original jurisdiction writ petition number 35 of 1972.
under article 32 of the companystitution of india for a writ in
the nature of habeas companypus. k. gambhir for the petitioner. k. chakravarti and g. s. chatterjee for the
respondent. the judgment of the companyrt was delivered by
mathew j. this is an application filed under article 32 of
the companystitution for the issue of a writ in the nature of
habeas companypus and to release the petitioner who is alleged
to be in illegal custody. in the exercise of the power companyferred under sub-section  1
read with sub-section  3  of section 3 of the west bengal
 prevention of violent activities  act 1970  presidents
act 19 of 1970  hereinafter referred to as the act the
district magistrate 24 parganas passed an order on july
10 197 1 detaining the petitioner with a view to prevent
him from acting in a manner prejudicial to the maintenance
of public order. thereafter the petitioner was arrested on
july 13 1971 and was served with the order of detention as
also with the grounds of detention together with a vemacular
translation thereof on the-same day. on july 14 1971 the
district magistrate reported to the state government about
the passing of the detention order. the report was
considered by the state government on july 21 1971 and the
government approved the order of detention passed by the
district magistrate. on the same day the state government
submitted a report to the central government in accordance
with the provisions of sub-section  5  of section i of
the act together with the grounds of detention and other
particulars as required. on august 11 1971 the state
government placed the case of the petitioner before the
advisory board under section 10 of the act. the state
government received a representation from the petitioner on
september 8 1971. the representation was companysidered by the
government and it was rejected by an order dated september
10 1971. the representation was however forwarded to the
advisory board for companysideration of the same by. the board. the advisory board after companysideration of the materials
placed before it submitted its report to the state
government on september 6 1971 incorporating its opinion
that there was sufficient cause for the detention of the
petitioner. the
petitioner prayed. to the advisory board by means of a
representation dated september 6 1971 that he might be
given an opportunity of being heard in person. this
representation was received by the advisory board on
september 8 1971 and the board heard the petitioner on
september 18 1971. therefore the board sent a
supplementary report to the state government on the same
day stating that the board did number find any reason to
revise its previous opinion. the state government companyfirmed
the order of detention on october 71971 and the order of
confirmation was companymunicated to the detenu on the same day. the grounds of detention companymunicated to the petitioner
stated

that on 5-7-1971 at about 0530 hrs. you along with your
associates while removing brake blocks vertical levers and
other railway materials from wagon number. nrp 1820 and pw
3471 at chitpur rly. yard charged bombs and ballasts upon
the on-duty r.p.f. party when challenged by them. your
attack grew so violent that rk 6448 ram bachan rai of the

p.f. party had to fire one round in self-defence when
you all fled away. you created disturbance of public order
thereby. that on 5-7-1971 night again at 20.30 hrs. you along
with your associates while removing iron rods from bf
wagon number er99155 at chitpur rly. yard charged bombs and
ballasts upon the on-duty r.p.f. party at chitpur post when
challenged by them. your attack grew so violent that rk
6756 madan mohan prasad of the r.p.f. party had to fire two
rounds upon you in self-defence culminating  in  death of
one of your associates on the spot when you all fled away
you created disturbance of public order thereby. section 3 2  of the act defines the expression acting in
any manner prejudicial to the security of the state or the
maintenance of public order for the purpose of sub-section
 1  of that section. clauses  b  and  d  of sub section
3 2  read as follows-

committing mischief within the meaning of section 425
of the indian penal companye  45 of 1860  by fire or any
explosive substance on any property of government or any
local authority or any companyporation owned or companytrolled by
government or any university or other educational
institution or on any public building where the companymission
of such mischief disturbs or is likely to disturb public
order
 d  companymitting or instigating any person to companymit any
offence punishable with death or imprisonment for life or
imprisonment for a term extending to seven years or more or
any offense under the arms act 1959  54 of 1959  or the
explosive substances act 1908  6 of 1908  where the
commission of such offence disturbs or is likely to
disturb public order
the question is. whether the offences alleged to have been
committed by the petitioner in the grounds companymunicated to
him would amount to companymision of offences which would
disturb public order or which are likely to disturb public
order. the relevant criteria to distinguish in the abstract betwe
en acts prejudicial to maintenance of law and order
and those which are prejudicial to maintenance of public
order are laid down in a number of rulings of this companyrt
 see pushkar mukherjee and others v. the state of west
bengal 1  sudhir kumar saha v. companymisssioner of police
calcutta and anumberher 2  and nagendra nath mondal v. the
state of west bengal 3 . the question whether a person has
only companymitted a breach of law and order or has acted in a
manner likely to cause a disturbance of the public order is
one of degree and the extent of the reach of the act upon
the society. an act by itself is number determinative of its
own gravity. in its quality it may number differ from anumberher
but in its potentiality it may be very different. similar
acts in different companytexts affect differently law and order
on the one hand and public order on the other. it is always
a question of degree of the harm and its effect upon the
community. public order is the even tempo of the life of
the companymunity taking the companyntry as a whole or even a
specified locality. it is the degree of disturbance and its
effect upon the life of the companymunity in a locality which
determines whether the disturbance amounts only to a breach
of the law and order  see arun ghosh v. state of bengal 4 . in the final analysis one must always return to the facts
of the case to see whether the acts perpetrated are of such
a nature or of such potentiality as to travel beyond the
immediate victims and affect the general or local public. a
case by case adjudication gives the judicial process the
impact of actuality and thereby saves it from the hazards of
generalisation. we think that the acts attributed to the petitioner are such
as would bring him within the ambit of clauses  b  and  d
of section 3 2  of the act attacking the r.p.f. party with
bombs at the chitpur railway station yard was bound to cause
scare among all the members of the public who would be
resorting the station yard and interfere with their
activities in getting the goods loaded and
 1  1969 2 s.c.r. 635  2  a.i.r. 1970 s.c. 614
 3  1972 1 s.c.c. 498.  4  a.i.r. 1970 s.c. 1228
14-li286supci/72
unloaded. the acts attributed to the petitioner had the
potentiality of affecting the even tempo of the life of the
community in the locality by their reverberations. we
therefore overrule the companytention of companynsel for the
petitioner that the grounds companymunicated to the petitioner
did number disclose that he indulged in any activity which was
prejudicial to the maintenance of public order. it was companytended that the petitioner was number given an
opportunity of being personally heard by the advisory board
before it sent the report incorporating its opinion that
there was sufficient cause for the detention of the
petitioner. we do number think that there is any substance in
this companytention either. section 1 1 of the act so far as
it is relevant provides

procedure for advisory boards  1  the advisory board
shall after companysidering the materials placed before it and
after calling for such further information as it may deem
necessary from the state government or from any person
called for the purpose through the state government or from
the per-son companycerned and if in any particular case it
considers it essential so to de or if the person companycerned
desires to be heard after hearing him in person submit its
report to the state government within ten weeks from the
date of detention. in this case the board did number companysider it essential to
hear the petitioner in person before submitting its report. so unless the petitioner requested for a personal hearing
there was numberobligation on the part of the board to give a
personal hearing to him. the board companysidered all the
relevant materials relating to the case of the petitioner
and it came to a companyclusion that there was sufficient cause
for the detention of the petitioner in its report dated
september 6 1971. on the same day the petitioner sent a
representation to the board that he may be heard in person.


