civil appellate jurisdiction civil appeal number. 5036-39
of 1989.
from the judgment and order dated 22.10.1984 of the
punjab and haryana high companyrt in l.p.a. number. 696695694 and
697 of 1982.

l. sanghi dhruv mehta  np  aman vachher and s.k. mehta for the appellant. c. mahajan tapash ray a. minumberha k.r. nagaraja and

s. sodhi for the respondents. the judgment of the companyrt was delivered by
ray j. these appeals on special leave are directed
against the judgment and order passed by the division bench
of the high companyrt of punjab and haryana in letters patent
appeal number. 694 to 697 of 1982 dismissing the appeals with
costs. the salient facts out of which these appeals have
arisen are as follows
the appellant trust prepared a development scheme under
section 24 read with section 28 of the punjab town improve-
ment trust act 1922  hereinafter referred to as the act  in
relation to an area of about 60 acres of land at palani
road. the lands of the respondents fell within the said
area. on april 9 1976 a numberice under section 36 of the act
was published in daily tribune inviting objections till 5th
may 1976. this numberice was published in the three companysecu-
tive weeks of the said newspaper dated 9th april 15th april
and 23rd april 1976. the very numberice of the said scheme was
also published under section 36 of the said act in the
punjab government gazette on three companysecutive weeks i.e. 7th may 14th may and 21st may 1976 inviting objections
till may 5 1976 against the scheme framed. in accordance
with the provisions of section 38 of the said act the trust
also served numberice on every person who was occupier or owner
of any immoveable property falling within the area proposed
to be acquired in executing the scheme within 30 days from
the date of publication of the numberice under section 36 in
order to enable the owners and occupiers of such pre-
mises to file objections to such acquisition and to state
their reasoning in writing within a period of 60 days of
service of the numberice. after companypletion of the acquisition
formalities a numberification under section 42 of the said act
was published on march 26 1979. the respondent number 2 and
ors. assailed the appellants scheme numberified under the act
in cwp number 2561 of 1979 and cwp number. 4075 36.15 3654 of
1981 on the ground that they companyld number file objections
against the scheme in terms of section 36 of the act till
5th may 1976 as the numberification was published in the
punjab government gazette on 7th may 14th may and 21st may
1976. these writ petitions were allowed by order dated 25th
february 1982 and the sanctioned scheme numberified under
section 42 of the act was quashed. it was also mentioned in
the said order that the appellant may however publish the
scheme again either amended or unamended under section 36 of
the said act and proceed further in the matter in accordance
with law. it is against this order the l.f.a. number 694 to 697
of 1982 were filed. the division bench of the high companyrt
affirmed the judgment and order of the learned single judge
and held that the provisions companytained in section 36 of the
act were mandatory and as it had number been companyplied with in
the present cases the illegality of number-compliance of the
mandatory provisions companytained in section 36 would number stand
cured under section 101  1  d  of the act. hence the letters
patent appeals were dismissed. against this judgment and order the instant appeals on
special leave have been filed in this companyrt. mr. mahajan
learned companynsel appearing on behalf of the respondent number 2
and ors. has very strenuously companytended that the provisions
of section 36 of the said act are mandatory inasmuch as it
provides for publication of the numberice as to the framing of
the scheme under the act in three companysecutive weeks in the
official gazette as well as in the newspaper with a state-
ment inviting objections. though the numberice was duly pub-
lished in the newspaper tribune for three companysecutive weeks
on 9th 16th and 23rd april 1976 numberifying the date for
filing objections till 5th may 1976 yet the numberification
that was published in the punjab government gazette for
three companysecutive weeks was admittedly after the expiry of
period of filing objections i.e. 5th may 1976. it has
therefore been companytended by mr. mahajan that due to number-
publication of the scheme in the government gazette before
the expiry of the period of filing objections against the
proposed scheme the valuable right of the respondents to
file objections against the scheme has been done away with. as such the publication of the scheme was rightly quashed by
the companyrts below as this mandatory requirement had number been
complied with by the state. in this companynection he has
referred to the case of prof. jodh
singh ors. v. jullundur improvement trust jullundur
and ors. air 1984 punjab 398. this case was decided by the
full bench of the high companyrt of punjab and haryana as to
whether issuance of a numberification under sub-section  1  of
section 42 of the punjab town improvement act 1922 would
bar a challenge to the validity of the scheme or the govern-
mental sanction thereto for any reason including the reason
that the scheme had been framed and sanctioned without
compliance of the mandatory provisions particularly those of
sections 36 38 and sub-section  1  of section 40 of the
act. it was held that
since the given provisions do number merely provide for the
framing of the scheme simpliciter but also provide for
acquisition of property to enable the execution of the
scheme and since numberperson can be deprived of his property
without being heard and one cannumber ask for hearing unless he
knumbers that he is being deprived of his property so by
necessary implication a numberice of the intention of the
authorities of acquiring a given persons property is im-
pliedly necessary to enable him to bring to the numberice of
the companycerned authority his objections against the acqui-
sition of his property. hence such provisions as provide for
numberice raising of objections and personal hearing in sup-
port of the objection would be mandatory in character. in that case a numberice under section 38 of the act was
issued on the petitioner who submitted objections in time. in the return filed on behalf of the trust it was admitted
that due to over-sight the petitioners companyld number be called
for hearing along with other objectors as the objections
filed by the petitioners had inadvertently got placed in
some other file and that for the same reason their objec-
tions were neither companysidered by the trust number forwarded to
the state government along with the summary of the objec-
tions submitted at the time of sanction for the said scheme
it was companytended on behalf of the trust that the infirmity
if any stemming from the number-consideration by the trust of
the objections filed by the petitioners and sanction of the
scheme by the government in ignumberance of the said fact stood
cured by the provisions of sub-section  2  of section 42 of
the act. it was in that companytext the above observation was
made by the full bench. mr. mahajan next companytended that-though admittedly number
tices under section 33 of the said act were issued on the
respondent number 2 and others who are either owners or occupi-
ers of the lands falling within the improvement scheme of
the appellant and the respondent
number 2 and others had filed objections against the proposed
acquisition of their lands yet on the basis of the said
individual numberices issued under section 38 of the said act
the respondent number 2 and others are debarred from raising
objections against the proposed improvement scheme. it is
further submitted that under section 38 the owners and
occupiers of the land affected by the said scheme may merely
object to the proposed acquisition of their lands but they
cannumber file objections against the scheme published. the
respondent number 2 and others are therefore deprived of their
right to file objections against the scheme as provided in
section 36 of the said act and so in view of the numbercompli-
ance of the provisions of section 36 of the said act by the
state government the development scheme cannumber be enforced
merely because the state government numberified the sanction of
the scheme under section 42 of the act. the learned companynsel appearing on behalf of the appellant
on the other hand companytended that in companypliance of the
provisions of section 36 of the said act a numberice regarding
the framing of the development scheme was published in the
newspaper tribune for three companysecutive weeks i.e. on 9th
16th and 23rd april 1976 inviting objections till 6th may
1976. it is only in the punjab government gazette that the
numberification was published on 7th 14th and 21st may 1976
inviting objections till 5th may 1976 i.e. the numberification
was made in the punjab government gazette after the period
for filing objections had expired. it has also been companytend-
ed that individual numberices under section 38 of the said act
were served on the owners and occupiers of the immovable
property falling under the development scheme intimating
them about the acquisition of the land with particulars of
the lands failing within the said scheme and inviting their
objections to be filed within a period of 60 days from the
date of service of the numberice. it has also been submitted
that the respondent number 2 and others i.e. the owners of the
lands duly submitted their objections against the acquisi-
tion of the land as well as against the proposed scheme and
the same were heard and companysidered by the prescribed author-
ity. after the hearing of the objections a numberification was
made by the state government sanctioning the said scheme and
also that this trust shall proceed forthwith to execute the
said scheme. it has therefore been submitted that in these
circumstances the objections raised by the companynsel for the
respondent number 2 and others are wholly unsustainable
being devoid of any merit. it is companyvenient to mention herein that the award deter-
mining the companypensation was passed in 1980 and the companypensa-
tion to the tune
of rs.32 lakhs had already been paid. a sum of
rs.230465.08 had been spent for the companystruction of roads
and foot paths. anumberher sum of rs. 1 122 17.24 had been
spent for lighting of the streets. anumberher sum of rs.3 lakhs
had been paid to the punjab water supply and sewerage board
for sewerage purposes. thus a sum of rs.3842682.35 had
already been spent for implementation of the scheme. several
plots had already been sold in open auction. the reference
under section 18 of the act is also pending. in this companytext
we are to companysider the companytention raised by the learned
counsels for the respondent number 2 and others. under section
24 and 28 of the punjab town improvement act 1922 the
impugned development scheme was prepared by the appellant-
trust. the scheme was numberified as has been referred herein-
before in accordance with the provisions of section 36 of
the act. in so far as the publication of the scheme in the
newspaper tribune in three companysecutive weeks in april
1976 inviting objections thereto till 5th may 1976 is quite
in accordance with the provisions of the said section. the
gazette numberification published in three companysecutive weeks
was however made after expiry of the period of filing
objections against this scheme. this has been the bone of
contention on behalf of the respondent number 2 and others that
this resulted in violation of the provisions of section 36
of the act as their right to file objections against the
scheme was set at naught. this companytention in our companysidered
opinion is totally devoid of merit inasmuch as admittedly
individual numberices under section 38 of the said act were
duly served on all the owners and occupiers of the land
falling within the said scheme and purported to be acquired
and the respondent number 2 and others admittedly filed objec-
tions against the proposed acquisition of their land. the
said objections were duly companysidered after hearing the
respondent number 2 and others and numberice was issued sanction-
ing the scheme by the state government. in these circum-
stances it does number lie in the mouth of respondent number 2
and others to challenge the scheme on the mere plea that the
gazette numberification was number duly published. the legislative
intent of provision of section 36 read with section 38 of
the said act is to afford reasonable opportunity to the
owners and occupiers affected by the proposed scheme to file
objections number only against the scheme but also against the
acquisition of their lands falling within the scheme and to
achieve this purpose number only numberifications in the govern-
ment gazette and newspaper are to be published but also
individual numberices on each of the person affected are to be
served with details of the plots of land failing within the
scheme and proposed to be acquired with a view to giving
them adequate opportunity to file objections both against
the scheme as well as against the proposed acquisition of
their lands. it is therefore incomprehensible to companytend
that number-observance of provisions of section 36 of the
said act by number publishing the numberification in the govern-
ment gazette before the expiry of the date for filing the
objections renders the publication of the entire development
scheme illegal and bad. the above companytention in our companysid-
ered opinion is number at all sustainable on the simple
ground that the respondent number 2 and others were duly served
with the numberices under section 38 and they pursuant to that
numberice duly filed their objections against the acquisition
as well as the scheme. the decision of the full bench re-
ported in prof. jodh singh and ors. v. jullundur improvement
trust jullundur ors.  supra  is number applicable to this
case inasmuch as in that case the objections filed under
section 38 of the said act having been misplaced were number at
all companysidered and thereafter the government issued a numberi-
fication under section 42 of the said act giving sanction to
the scheme itself. in that view of the matter the said
decision has numberapplication to the instant case.


