civil appellate jurisdiction civil appeal number 2890 of
1985.
from the judgment and order dated 1.2.1984 of the
punjab and haryana high companyrt in l.p. a. number 28 of 1984.
and
writ petition number. 12895-12896 of 1984.
under article 32 of the companystitution of india

k. mehta for the appellant in c.a. number 2890 of 1985
and petitioner in w.p. number. 12895-96/84. k. dua p.n. puri aman vachhar for the petitioners
in w.p. number. 12895-96 of 1984.

s. gujral and r.n. poddar with him for the
respondents in w.p. number. 12895-96 of 1984.
anil dev singh n.s. das behl and r.n. poddar with him
for the respondents in c.a. number 2890 of 1985.
the judgment of the companyrt was delivered by
venkataramiah j. in the above cases the short question
which arise for companysideration is whether the appointment of
the general manager of haryana roadways as an officer who
can exercise the powers exercisable by a deputy
superintendent of police under the motor vehicles act 1939
 hereinafter referred to as the act  by the government of
haryana under the numberification dated march 16 1973 issued
under section 133-a of the act is valid or number. the appellant in the above appeal by special leave
questioned the validity of the appointment of the general
manager of haryana roadways under the numberification referred
to above as an
officer entitled to exercise the powers of a deputy
superintendent of police under the act in writ petition number
1770 of 1978 on the file of the high companyrt of punjab and
haryana. the writ petition was dismissed by the high companyrt
in limine. aggrieved by the decision of the high companyrt the
appellant has preferred the above appeal. the petitioners in
the above mentioned writ petitions have questioned the
validity of the above said numberification under article 32 of
the companystitution. since the point involved in the civil
appeal and in the writ petitions is companymon we propose to
dispose of all these cases by this companymon judgment. the appellant in the civil appeal is a companypany carrying
on the business of motor transport. its motor vehicles
operate within the state of haryana also. the petitioners in
the writ petitions are also carrying on the same kind of
business in the state of haryana. all the motor vehicles
operators are required to companyply with the provisions of the
act and the rules made thereunder. number-compliance with many
of those who are found guilty are liable to be punished. the
haryana roadways is a department of the state of haryana. it
also carries on the business of providing passenger
transport facilities in companypetition with the appellant and
the petitioners herein. it owns a fleet of motor vehicles
for the purpose of its business. the haryana roadways is
also subject to the various provisions of the act and the
rules made thereunder. the general manger of haryana
roadways is principally responsible for the proper
administration of the haryana roadways. under section 133-a of the act the state government may
for the purpose of carrying into effect the provisions of
the act establish a motor vehicles department and appoint
officers thereof such persons as it thinks fit. section 129
of the act provides that any police officer authorised in
this behalf or other person authorised in this behalf by the
state government may if he has reason to believe that any
identification mark carried on a motor vehicle or any
licence permit certificate of registration certificate of
insurance or other document produced to him by the driver or
person in charge of a motor vehicle is a false document
within the meaning of section 464 of the indian penal companye
seize the mark of document and call upon the driver or owner
of the vehicle to account for his possession of or the
presence in the vehicle of such mark or document. under
section 129-a of the act any police officer authorised in
this behalf or other person authorised in this behalf by the
state government
may if he has reason to believe that a motor vehicle has
been or being used in companytravention of the provisions of
section 22 or without the permit required by sub-section  1
of section 42 or in companytravention of any companydition of such
permit relating to the route on which or the area in which
or the purpose for which the vehicle may be used seize and
detain the vehicle and for this purpose take or cause to be
taken any steps he may companysider proper for the temporary
safe custody of the vehicle. on such seizure it is open to
the officer companycerned to lodge a prosecution before the
magistrate companypetent to try it. there are several other
powers which a police officer may exercise under the act and
the rules made thereunder against persons who are carrying
on the business of providing motor transport facilities. rule 10.2 of the punjab motor vehicles rules 1940  as
in force in the state of haryana  as it stood prior to march
16 1973 read as follows
10.2. classification of officers -

there shall be four classes of the staff
namely class i class ii class iii and class iv. the officers included in each class and the
police powers exercisable by them under the act
shall be as numbered below against each. the police
powers exercisable by the officers of the
transport department are in respect of motor
vehicles offences under the motor vehicles act
1939 only
class i
xx xx xx
class ii

secretaries regional powers exercisable
transport authorities by dy. supdt. of
police. extra assistant transport - do -
controller  o

extra assistant transport - do -
controller  t
xx xx xx xx
but by numberification dated march 16 1973 referred to
above the haryana government for the transport department
in exercise of its powers under section 133-a of the act
amended rule 10.2 by adding clause  d  in the category of
class ii officers referred to in rule 10.2 of the punjab
motor vehicles rules 1940 the relevant portion of which
reads as follows -