original criminal appellate jurisdiction
writ petition  criminal  number 136 of 1986.
under article 32 of the companystitution of india
with
special leave petition  criminal  number 630 of 1986
from the judgment and order dated 17.1.1986 of the
patna high companyrt in crl. misc. number 367 of 1986.
and
writ petition  criminal  number 137 of 1986
under article 32 of the companystitution of india. with
special leave petition  criminal  number 577 of 1986.
from the judgment and order dated 7.2.1986 of the
special judge  vigilance  bihar patna in s.c. number 6 of
1986.
ram jethmalani miss rani jethmalani k.n. madhusoodhanan and ashok sharma for the petitioners. n. mulla d.goburdhan and basudeo prasad for the
respondents. the judgment of the companyrt was delivered by
chinnappa reddy j. on the intervening night of
numberember 29/30 1984 the security police petrol on duty
near jogbani checkpost numbericed a jeep speeding towards the
indo-nepal border. the jeep was stopped. there were five
occupants in the jeep. one of them was simranjit singh mann
who had been dismissed from the indian police service. an
order of preventive detention under the national security
act had been made against him on august 28 1986. he was
wanted in that companynection but had gone underground. on
being questioned by the police petrol party they first
refused to disclose their names and identity. this aroused
the suspicions of the police party. one of the officers was
able to identify simranjit singh mann. the five occupants in
the jeep were searched as also their baggage. a sum of
rs.62722 was found with one of the occupants who it is
alleged offered the police party a large amount as bribe if
they were allowed to cross the indo-nepal border. as a
result of the search a number of documents and other
articles were seized. from the person of simranjit singh
mann were seized a companyy of a letter dated june 2 1984 from
simranjit singh mann to the chief secretary punjab a companyy
of the letter of resignation dated june 18 1984 of
simranjit singh mann the passport of simranjit singh mann
two photographs of jarnail singh bhindrawala a letter from
simranjit singh mann to birbal nath a letter addressed to
one arun kumar agarwal asking him to help the bearer in all
possible ways and raghubir singh. kamikar singh was the
person who had made the offer of bribe. a first information
report was then registered at the jogbani police station for
references under secs. 121-a 124-a 123 153-a 505 and
120-b of the indian penal companye and s. 5 iii  of the
prevention of companyruption act. investigation started. on
december 11 1985 a charge-sheet was submitted before the
judicial magistrate first class araria against the five
accused persons for offences under secs. 121-a 123 124-a
153-a 165-a 505 and 120-b of indian penal companye. before the charge-sheet was filed on december 4 1984
simranjit singh mann was served with the order of detention
under the national security act and sent to bhagalpur jail. the other four accused were also detained under the national
security act at bhagalpur. on march 1 1985 the four accused
other than simranjit singh mann moved the judicial
magistrate first class araria for bail in the criminal case
which was then being investigated claiming to be released
under the proviso  a  of s. 167 2  of the companye of criminal
procedure. the learned magistrate directed their release on
bail but imposed a
condition that the sureties should be residents of araria
town. the four accused persons filed a petition requesting
the magistrate to accept sureties from purnea or cash. anumberymous letter warning simranjit singh mann of likely
attempts to liquidate him and advertising him to leave the
country. simranjit singh mann refused to sign the seizure
memo. from kamikar singhs person currency numberes of the
value of rs.62722 were seized. an amount of rs.25000 it
is said was offered as bribe to the police officers. from
jagpal singhs suitcase was seized a booklet in english
entitled sikhs and foreign affairs and a companybined road map
of india pakistan bangladesh sri lanka and nepal. among
other articles seized were a booklet in english written by
narinder singh bhuller said to companytain anti-government and
sikh separatist propaganda a numberebook companytaining meterial
about the worlds leading underground organisations said to
be in manns hand-writing a register in which mann was said
to be writing the history of amritsar in which the indian
army is said to have been described as the enemy companysequent
on operation blue-star extremist sikhs are said to be
described as nationalists and defendars of the motherland
and mrs. gandhi the then prime minister is described in a
derogatory fashion. at the check-post a photograph of
simranjit singh mann was available and it was varified that
the person suspected to be simranjit singh mann was actually
simranjit singh mann. the other persons gave their names as
kamikar singh charan singh jagpal singh. the petition was
rejected. ultimately the four accused were able to get
sureties from araria but even so they companyld number be released
as they were under detention under the national security
act. simranjit singh mann was also directed to be released
under the proviso to sec. 167 2  on his application on
october 28 1985. the same companydition was imposed that the
sureties should be from araria. he furnished necessary
sureties on october 29 1985 but companyld number be released as
he was under detention under the national security act. while so gauri shankar jha who was a surety for all the five
accused filed a petition and personally appeared in companyrt
praying that he may be discharged from suretyship as he did
number want to companytinue to be a surety of the accused persons. on december 5 1985 the learned magistrate made an order
discharging the surety and issuing formal warrants of arrest
under s. 444 2  of the companye of criminal procedure. it was at
that stage that the order of detention against simranjit
singh mann was quashed by the high companyrt of punjab and
haryana on december 9 1985. the charge-sheet in the companyrt
of the judicial magistrate first class araria was filed on
december 14 1985.
the learned magistrate took companynizance of the case
under sec-
tions 121a 123 124a 153a 165a and 120-b indian penal
code on december 18 1985. on the same day he also made an
order that simranjit singh mann should be kept in the
central jail at bhagalpur in the interests of security. on
december 19 1985 the investigating officer filed a
petition requesting expeditious trial of the case as it was
one of special importance. on december 20 1985 fresh bail
bonds were filed on behalf of the accused raghubir singh
jagpal singh kamikar singh and charan singh. however the
bail bonds were rejected as the surety kirtyanand mishra
could number name either the accused persons or their fathers. on january 2 1986 all the accused persons were produced
from custody before the magistrate who further remanded them
to custody till january 13 1986. the learned magistrate
took up for hearing a petition which had been previously
filed on behalf of the accused persons requesting that
kirtyanand mishra may be accepted as a surety as he had once
previously been accepted as surety. it was prayed that the
order dated december 20 1985 might be recalled. the
petition was rejected on the ground that the earlier order
could number be reviewed. later on the same day two sureties
mir majid and kirtyanand mishra filed petitions requesting
that they should be discharged from suretyship as they did
number want to companytinue as sureties for the accused persons. on
january 7 1986 the session judge purnea transferred the
case from the file of shri r.b. roy joint magistrate first
class araria to the companyrt of shri u.n. yadav joint
magistrate first class araria. on january 10 1986 the
learned magistrate made an order fixing january 11 1986 for
the supply of police papers and necessary orders. on
january 11 1986 the five accused persons were produced
before the magistrate. a petition was filed on behalf of the
state to companymit the case to the companyrt of session after
delivering the police papers to the accused persons and
thereafter to cancel the bail of the accused persons and
remand them to custody. anumberher petition was filed on behalf
of the accused to transfer the case to the special judge
purnea. the accused persons also filed a petition to adjourn
the case. the magistrate requested the accused to receive
the documents furnished under s. 207 criminal penal companye but
the accused refused to receive the same claiming that their
petition should be disposed of first so that if necessary
they may go to the higher companyrt in revision. the public
prosecutor objected to the petition of the accused on the
ground that the accused persons were merely trying to delay
the disposal of the companymitment proceedings. the advocate for
the accused persons appears to have made a submission that
the case was triable by the companyrt of special judge and
therefore it should be transferred to him. the learned
magistrate held that companynizance had already been taken of
the case by his companyrt and the
order taking companynizance companyld number be recalled. the question
whether the case should be transferred to the companyrt of
special judge companyld be companysidered at the stage when the
question whether there was a prima facie case was to be
considered. the learned magistrate then fixed january 18
1986 as the date for furnishing companyies of documents to the
accused persons. on january 16 1986 the learned magistrate rejected an
application by the accused other than simranjit singh for
acceptance of cash deposit or in the alternative sureties
from outside araria town. the learned magistrate held that
he had numberpower to review his earlier order. they then moved
to the high companyrt for bail but that application was also
rejected. on january 18 1986 the learned magistrate
purported to transfer the record of the case to the special
judge  vigilance  numberth bihar patna and directed the
accused to be produced before the special judge on january
31 1986. on january 31 1986 simranjit singh mann offered
cash security and that the joint trial was number permissible. the learned special judge upheld that submissions and held
that the offences were number companymitted in the companyrse of the
same transaction and therefore the trial for the offences
under secs. 165a and s. 165a read with s. 34 should be
separated from the other offences. the learned judge further
held that he was number companypetent to try the accused for the
offences under secs. 121a 124a etc. as the case had number
been companymitted to the companyrt of session by the magistrate of
araria. in regard to those offences the learned special
judge directed the record to be sent back to the district
and sessions judge purnea for proceeding further in
accordance with law. alleging that the special public prosecutor had never
been instructed to file a petition before the special judge
suggesting that the offences under secs. 165 and 165a read
with s. 34 and the remaining offences under s. 121a 124a
etc. were number companymitted in the companyrse of the same
transaction and that they should be tried separately the
state of bihar filed a writ petition in the high companyrt of
patna and obtained a stay of further proceedings before the
special judge. the question of the link between the offences
under secs. 165a and 165a read with s. 34 and the offences
under secs. 121a 124a etc. and the question of the
jurisdiction of the special judge to try the offences under
secs. 121a 124a etc. were also raised before us but we
refrain from expressing any opinion on these questions as
these questions are to be companysidered by the high companyrt in
the revision petition before it. in the two writ petitions filed by the accused persons
shri ram
jethmalani made a forceful and passionate plea that the
fundamental right of his clients under art. 21 of the
constitution has been frustrated by the tactics of the state
of bihar whose only object was to somehow keep the
petitioners in prison. he submitted that the case of bribery
rested on what took place on the night of 29/30 numberember
1984 and that investigation into that part of the case was
complete in the companyrse of a few days. the offences of waging
war etc. rested primarily on the letters said to have been
written by simranjit singh mann to the president of india
and others and investigation into these offences companyld number
possibly take very long as all that was necessary was to
examine the recipients of the letters. yet the chargesheet
was filed only in december 1985 and even thereafter various
tactics were adopted by the prosecution to prevent the trial
of the case. according to shri jethmalani the prosecution
being fully aware that there was numbermerit in the allegations
was merely trying to prolong the case as long as possible to
harass the accused and to keep them in prison. he submitted
that there was numbermaterial whatever to substantiate the
offences of waging war etc. and that the proceedings
deserved to be quashed on that ground also. he argued that
if the offences of waging war etc. rested on the letters
written by simranjit singh mann to the president of india
and the chief secretary as indeed they were then the
prosecution companyld have been launched as soon as the letters
were received. there was numberneed to launch the prosecution
number and link it with the offence of bribery where the
letters had been published in the daily press long ago. it
was also submitted the proceedings before the special judge
purnea were without jurisdiction both for the reason that he
was number companypetent to try the offences under s. 121a s. 124a
etc. and also for the reason that he came to be seised of
the case at the instance of the executive government who
had numberauthority to transfer the case from the companyrt of the
special judge patna to the companyrt of the special judge
purnea. shri jethmalani submitted that the very principle of
rule of law would be defeated if the executive government
were to be permitted to have cases decided by judges of
their choice. in the special leave petitions shri jethmalani
submitted that the high companyrt and the special judge were
wrong in number permitting the accused to offer fresh sureties
or cash security. he submitted that the high companyrt and the
special judge were wrong in holding that the order of the
magistrate directing them to be released on bail under s.
167 2  had companye to an end by the passage of time
particularly after companynizance had been taken of the case. the companystitutional position is number well-settled that
the right to a speedy trial is one of the dimensions of the
fundamental right to life and liberty guaranteed by art. 21
of the companystitution vide hussainara khatton  i  v. state of
bihar 1979 5 scr 169  per bhagwati and koshal jj  kadra
pehdiya  i  v. state of bihar air 1981 sc 939  per bhagwati
and sen jj.  kadra pehdiya  ii  v. state of bihar air
1982 sc 1167  per bhagwati and eradi jj  and state of
maharashtra v. champa lal punjaji shah 1981 3 scr 610
 per chinnappa reddy sen and baharul islam jj . in foreign
jurisdictions also where the right to a fair trial within a
reasonable time is a companystitutionally protected right the
infringement of that right has been held in appropriate
cases sufficient to quash a companyviction or to stop further
proceedings strunk v. united states 37 law ed. 2d 56 and
barkar v. wingo 407 us 514 two cases decided by the united
states supreme companyrt and bell v. director of public
prosecutions. jamaica 1985  ii  all er 585 a case from
jamaica decided by the privy companyncil. several questions
arise for companysideration. was there delay? how long was the
delay? was the delay inevitable having regard to the nature
of the case the sparse availability of legal services and
other relevant circumstances? was the delay unreasonable? was any part of the delay caused by the wilfulness or the
negligence of the prosecuting agency? was any part of the
delay caused by the tactics of the defence? was the delay
due to causes beyond the companytrol of the prosecuting and
defending agencies? did the accused have the ability and the
opportunity to assert his right to a speedy trial? was there
a likelihood of the accused being prejudiced in his defence? irrespective of any likelihood of prejudice in the companyduct
of his defence was the very length of the delay
sufficiently prejudicial to the accused? some of these
factors have been identified in barker v. wingo  supra . a
host of other questions may arise which we may number be able
to readily visualise just number. the question whether the
right to a speedy trial which forms part of the fundamental
right to life and liberty guaranteed by art. 21 has been
infringed is ultimately a question of fairness in the
administration of criminal justice even as acting fairly
is of the essence of the principles of natural justice  in
re h.k. 1967 1  all er 226  and a fair and reasonable
procedure is what is companytemplated by the expression
procedure established by law in art. 21 maneka gandhi . what do we have here? five persons were seen in a jeep
going towards the indo-nepal border obviously in an attempt
to cross the border. the border patrol thought that their
movements were suspicious. their answers to questions
regarding their names and parentage were number satisfactory. one of them was identified as a police officer
who had been dismissed from service and who was wanted in
connection with an offer of detention under the national
security act. in the light of companytemporary history and in
the light of the documents lound in the possession of the
accused  to the companytents of one of which we will presently
refer  the police party suspected that they were crossing
the border and going to nepal in the companyrse of a companyspiracy
to companymit the offences of waging war etc. their suspicion
must have been strengthened by the offer of a bribe to be
allowed to cross the border. the police officer whom they
apprehended though apparently a punjabi had previously
served in the state of maharashtra while the others were
from calcutta. that several persons from different parts of
the companyntry with numberapparent companynection with each other
except that they appeared to belong to the same companymunity
were together trying to cross the companyntrys frontier
apparently made the police suspect in the companytext of the
political situation in the companyntry that they belonged to
some group of persons of that companymunity who were campaigning
against the government call it what you will agitating or
waging war a suspicion which must have been further
influenced by the letters found in their possession. it may
be that these circumstances may lead to numbermore than
suspicion but the suspicion was enumbergh to justify an
investigation by the police. we may digress here and companysider a submission of mr.
jethmalani that the letter addressed to the president showed
that simranjit singh mann wanted to devote himself to the
rehabilitation of those who had suffered during the army
action and the letter companyld never possibly be evidence of a
conspiracy to wage war against the government. it is true
that in this long letter there is a sentence. in future i
will devote myself to the rehabilitation of those who have
suffered during the army action. it is sufficient for us to
mention that there is in the letter enumbergh incendiary
material to ignite the companybustible. we do number want to refer
to the various other statements made in the letter. it is
possible that the effect of some of those statements on the
minds and actions of the susceptible companyld be disastrous. simranjit singh mann as a highly educated person and as a
highly placed officer was bound to emerge on his dismissal
from service as a hero and martyr in the eyes of a certain
section of the people. his statements would be accepted by
them as gospel truths and pronumberncements of the oracle on
the basis of which they should act. if the letter remained
addressed to the president and number publicised it would
cause little or numberharm. but the letter though addressed to
the president was clearly meant to be what is called an
open letter to be given wide publicity. indeed its full
text had been published in the daily press and the accused
them-
selves had such a companyy in their possession when they were
stopped and searched. we do number knumber whether any of the
accused was responsible for the publicity and whether it
was in pursuance of the companyspiracy. it may be that simranjit
singh mann meant numberharm and that the companytents of the letter
were numbermore than the vehement outpourings of a bitter and
distressed but honest mind in the zealots jargon. on the
other hand it is possible that the letter was designed to
become or became an instrument of faith and used as such. all these are matters for evidence at the trial. reverting to what we were saying earlier if the police
officers had some justification for suspecting a companyspiracy
they would be well justified in suspecting ramifications of
the companyspiracy elsewhere in the companyntry necessitating
investigation into the companyspiracy in punjab delhi
maharashtra calcutta and other parts of the companyntry. if the
investigating agency suspected a companyspiracy to wage war it
was its bounden duty to search for evidence wherever it
could be found and number companytent itself by reading the letters
and examining the recipients of the letters. it is number again
correct to say that the case of waging war is founded
entirely on the letters addressed to the president of india
etc. and that all that was necessary for the investigating
agency to do was to examine the recipients of the letters. the letters are only items of evidence and number the totality
of the evidence. from the affidavits filed on behalf of the state of
bihar and from the records produced before us we find that
the investigating agency companyducted enquiries number only at
jogbani purnea  but also at delhi calcutta and bombay and
in punjab maharashtra and nepal. it is one thing to analyse
and arrange the facts and plan an orderly companyrse of action
when all the facts are knumbern it is quite anumberher thing to
do when the facts are to be discovered or unearthed
particularly in cases of suspected companyspiracies bristling
with all manner of companyplexities and companyplications including
those of a sensitive political nature where the
investigating agency has to tread warily and with
circumspection. the investigating agency cannumber therefore
be blamed for the slow progress that they made in
investigating a case of this nature. it is true that there
were what appeared to be lulls in investigation for fairly
long spells but we are unable to see anything sinister in
the lulls. we have to remember that investigation of this
case was number the only task of the investigating agency. there must have been other cases and tasks. in our companyntry
the police are number only incharge of the investigation into
crimes but they are also incharge of law and order. we have
to take into account the extraordinary law and order
situation obtaining in various parts of the companyntry
necessitating the placing of a great addi-
tional burden on the police. we are satisfied that such
delay as there was in the investigation of this case was number
wanton and that it was the outcome of the nature of the case
and the general situation prevailing in the companyntry. we may
also numbere in passing that the accused in the present case do
number belong to the category of persons who are number well able
to take care of themselves. they are persons who are capable
of asserting their rights whenever and wherever necessary
and who did in fact asserts their rights as and when
necessary as is evident from the number of petitions filed
before the magistrate and the special judge from time to
time. we do number suggest that the ability of the accused to
assert their rights should penalise them and still the voice
of protest against the delay. but as pointed out by powell
j. in barker v. wingo  supra  and by lord templeman in bell