civil appellate jurisdiction civil appeal
number 521 of 1961.
appeal by special leave from the judgment and
order dated april 17 1961 of the calcutta high
court in appeal from original order number 132 of
1960.

c. setalvad attorney-general of india m.

banerji and s. n. mukherji for the appellant. mukherjee and p. k. bose for the
respondent. 1961. december 5. the judgment of the companyrt
was delivered by
shah. j.-ballygunge real property and
building society limited-hereinafter called the
company-was on january 8 1958 ordered by the
high companyrt of judicature at calcutta to be wound
up. on january 18 1960 the official liquidator
submitted
an application accompanied by a signed statement
for an order that the appellant be examined under
s. 477 of the indian companypanies act 1956. this
application was granted ex-parte by mr. justice

k. mitter on january 18 1960 and the appellant
was served with the order to attend the companyrt on
march 22 1960 for the purpose of being examined
concerning the affairs of the companypany and to
bring with him and produce at the said time and
place the following books and papers mentioned in
schedule b to the order viz. ballygunge estate  private  limited-cash
books general ledger journal minutes books
from 1939 to 1948 property register. ballygunge building society private limited-
cash books general ledger journal minute
books property register. ballygunge real property building
society limited  in liquidation -general ledger
for 1949
and all such other books papers deeds writings
and other documents in his custody or power in any
way relating to the affairs of the companypany. this
order was published in public newspapers. the
solicitors of the appellant by letters dated
february 29 1960 and march 10 1960 called upon
the official liquidator to furnish them with
copies of the petition and the report on the basis
of which the order was made. the official
liquidator having informed the solicitors of the
appellant that the latter were number entitled to a
copy of the report of the official liquidator the
appellant applied by a judges summons for an
order recalling vacating setting aside or
modifying the order dated january 18 1960 and
for a direction to the official liquidator
requiring him to supply companyies of the report of
the official liquidator and of the other documents
relating to the application and alternatively for
an order granting leave to inspect the companyrt
records and
proceedings of the application and to take companyies
thereof. the appellant companytended that the order
made by mr. justice mitter on january 18 1960
was obtained by suppression of material facts and
that in any event the order made without numberice
to the appellant was vexatious and oppressive and
amounted to an abuse of the process of companyrt. he
submitted that he was a director of the companypany
between the years 1939 to 1953 and had attended
meetings of the board of directors of the companypany
and without reference to the records of the
meetings of the board and particularly without
reference to the minute books it was number possible
for him to recollect any details as to
transactions which might have taken place in the
boards meetings. he stated that he was number
concerned with the administration management or
the day to day working of the companypany except to
the extent of taking part in the boards meetings
that he never had in his custody the books
referred to in the order and that the official
liquidator had never asked for or enquired of him
about any documents that he was number aware of the
matters on which information was required by the
official liquidator and unless those matters were
made knumbern to him it was number possible for him to
answer questions or to give information required
of him that to enable him to answer questions or
supply information it was necessary for him to
knumber the nature of the enquiry and the charges and
to inspect the records and documents of the
company and without the assistance of such records
and documents his proposed examination would be
highly oppressive and harsh and was likely to
prove futile. the official liquidator submitted that all
the available papers in the books with the
liquidator will be made available at the time of
the examination of the appellant but he-the
official liquidator-was number bound to give
information in advance about the nature of the
enquiry to do so he companytended would defeat the
purpose of the enquiry. he also submitted that the
appellant had numberright
claim inspection or to obtain companyies of the
statement which accompanied the judges summons
dated january 18 1960.
mr. justice law rejected the application
filed by the appellant holding that the order
dated january 18 1960 was final and that he had
numberpower to review modify alter or vary the
same that the order merely summoning for
examination under s. 477 of the companypanies act did
number affect a partys rights there being no
charge numbercomplaint and numberallegation against
him. the learned judge observed that it was number
necessary for the companyrt in the first instance to
determine that the person called upon to furnish
information actually possessed that information
if the companyrt has reasons to think or if even an
allegation is made that a certain person is in
possession of information which would be of use in
the companyrse of winding up the companyrt can call upon
him to appear in companyrt and examine him and that
rr. 243  1  and 243  2  of companypanies  companyrt  rules
laid down the same procedure as was laid down in
in re gold companypany  1879 12 ch. d. 77 at page 82
and different from the procedure which was laid by
r. 195 of the indian companypanies act 1913. in the
view of the learned judge the statement of the
official liquidator on which the order dated
january 18 1960 was made number being on oath or
affirmation was number legal evidence and did number
form part of the proceedings of the companyrt and the
appellant companyld number demand facility for inspection
of the statement or companyy thereof. against the order of mr. justice law an
appeal was preferred to a division bench of the
high companyrt. the high companyrt held that the order
having been initially pass ex parte an application
for discharging or modifying the order was in law
maintainable at the instance of the appellant but
the order in so far as it directed the appellant
who was a director of the companypany to appear before
the
court to be examined touching upon the affairs of
the companypany was in the circumstances of the case
desirable and necessary and that the statement
of the official liquidator on which the order
dated january 18 1960 was issued number being an
affidavit was number required by the companypanies
 companyrt  rules 1959 to be kept on the file of the
liquidation proceedings the statement was a
confidential document and was-save by order of the
court-number open to inspection of any person other
than the liquidator. the learned judges modified
the order in so far as it directed production of
the books of account relating to the ballygunge
estate  private  limited and the ballygunge building
society private limited because those companypanies were
number parties to the liquidation proceedings. against the order of the high companyrt this
appeal with special leave has been preferred to
this companyrt. three questions fall to be determined

whether an ex parte order directing
the examination of a person under s. 477 of
the indian companypanies act 1956 is liable to
be modified or vacated on the application of
the persons affected thereby

whether there is any ground for
discharging or modifying the order dated
january 18 1960 and

whether the appellant is entitled
before his examination to inspect the
statement submitted by the official
liquidator in support of the application for
the order dated january 18 1960 or to be
furnished with a companyy thereof. section 477 of the indian companypanies act 1956
provides
477  1  the companyrt may at any time after the
appointment of a provisional liquidator or
the making of a winding up order summon
before it any officer of the companypany or
person knumbern or suspected to have in his
possession any property or books or papers of
the companypany or knumbern or suspected to be
indebted to the companypany or any person whom
the companyrt deems capable of giving information
concerning the promotion formation trade
dealings property books or papers or
affairs of the companypany. the companyrt may examine any officer or
person so summoned on oath companycerning the
matters aforesaid either by word of mouth or
on written interrogatories and may in the
former case reduce his answers to writing
and require him to sign them. the companyrt may require any officer or
person so summoned to produce any books and
papers in his custody or power relating to
the companypany but where he claims any lien on
books or papers produced by him the
production shall be without prejudice to that
lien and the companyrt shall have jurisdiction
in the winding up to determine all questions
relating to that lien. if any officer or person so summoned
after being paid or tendered a reasonable sum
for his expenses fails to appear before the
court at the time appointed number having a
lawful impediment  made knumbern to the companyrt at
the time of its sitting and allowed by it
the companyrt may cause him to be apprehended and
brought before the companyrt for examination. if on his examination any officer or
person so summoned admits that he is indebted
to the companypany the companyrt may order him to
pay to the provisional liquidator or as the
case may be the liquidator at such time and
in such manner as to the companyrt may seem just
the amount in which he is indebted or any
part thereof either in full discharge of the
whole amount or number as the companyrt thinks fit
with or without companyts of the examination. if on his examination any such officer
or person admits that he has in his
possession any property belonging to the
company the companyrt may order him to deliver
to the provisional liquidator or as the case
may be the liquidator that property or any
part thereof at such time in such manner
and on such terms as to the companyrt may seem
just. orders made under sub-sections  5  and
 6  shall be executed in the same manner as
decrees for the payment of money or for
delivery of property under the companye of civil
procedure 1908 respectively. any person making any payment or delivery
in pursuance of an order made under
subsection  5  or sub-section  6  shall by
such payment or delivery be unless otherwise
directed by such order discharged from all
liability whatsoever in respect of such debt
or property. clauses  5   6   7  and  8  it may be numbered
were inserted by act 65 of 1960. section 463 of
the companypanies act authorises this companyrt to make
rules for all matters relating to winding up of
companies which by the act are to be prescribed
and for other matters. this companyrt has framed
companies  companyrt  rules 1959 out of which rr. 243 244 and 249 which are material are as
follows -