in the punjab motor vehicles rules 1940 after
clause  c  under class ii in sub-rule 2 of rule
10.2 the following clause  d  shall be added
namely-

general manager power exercisable by a
haryana roadways. deputy superintendent of
police. after the issue of the above numberification the general
manager haryana roadways companymenced to exercise the powers
exercisable by a deputy superintendent of police under the
act. we are companycerned in these cases with the validity of
the above numberification dated march 16 1973 by which the
general manager haryana roadways is empowered to exercise
the powers of a deputy superintendent of police under the
act only. the companytention urged by the appellant and the
petitioners in these cases is that the appointment of the
general manager haryana roadways who is himself
responsible for the proper management of the activities of
the haryana roadways and its prosperity and profitability
and who is carrying on business in companypetition with other
private operators as an officer who can exercise the powers
of the deputy superintendent of police under the act is
violative under article 19 1  g  of the companystitution and it
is otherwise companytrary to the object and spirit of the act. it is further urged that the general manager haryana
roadways would number be able to discharge his functions
satisfactorily in the interests of the general public since
he being himself under a duty to companyply with the provisions
of the act and the rules made thereunder in respect of the
motor vehicles of the haryana roadways cannumber be expected to
discharge the functions of checking inspection search and
seizure regarding the motor vehicles belonging to the
haryana roadways and to take appropriate steps to prosecute
the officers of his own department who are number companyplying
with the provisions of the act. in a given case it is likely
that the general manger himself may have to be prosecuted
for number companyplying with law. the powers of stopping the motor vehicles and the
powers of inspection search seizure and detention
exercised under the act are serious restrictions on the
fundamental right of the operators of motor vehicles
guaranteed under article 19 1  g  of the companystitution. these
powers can be companysidered as reasonable restrictions only
when they are exercised properly in the interests of the
general public. they should be reasonable both from the
substantive as well as the procedural standpoint. such
powers should therefore be entrusted to a person who is
expected to exercise them fairly and without bias. the
general manager of haryana roadways who is a rival in
business to the private operators of motor vehicles in the
state and is intimately companynected with the running of motor
vehicles cannumber be expected to discharge his duties in a
fair and reasonable manner. an unumberstructed operation of the
motor vehicles by private owners operating along the same
route or routes would naturally affect the earnings of the
haryana roadways. there is therefore every likelihood of
his being over-zealous in discharging his duties of stopping
a vehicle and in searching seizing and detaining motor
vehicles belonging to others and at the same time
excessively lenient in the case of vehicles belonging to his
own department. if in discharging his duties in the case of
vehicles belonging to others he fails to give due regard to
the interests of the owners thereof he would be violating
their fundamental right to carry on business in a reasonable
way. if he is too lenient in inspecting the vehicles
belonging to his own department the interests of the
travelling public at large would be in peril. in both the
cases there is a companyflict between his duty on the one hand
and his interest on the other. moreover administration must
be rooted in companyfidence and that companyfidence is destroyed
when people begin to think that the officer companycerned is
biased. this is number a case which is governed by the rule of
necessity. as it is there are many other officers who are
entrusted within the powers of the police officers under the
act. there was therefore numbernecessity to appoint the
general manager of haryana roadways also to exercise the
said powers. we are therefore of the opinion that the
appointment of the general manager haryana roadways who is
directly responsible for running its motor vehicles as one
of the officers who can exercise the powers of a deputy
superintendent of police under the act imposes an
unreasonable restriction on the fundamental right of the
private motor vehicles operators and is therefore violative
of article 19 1  g  of the companystitution. we however make it
clear that the appointment of other officers of the state
government is number bad even though the government is the
owner of the vehicles as their companynection with the running
of the
vehicles is too remote. the appointment of the general
manager as an officer who can exercise the powers of the
deputy superintendent of police under the act is also number in
the interests of the general public since the large number
of motor vehicles owned by the haryana roadways would number be
subject to inspection and checking by an independent agency. can we expect a fair investigation by a police officer into
a criminal case in which his own kith and kin are involved
as the accused? the position is number different in this case. the legislature companyld number have intended while enacting
section 133-a of the act that a person who was himself
directly responsible for the proper running of the motor
vehicles according to law companyld be appointed as the
inspecting and investigating officer by the state government
for the purpose of enforcing the act. our view receives support from a decision of the high
court of allahabad in junta motor transport and anumberher v.
state of uttar pradesh 1970 allahabad law journal page
810 by which the appointment of gazetted officers station
superintendents traffic superintendents and assistant
traffic inspectors of uttar pradesh roadways as the
prescribed authorites to enforce the uttar pradesh motor
gadi  yatra-kar  adhiniyam 1962 and the rules made
thereunder was held to be void.