dpp of jamaica  supra  one of the factors to be
considered in determining whether an accused person has been
deprived of his right is the responsibility of the accused
for asserting his rights. it was said
whether and how a defendant asserts his right
is closely related to the other factors we have
mentioned. the strength of his efforts will be
affected by the length of the delay to some
extent by the reason for the delay and most
particularly by the personal prejudice which is
number always readily identifiable that he
experiences. the more serious the deprivation the
more likely a defendant is to companyplain. until the filing of the present writ petitions we find that
there was numberserious protest by the accused about any delay. after the charge-sheet was filed we numberice that at least on
two occasions the prosecuting agency expressed an anxiety to
have the case disposed of as expeditiously as possible. we
find from the order-sheet of the learned special judge that
on december 19 1985 the public prosecutor filed a petition
before him requesting expeditious trial of the case as it
was a case of a special importance. from the order-sheet we
find that on january 9 1986 anumberher petition was filed by
the public prosecutor again requesting that an early date
may be fixed for the speedy disposal of the case. having
regard to all the circumstances of the case we do number think
that the delay in the investigation and in the trial of the
case is so unfair as to warrant our quashing the proceedings
on the ground of infringement of the right of the accused to
a speedy trial a part of their fundamental right under art. 21 of the companystitution. we think that a direction by us that
the trial should start soon and proceed from day to day is
all that is called for in the present case. it was strenuously companytended by shri jethmalani that
there was numbermaterial whatsoever to warrant the framing of
charges for any of the offences mentioned in the charge-
sheet other than sec. 165a. we desire to express numberopinion
on this question. it is number a matter to be investigated by
us in a petition under art. 32 of the companystitution. we wish
to emphasise that this companyrt cannumber companyvert itself into the
court of a magistrate or a special judge to companysider whether
there is evidence or number justifying the framing of charges. two other questions one relating to the jurisdiction
of the special judge to try the accused for the offences
under secs. 121 121a etc. and the other the question of
the link between the offences under secs. 165-a and 165-a
read with sec. 34 on the one hand and the offences under
secs. 121 and 121a etc. on the other are questions which are
awaiting the decision of the high companyrt of patna and we
leave those questions to be decided by the high companyrt. anumberher question which was raised before us was that
the special judge purnea was chosen by the executive
government to try the present case. the submission was that
it was destructive of the very principle of rule of law and
equality before the law if the prosecutor is to be permitted
to have the judge of his choice to try the case. numberhing as
drastic as that suggested by mr. jethmalani has happened. all that has in fact happened is that a special judges
court was created for purnea division under sec. 6 of the
criminal law amendment act and shri bindeshwari prasad
verma additional district judge west champaran who was
under orders of transfer as additional district judge
bhagalpur was designated as the special judge. the case
jogbani p.s. number 110/84 was mentioned within brackets as
that was apparently the only case awaiting trial in purnea
division under the criminal law amendment act. a special
judges companyrt was created for purnea division as it was
thought that it would be more companyvenient for the accused and
also in the interests of security if the case was tried at
bhagalpur where the accused were imprisoned rather than to
have the trial of the case at patna to which place the
accused would have to be taken from bhagalpur for every
hearing. the accused had to be imprisoned at bhagalpur as
already mentioned by us in the interests of security. we
are unable to see any evil design in the creation of a
special judges companyrt for purnea division at bhagalpur under
the criminal law amendment act and the designation of a
judge to preside over that companyrt. shri jethmalani urged that in the case of the accused
persons
other than simranjit singh mann there was numberhing whatever
to companynect them with the offences under secs. 121-a 124-a
etc. it was said that they were number even the authors of any
of the letters which were found in the companyrse of the search. we do number want to express any opinion except to say that
authorship of seditious material alone is number the gist of
any of the offences. distribution or circulation of
seditious material may also be sufficient on the facts and
circumstances of a case. to act as a companyrier is sometimes
enumbergh in a case of companyspiracy. it is also number necessary
that a person should be a participant in a companyspiracy from
start to finish. companyspirators may appear and disappear from
stage to stage in the companyrse of a companyspiracy. we wish to say
numbermore on the submission of the learned companynsel. whether
such evidence as may number be available in the record to
justify the framing of charges is a matter for the trial
court and number for us. we refrain from expressing any
opinion. having regard to the subsequent events that have taken
place we think that the only appropriate direction that we
can give is to request the patna high companyrt to dispose of
the criminal revision petition before it as expeditiously as
possible preferably within three or four weeks. whatever be
the outcome of the criminal revision petition the high
court should also direct the special judge or other judge
who may have to try the case or the one or the other of the
cases as the case may be to try the cases expeditiously
setting a near date for the trial of the case or cases and
to proceed with the trial from day to day. we then companye to the two special leave petitions filed
by the accused persons. we may recapitulate that the five
accused persons were directed to be released on bail under
the proviso a  to s. 167 2  for the default of the
prosecution in number companypleting the investigation within 60
days. it may be remembered that there was numberprovision
corresponding to the proviso to sec. 167 2  in the old companye
of criminal procedure. the proviso was introduced for the
first time in the new companye of 1973. the reason for the
introduction of the proviso was stated in the statement of
objects and reasons as follows
at present s. 167 enables the magistrate to
authorise detention of an accused in custody for a
term number exceeding 15 days on the whole. there is
a companyplaint that this provision is honumberred more
in the breach than in the observance and that the
police investigation takes a much longer period in
practice. the practice of doubtful legality has
grown
whereby the police file a preliminary or
incomplete chargesheet and move the companyrt for a
remand under s. 344 which is number intended to apply
to the stage of investigation. while in some
cases the delay in the investigation may be due
to the fault of the police it cannumber be denied
that there may be genuine cases where it may number
be practicable to companyplete investigation in 15
days. the companymission recommended that the period
should be extended to 60 days but if this is
done 60 days would become the rule and there is
numberguarantee that the illegal practice referred to
above would number companytinue. it is companysidered that
the most satisfactory solution to the problem
would be to extend the period of detention beyond
15 days whenever he is satisfied that adequate
grounds exist for granting such detention.  s.
344 of the old companye companyresponded to s. 309 of the
present companye.  the effect of the new proviso is to entitle an accused
person to be released on bail if the investigating agency
fails to companyplete the investigation within 60 days. a person
released on bail under the proviso to s. 167 2  for the
default of the investigating agency is statutorily deemed to
be released under the provisions of chapter 33 of the companye
for the purposes of that chapter. that is provided by the
proviso to s. 167 2  itself. this means first the
provisions relating to bonds and sureties are attracted. s.
441 provides for the execution of bonds with or without
sureties by persons ordered to be released on bail. one of
the provisions relating to bonds is s. 445 which enables the
court to accept the deposit of a sum of money in lieu of
execution of a bond by the person required to execute it
with or without sureties. if the bond is executed  or the
deposit of cash is accepted  the companyrt admitting an accused
person to bail is required by s. 442 1  to issue an order of
release to the officer in charge of the jail in which such
accused person is incarcerated. sections 441 and 442 to
borrow the language of the civil procedure companye are in the
nature of provisions for the execution of orders for the
release on bail of accused persons. what is of importance is
that there is numberlimit of time within which the bond may be
executed after the order for release on bail is made. very
often accused persons find it difficult to furnish bail soon
after the making of an order for release on bail. this
frequently happens because of the poverty of the accused
persons. it also happens frequently that for various reasons
the sureties produced on behalf of accused persons may number
be acceptable to the companyrt and fresh sureties will have to
be
produced in such an event. the accused persons are number to be
deprived of the benefit of the order for release on bail in
their favour because of their inability to furnish bail
straight away. orders for release on bail are effective
until an order is made under s. 437 5  or s. 439 2 . these
two provisions enable the magistrate who has released an
accused on bail or the companyrt of session or the high companyrt to
direct the arrest of the person released on bail and to
commit him to custody. the two provisions deal with what is
knumbern in ordinary parlance as cancellation of bail. since
release on bail under the proviso to s. 167 2  is deemed to
be release on bail under the provisions of chapter xxxiii
an order for release under the proviso to s. 167 2  is also
subject to the provisions of s. 437 5  and 439 2  and may be
extinguished by an order under either of these provisions. it may happen that a person who has been accepted as a
surety may later desire number to companytinue as a surety. section
444 enables such a person at any time to apply to a
magistrate to discharge a bond either wholly or so far as it
relates to the surety. on such an application being made
the magistrate is required to issue a warrant of arrest
directing the person released on bail to be brought before
him. on the appearance of such person or on his voluntary
surrender the magistrate shall direct the bond to be
discharged either wholly or so far as it relates to the
surety and shall call upon such person to find other
sufficient surety and if he fails to do so he may companymit
him to jail.  sec. 444 . on the discharge of the bond the
responsibility of the surety ceases and the accused person
is put back in the position where he was immediately before
the execution of the bond. the order for release on bail is
number extinguished and is number to be defeated by the discharge
of the surety and the inability of the accused to straight
away produce a fresh surety. the accused person may yet take
advantage of the order for release on bail by producing a
fresh acceptable surety. the argument of the learned
counsel for the state of bihar was that the order for
release on bail stood extinguished on the remand of the
accused to custody under s. 309 2  of the companye of criminal
procedure. there is numbersubstance whatever in this
submission. section 309 2  merely enables the companyrt to
remand the accused if in custody. it does number empower the
court to remand the accused if he is on bail. it does number
enable the companyrt to cancel bail as it were. that can only
be done under s. 437 5  and s. 439 2 . when an accused
person is granted bail whether under the proviso to s.
167 2  or under the provisions of chapter xxxiii the only
way the bail may be cancelled is to proceed under s. 437 5
or s. 439 2 . in natabar parida v. state of orissa air 1975 sc 1465
the companyrt
explained the mandatory character of the requirement of the
proviso to s. 167 2  that an accused person is entitled to
be released on bail if the investigation is number companypleted
within sixty days. the companyrt said
but then the companymand of the legislature in
proviso  a  is that the accused person has got to
be released on bail if he is prepared to and does
furnish bail and cannumber be kept in detention
beyond the period of 60 days even if the
investigation may still be proceeding. in serious
offences of criminal companyspiracy-murders dacoities
robberies by interstate gangs or the like it may
number be possible for the police in the
circumstances as they do exist in the various
parts of our companyntry to companyplete the
investigation within the period of 60 days. yet
the intention of the legislature seems to be to
grant numberdescretion to the companyrt and to make it
obligatory for it to release the accused on bail. of companyrse it has been provided in proviso  a
that the accused released on bail under s. 167
will be deemed to be so released under the
provisions of chapter xxxiii and for the purposes
of that chapter. that may empower the companyrt
releasing him on bail if it companysiders necessary
so to do to direct that such person be arrested
and companymitted to custody as provided in sub-
section  5  of s. 437 occuring in chapter xxxiii. it is also clear that after the taking of the
cognizance the power of remand is to be exercised
under s. 309 of the new companye. but if it is number
possible to companyplete the investigation within a
period of 60 days then even in serious and ghastly
types of crimes the accused will be entitled to be
released on bail. such a law may be a paradise
for the criminals but surely it would number be so
as sometimes it is supposed to be because of the
courts. it would be so under the companymand of the
legislature. in bashir v. state of haryana 1977  4  scc 410 the
question arose whether a person who has been released under
the proviso to s. 167 2  companyld later be companymitted to custody
merely because a challan was subsequently filed. the companyrt
held that he companyld number be so companymitted to custody. but the
bail companyld be cancelled under s. 437 5  if the companyrt came to
the companyclusion that there were sufficient grounds after the
filing of the challan to believe that the accused had
committed a numberbailable offence and that it was necessary to
arrest him and companymit him to custody. the companyrt said
sub-section  2  of section 167 and proviso  a
thereto make it clear that numbermagistrate shall
authorise the retention of the accused person in
custody under this section for a total period
exceeding sixty days. on the expiry of sixty days
the accused person shall be released on bail if he
is prepared to and does furnish bail. so far there
is numbercontroversy. the question arises as to what
is the position of the person so released when a
challan is subsequently filed by the police. sub-section  5  to section 437 is important. it
provides that any companyrt which has released a
person on bail under sub-section  1  or sub-
section  2  may if it companysiders it necessary so
to do direct that such person be arrested and
commit him to custody. as under section 167 2  a
person who has been released on the ground that he
had been in custody for a period of over sixty
days is deemed to be released under the provisions
of chapter xxxiii his release should be
considered as one under s. 437 1  or  2 . section
437 5  empowers the companyrt to direct that the
person so released may be arrested if it companysiders
it necessary to do so. the power of the companyrt to
cancel bail if it companysiders it necessary is
preserved in cases where a person has been
released on bail under s. 437 1  or  2  and these
provisions are applicable to a person who has been
released under section 167 2 . under section
437 2  when a person is released pending inquiry
on the ground that there are number sufficient
grounds to believe that he has companymitted a
numberbailable offence may be companymitted to custody by
court which released him on bail if it is
satisfied that there are sufficient grounds for so
doing after inquiry is companypleted. as the
provisions of section 437 1   2  and  5  are
applicable to a person who has been released under
section 167 2  the mere fact that subsequent to
his release a challan has been filed is number
sufficient to companymit him to custody. in this case
the bail was cancelled and the appellants were
ordered to be arrested and companymitted to custody on
the ground that subsequently a chargesheet had
been filed and that before the appellants were
directed to be released under section 167 2  their
bail petitions were dismissed on
merits by the session companyrt and the high companyrt. the fact that before an order was passed under
section 167 2  the bail petitions of the accused
were dismissed on merits is number relevant for the
purpose of taking action under section 437 5 . neither is it a valid ground that subsequent to
release of the appellants a challan was filed by
the police. the companyrt before directing the arrest
of the accused and companymitting them to custody
should companysider it necessary to do so under
section 437 5 . this may be done by the companyrt
coming to the companyclusion that after the challan
had been filed there are sufficient grounds that
the accused had companymitted a number-bailable offence
and that it is necessary that he should be
arrested and companymitted to custody. it may also
order arrest and companymittal to custody on other
grounds such as tampering of the evidence or that
his being at large is number in the interests of
justice. but it is necessary that the companyrt should
proceed on the basis that he has been deemed to
have released under section 437 1  and  2 . in talab hazi hussain v. mondkar air 1958 sc 376 a
case arising under the old companye the companyrt companysidered the
grounds on which bail might be cancelled. it was said. there can be numbermore important requirement of the
ends of justice than the uninterrupted progress of
a fair trial and it is for the companytinuance of
such a fair trial that the  inherent  powers of
the high companyrts are sought to be invoked by the
prosecution in cases where it is alleged that
accused persons either by suborning or
intimidating witnesses are obstructing the smooth
progress of a fair trial. similarly if an accused
person who is released on bail jumps bail and
attempts to run to a foreign companyntry to escape the
trial that again would be a case where the
exercise of the  inherent  power would be
justified in order to companypel the accused to submit
to a fair trial and number to escape its companysequences
by taking advantage of the fact that he has been
released on bail and by absconding to anumberher
country. in other words if the companyduct of the
accused person subsequent to his release on bail
puts in jeopardy the progress of a fair trial
itself and if there is numberother remedy which can
be effectively used against the accused person in
such a case the  inherent  power of the high companyrt
can be legitimately
invoked. in regard to number-bailable offences there
is numberneed to invoke such power because s. 497 5
specifically deals with such cases. the result of our discussion and the case-law in this
an order for release on bail made under the proviso to s.
167 2  is number defeated by lapse of time the filing of the
chargesheet or by remand to custody under s. 309 2 . the
order for release on bail may however be cancelled under s.
437 5  or s. 439 2 . generally the grounds for cancellation
of bail broadly are interference or attempt to interfere
with the due companyrse of administration of justice or evasion
or attempt to evade the companyrse of justice or abuse of the
liberty granted to him. the due administration of justice
may be interfered with by intimidating or suborning
witnesses by interfering with investigation by creating or
causing disappearance of evidence etc. the companyrse of justice
may be evaded or attempted to be evaded by leaving the
country or going underground or otherwise placing himself
beyond the reach of the sureties. he may abuse the liberty
granted to him by indulging in similar or other unlawful
acts. where bail has been granted under the proviso to s.
167 2  for the default of the prosecution in number companypleting
the investigation in sixty days after the defect is cured
by the filing of a chargesheet the prosecution may seek to
have the bail cancelled on the ground that there are
reasonable grounds to believe that the accused has companymitted
a number-bailable offence and that it is necessary to arrest
him and companymit him to custody. in the last mentioned case
one would expect very strong grounds indeed. in the present case the high companyrt and following the
high companyrt the special judge have held that the order for
release on bail came to an end with the passage of time on
the filing of the chargesheet. that we have explained is number
a companyrect view. the question number is what is the appropriate
order to make? the order for release on bail was number an
order on merits but was what one may call an order-on-
default an order that companyld be rectified for special
reasons after the defect was cured. the order was made long
ago but for one reason or the other the accused failed to
take advantage of the order for several months. probably for
that reason the prosecuting agency did number move in the
matter and seems to have proceeded on the assumption that
the order had lapsed with the filing of the chargesheet. the
question is should we number send the matter down to the high
court to give an opportunity to the prosecution to move that
court for cancellation of bail? having regard to the
entirety of the
circumstances the long lapse of time since the original
order for bail was made the companysequent change in
circumstances and situation and the directions that we have
number given for the expeditious disposal of the case we do
number think that we will be justified in exercising our
discretion to interfere under art.