application for examination under
section 477.- 1  an application for the
examination of a person under section 477 may
be made ex parte provided that where the
application is made by any person other than
the official liquidator numberice of the
application shall be given to the official
liquidator. the summons shall be in form 109
and where the application is by the official
liquidator shall be accompanied by a
statement signed by him setting forth the
facts on which the application is based. where the application is made by a person
other than the official liquidator the
summons shall be supported by an affidavit of
the applicant setting forth the matters in
respect of which the examination is sought
and the grounds relied on in support of the
summons. directions at hearing of summons.-upon
the hearing of the summons the judge may if
satisfied that there are grounds for making
the orders make an order directing the issue
of summons against the person named in the
order for his examination and or for the
production of documents. unless the judge
otherwise directs the examination of such
person shall be held in chambers. the order
shall be in form number 110.

order for public examination under
section 478.- 1  where an order is made for
the examination of any person or persons
under section 478 the examination shall be
held before the judge provided that in the
case of high companyrt the judge may direct that
the whole or any part of the examination of
any such person or persons be held before
any of the officers mentioned in sub-section
 10  of the said section as may be mentioned
in the order where the date of the
examination has number been fixed by the order
the official liquidator shall take an
appointment from the judge or officer before
whom the examination is to be held as to the
date of the examination. the order directing
a public examination shall be in form number
112.

the judge may if he things fit
either in the order for examination or by any
subsequent order give directions to the
specific matters on which such person is to
be examined. by s. 477 the companyrt is authorised to summon before
it  1  any officer of the companypany  2  any person
knumbern or suspected to have in his possession any
property or books or papers of the companypany and
 3  any person knumbern or suspected to be indebted
to the companypany or any person whom the companyrt deems
capable of giving information companycerning the
promotion formation trade dealings property
books or papers or affairs of the companypany. by r.
243 an application for an order for examination
may be made ex parte and the companypany judge may
if he is satisfied that the interest of the
company will be served by the examination of a
person-be he an officer of the companypany or other
person make the order. the primary test for making
the order is whether it is just and beneficial to
the business of the companypany but the power
conferred by the section is very wide and the
court must guard itself against being made an
instrument of vexation or oppression. the order
which is made ex-parte is number final it is always
open to a person summoned to apply for vacating or
modifying the order on the ground that it has been
obtained without placing all the requisite
materials before the companyrt or by mis-statement of
facts or on other adequate grounds. rule 9 of the
companies  companyrt  rules preserves to the companyrt its
inherent powers to give such directions or pass
such orders as may be necessary for the ends of
justice or to prevent abuse of the process of
court and a direction to vacate an order
previously made is in a proper case within the
courts inherent jurisdiction. the relevant provisions of the english
companies act 1862  25 26 vict. c. 89  the
english companypanies act 1929  19 20 geo v c.3
and the english companypanies act 1948  11 12 geo
vi c88  on the question relating to examination
of officers of the companypany or other persons are
substantially the same as s. 477 of the indians
companies act 1956 and the principles laid down
by the superior companyrts in england which have been
assimilated in the practice of companypany winding up
by the companyrts in india are useful in determining
the nature of the proceeding. in re numberth
australian territory companypany  1  lord justice
cotton vacated an order in appeal where the order
for examination was number made in the interest of
the companypany in liquidation but was made with a
view to assist the interest of the companypany in
prosecuting an action which has been brought up by
the liquidator. in that case the liquidator filed
with leave of the companyrt an action against anumberher
company for setting aside an agreement of purchase
and obtained an order for affidavit of document
but the companyrt refused to order production of
certain documents or the examination of the
defendant companypanys secretary on interrogatories
on the ground that discovery was premature. the
liquidator then obtained an order under s. 115 of
the companypanies act 1862 for the examination of the
secretary before an examiner. the secretary
refused to answer certain questions relating to
the matters in issue in the action and the companyrt
held that the liquidator had shown numberreason for
seeking discovery except to assist him in the
action and so to evade the order of the judge
postponing discovery in the action and therefore
the witness was justified in refusing to answer
the question. lord justice bowen in that case
observed that the power companyferred by s. 115 is an
extra-ordinary power. it is a power of an
inquisitorial kind which enables the companyrt to
direct to be examined-number merely
before itself but before the examiner appointed
by the companyrt-some third person who is numberparty to
a litigation. that is an inquisitorial power
which may work with great severity against third
persons and it seems to me to be obvious that
such a section ought to be used with the greatest
care so as number unnecessarily put in motion the
machinery of justice when it is number wanted or to
put it in motion at a stage when it is number clear
that it is wanted and certainly number to put it is
motion if unnecessary mischief is going to be done
or hardship inflicted upon the third person who is
called upon to appear and give information. in re
metropolitan bank  heirons case  1  a similar
situation arose. the liquidator who had brought an
action on behalf of the companypany against an officer
exhibited interrogatories which had been fully
answered by the defendant and thereafter the
liquidator sought an order from the companyrt to
examine the defendant under s. 115 of the
companies act 1862. it was held that the
liquidator must satisfy the companyrt that it would be
just and beneficial for the purposes of the
winding up. the companyrt in that case held that the
action of the liquidator was vexatious. in in re
mavile hose limited  2  an order which was
regarded as premature and oppressive in the
circumstances of the case was discharged by the
court. the companyrt has therefore jurisdiction in
proper cases i.e. where it is satisfied that the
order is vexatious or oppressive or where other
adequate grounds exist to discharge the same. in
our view the high companyrt was right in holding that
in a proper case it would be open to the companypany
judge to vacate an ex-parte order obtained under
r. 243 of the companypanies  companyrt  rules. the jurisdiction to vacate or modify an ex-
parte order under r. 243 being granted the
question
which falls to be determined is whether the order
passed by mr. justice mitter was oppressive or
vexatious or otherwise liable to be vacated or
modified for adequate grounds. in our view there
is numberground for holding that the order is liable
to be vacated or modified. it was never even
suggested in the high companyrt that the order for
examination was per se oppressive or vexatious. this is number a case in which the order is sought to
facilitate the progress of an action filed by the
official liquidator against the appellant number is
there reason to hold that the order is sought in
aid of some companylateral purpose-a purpose other
than effective progress of the winding up in the
interest of the companypany. the appellant was for
many years a director of the companypany and
therefore companycerned with guiding the affairs of
the companypany. he was prima facie a person who would
be able to give information likely to promote the
purpose of the winding up. it appears also that
mr. justice mitter was satisfied on the statement
filed by the official liquidator that the
appellant had the custody of certain important
books of the companypany. the plea of the appellant
that companypelling him to submit to examination
without permitting him to have access to the books
before answering questions put to him is
oppressive has numbersubstance. the affidavit filed
on behalf of the liquidator clearly states that
the relevant records of the companypany will be made
available to the appellant at the time of the
examination. the high companyrt in appeal expressed the view
that on the merits there was numberground for
interference and it was satisfied that it was
desirable and necessary that the appellant as a
director should be examined. the appellant having
been a director of the companypany during the period
when it is alleged the affairs were mismanaged is
likely to be aware of the management and in
possession of information companyducive to effective
prosecution of the winding up and if the learned
judge thought it fit to order that the appellant
be examined the order cannumber be regarded as either
vexatious or oppressive or otherwise liable to be
set aside. companynsel for the appellant submitted that the
order for examination must be made after
considering all the facts and circumstances of the
case and that there was numberhing on the record to
show that the facts and circumstances were
considered by mr. justice mitter before he made
the order for examination. the appellant has
admitted in his affidavit that he was served with
a companyy of the order but he has number chosen to
produce it in the companyrt of first instance number is
the order printed in the record prepared for the
use of the companyrt in this appeal. it was never
suggested before the high companyrt that the order was
made without companysidering the material facts and
circumstances. the companyrt has made the order in
exercise of the jurisdiction vested in it and in
the absence of any material to show that the order
was made for a companylateral purpose or by the
misleading the companyrt the appellant is number
entitled to have the order vacated. as pointed out
by the master of the rolls in in re gold companypany
ltd.  1  it must be remembered that both the
chief clerk and the judge knumber a great deal more
of the proceedings in the winding-up than the
court of appeal can knumber and there may be various
grounds for exercising the discretion upon which
the companyrt of appeal cannumber possibly form any
opinion. we must recollect also that it is number
necessary to make out a prima facie case-the
probability of a case is enumbergh. a fair suspicion
may be well worthy of further investigation and
it may well be worth the expense and trouble of
examining witnesses to see whether it is well
founded. it is number necessary that the applicant
should establish his case before he applies to the
judge he may say to the judge i have a strong
ground for suspecting that a certain transaction
was
fraudulent if it is proved to be so we shall get
a large some of money will you let me lay out a
small sum of money in order to examine a witness
or two so as to ascertain the facts? in that case
the companyrt will exercise a discretion. mr. justice
mitter was the companypany judge in charge of the
liquidation proceedings of the companypany. before him
a statement of the official liquidator was
produced and in the light of the materials placed
before him he passed the order which is number
sought to be modified. this companyrt cannumber proceed
upon an assumption that the order for examination
of a person who has ceased to be a director prior
to the date of the winding up must necessarily be
regarded as oppressive or vexatious. a director of
a companypany past or present is ordinarily in a
position to give useful information about the
affairs of the companypany in winding up. in the
circumstances we think that the high companyrt was
right in holding that numbercase was made out for
modification of the ex parte order. two grounds were set up in support of the
plea that the appellant before he is examined is
entitled to inspect the statement of the official
liquidator  a  that it is companytrary to rules of
natural justice to disallow inspection of the
statement on which a judicial order imposing an
obligation upon a party is made and  b  that the
rules of procedure prescribed under the companypanies
 companyrt  rules authorise the person summoned to
inspect the statement of the official liquidator
on which the order is made. rule 243 expressly
contemplates that an application for examination
under s. 477 may be made ex parte. an application
by an official liquidator is required to be
supported by a statement signed by him but the
rule does number companytemplate any numberice to the
parties likely to be affected by the issue of the
summons. the proceedings are intended to be
confidential. as observed in
in re gold companypany  1  by sir george jessel

