integra-
tion of the rulers state of tripura with the union of
india. members of the laskar companymunity freely enjoyed all
the benefits available to members of the schedule tribes
until in 1976 the state government decided to treat members
of that companymunity as number belonging to the scheduled tribes
and issued instructions to the state authorities to imple-
ment the government decision. that led to the filing of the
petition before the high companyrt. in the writ petition appel-
lant prayed for appropriate directions to companytinue to treat
the appellant and members of his companymunity as belonging to
the scheduled tribes and for a direction to the state gov-
ernment to extend all the benefits admissible to members of
the scheduled tribes to members of the laskar companymunity. before the high companyrt the respondents disputed the claim and
maintained that the laskar companymunity was never included in
the scheduled tribes order and as such there was numberquestion
of exclusion from the list. a historical study of the claim
would show that in the past tripura tripuri tippera which
have been included in the presidential numberification never
included the laskar companymunity. tripuras were. a tibetodurman
race akin to the shan tribe and tipperas were divided into
four groups namely  i  puran or original tipperas  ii
jamatias  iii  numbertias or nutan tripuras and  iv  riangs. respondents relied upon government records and official
publications in support of-the aforesaid stand. before the high companyrt two circulars of the erstwhile
state of tripura one being of december 1930 and the other
of february 1941 as also the census report of the ex-state
of tripura were produced in support of the claim advanced by
the appellant. several authorities of this companyrt were relied
upon for finding out the scope of enquiry in a claim of this
type and ultimately by the impugned judgment the high companyrt
dismissed the writ petition but on the basis of a statement
made by the advocate-general appearing for the state it
recorded
we keep on record the statement made by the learned advo-
cate-general tripura on instruction that as a result of
the impugned memorandum number 18887-19077/tw/6-4 l-d  dated
28.4. 1979 the certificates already issued would be treated
as infructuous prospectively and number retrospectively and
those who have already enjoyed the benefits by virtue of
such scheduled tribe certificates they shall number be deprived
of the benefits they have already enjoyed and the memorandum
shall be effective from its date prospectively insofar as
the future benefits are companycerned. this appeal had companye up for final hearing earlier and by
a brief judgment reported in 1987 3 scc 463 a two-judge
bench recorded the following order
the record before us shows that the people of the laskar
community have been treated as members of the scheduled
tribes and there have been some letters from the government
of india to the state government in support of that posi-
tion it is however a fact that there has been numberclear
inclusion of the companymunity in an appropriate presidential
order. the appellant has maintained that even in the absence
of such a clear specification in a presidential order as a
sub-group under one of the numberified categories the appel-
lants companymunity has been enjoying the privileges. we have
been told by the learned companynsel for the union of india that
the representation made by the appellant and members of his
community for inclusion in the presidential order under
article 342 of the companystitution is being looked into and is
being placed before the parliamentary companymittee in accord-
ance with the prescribed procedure for a review of the
position. he has assured us that the government of india
will take steps to finalise the matter at an
early date and may in companypliance with the procedure as
prescribed take a final decision. in case the companymunity is
number included in the presidential order it would be open to
the appellant to take such action as may be available in
law. the appellant waited for some time and approached the
government of india for quick action but when numberhing hap-
pened an application for directions was made in this companyrt. several adjournments were taken but government companyld number
take any decision. ultimately by companysent of parties the
order disposing of the appeal was recalled and the appeal
was directed to be set down for re-hearing. that is how the
appeal is number before us. articles 341 and 342 of the companystitution deal with
scheduled castes and scheduled tribes respectively and
contain almost identical provision. we may extract article
342 dealing with scheduled tribes
342.  1  the president may with respect to any state or
union territory and where it is a state after companysultation
with the governumber thereof by public numberification specify
the tribes or tribal companymunities or parts of or groups
within tribes or tribal companymunities which shall for the
purposes of this companystitution be deemed to be scheduled
tribes in relation to that state or union territory as the
case may be.  2  parliament may by law include in or exclude from the
list of scheduled tribes specified in a numberification issued
under clause  1  any tribe or tribal companymunity or part of or
group within any tribe or tribal companymunity but save as
aforesaid a numberification issued under the said clause shall
number be varied by any subsequent numberification. article 366 25  defines scheduled tribes to mean such
tribes or tribal companymunities or parts or groups within such
tribal companymunities as are deemed under art. 342 to be sched-
uled tribes for the purposes of this companystitution. the
constitution  scheduled tribes   union territories  order
1950 relating to tripura included 19 tribes within the
numberification. items 15 16 17 and 18 are relevant for our
purpose and they were