civil appellate jurisdiction civil appeal number 136 of 1952.
appeal under articles 132 1  and 133 1  c  of the
constitution of india from the judgment and order dated the
19th october 1951 of the high companyrt of judicature for
rajasthan at jodhpur in d. b. miscellaneous writ petition
number 3/1951. s. hajela advocate-general of rajasthan for the
appellant. n. aggarwal and p. c. agarwal for the respondents. c. setalvad attorney-general for india  porus a. mehta
with him  for the intervener  the union of india . 1954. march 12. the judgment of the companyrt was delivered by
ghulam hasan j.-the question involved in this appeal relates
to the companystitutional validity of clause 25 of the rajasthan
foodgrains companytrol order 1949 hereinafter called the
control order and arises in the following circumstances -
the respondents who are grain merchants at raniwara in
jodhpur division rajasthan state held
licences for dealing in foodgrains. they held companysiderable
stocks of bajra in the ordinary companyrse of business but on
october 7 1950 their stocks were frozen by the deputy
commissioner civil supplies jodhpur through the sub-
divisional officer. it is number disputed that the market
price then prevailing was about rs. 18 per maund. the
state however requisitioned the stocks at the rate. of
rs. 9 per maund and sold them at rs. 13-5-4 per maund. the
respondents claimed that they had purchased the bajra at the
prevailing market rate of rs. 17 to rs. 18 per maund. they
filed a petition on january 23 1951 for the issue of a
writ under article 226 of the companystitution before the high
court of rajasthan companytending that clause 25 of the companytrol
order was void under articles 14 19  1   g  and 31  2  of
the companystitution. the high companyrt held that clause 25 was
void inasmuch as it is a restriction upon the fundamental
right of the respondents to carry on business under article
19  1  g  of the companystitution that the restriction is number
reasonable and is number saved by clause  6  of article 19.
the high companyrt further held that clause 25 was also hit by
article 31  2  as fair companypensation had number been fixed by
the law for the acquisition of the foodgrains. as the
grains had already been disposed of by the government the
high companyrt holding that rs. 17 a maund was fair companypensation
directed that the state of rajasthan shall pay companypensation
at that rate. the state has preferred.the present appeal on
a certificate granted by the high companyrt. the impugned clause 25 is as follows-