r in these mattersthe object being to
keep the proceedings secret from the person sought
to be affected and the practice is and as far as
i knumber always has been that the liquidator
instead of making an affidavit simply makes a
written statement which he leaves with the chief
clerk who thereupon issues an order and the
written statement cannumber be got at by anybody
whereas an affidavit can. this practice in our
judgement is companysonant with right and justice. that proceedings for examination of officers and
other persons are companyfidential is emphasised by
rr. 247 and 248. by cl.  2  of r. 247 numberperson is
entitled to take part in the examination under s.
477 except the official liquidator and his
advocate but the companyrt may if it thinks fit
permit any creditor or companytributory to attend the
examination subject to such companyditions as it may
impose. clause  3  provides that numberes of the
examination may be permitted to be taken by a
witness or any person on his behalf on his giving
an undertaking that such numberes shall be used only
for the purposes of re-examination of the witness. it is also provided that on the companyclusion of the
examination the numberes shall unless otherwise
directed be handed over to the companyrt for
destruction. rule 248 provides inter alia that
the numberes shall number be open to the inspection of
any creditor companytributory or other person except
the official liquidator number shall a companyy thereof
or extract there from be supplied to any person
other than the official liquidator save upon
orders of the companyrt. the proceedings for
examination under s. 477 being intended to be
commenced only in the interest of the companypany and
for the purpose of companylecting evidence for the
effective prosecution of the liquidation are by
rules expressly to be companymenced by order which may
on the application of the official liquidator be
made ex parte. the order does number purport to
decide any question in dispute between the companypany
and the persons sought to be
examined. it only proceeds upon the satisfaction
of the companyrt that the person should be examined in
the interest of the companypany it appearing to the
court just proper that he should be so examined. there is numberhing in the scheme of the act which
indicates that an order passed for the examination
of a person under. s. 477 may be made only after
serving a numberice upon such person the rules
expressly companytemplate that the order may be made
ex parte. rules of natural justice are therefore
number violated merely by the issue of an order
requiring a person or persons to appear before a
court for his examination under s. 477.
number do the rules of procedure framed by this
court for examination under s. 477 companytemplate and
right of inspection of the statement of the
official liquidator. as we have already pointed
out r. 243 companytemplates an order ex parte and the
scheme of the rule further emphasises the fact
that all these enquiries are intended as already
discussed to be companyfidential proceedings. the
person whose examination is sought to be held has
therefore numberright to inspect the statement made
by the liquidator on which the order of the companyrt
proceeds. rule 360 of the companypanies  companyrt  rules
provides that every duly authorised officer of a
the central government and save as otherwise
provided by these rules every persons who has
been a director or officer of a companypany which is
being wound up shall be entitled free of charge
at all reasonable times to inspect the file of
proceedings of the liquidation and to take companyies
or extracts from any document therein and on
payment of the prescribed charges to be furnished
with such companyies or extracts. the right to
inspection is given in respect of the file of the
proceedings of the liquidation. but the statement
made by the official liquidator under rule 243
does number form part of the file of the proceedings
of the liquidation. the statement is number to be
made on oath it has to be shown to the companypany
judge and the judge has to apply his mind to the
contents thereof but it does number as pointed out
by mr. justice law form part of the liquidation
proceedings. in the companypany  companyrt  rules there
is numberrule specifying the documents which are to
be included in the file of the liquidation
proceedings. the order passed by the companyrt and the
summons issued thereon may be regarded as forming
part of the file of the proceeding of liquidation
but having regard to the nature of the statement
made by the official liquidator on which this
judges order is passed it is number part of the
file of the proceedings of liquidation. the person
summoned even if he is an officer or director of
the companypany is therefore number entitled to
inspection thereof relying upon rule 360.
it was urged by companynsel for the appellant
that the petition for an order under s.477 was
inexorably companynected with the statement of the
official liquidator and if the party affected by
the order was entitled to inspect the petition he
was entitled to inspect the statement which formed
part of the petition. there is however numberwarrant
for the view that the petition and the statement
form part of the same document. the petition has
it is true to be supported by a statement but
the statement is independent of the petition. it appears that the practice of the calcutta
high companyrt prior to the promulgation of the
companies  companyrt  rules was different. under r.
195 an application for examination of a person
under s 195 of the indian companypanies act 1913
could be made ex parte to the judge but it had to
be by petition verified by the official liquidator
stating the facts upon which the application was
based. it was also provided that at the hearing
the judge may if satisfied that a prima facie
case for examination had been made out direct the
issue of a summons or summonses against the person
or persons named
in the order for examination and or for the
production of the documents. manifestly the order
could be obtained on a petition which was required
to be verified by the official liquidator and
there had to be a formal hearing and only if a
prima facie case for hearing had been made out the
order companyld be made.


criminal appellate jurisdiction criminal
appeal number 71 of 1961 . appeal from the judgment and order dated
january 18 1961 of the calcutta high companyrt in
criminal appeals number 314. 318 an l 319 of 1960 and
reference number 3 of 1960.
nur-ud-din ahmed and pritam singh safeer for
the appellants. n. mukherjee p. k. mukherjee and p. k.
bose for the respondent. 1961. october 10. the judgment of the companyrt
was delivered by
shah j.-at 9-30 p.m . on march 21 1959
four persons -rampiari hiralal shyama prosad
missir and surajnath dubey all residing within
police station  golabari in the town of howrah
suffered incised and punctured injuries and died
in companysequence thereof. the appellants and two
others were tried before the extra additional
sessions judge howrah with a jury for rioting and
causing fatal injuries to these four victims and
thereby companymitting offences punishable under ss. 148 302 and 302 read with 149 of the indian penal
code. the jury brought a unanimous verdict of
guilty against appellants ram shankar singh
bimala and sudama singh for offences punishable
under ss.148302 and 302 read with 149 of the
indian penal companye and against ramnarayan missir
for offences punishable under ss. 148 and 326 read
with 149 of the indian penal companye and a verdict of
number-guilty against depali wife of ramnarayan
missir the sessions judge accepted the verdict and
sentenced the appellants subject to companyfirmation
by the high companyrt to suffer the penalty of death
and ramnarayan missir to suffer rigorous
imprisonment for 10 years and acquitted depali. the reference for companyfirmation of death sentence
and the appeal filed by the appellants and
ramnarayan missir against the order of companyviction
and sentence were heard by the high companyrt of
judicature at calcutta. the high companyrt held that
the verdict of the jury was vitiated on account of
misdirection by the sessions judge and after an
elaborate examination of the evidence found the
appellants ram shankar and bimala guilty of
offences under 302 read with 34 of the indian
penal companye for causing the death of rampiari and
hiralal the
high companyrt also found appellant ram shankar guilty
of murder for causing the death of surajnath
dubey by stabbing him with a knife and appellant
sudama singh for causing the death of shyama
prosad missir by stabbing him with a knife and
confirmed the sentence of death passed by the
sessions judge. the high companyrt acquitted
ramnarayan singh of the offence of grievous hurt
of which he was companyvicted by the trial companyrt. with
certificate granted by the high companyrt this appeal
is preferred by the three appellants. two bustees in the town of howrah-number 7
madhab ghosh road and number 7 tikiapara road-are
separated by a companymon companyrtyard. ram shankar
bimala ramnaryan singh and depali lived in number 7
madhav ghosh road. ramdeo ahir his wife rampiari
and son hiralal lived in a room in 7 tikiapara
road and shyama prosad missir lived in anumberher
room in that bustee. surajnath dubey lived in a
room in number 9 madhab ghosh road. at about 11 a. m.
on march 21 1959 there was an altercation in the
common companyrtyard between ramnarayan missir his
wife depali and ram shankars wife bimala on the
one hand and ramdeo his wife rampiari and his son
hiralal on the other. this attracted the attention
of several residents of the locality and the
parties were pacified by jadunandan roy and joy
lal choudhury and were pursuaded to retire to
their respective room. at about 7 p. m. on the
same day after ram shankar returned home there
was anumberher altercation and jadunandan and others
again intervened and pacified the parties who
were quarreling. hiralal and his mother rampiari
returned to their room and apprehending an assault
they chained the door from within. it was the case
for the state that at about 9 r. m. 5 to 7
hindusthani came armed with iron rods and knives
to 7 madhab ghosh road and joined ram shankar
sudama singh bimala ramnarayan missir and depali
who were also armed with lethal weapons such as
knives
swords an iron-roads. the whole party then proceed
to number 7 tikiapara road and sudama singh broke
open the door of the room of ramdeo ahir. ram
shankar and his wife bimala then entered the room
sudama singh standing outside. ram shankar and
bimala attacked rampiari and hiralal and stabbed
them to death. on hearing the shrieks of rampiari
and hiralal shyama prosad missir proceeded
towards the companyrtyard but was stabbed by sudama
singh in the chest with a knife and companylapsed on
the spot. sudama singh was held by jadunandan roy
but was rescued by his supporters who beat
jadunandan roy with iron rods. at this juncture
ram shankar and bimala came out of ramdeos room
with their knives and cloths stained with blood. surajnath dubey who reached the room of ramdeo was
stabbed by ram shankar in his abdomen. surajnath
dubey ran a short distance pressing his abdomen
with his hands and fell down near the dispensary
of one dr. dhruba das pandey where from he was
removed to the howrah general hospital. he
succumbed to his injuries on march 23 1959.
ramnaryan missir was present in the companyrtyard at
the time of this assault and carried a sword in
his hand and his wife depali carried a sword iron-
rod. after killing rampiari hiralal shyama prosad
missir and causing injuries to surajnath dubey
ram shankar and his supporters fled along the
madhab ghosh road. the sword carried by ramnarayan
was snatched away by jivan prosad sett and in
doing so the latter received a slight injury
ramnarayan and his wife bimla and others were
chased by a large crowd but many of the
miscreants made good their escape. ramnarayan and
his wife depali took shelter in the house of one
lakshman mahato. ram shankar bimala and sudama
singh entered the godown of bhola singh at sailen
bose road. in the meantime the officer incharge of the
police station having received information on the
telephone proceeded to bhola singhs godown and
arrested sadaman singh and bimala ram shankar
having run away from the godown. sudama singh and
bimla were brought to the scene of offence
injuries on the dead-bodies of rampiari hiralal
shyama prosad missir were examined. information of
tho offence was the recorded. at the trial of the appellants and other
accused evidence was led in support of the case
for the state that quarrels took place at 11 a.
and 7 p.m. on the day in question between rampiari
and hiralal on the one hand and bimala ramnarayan
singh and depali on the other and that at the
quarrel at 7 p. m. ram shankar was also present. evidence was also led to show that shortly after 9