tripura or tripuri tippera. jamatia

numbertia

riang
following the reorganisation act  37 of 1956  the
ministry of home affairs on october 29 1956 numberified the
list of scheduled castes and scheduled tribes. in respect of
the then union territory of tripura the same companymunities
were relisted. then came the numbertheastern area  reorganisa-
tion  act  81 of 1971  which in the fourth schedule company-
tained amendment to the companystitution  scheduled tribes
order 1950. items 15 to 18 in the scheduled companytained the
same descriptions. the scheduled castes scheduled tribes
orders  amendment  act  108 of 1976  in relation to tripura
in the second scheduled carried the same in entries 7 14
16 and 18. it is therefore clear that in tripura the
scheduled tribes within the meaning of the definition given
in art. 366 of the companystitution have been the following
jamatia numbertia riang and tripura tripuri tippera apart
from 15 other tribes as specified. it is number necessary to
refer to the 15 others inasmuch as it is the case of the
appellant that laskars are a part of the tribe named as
tripura tripuri or tippera companyered by entry 18.
before adverting to the evidence upon which the appel-
lant relies in support of his stand it is necessary that
the scope of enquiry to be companyducted in this regard by the
court may be determined. there are precedents of this companyrt
which have to be first referred to. a companystitution bench in
the case of b. basavalingappa v. d. munichinnappa 1965 1
scr 316 examined the provisions of art. 341 which companytained
similar provisions for the scheduled castes with reference
to an election dispute. wanchoo j. spoke for the companystitu-
tion bench thus
clause  1  provides that the president may with respect to
any state after companysultation with the governumber thereof by
public numberification specify the castes races or tribes or
parts of or groups within castes races or tribes which
shall for the purposes of the companystitution be deemed to be
scheduled castes in relation to that state. the object of
this provision obviously is to avoid all disputes as to
whether a particular caste is a scheduled caste or number and
only those castes can be scheduled castes which are numberified
in the order made by the president under art. 341 after
consultation with the governumber where it relates to
such castes in a state. clause  2  then provides that par-
liament may by law include in or exclude from the list of
scheduled castes specified in a numberification issued under
cl.  1  any caste race or tribe or part of or group within
any caste race or tribe. the power was thus given to par-
liament to modify the numberification made by the president
under cl.  1 . further cl.  2  goes on to provide that a
numberification issued under cl.  1  shall number be varied by any
subsequent numberification thus making the numberification by the
president final for all times except for modification by law
as provided by cl.  2 . clearly therefore art. 341 provides
for a numberification and for its finality except when altered
by parliament by law  therefore in view of this
stringent provision of the companystitution with respect to a
numberification issued under cl.  1  it is number open to any one
to include any caste as companying within the numberification on
the basis of evidence--oral or documentary--if the caste in
question does number find specific mention in the terms of the
numberification  it may be accepted that it is number open
to make any modification in the order by producing evidence
to show  for example  that though caste a alone is mentioned
in the order caste b is also a part of caste a and there-
fore must be deemed to be included in caste a. it may also
be accepted that wherever one caste has anumberher name it has
been mentioned in brackets after it in
order. therefore generally speaking it would number be open to
any person to lead evidence to establish that caste b is
part of caste a numberified in the order. the factual dispute raised in the case before the company-
stitution bench was whether voddar caste was included in
bhovi caste which was one of the numberified castes. the company-
stitution bench dealt with the evidence and ultimately said
in the circumstances therefore we agree with the high companyrt
that respondent number 1 though voddar by caste belongs to the
scheduled caste of bhovi mentioned in the order. we may
again repeat that we have referred to the evidence in this
case only because there was undoubtedly numbercaste knumbern as
bhovi in the mysore state as it was before 1956 and we had
to find out therefore which caste was meant by the word
bhovi as used in the order. but for this fact it would number
have been open to any party to
give evidence to the effect that caste a mentioned in the
order includes or was the same as caste b where caste a does
exist in the area to which the order applies. a similar dispute again came before a companystitution bench
in bhaiyalal v. harikishan singh ors. 1965 2 scr 877
with reference to a scheduled tribe in an election dispute. gajendragadkar cj speaking for the companyrt said
it is obvious that in specifying castes races or tribes
the president has been expressly authorised to limit the
numberification to parts of or groups within the castes races
or tribes and that must mean that after examining the
educational and social backwardness of a caste race or
tribe the president may well companye to the companyclusion that
number the whole caste race or tribe but parts of or groups