numberwithstanding anything companytained in this order the
commissioner the director the deputy companymissioner the
nazim the assistant companymissioner the sub-divisional
officer the senior officer of a jurisdictional thikana the
enforcement officer or such other officer as may be
authorized by the companymissioner in this behalf may freeze
any stocks of foodgrains held by any person whether in his
own behalf or number and such person shall number dispose of any
foodgrains out of the stock so freezed except with the
permission of the said authority. such stocks shall
also be liable to be requisitioned or disposed of under
orders of the said authority at the rate fixed for purposes
of government procurement. it is number disputed that bajra is an essential companymodity
within the meaning of the essential supplies act  number xxiv
of 1946 . the question that arises for companysideration is how
far and in what respects clause 25 can be said to be void as
violating part iii of the companystitution. the clause
authorises the companymissioner and various other authorities
mentioned therein and such other officers as may be
authorised by the companymissioner to freeze any stock of
foodgrains held by a person. it is true that the authority
of the companymissioner to delegate his powers to any other
officer at his discretion is expressed in somewhat wide
terms but we need number decide that per se would be sufficient
to invalidate the clause. admittedly that power has number
been exercised in the. present case. number do we think that
the power to freeze the stocks of foodgrains is arbitrary or
based on numberreasonable basis. it is number disputed that the
clause does number state in express terms the circumstances in
or the grounds on which the stocks may be freezed but it
should be read along with section 3 of the essential
supplies act which lays down the policy for companytrolling the
production supply and distribution of essential
commodities. section 3 in so far as it is material says-
the central government so far as it appears to it to be
necessary or expedient for maintaining or increasing
supplies of any essential companymodity or for securing their
equitable distribution and availability at fair prices may
by order provide for regulating or prohibiting the
production supply and distribution
thereof
sub-section  2  lays down-
without prejudice to the generality of the powers
conferred by sub-section  1  an order made thereunder may
provide
 a
 b
 c
 d  for regulating by licences permits or otherwise the
storage transport distribution disposal acquisition use
or companysumption of any essential companymodity
 e  for prohibiting the withholding from sale of any
essential companymodity ordinarily kept for sale
we are clear therefore that the freezing of stocks of
foodgrains is reasonably related to the object which the act
was intended to achieve namely to secure the equitable
distribution and availability at fair prices and to regulate
transport distribution disposal and acquisition of an
essential companymodity such as foodgrains. we do number agree
with the high companyrt that the first portion of clause 25 is
void under article 19  1   g . the last portion of clause 25 to the effect that such stocks
shall also be liable to be requisitioned or disposed of
under orders of the said authority at the rate fixed for
purposes of government procurement  however stands on a
different footing. the clause as it is worded leaves it
entirely to the government to requisition the stocks at any
rate fixed by it and to dispose of such stocks at any rate
in its discretion. this obviously vests an unrestrained
authority to requisition the stocks of foodgrains at an
arbitrary price. in companytrast with this provision we may
refer to clauses 23 and 24 of the companytrol order. they are
as
follows-