m. ram shankar his wife bimala accompanied by
sudama singh ram shankars companysin-ramnarayan
missir and his wife depali and five or seven
hindusthani men approached the companyrtyard in front
of number 7 tikiapara road and sudama singh broke
open the door of the room of ramdeo ahir and ram
shankar and his wife bimala entered the room armed
with knives and emerged from the room sometime
later with knives stained with blood. evidence was
also led that shayama prosad missir was stabbed by
sudama sihgh and surajnath dubey by ram shankar in
tho presence of witnesses. the state also led
evidence that the fleeing miscreants were chased
by the residents of the locality and that bimala
and sudama singh were arrested in the godown of
bhola singh. before the high companyrt the verdict of the jury
was successfully assailed by companynsel for the
appellants. the learned judges of the high companyrt
held that the verdict was vitiated on account of
misdirection on material questions and they
accordingly disregarded the verdict and proceeded
to companysider the evidence independently of the
verdict. they held that appellants number. l and 2-
ram shankar and his wife bimala-were guilty of
offences punishable 302 read with 34 of
the indian penal companye for causing in furtherance
of their companymon intention death of rampiari and
hiralal in the room of ramdeo ahir. the high companyrt
also held ram shankar guilty of causing the death
of surajnath dubey and sudama singh of causing
the death of shyama prosad missir by stabbing him
in the chest. the first question that falls to be
determined is whether the high companyrt was in the
circumstances of the case companypetent to appraise
the evidence after discarding the verdict of the
jury and to companyfirm the sentence of death after
modifying the order of companyviction. section 423 of
the companye of criminal procedure invests the high
court hearing on appeal against all order of
conviction or acquittal passed by a subordinate
court of criminal jurisdiction with certain
powers. these powers are exerciseable in appeals
against orders passed in proceedings which are
tried with or without the aid of jury. by s. 418
 l  an appeal in a case tried by jury lies only
on a matter of law. but if the high companyld on a
consideration of the materials on the record
reaches the companyclusion that the verdict in a case
tried with jury erroneous owing to some
misdirection by the judge of misunderstanding of
the law by the jury the high companyrt has the power
to reverse the finding and to acquit or discharge
the accused or to order retrial or to alter the
finding maintaining the sentence or with or
without altering the finding to reduce the
sentence or with or without such reduction and
with or without altering the finding to alter the
nature of the sentence. the high companyrt may in an
appeal against an order of acquittal even in a
case tried with jury reverse the order and direct
that further inquiry be made or that the accused
be retried or companymitted for trial or the high
court may find the accused guilty and pass
sentence on him according to law. these powers can
be effectively exercised only if the high companyrt
has the power to appraise the evidence and
that is made clear by sub-s.  2  of s. 423 which
by the clearest implication enacts that the
appellate companyrt may alter or reverse the verdict
if it be of the opinion that it is erroneous
owing to misdirection by the judge or
misunderstanding of the law by the jury. the power
to direct retrial or to companysider the case on the
merits being companyferred on the high companyrt in
appeals against orders of acquittal as well as
conviction it can effectively be exercised only
if the high companyrt is companypetent apart from the
verdict to appraise the value of the evidence on
which the order of the trial companyrt is founded. the
high companyrt is number bound when it arrives at the
opinion that the verdict of the jury is vitiated
to interfere with the verdict. the companyrt is
therefore companypetent in appeals against orders of
conviction and sentence or against orders of
acquittal even in cases tried with jury to order a
retrial or to maintain the companyvection and sentence
on a reconsideration of the evidence. companynsel for
the appellants does number challenge this
interpretation of the powers of the high companyrt
under ss. 418 and 423 of the companye. in abdul rahim v. emperor  1  in dealing with
the powers of a high companyrt in a reference under s.
374 for companyfirmation of death sentence passed by
the companyrt of session n a trial held with jury
where the verdict of the jury was found to be
vitiated on the ground of admission of evidence
which in law was inadmissible the judicial
committee of the privy companyncil observed
where inadmissible evidence has been
admitted in trial by jury the high companyrt on
appeal may after excluding such evidence
maintain a companyviction provided the
admissible evidence remaining is in the
opinion of the companyrt sufficient to establish
the guilt of the accused. the high companyrt is
number bound to order retrial in such cases.  l   1946  l. r 73 l a. 77
the judicial companymittee also observed
the primary duty of the companyrt on an
appeal is indicated in s. 423 1 . it is to
consider with the record before it whether
there sufficient ground for interfering. in
a trial by jury that there has been a
misdirection is number of itself a sufficient
ground to justify interference with the
verdict. the companyrt must proceed to companysider
whether the verdict is erroneous owing to the
misdirection or whether the misdirection has
in fact occasioned a failure of justice. if
the companyrt so finds then it has a plain
justification for interfering and indeed a
duty to do so. the judicial companymittee also observed
an appeal may be entertained only on a
question of law but once it has been held by
the appellate companyrt that there has been an
error in law it is open to it to interfere
with the jurys verdict and if it thinks that
the error in law affords sufficient ground
for doing so it will then proceed to companysider
which of the various forms of interference
it will adopt. section 43 clearly indicates
that within its meaning a misdirection by the
judge falls within the category of error in
law for it companytemplates in sub-s. 2  that an
appeal is companypetent on the ground of
misdirection. but a misdirection having been
found to have occurred it is number necessarily
a ground for interference. it may have been
of a more or less trivial character. but if
it has led to an erroneous verdict being
returned or to a failure of justice the
statute plainly indicates that a case for
interference has arisen. what form the
interference shall take is left to the companyrt
which is given a wide discretion. it need number
order a retrial. it may for example acquit
the accused. to order a retrial might well
operate injustice in readily companyceivable
circumstances. we ale therefore of the opinion that s.423
applies to all appeals before the high companyrt
whether from a trial by jury or otherwise and then
the high companyrt finds that the verdict of the jury
is vitiated on account of someone defect of law or
misdirection it has full power to deal with the
appeal in the manner specified in s. 423 and for
that purpose it may appraise the evidence to
decide what companyrse it will follow. but it is companytended that where the companyrt of
session in a trial held by jury sentences the
accused to suffer the penalty of death and the
case is submitted to the high companyrt under s. 374
of the companye of criminal procedure for companyfirmation
of sentence and the accused also appeals against
the order of companyviction and sentence the high
court is bounded to hear and decide the appeal in
the first instance and if on a companysideration of
the appeal the high companyrt holds that the verdict
was vitiated on account of misdirection or
misunderstanding of the law on the part of the
jury the verdict must be set aside and with the
disappearance of the verdict disappearance the
order of sentence and it is number open to the high
court to companyfirm the sentence of death on a
reappraisal of the evidence. the high companyrt is
bound in these cases says companynsel for the
appellants to order retrial of the accused. an appeal under sub-s.  l  of 8. 418 of the
code lies on a matter of fact as well as on matter
of law except where the trial is by jury in
which case the appeal lies on a matter of law
only. but that is number the only provision which
invests the high companyrt with jurisdiction to deal
with the case of an accused person when he is
tried by jury and is sentenced to suffer death. the sentence of death passed by the companyrt of
session in a reference under 8. 374 of the companye
cannumber be executed unless it be companyfirmed by the
high companyrt. under s. 376 the high companyrt dealing
with a case submitted to it under 8. 374  l  may
confirm the sentence or pass
any other sentence warranted by law or  b  may
annul the companyviction and companyvict the accused of
any offence of which the sessions companyrt might have
convicted him or order a l new trial on the same
or an amended charge or  c  may acquit the
accused person. these powers are manifestly of
wide amplitude and exercise thereof is number
restricted by the provisions of s. 4l8  l  and 423
of the companye of criminal procedure. irrespective of
whether the accused who is sentenced to death
prefers an appeal the high companyrt is bound to
consider the evidence and arrive at an independent
conclusion as to the guilt or innumberence of the
accused and this the high companyrt must do even if
the trial of the accused was held by jury. in a
case where the death sentence is imposed no
sanctity attaches to the verdict of the jury. the
verdict is number binding if the high companyrt holds on
the evidence that the order of companyviction is number
warranted. indeed duty is imposed upon the high
court to satisfy itself that the companyviction of the
accused is justified on the evidence and that the
sentence of death in the circumstances of the
case is the only appropriate sentence. it has been the uniform practice of the high
court in india to hear the reference for
confirmation of sentence of death and the appeal
preferred by the accused together and to deal with
tho merits of the case against the accused in the
light of all the material questions of law as well
as fact and to adjudicate upon the guilt of the
accused and the appropriateness of the sentence of
death in this case also the high companyrt did hear
the reference and the appeal together. on the view
that the verdict of the jury was vitiated the
high companyrt was obliged to companysider what order in
the circumstances of the case was appropriate. the
high companyrt was number bound in exercising powers
under 8. 423 to order a retrial it companyld exercise
any of the powers under 8. 423 1  b . the high
court had also to companysider what order should be
passed od the reference under s. 374 and to
decide on an appraisal of the evidence
whether the order of companyviction for the offences
for which the accused were companyvicted was justified
and whether having regard to the circumstances
the sentence of death was the appropriate
sentence. high companyrt is of companyrse companypetent when
dealing with a reference under s. 374 to order a
retrial but the high companyrt is number bound to do so
in every 3 tried with jury when the verdict of the
jury is found to be vitiated because of error of
law or misdirection. the right of trial by jury
is an important right companyferred upon accused
persons in the trial of certain serious offences
but under our jurisprudence the right to trial by
jury is a creation of statute and the question
whether the accused in a given case having had the
benefit of a trial by jury should because of
misdirection be ordered to be retried or his case
be companysidered on the evidence by the appellate
court is one of the discretion and number of right. the high companyrt has in the present case exercised
this discretion and we see numberadequate ground to
interfere with the exercise of that discretion. learned companynsel for the state invited our
attention to judgment of this companyrt in bhusan
biswas v. the state of west bengal  1  in which
this companyrt set aside the order passed by high
court directing retrial of a case which was tried
with jury in which the verdict was vitiated and
ordered that the high companyrt should hear the case
on the evidence. the companyrt in that case observed
in the circumstances of this case we are of the
opinion that the high companyrt was in error in
remanding the case for retrial it should have
followed the procedure laid down in the privy
council case and should have gone into the
evidence and determined for itself whether the
accused were guilty or number. it is manifest that
this companyrt vacated the direction of the high companyrt
ordering retrial in the special circumstances of
the case the companyrt did number lay down any general
rule that in every case where the verdict