within them should be specified. similarly the president
can specify castes races or tribes or parts thereof in
relation number only to the entire state but in relation to
parts of the state where he is satisfied that the examina-
tion of the social and educational backwardness of the race
caste or tribe justifies such specification. in fact it is
well-knumbern that before a numberification is issued under art. 341 1  an elaborate enquiry is made and it is as a result
of this enquiry that social justice is sought to be done to
the castes races or tribes as may appear to be necessary
and in doing justice it would obviously be expedient number
only to specify parts or groups of castes races or tribes
but to make the said specification by reference to different
areas in the state. what we have extracted above clearly supports the view
of the other companystitution bench namely the list is intend-
ed to be final. we may number refer to a two-judge bench decision in the
case of parsram anr. v. shivchand ors. 1969 1 scc 20.
here again the scheduled castes order was in issue in an
election dispute and the question for companysideration was
whether mochi was included in the numberified caste of chamar. the companyrt referred to both the companystitution bench judgments
and indicated
these judgments are binding on us and we do number therefore
think that it would be of any use to look into the gazeteers
and the glossaries on the punjab castes and tribes
to which reference was made at the bar to find out whether
mochi and chamar in some parts of the state at least meant
the same caste although their might be some difference in
the professions followed by their members the main differ-
ence being that chamars skin dead animals which mochis do
number. however that may be the question number being open to
agitation by evidence and being one the determination of
which lies within the exclusive power of the president it
is number for us to examine it and companye to a companyclusion that if
a person was in fact a mochi he companyld still claim to belong
to the scheduled caste of chamars and be allowed to companytest
an election on that basis. in kishorilal hans v. raja ram singh ors. 1972 2
scr 632 a two-judge bench was called upon to decide whether
jatav caste number mentioned in the scheduled castes of datia
district of madhya pradesh in the order was included in
chamar caste. the companyrt indicated
if the matter were res-integra we would have felt a good
deal of difficulty in reconciling with the companystitutional
provisions the scheme followed in the state and the orders
concerned by which some caste has been includes in some
districts of the same state and excluded in the other dis-
tricts. this companyrt however has in bhaiyalal v. harikishan
singh ors. supra made observations repelling the companyten-
tion that under art. 341 of the companystitution the president
was number authorised to limit the numberification to parts of a
state  in bhaiyalals case the appellants election
had been challenged on the ground that he belonged to the
dohar caste which was number recognised as a scheduled caste
for the district in question and so his declaration that he
belonged to the chamar caste which was a scheduled caste was
improperly and illegally accepted by the returning officer. it was held that the plea that though the appellant was number
a chamar as such he companyld claim the same status by reason of
the fact that he belonged to dohar caste which is a sub-
caste of the chamar caste companyld number be accepted. an enquiry
of that kind would number be permissible having regard to the
provisions companytained in art. 341 of the companystitution. we may number refer to two separate judgments of this companyrt
in the case dina v. narayan singh 38 elr 212 and bhaiya ram
munda v.
anirudh patar ors. 1971 1 scr 804. both were rendered
by a companymon bench of shah  as he then was  and bhargava jj. in the first case the question for companysideration was inter-
pretation of entry 12 in the scheduled tribes order. the
entry read. gond including mana. the companyrt interpreted
that mana companymunity was a substitute of gond and on a proper
construction of the entry manas number being gonds were number
intended to be included. the decision in that case is number
relevant for our purpose. in bhaiya rams case the tribe specified in the sched-
uled tribes order was munda. the respondent was a patar but
he maintained that it was included in the numberified tribe. the bench was of the view that evidence was admissible for
the purpose of showing what an entry in the presidential
order was intended to mean though evidence companyld number be
accepted for modifying the order by including a new tribe. since the respondents case was that patars were mundas
evidence companyld be given to show that the entry munda
included patar. these authorities clearly indicate therefore that the
entries in the presidential order have to be taken as final
and the scope of enquiry and admissibility of evidence is
confined within the limitations indicated. it is however
number open to the companyrt to make any addition or subtraction
from the presidential order. the evidence in this case on which reliance has been
placed in support of the claim that laskars are included in
the tribe described as tripura tripuri tippera mainly
consists of two circulars of the erstwhile state of tripura. circular number 9 is of december 1930. there is a narration
therein to the following effect
in this state tripura sampradaya means the following five
communities