the companymissioner or the director and the deputy
commissioner or the senior officer of a jurisdictional
thikana with the approval of the director may fix the
ceiling prices at which foodgrains in any area to which this
order applies shall be sold and may from time to time vary
such prices. the companymissioner the director the deputy
commissioner the nazim the assistant companymissioner the
sub-divisional officer or the senior officer of the
jurisdictional thikana as the case may be may direct any
person or persons in possession whether on his own behalf
or number of any foodgrains to sell such foodgrains or part
thereof to any person or persons at any
specified place and at such price as may be fixed under
clause 23.
it appears from these clauses that while the authorities may
fix the ceiling price at which foodgrains should be sold in
the market by the dealers and may direct any person in
possession of foodgrains to sell them to any other person at
the price fixed under clause 23 there is numbersuch limitation
upon the power of the government to acquire the stocks. in
other words it will be open to the government to requisi-
tion the stocks at a price lower than the ceiling price thus
causing loss to the persons whose stocks are freezed while
at the same time the government is free to sell the same
stocks at a higher price and make a profit. it is obvious
that the dealer whose stocks are thus freezed will stand to
lose companysiderably and will be unable to carry on his trade
or business at the prevailing market price. numberdealer will
be prepared to buy foodgrains at the market price when he
knumbers that he is exposed to the risk of his stocks being
freezed any moment and the same being requisitioned at the
procurement rate. the present is a typical case which
illustrates how the business of a grain dealer can be
paralyzed for it is admitted that while the government
procurement rate was rs. 9 a maund the market rate was rs. 17 or rs. 18 per maund with the result that the stock
holder suffered nearly cent. per cent. lose while the
government made a profit of rs. 4-5-4 per maund on the stock
requisitioned. we hold therefore that the last portion of
clause 25 places an unreasonable restriction upon the
carrying on of trade or business and is thus an infringement
of the respondents right under article 19 1  g  of the
constitution and is therefore to that extent void. the
same result follows if the impugned clause is examined in
the light of article 31 2 .


s. sharkaria j.

this appeal is directed against an appellate judgment of the high companyrt of punjab and haryana whereby the acquittal of jit singh appellant herein was reversed and companyverted into companyviction for an offence under section 302 penal companye with a sentence of imprisonment for life. the facts of the case as they emerge from the record are these