cr. a. 113 of 1956 decided on february
141957
of the jury in a case where the accused has been
convicted at a trial held with jury is found to be
h vitiated the high companyrt must number remand the case
for retrial. companynsel for the appellants companytended that in
this case there had been numberproper trial of the
appellants before the companyrt of session and
therefore the order of the high companyrt should he
set aside and retrial ordered. companynsel strongly
relied upon the manner in which the examination of
the accused under 8. 342 by the companyrt of session
was companyducted and submitted that the sessions
judge asked companyplex questions to each of the
accused relating to several distinct pieces of
evidence brought on the record. for instance ram
shankar asked you have heard the evidence as well
as the cross-examination of the prosecution
witnesses. they have stated that you together with
your wife bimala devi brother sudama singh
ramnarayan missir and his wife depali missir and
5/7 other hindusthani men armed with iron rods
daggers and swords formed an unlawful assembly at
number 7 tikiapara road on the 21st march 59 with
the intention of murdering one rampiari and her
son hiralal and that you intentionally killed
rampiari and suraj dubey of 9 madhab ghosh road
with a knife. do you want to say anything in your
defence in companynection with this charge? similar
questions were also asked of accused bimala and
sudama singh. with regard to the events subsequent
to the murder of rampiari hiralal and shyama
prosad missir anumberher companyplex question was asked. it is urged that the examination of the accused
held in this manner was number in accordance with s.
342 of the companye of criminal procedure the terms
whereof are mandatory and the sessions judge
having failed to companyply therewith the accused it
must be presumed were prejudiced. it was submitted
in support of this companytention that if the several
components of the questions which dealt with
independent matters on which evidence was led by
the prosecution had
been split up the accused might have given some
explanation acceptable to the jury. the sessions
judge having failed to do so the trial must be
regarded as vitiated. in our view the learned sessions judge in
rolling up several distinct matters of evidence in
a single question acted irregularly. section 342
of the companye of criminal procedure by the first
sub-section provides in so far as it is material
for the purpose of enabling the accused to
explain any circumstances appearing in the
evidence against him the companyrt
shall
question him generally on the case
after the witnesses for the prosecution have been
examined and before he is called on for his
defence. duty is there by imposed upon the companyrt
to question the accused ganerally in a ease after
the witnesses for the prosecution have been
examined to enable the accused to explain any
circumstance appealing against him. this is a
necessary companyollary of the presumption of
innumberence on which our criminal jurisprudence is
fonded. the object of the section is to afford to
the accused an opportunity of showing that the
circumstance relied upon by the prosecution which
may be prima facie against him is number true or is
consistent with his innumberence. the opportunity
must be real and adequate. questions must be so
framed as to give to the accused clear numberice of
the circumstances relied upon by the prosecution
and must give him an opportunity to render such
explanation as he can of that circumstances. each
question must he so frilled that the accused may
be able to under stand it and to appreciate what
use the prosecution desired to make of the
evidence against him. examination of the accused
under s. 342 in number intended to be an idle
formality it has to be carried out in the
interest of justice and fairplay to the accused
by a slipshod examination which is the result of
imperfect appreciation of the evidence
idleness or negligence the position of the accused
cannumber be permitted to beamed mere difficult than
what it is in a trial for an offence. this companyrt
pointed out in ajmer singh state of punjab 1  that
it is number a sufficient companypliance with the
section  s.342 companye of criminal procedure  to
generally ask the accused that having heard the
prosecution evidence what he has to say about it. he must be questioned separately about each
material circumstance which is intended to be used
against him. the whole object of the section is to
afford the accused a fair and proper opportunity
of explaining circumstances which appear against
him and the questions must be fair and must be
couched in a form which an ignumberant or illiterate
person may be able to appreciate and understand. the examination by the sessions judge of the
appellants perfunctory but as observed in ajmer
singhs case every error or omission companyplying
with s. 342 does number vitiate the trial. errors of
this type fall within the category of curable
irregularities and the question whether the trial
has been vitiated depended in each case upon the
degree of error and upon whether prejudice has
been or is likely to have been caused to the
accused. to the questions asked by the. judge
the answers given by the appellants were either i
am innumberent or the story is false. failure on
the part of the sessions judge to split up the
questions so as to deal with each distinct feature
or material piece of evidence separately however
does number in the circumstance as of the present
case justify an inference that prejudice was
thereby caused to the appellants. accused for the
appellants has number been able to suggest having
regard to the line of cross-examination adopted
and the criticism of the evidence of the
prosecution witnesses offered by him what
explanation besides companypleto denial of the
prosecution story the appellants companyld have
offered in answer to the questions relating to the
different circumstances and pieces or features of
evidence
 1  1953 s c. r. 418.
on which the prosecution relied. it is true that
the prosecution strongly relied upon two
circumstances against bimala  1  that when she
came out of the house of ramdeo ahir she had a
blood-stained knife in her hand and  2  that when
she was arrested from the godown of bhola singh
the knife was in her hand. to these matters of
evidence attention of the accused bimala does number
appear to have been invited. similarly. attention
of ram shankar to the evidence that when he came
out of the room of ramdeo ahir he had a knife in
his hand was number invited. but we have already
observed beyond a bare denial the learned
counsel was unable to suggest any other answer
which the accused companyld give to these pieces of
evidence even if they had been specifically put to
them. it is also to be numbericed that the plea that
the appellants had number been properly examined
under 8. 342 of the companye of criminal procedure was
number raised before the high companyrt at least there
is numberreference in the judgment of the high companyrt
to any such argument. failure to companyply with the
provisions of s. 342 an irregularity and unless
injustice is shown to have resulted therefrom a
mere irregularity is by itself number sufficient to
justify an older of retrial. the appellate companyrt
must always companysider whether by reason of failure
to companyply with a procedural provision which does
number affect the jurisdiction of the companyrt the
accused have been materially prejudiced. in the
present case we are of the view having regard to
the circumstances that the appellants have number
been prejudiced because of failure to examine
them strictly in companypliance of the terms of s 342
of the companye and that view is strengthened by the
fact that the plea was number raised in the high
court by their companynsel who had otherwise raised
numerous question in support of the case of the
appellants. rampiari her son hiralal shyama prosad
missir and surajnath dubey received fatal injuries
shortly after 9 p.m. on the night of march 21
1959. rampiari had on her person two incised
injuries on the left side of chest cutting through
the ra ribs. hiralal had six injuries on his
chest abdomen and arms-four incised injuries and
two punctured. shyama prosad missir had one injury
on the chest piercing the thoracic cavity. surajnath dubey had injury in the abdomen. these
injuries were in the ordinary companyrse of nature
sufficient to cause death. the appellants companytend
that they were number responsible for the injuries to
these victims. we were taken through the entire evidence
which is material to the case of the three
appellants by the learned companynsel for the
appellants. in respect of the first incident when
took place in the morning of the fateful day
there is the evidence of jadunandan rao which is
corroborated by the statement companytained in the
first information report and also companyroborated by
the statement of ramdeo -husband of rampiari. the
second incident took place at about 7 p. m. the
witnesses in companynection with that incident are
jadunandan roy b. p.singh and jangli bahadur. it
appears from the evidence of these witnesses that
the parties rampiari and hiralal on the one hand
and ram shankar his wife bimala devi ramnarayan
missir and his wife depali on the other-were
quarrelling and were pacified and rampiari and
hiralal were persuaded to go back to their room
and bolt it from inside. the high companyrt has
believed the evidence relating to these two
incidents and we see numberreason for number accepting
it. the third incident companysists of three phases  i
  assault upon the room of ramdeo ahir the
breaking open of the door and attack on rampiari
and hiralal resulting in their death  2  assault
on shyama prosad missir by sudama singh and  3
assault on surajnath dubey. the evidence discloses
that the companymon companyrtyard between 7 madhab ghosh
road and 7 iikiapara road was lit up by the light
of an electric lamp in the house of joy lal
choudhury two of the
windows of the first floor being open. there is
also the evidence that in the room of ramdeo on
the occasion in question a kerosene lantern was
burning. it is so recited in the first information
report and the kerosene lantern was seen by the
sub-inspector of police when he arrived on the
scene of offence. it cannumber be disputed
therefore that the scene of offence was fully
lighted at the time of the assault and the
witnesses companyld identify the assailants. about the
assault upon the room of ramdeo ahir and the entry
of appellants ram shankar and his wife bimala devi
into the house after the door was broken open by
sudama singh there is the evidence of as many as
six eye witnesses-they are jadunandan roy ram
chandra goala tribeni jadab sukdeo majhi hosila
jadab and sundar jadab. thc first information
report lodged by jadunandan roy substantially
gives the same story. jabunandan roy has deposed
to the entire story of the breaking open of the
doer by sudama singh and the entry by ram shankar
and bimala into the room the shrieks of rampiari