puratan tripura

deshi tripura  related to laskar class

numbertia

jamatia

riang
in circular number 10 which is of the year 1941 it has been
said
in this state tripura--kshatriya denumberes the following
classes

puratan tripura

deshi tripura  related to laskar class

numbertia

jamatia

riang
the latter document related to census operation in the
state. from these two documents it is clear that deshi
tripura companyered the laskar class while there was anumberher
class called tripura tripuri tippera which did number relate
to laskar class. the presidential order has admitted the
three tribes of numbertia jamatia and riang in terms but while
dealing with the two classes of puratan tripura and deshi
tripura companyering the laskar class it has adopted the de-
scription of those three terms without referring to puratan
or deshi. the two companystitution bench judgments indicate that
enquiry is companytemplated before the presidential order is
made but any amendment to the presidential order can only be
by legislation. we do number think we should assume jurisdic-
tion and enter into an enquiry to determine whether the
three terms indicated in the presidential order include
deshi tripura which companyers the laskar companymunity but we
consider it appropriate to companymend to the authorities company-
cerned that as and when the question is reviewed it should
be examined whether the claim of the appellant representing
the laskar companymunity to be included in the scheduled tribes
is genuine and should therefore be entertained. reservation has become important in view of the increas-
ing companypetition in society and that probably had led to the
anxiety of the appellant and the people in his companymunity to
claim reservation. as pointed out by the companystitution bench
judgments which we have referred to above the basis on
which inclusion into or exclusion from the enumerated list
made under art. 342 is companytemplated is the changing econumber-
ic educational and other situations of the members of any
particular tribe. keeping that in view the state government
may initiate appropriate proposals for modification in case
it is satisfied and after appropriate enquiry if the author-
ities are satisfied that the claim is genuine and tenable
amendment may be undertaken as provided by the companystitution. this companyrt has indicated in some of the judgments re-
ferred to above that as a result of the detailed enquiry
made as to the econumberic status the level of education and
the necessity of protection inclusion into or exclusion
from the order is made. this material relating to the laskar
tribe in 1930 or 1941 may number have been companysidered suffi-
cient before the respective orders were made for including
the laskars said to have been companyered by the description of
deshi tripura. therefore even if historically this tribe
was companyered by the general description of tripura that by
itself may number justify its inclusion in the order as a
scheduled tribe.


original jurisdiction election petition number 2 of 1977.
in person for the petitioner

rama reddy o. c. mathur c. s. rao a. v. v. nair for
respondent number 1.

v. gupte attorney gen. and r. n. sachthey for
respondent number 3.
the judgment of the companyrt was delivered by
sarkaria j.-this is a petition filed by shri madan lal
dhartipakar on august 19 1977 under the presidential and
vice-presidential election act challenging the election of
shri neelam sanjeeva reddy as president of india at the
presidential election held on july 19. 1977.
the petitioner filed a numberination paper on july 5 1977 but
at numberination paper was rejected by the returning officer
because as he admits-it was number subscribed by any elector as
proposer or as seconder. he had thus admittedly number
complied with the requirements of section 5b 1  of the act. the petitioner has however detailed reasons why he companyld
number find any elector to propose or second his numberination
papers. when the case came up before us today the petitioner
requested that the hearing of the petition be postponed till
after the companying summer vacation. we explained to him that
we did number see any sufficient reason to accede to his
request. the adjournment was declined. the petitioner then argued at length urging that the
petition should be referred to a larger bench for decision.