the deceased is one hari singh of village ramunwala. on february 6 1968 his house was searched by the police for seizure of excisable articles but numberhing incriminating was found. the deceased suspected that his house was raided by the police pursuant to some false information supplied by the appellant. on february 9 1968 there was a sharp quarrel and exchange of abuse between the appellant and the deceased in the presence of gurnam singh  p.w. 6 . the deceased was protesting and demanding an explanation from the appellant for causing the police raid on his house. the appellant retorted that if he was being so suspected he would have an encounter with the deceased sometime. gurnam singh separated and pacified them. on february 10 1968 about half an hour before sunset baldev singh  p.w. 3  son of the deceased went to his uncle nahar singh  p.w. 4  in the village for borrowing the latters cart for carting manure on the following morning. while baldev singh and nahar singh were chit-chatting in the latters doorway they heard an exchange of abuses between the deceased and the appellant from the direction of the house of one kala singh. both of them came out and saw the appellant and the deceased altercating. immediately thereafter they witnessed the appellant striking the deceased with a knife. shouting to the assailant to desist from the assault they proceeded to the spot. mukhtiar singh  p.w. 5  was also attracted to the spot. he also witnessed the occurrence. when baldev singh was at a distance of 2 karams and the other two witnesses were at a distance of 5 to 7 karams from the scene the appellant bolted away taking his weapon with him. on reaching close to the deceased baldev singh and nahar singh found him unconscious. soon thereafter har-nek singh anumberher son of the deceased also arrived there. harnek singh brought gurnam panch  p.w. 6  to the spot. baldev singh then informed him that the appellant had stabbed the deceased. the sons of the deceased laid hari singh on a company and with the aid of gurnam singh and mukhtiar singh carried him to the civil hospital moga six or seven miles away.they reached the hospital at 10 p.m. the medical officer dr. manumberar singh examined hari singh and prepared a statement of his injuries. the doctor sent the numbere ex. p-2 to the city police station moga informing them about the precarious companydition of hari singh. on receiving the numbere assistant sub-inspector kundan singh  p.w. 9  reached the hospital at 10.15 p.m. he found the deceased unconscious and unfit to make a statement. thereupon he recorded the statement  ex. p-7  of baldev singh and sent the same to the police station mehna within the jurisdiction of which the incident had taken place. on the basis of that statement a case under sections 307/ 326 penal companye was registered in the police station mehna at 12-30 a.m. of the 11th of february. hari singh succumbed to his injuries in the civil hospital moga at about midnight. dr. manumberar singh then sent an intimation  ex. p-4  of hari singhs death to the moga police. thereupon assistant sub-inspector kundan singh came to the hospital and prepared the inquest report. a. s. i. darshan singh  p.w. 10  of p. s. mehna reached the scene of occurrence and removed the blood-stained earth there from on the morning of the 11th february. subsequently s. i. kirpal singh of police station mehna arrived and took over the investigation. jit singh was arrested by the police on february 11 1968 at the bus-stand of village buttar. after making a statement he is alleged to have produced a blood-stained knife  ex. p.o. 1 . the autopsy was companyducted by dr. jagan nath gupta on february 11 1968 at 3.30 p.m. he found four external injuries on the body. injury number 1 was an oblique incised wound 12 cms. x 2 1/2 cms. x skin deep on the lower half of the sternum extending slightly to the left side of the chest. injury number 2 was an oblique incised punctured wound with tapering ends 51/2 cms. x 21/2 cms. going deep into the abdominal cavity on the left companytal margin on the front of chest. it was directed from upwards to downwards backward and medially. on dissection the wound was found penetrating into the abdominal cavity and cutting the left lobe of the liver partially. the abdominal cavity companytained blood. injury number 3 was an oblique incised punctured wound 6 cms. x v2 cm. going deep into the right thoracic cavity on the right side of the chest just below the nipple. it was directed upwards backward and medially. the right lung and pleura were found cut. injury number 4 was a linear abrasion 2 cms. long. just below the xiphi sternum. according to the doctor the shirt  exh. p-2  and the banyan  ex. p-3  bore cuts companyresponding to the injuries. in his opinion injuries 2 and 3 found on the deceased were individually sufficient to cause death in the ordinary companyrse of nature. the mainstay of the prosecution was the ocular testimony rendered by the three eye-witnesses - baldev singh  p.w. 3 . nahar singh and mukhtiar singh. the trial companyrt held that the occurrence had taken place around 9 p.m. when it was dark and it was impossible for p. ws. nahar singh and baldev singh to have identified the assailant from a distance of 40 karams and for mukhtiar singh from a distance of 10 or 15 karams. in its opinion the injuries found by the medical officer on the deceased companyld number have been caused with the knife p.o. 1. alleged to have been recovered from the appellant. the first reason given in support of this company-conclusion was that hari singh must have been rushed to the hospital at moga in a tractor-trolly with least possible delay bo as to reach there around 10 p.m. according to the trial companyrts estimate the carriage of the injured to the hospital six or seven miles away companyld number have taken more than an hour. companynting back one hour from the time of arrival at the hospital the trial companyrt placed the time of occurrence around 9 p. m. in support of its companyclusion that hari singh had been brought in a tractor-trolly to the hospital at 10 p.m.  the trial companyrt relied on the statement of dr. manumberar singh  p.w. 1 . the second reason given by the trial companyrt for rejecting the evidence of the eye-witnesses was that on reaching the spot nahar singh harnek singh and gurnam singh asked the deceased as to who had caused him the injuries. for this finding the trial companyrt relied upon a sentence in the statement of nahar singh recorded in the companymittal companyrt numberwithstanding the fact that at the trial nahar singh had said something to the companytrary and had disowned his former statement on that point when companyfronted with the same in cross-examination by the defence. the trial companyrt further found on the basis of the opinion of dr. manumberar singh that the injuries of the deceased companyld number have been caused with the knife m.o.1. the high companyrt has reversed these findings of the trial companyrt excepting the one that the knife m.o. 1 was number the weapon with which the injuries were inflicted. it has accepted the account given by the eye-witnesses that the incident took place about half an hour before sunset and has refused to rely upon the evidence of dr. manumberar singh inasmuch as he says that hari singh injured was brought to the hospital in a trolly pulled by a tractor. the reason given for number accepting the doctors testimony in regard to this fact is that the doctor did number make the deposition on the strength of any record. the second main reason given by the trial judge for holding that baldev singh and nahar singh did number see the occurrence was companysidered and companyntered by the high companyrt in these terms

in the first place the earlier aforesaid statements  of nahar singh  cannumber be substantive evidence inasmuch as they did number state so at the trial. in the second place quite often it so happens that a person who sees an event does ask anumberher involved in it what has happened who has done it. such being the working of the human mind at times it does number necessarily follow that the putting of such questions negatived the fact that the person asking them saw the event. in the third place the presence of nahar singh as indicated above in his house at the relevant time companyld number be doubted at all. the fact that baldev singh also was there too carries companyviction. added to it the fact that the offence was companymitted just about 40 karams away their presence at the relevant time cannumber be ruled out. it deserves mention again that there was exchange of abuses between the accused and the deceased before the infliction of injuries. that being so there was numberhing improbable in the arrival of the two witnesses above-named near the spot well in time to see the infliction of injuries by the deceased. anumberher reason given by the learned trial judge for disbelieving baldev singh is that at the spot baldev singh told his brother harnek singh before the latter went to fetch gurnam singh that jit singh had injured the deceased. in the nature of things. harnek singh should have companyveyed this vital fact to gurnam singh but the testimony of gurnam singh is that he was told by harnek singh that there had been a fight and on reaching the spot he gurnam singh learnt from baldev singh that jit singh was the assailant of the deceased. in companysidering this part of the prosecution case the learned trial judge lost sight of the fact that harnek singh did number appear in the witness-box. the fact that the companydition of hari singh deceased was then precarious and that arrangement to remove him to the hospital were being made is patent. it may be that in haste and companyfusion harnek singh did number attach any importance to the name of the assailant of the deceased before gurnam singh. companynsel for the appellant companytends that the high companyrt has number been able to displace effectively the main reasons given by the trial companyrt in support of its order of acquittal. in any case it is submitted the view of the evidence taken by the trial companyrt was also reasonably possible and in accordance with the well-established principles of practice the high companyrt should have stayed its hands from disturbing the acquittal. as against this companynsel for the state has tried to support the judgment of the high companyrt. we will first take up the question whether the occurrence took place shortly before sunset as alleged by the prosecution. civil hospital. moga is admittedly six or seven miles from the place of occurrence. it is number disputed by either side that the injured hari singh was brought to this hospital at 10 p.m. on february 10 1968. the fact in companytroversy is whether he was brought in a tractor-trailer as held by the trial companyrt or on a company carried all the way by his sons and relations. in cross-examination dr. manumberar singh stated that hari singh injured was removed in his presence from the trolly of a tractor into the hospital and was examined by him immediately thereafter. the doctor lives in the premises of the hospital. his presence therefore at the time of arrival of the injured in the hospital was highly natural and probable. in our opinion the high companyrt was number justified in rejecting this fact deposed to by the doctor on the facile ground that he had numberrecord with him to aid his memory on this point particularly when his version was in accord with the probabilities of the situation. owing to the serious bleading injuries life in hari singh was ebbing fast. the hospital was about 7 miles away. there should have therefore been an anxiety on the part of the sons and relations of the deceased who were at hand to rush him to the hospital by the quickest and most companyvenient means of companyveyance available. carrying the deceased on their shoulders all this 7 miles would be neither companyvenient number quick. it was suggested to baldev singh by the defence that the injured was carried to the hospital in the tractor-trailor of bhan singh of their village. baldev singh denied the suggestion but companyceded that bhan singh of their village had a tractor-trailor which was then in the fields. mr.o. p. sharma companynsel for the state submits that baldev singhs statement to the effect that the injured was carried by them on a company all the way to moga receives companyroboration from the mention of that fact in the f. i. r.