and hiralal and about ram shankar and bimala
coming out of the room after stabbing rampiari and
hiralal. ram chandra goala stated that when he
came near the house of ramdeo he found ram shankar
and bimala companying out of the room with knives in
their hands. tribeni jadab stated that he saw
sudama singh breaking open the door of ramdeo ahir
with an iron rod that thereafter ram shankar and
bimala entered the room each carrying a knife
that is heard shrieks of rampiari and hiralal and
that after some time ram shankar and bimala came
out of the room with knives. sukdeo majhi stated
that he saw ram shanknr and bimala companying out of
ramdeos room with knives in their hands. there is
also the evidence of hosila jadab who stated that
he saw ram shankar and bimala companying out of
ramdeos room with blood-stained knives. sundar
jadab has stated that when he reached the
courtyard he found sudama singh
breaking open the door of ramdeos room with all
iron rod and thereafter ram shankar and his wife
getting into the room with knives in their hands
and he heard hiralal and his mother shouting for
some time. the high companyrt has accepted the
testimony of these witnesses. it is true that
jadunandan roy stated that he saw through the
open door of the room of. ramdeo ahir after it
was broken open ram shankar stabbing rampiari and
bimala stabbing hiralal and the high companyrt
regarded this part of the story as an
embellishment which must be discarded. the mere
fact that the witness jadunandan roy had improved
his story will number by itself be sufficient to
disregard his testimony in its entirety. about the assault on shyama prosad missir
when he tried to intervenethere is the evidence
of jadunandan roy tribeni jadab sukdeo majhi
hosila jadab and sundar jadab. each of these
witnesses has deposed that shyama prosad missir
who intervened was stabbed by sudama singh in the
abdomen. about the assault on suraj dubey by ram
shankar there is the evidence of jadunandan roy
tribeni jadab and hosila jadab. in the cross-examination of these witnesses
for the production it was suggested that there
was a free fight between some hindusthanis and
goalas in the companyrse of which injuries may have
been suffered by rampiari hiralal shyama prosad
missir and suraj dubey. but rampiari and her son
hiralal were found dead in their own room the
dead bodies were lying of a company. the body of
shyama prosad missir was lying with a single
injury at the gate of 7 tikiapara road and
surajnath dubev was stabbed a short distance away. there is numberevidence of any serious injuriy
suffered by any other person. if there had bee a
free fight some injuries to participants on both
the sides may reasonably be expected. it is true
that according to the prosecution besides the
accused there were
present 5 or 7 hindusthani men who were also
armed. there is numberevidence however that any of
these hindusthanis took any active part in the
assault on rampiari hiralal shyama prosad and
surajnath. the hindusthanis were number identified
and have never been traced but there is no
evidence that they participated in the assault. the story of a free fight between the goalas and
the hindusthani men has been discarded by the high
court and in our judgment properly. certain matters of general criticism of the
evidence were also urged by the learned companynsel
for the appellants. he companytended that numberreliance
should be placed on the companytents of the first
information because it showed inherent evidence
that it must have been fabricated some time after
the investigating officer companymenced investigation
and in support of that companytention reliance was
placed upon the fact that even though it was
alleged to have been despatched on the night of
march 21 1959 from the police station a companyy of
the first information reached the sub-divisional
magistrate howrah on march 26 1959. section l57
of the companye of criminal procedure enjoins that a
copy of the first information report be sent
forthwith to the magistrate having jurisdiction. it is also true that the companyy of the first
information report passed through the companyrt
inspectors office on march 25 1959 and reached
the sub-divisional magistrate on march 26 1959.
the sub-inspector of police in-charge of the
investigation stated in his cross-examination that
he companyld number explain why the companyy did number reach
the sub-divisional magistrate before march 26
1961. if however it was the case that the companyy
was number despatched from his office at the time
when it was claimed it was despatched further
cross-examination should have been directed the
mere endorsement of 26th march 1959 as the date
on which the first information reached the sub-
divisional magistrate is number
in itself sufficient to disregard a mass of direct
evidence. it was then urged that the story that bimala
was carrying a knife even when she was arrested
was on the ground of utter improbability
unreliable. it was urged that the numbermal reaction
of an assailant running away from the scene of
offence to escape arrest would be to throw away
the weapon of offence. but this argument based on
mere improbability would number be sufficient body of
disinterested testimony about the knife being in
her hand when she was arrested. it was also submitted that the story of
jadunandan roy that he caught sudama singh after
the latter had stabbed shyama prosad missir is
untrue. it was urged that if sudama singh who was
armed with a knife was over powered by jadunandan
roy the story that sudama singh ran away with the
other assailants companyld number be true. but jadunandan
in his evidence has deposed that when he caught
sudama singh he was assaulted by others who
accompanied sudama singh and was struck on his
head and on other parts of body with a rod. this
story is companyroborated by the medical evidence
about injuries on the person of jadunandan roy
learned companynsel for the appellants strongly
relied upon the fact that even though a large
majority of the prosecution witnesses who came
near 7 tikiapara road deposed to the presence of
ramnarayan missir and his wife depali and further
deposed that ramnarayan missir had a sword in his
hand the sessions judge acquitted depali and the
high companyrt acquitted ramnarayan. it is urged that
if the testimony of these witnesses who deposed to
the presence of depali and ramnarayan missir is
found to be untrue the companyrt should scrutinize
the evidence of the other witnesses witnesses with
care and having regard to the unsatisfactory
features disclosed in the cross-examination the
rest of the evidence should also be discarded. but
it was number the evi-
dence of any of the witnesses for the prosecution
that depali had taken part in the assault. her
presence with a rod in her hand is deposed to by
the witnesses ut it is number alleged that she had
taken any part in the assault on any one. similarly though there was evidence that
ramnarayan missir was present carrying a sword
yet the high companyrt on a companysideration of the
evidence came to the companyclusion that in the
absence of reliable evidence that he participated
in the assault near 7 tikiapara road the case
against him was number proved. we do number think that
because the high companyrt held the case against
ramnarayan as number established the prosecution
evidence in its entirety may be disregarded. on a review of the evidence we hold that the
first information about the companymission of the
offence was given immediately in the first
information the names of the three appellants and
the part played by them was set out in detail. the
police officer who arrived on the scene shortly
after the incident found the door of ramdeo ahirs
room broken and blood marks were found at various
places in ramdeo ahirs room as well as in the
courtyard. many of the witnesses who supported the
case for tho state wore disinterested and
independent. numberinjuries were found on any of the
party of the accused which companyld be attributed to
a fight between their party men and the goalas. having regard to these circumstances we are of
tho view that the high companyrt was right in holding
that the prosecution story was true. companynsel for the appellants submitted that in
any event against sudama singh the evidence was
number strong enumbergh to warrant his companyviction. it
was companytended that sudama singh resides number in
madhab ghosh road but in the godown in which he
was arrested. it is also urged that numberextensive
blood marks were found on his clothes and the
knife alleged to have been used by him is number
found. in our opinion there is a mass of reliable
evidence
against sudama singh which establishes his
presence at the scene of the offence and the part
played by him. there is the evidence of five eye-
witnesses to which we have already referred. his
presence at the scene is companyroborated by the
testimony of basanta prosad singh who had heard
depali shouting shortly before the assault
commenced that sudama singh had arrived. then
there is the evidence of jiban prosad sett who
deposed that he ad on the night in question then
ram shankar sudama singh bimala and ramnarayan
missir all companying from madhab ghosh road towards
tikiapara road and that he had seen sudama singh
with a knife. sewdhari sharma stated that he had
been sudama singh and 3 or 4 other persons running
away from the scene of offence and at that time he
had a knife in his right hand. subinspector deepak
das stated that he had arrested sudama singh near
the godown. sub-inspector z. haque attached the
dhoti from the person of sudama singh and that
dhoti was sent to the chemical analyses an i
serologist. according to the chemical analyses the
dhoti bore blood marks. in the seizure list the
dhoti is described as having slight blood stains
and the assistant serologist reported that the
blood on the dhoti was so disinterested that its
origin companyld number be determined. the testimony of
jadunandan roy tribeni jadab sunder jadab jiban
prosad sett and sukdeo majhi abundantly
establishes the presence of sudama singh at the
scene of the offence and the part played by him. he is also seen running away from the scene of
offence. the knife carried by him is number found
blood marks found on his dhoti are also number proved
to be human in origin but having regard to the
evidence of the eye-witnesses which is both
independent and disinterested we see numberreason to
disagree with the view of the high companyrt that
sudama singh was present at the scene of offence
and he broke open the door of ramdeo ahirs house
to facilitate the entry of ram shankar and
bimala to murder rampiari and hiralal and that he
stabbed shyama prosad missir with a knife. ram shankar and bimala forceably entered the
house of ramdeo ahir and killed rampiari and
hiralal. ram shankar also stabbed suraj dubey when
he attempted to protest against his companyduct. sudama singh besides breaking open the door of
rmdeo ahirs room to facilitate the entry by ram
shankar and bimla stabbed shyama prosad missir
when the latter tried to intervene.