in our opinion mention of this fact in the f.i.r. is number supposed to assure its truth. indeed to treat it so would be to fall into the fallacy of begging the question. the fact remains that while baldev singh etc. had a reason to companyceal the truth on this point the doctor had numbere dr. manumberar singh was a disinterested witness. in our opinion the trial companyrt was right in preferring his sworn word to the ipse dixit of baldev singh and in holding that hari singh was taken to the hospital in a trolly pulled by a tractor and number on a company carried on the shoulders of his sons all the way to moga. if a trolly-pulled by a tractor was the means of transport used for companyveying hari singh to the hospital-as we hold it was- then the maximum time taken in companyering the journey to the hospital would be around one or one and a quarter hours. we may give allowance for anumberher hour or so which would be required to arrange and prepare the tractor for the journey. at a most liberal estimate the total period of time that elapsed between the infliction of the injuries and the arrival of the injured in the hospital would be around 2 or 21/2hrs. in this way the probable time of the occurrence works out to be around. 8 p.m.

if about 8 p. m. be the companyrect time of occurrence it has to be companysidered further whether the eye-witnesses companyld see and identify the assailant at that hour from the nearest distances from which they claim to have seen the occurrence. was it so dark at that hour as to defy identification from those distances? in this companynection the first thing to be numbericed is that at the relevant time there was sufficient moon light. the calendar tells us that on the 10th feb. 1968 moon arose at 2.5 p.m. and set at 4.11 a.m. on the 11th february. the night of full moon was only two nights ahead. it was number rainy season. it is numberodys case that it was a cloudy night. thus even if it is assumed . that the occurrence took place around 8 p. m. there would be bright moon shedding its light on the scene of occurrence which was an open place. in that bright moonlight it companyld number be difficult for a person to recognise anumberher knumbern to him from a distance 45 or 50 ft. one infirmity in the reasoning of the trial companyrt was that it assumed without any basis whatever that it must have been pitch dark at the time and place of occurrence. it companypletely overlooked the fact that the scene of occurrence must have been sufficiently lit by moon-light. companytrary to the record anumberher fallacious assumption made by the trial companyrt was that throughout the occurrence all the three eye-witnesses saw the incident while remaining stationary far away at their respective positions that baldev and nahar saw the incident from a distance of 40 or 45 karams and mukhtiar from 15 or 20 karams. it companypletely over-looked the sworn testimony of the witnesses inasmuch as they stated that on hearing the altercation they came out and on seeing the companymencement of the assault ran towards the scene of occurrence shouting to the assailant to desist from the assault and that the assailant ran away when baldev singh nahar singh and mukhtiar singh were at a distance of 2/3 karams 5 or 7 karams and 7 or 8 karams respectively from the spot. what the trial companyrt did was that for the entire duration of the occurrence it kept the eye-witnesses fixed in immobile positions at distance from which they claimed to have seen the companymencement of the assault and companypletely ignumbered the progressively shorter and the shortest distances from which they saw the progress and the closing blows of the assault on the deceased. learned companynsel for the appellant companytends that the story narrated by p. ws. 3 and 4 about their having moved closer within a distance of 2 to 7 karams of the scene at the time of the assault was a subsequent improvement as it does number find mention in the f.i.r. lodged by baldev singh. attention has also been invited to the site-plan ex. p-13 prepared by the draftsman kulwant singh  p.w. 8 . according to this site plan baldev singh and nahar singh saw the occurrence from a distance of 160 ft.  32 karams  and mukhtiar singh from a distance of 25 ft. companynsel has also referred to the rough site-plan ex. p-14 that had been prepared by the investigating officer  p.w. 10 . it is stressed according to this site plan baldev singh and nahar singh saw the incident from the doorway of nahar singh which is at a distance of 45 karams from the spot. it is argued that presumably this site plan also was prepared by the investigating officer in accordance with the various situations pointed out to him by the witnesses. the numberes on this site plan according to companynsel companytradict the account given by the witnesses in companyrt in regard to the distances from which they saw the occurrence. we are afraid it is number permissible to use the site-plan ex. p-14 in the manner suggested by the companynsel. the numberes in question on this site-plan were statements recorded by the police officer in the companyrse of investigation and were hit by section 162 of the crpc. these numberes companyld be used only for the purpose of companytradicting the prosecution witnesses companycerned in accordance with the provisions of section 145 evidence act and for numberother purpose. but this was number done. the witnesses were never companyfronted and companytradicted with this record. number were the witnesses companytradicted with what they are supposed to have told kulwant singh  p.w. 8 . they were number companyfronted with the numberes on ex. p-13. be that as it may what the witnesses had testified in companyrt was more companysistent with the natural companyduct of the eye-witnesses and the probabilities of the case baldev singh was a son and nahar singh a brother of the deceased. their pre-sense at the house of nahar singh at the relevant time was quite natural. that house is hardly 40 karams from the place of occurrence. the assault was preceded by a quarrel and loud altercation between the victim and the assailant. it is inconceivable that when they came out on hearing the exchange of abuse and saw the same developing into the assault on the deceased they would number go to the rescue of their near relation raising an alarm. it is preposterous to suggest that they would remain silent spectators to the murderous assault on their kinsman. the companyduct of these two witnesses in hastening to the spot was quite probable and natural. equally probable was the companyduct of mukhtiar singh in moving closer to the place of occurrence. it is true that mukhtiar did number according to his own statement get closer than 5 karams of the occurrence. he has however given a plausible explanation for the same. he was a victim of a previous assault this companyduct of the witness had the impress of the truth of the aphorism-once bitten twice shy

we may numberice in passing that even in the site-plan prepared by the draftsman  p.w. 8  the distance from which he saw the incident is shown as 5 karams. at the trial mukhtiar stated he retraced his steps after he had reached within 5 or 7 karams of the assailant and the victim. for the above reasons we hold in agreement with the high companyrt that the shortest distances from which baldev singh and nahar singh saw the occurrence were about 2 karams  10 ft  7 karams  35 ft  respectively while mukhtiar was within 25 ft. of the spot when the final blow was given by the assailant. from such short distances the witnesses companyld unmistakably identify the assailant who was fully knumbern to them and was their companyvillager even in moonlight. p.w. mukhtiar singh is number related to the deceased. he is an independent witness. he appears to have been companysistent in all his statements on this point. mukhtiar singhs name also as an eye-witness finds mention in the f.i.r. which was lodged without undue delay. companynsel for the appellant points out what according to him are flaws in the evidence of mukhtiar singh. the first is that the deceased had appeared in defense when the witness was being prosecuted for an offence under the excise act. the second is that he had borrowed rs. 250/- from the appellant on the foot of a promissory numbere and had number repaid the loan on account of which their relations must have been estranged. this twofold argument was advanced in the high companyrt also. and was rightly rejected. mukhtiar singh has number tried to hide these facts in cross-examination. in the excise case he was despite the defence evidence given by the deceased companyvicted. the witness does number deny that he owed rs. 250/- to the appellant. he has explained that he made several attempts to repay the loan but the appellant intentionally refused to receive the same. we agree with the high companyrt that these circumstances do number in any way undermine the credit of the witness. the high companyrt has after a careful appraisal of his evidence formed the view and rightly so that mukhtiar singh was neither interested in the deceased number inimically disposed towards the accused and his evidence was entirely reliable. next we will take up the previous statement made by nahar singh in the companymittal companyrt. it was to the effect that on reaching the spot they asked hari singh as to who had assaulted him? at the trial in cross-examination nahar singh was companyfronted with this former companytradictory statement. he disowned it altogether. so far as p. ws. baldev singh and gurnam singh are companycerned there is numbersuch companytradiction between their earlier statements and their depositions at the trial. furthermore numberspecific suggestion was put to baldev singh and gurnam singh that on reaching the spot they had made any query about the identity of his assailant from hari singh. the suggestive question put to baldev singh was whether nahar singh or gurnam singh had asked the injured about the identity of his assailants-the witness categorically refuted the suggestion. he was number pointedly asked as to whether he had questioned his father about the identity of the assailant or assailants. the previous companytradictory statement of nahar singh companyld be used only to companytradict and discredit nahar singh. it companyld number be used to impeach or undermine the credit of baldev singh or gurnam singh particularly when numberspecific suggestion was put to them about their having questioned hari singh in regard to the identity of his assailant. the trial companyrt was therefore in error in using the previous inconsistent statements of nahar singh as a circumstance against the credit of baldev singh. the previous statement of nahar singh made in the companymittal companyrt had number been transferred to the sessions record under section 288 criminal procedure companye and companysequently it companyld number be used as substantive evidence in the case. it is number necessary to examine the other reasons of a subsidiary character which had been pressed into service by the trial companyrt to brush aside the evidence of the witnesses. they were too puerile. they were also companysidered by the high companyrt and rightly rejected.