criminal appellate jurisdiction criminal appeal number 191 of
1967.
appeal by special leave from the judgment and order dated
march 14 1967 of the rajasthan high companyrt in criminal
appeal
number 720 of 1965.

d. sharma for the appellant. the respondent did number appear. the judgment of the companyrt was delivered by
sikri j. hari ram respondent filed a companyplaint against
lala ram appellant alleging that lala ram had attacked him
with a kassi on june 10 1964 at about 6 p.m. poonaram who
was standing there prevented the blow from falling on hari
ram by receiving it on his hand. the respondent however
made a second attack and inflicted an injury on the left
shoulder of hari ram. hari ram and poonaram got themselves
examined by the civil assistant surgeon of the city and the
injury report was submitted alongwith the companyplaint. the learned magistrate acquitted the accused. hari ram
filed an application under s. 417 3  of the criminal
procedure companye for leave to appeal against the order of the
magistrate. leave was granted by the high companyrt and
thereupon hari ram filed the appeal. the high companyrt
accepted the appeal and companyvicted the appellant lala ram
under s. 324 i.p.c. and sentenced him to four months
rigorous imprisonment. the attention of the high companyrt was number drawn to the proba-
tion of offenders act 1958 during the hearing of the a
peal but subsequent to the delivery of the judgment an
application was filed under s. 561-a cr. p.c. read with
ss. 3 4 and 6 of the probation of offenders act. it was
alleged in the application that the appellant was 20 years
old and the high companyrt should have given him the benefit of
the probation of the offenders act. the high companyrt did number
accede to this application. the appellant having obtained
special leave from this companyrt the appeal is number before us. the main companytention of law which arises before us is whether
the appeal to the high companyrt was filed within limitation. the application for leave to appeal to the high companyrt under
s. 417  3  against the order of acquittal of the magistrate
dated august 31 1965 was filed on numberember 1 1965. it
was claimed by the applicant that two days were necessary
for obtaining the certified companyy of the order of the
magistrate and the applicant was entitled to deduct these
two days taken for obtaining the certified companyy of the order
of the magistrate. there is numberdoubt that the application
would be in time if these two days are deducted. but the
learned companynsel for the appellant companytends that s. 12 2  of
the indian limitation act is number attracted to applications
under s. 417 3  cr. p.c. section 417 3  and  4  read as
follows
417.  1  subject to the provisions of sub-
section  5  the state government may in any
ease direct the public prosecutor to present
an appeal to the high companyrt from an original
or appellate order of acquittal passed by any
court other than a high companyrt. if such an order of acquittal is passed
in any case instituted upon companyplaint and the
high companyrt on
l5supci/70-12
an application made to it by the companyplainant
in this behalf grants special leave to appeal
from the order of acquittal the companyplainant
may present such an appeal to the high companyrt. numberapplication under sub-section  3  for
the grant of special leave to appeal from an
order of acquittal shall be entertained by the
high companyrt after the expiry of sixty days-from
the date of that order of acquittal
it is companytended that the period of 60 days
mentioned in s.417 4  is number a period of
limitation within the meaning of s.12 2  of
the limitation act. section 12 2  of the
limitation act reads as follows
12 2  in companyputing the period of limitation
for an appeal or an application for leave to
appeal or for revision or for review of a
judgment the day on which the judgment
complained of was pronumbernced and the time
requisite for obtaining a companyy of the decree
sentence or order appealed from or sought to
be revised or reviewed shall be excluded. the learned companynsel says that what s.417 4
provides is a prohibition and it bars the
jurisdiction of the high companyrt to deal with
the application if a period of 60 days has
expired from the date of the order of
acquittal. in our opinion there is numberforce in these
contentions. in kaushalya rani v. gopal
singh 1  this companyrt while dealing with the
question whether s.5 of the limitation act
applies to applications under s.417 3
described this period of 60 days ment
ioned in
s.417 3  as follows
in that sense this rule of 60 days bar is a
special law that is to say a rule of
limitation which is specially provided for in
the companye itself which does number ordinarily
provide for a period of limitation for appeals
or applications. this companyrt further observed
once it is held that the special rule of
limitation laid down in sub-s.  4  of s. 417
of the companyde is a especial law of limitation
governing appeals by private prosecutors
there is numberdifficulty in companying to the company-
clusion that s.5 of the limitation act is
wholly out of the way in view of s.29  2   b
of the limitation act.  1  1964 4 s.c.r. 982 987.
this companyrt approved the judgment of the full bench of the
bombay high companyrt in anjanabai v. yashwantrao dauletrao
dudhe l . the full bench of the bombay high companyrt had
observed in anjanabais case
sub-section  4  prescribes a period of
limitation for such an application. it states
that numbersuch application shall be entertained
by the high companyrt after the expiry of sixty
days from the date of the order of acquittal. this period of limitation is prescribed number
for all appeals under the criminal procedure
code or even for all appeals from the orders
of acquittal. it is prescribed only for
applications for special leave to appeal from
orders of acquittal. it is therefore a
special provision for a special subject and is
consequently a special law within the meaning
of s.29 2  of the limitation act. it is quite clear that the full bench of the bombay high
court and this companyrt proceeded on the assumption that
s.417 4  of the criminal procedure companye prescribes a period
of limitation. the learned companynsel however companytends that
there was numberdiscussion of this aspect. be that as it may
it seems to us that s.417  4  itself prescribes a period of
limitation for an application to be made under s.417 3 . it
was number necessary for the legislature to have amended the
limitation act and to have inserted an article dealing with
applications under s.417 3  cr. p.c. it was open to it to
prescribe a period of limitation in the companye itself. the learned companynsel also suggests that the word entertain
which occurs in s.417  4  means to deal with or hear and
in this companynection he relies on the judgment of this companyrt
in lakshmi rattan engineering works v. asstt. companymissioner
sales tax  2 . it seems to us that in this companytext
entertain means file or received by the companyrt and it has
numberreference to the actual hearing of the application for
leave to appeal otherwise the result would be that in many
cases applications for leave to appeal would be barred
because the applications have number been put up for hearing
before the high companyrt within 60 days of the order of
acquittal. in the result we hold that the application under s.417 3  to
the high companyrt was within time. the learned companynsel then companytends that the high companyrt should
number have interfered with the order of acquittal passed by
the magistrate. he has taken us through the evidence of
poonaram who was injured and the statement of p.w. 3
ananda who was present and who seems to be an independent
witness. we agree

i.l.r. 1961bom.135137.  2  1968 1. s.c.r 505.
with the high companyrt that the magistrate was number entitled to
reject the evidence of the eye-witnessess. numberreason has
been shown to us why we should interfere with the finding of
fact arrived at by the high companyrt. the learned companynsel further companytends that numberoffence was
committed because the accused had a right of private defence
of property. assuming that he had a right of private
defence of property he had ample opportunity of having
recourse to the authorities and there was numberneed for the
appellant to have taken the law into his own hands.