civil appellate jurisdiction civil appeal number951 of
1977.
from the judgment and order dated 29.7.1976 of the
madras high companyrt in s.a. number89 of 1972.

t.m. sampath and p.n.ramalingam for the appellant. balakrishnan and s.prasad for the respondent. the judgment of the companyrt was delivered by
thommen j. the appellant is the defendant in a suit
insti-
tuted by the respondent to set aside a transfer of property
made by the guardian of a minumber and for recovery of
possession of the property. the suit was decreed and the
decree was companyfirmed by the first appellate companyrt as well as
by the high companyrt. the plaintiff-respondent purchased the suit property
from an ex-minumber within three years after the minumber attained
majority. during his minumberity the property was sold by his
father as his natural guardian to a person from whom the
present appellant purchased the property. all the companyrts
found that the guardian had number obtained the permission of
the companyrt for the sale of the property as required by
section 8 of the hindu minumberity guardianship act 1956
 the guardianship act  and that the sale of the property
was number for legal necessity. dismissing the second appeal the high companyrt held that
the suit was rightly instituted by the respondent as a
transferee from the ex-minumber within three years after the
minumber attained majority and that the companytention of the
defendant that the suit by a transferee from the ex-minumber
was hit by section 6 e  of the transfer of property act
1882 was unsustainable. the only question which arises in the present appeal
as it did before the high companyrt is  to quote the words of
the high companyrt
whether a transferee from a minumber after he
attained majority can file a suit to set aside the
alienation made by the minumbers guardian or the said
right is one to be exercised only by the minumber?. the relevant facts are that the suit property belonged
to one veerammal. she had a daughter by name kaliammal. veerammal died shortly after she purchased the property in
1948. she left behind her husband kandayya and their
duaghter kaliammal. subsequently kandayya married a second
time when his daughter kaliammal was a minumber. she thereupon
left her fathers house and resided with her maternal grand-
father who protected and maintained her. during her
minumberity kandayya sold the property on 29.10.1959 to
jainulavudeen. on 25.4.1966 jainulavudeen in turn sold the
property to the defendant-appellant. subsequently on
26.5.1966 the plaintiff obtained a deed of sale of the suit
property in his favour from kaliammal who had by then
attained majority. the plaintiff thereafter instituted the
present suit  o.s. number 491 of 1968  against the appellant to
set aside the transfer of property made by kandayya and for
recovery of its possession. the question is whether the respondent in his capacity
as a transferee from the ex-minumber was companypetent to bring a
suit to set aside the sale effected by the minumbers guardian. it is numberlonger disputed that the suit was brought within
three years after the minumber attained majority. number is it
any longer companytended that the father of the minumber as her
natural guardian had obtained the permission of the companyrt
or that the sale effected by him was one for legal
necessity. these two vital points have been companycurrently
found against the appellant. the only companytention which mr.
sampath appearing for the appellant is in a position to
urge is as regards the question whether the suit is hit by
section 6 e  of the t.p. act. companynsel says that all that the
ex-minumber was in a position to transfer was her mere right
to sue to set aside the sale and recover possession of the
property transferred by her father as her natural guardian. the property itself had been transferred by the father prior
to its sale by the ex-minumber. the minumber had therefore no
property to sell except a right to set aside the sale. accordingly whatever transfer that was effected by the
minumber in favour of the plaintiff was numberhing more than a
mere right to sue and such transfer was invalid by reason of
section 6 e  of the t.p. act. mr. balakrishnan appearing for the respondent-
plaintiff companytends that the ex-minumber was fully companypetent to
bring a suit to set aside the sale within a period of three
years after attaining majority and any person claiming under
her is equally companypetent to institute action for the same
purpose. he refers to the provisions of section 8 3  of the
guardianship act. he companytends that a suit to set aside a
sale is number for the enforcement of any personal right but a
right in property and is therefore number hit by section
6 e  of the t.p. act. in any view companynsel says section
8 3  of the guardianship act sepcifically allows such a suit
to be brought by a person claiming under a minumber and
therefore such a statutory right specially granted by an
enactment dealing with the protection of the minumber cannumber be
defeated by the general provisions of an earlier enactment. the two provisions companynsel says can be read harmoniously
so as to avoid an artificial companyflict. what the
guardianship act intends to protect is the right of a person
claiming under a minumber to sue for setting aside the sale of
property sold otherwise than as permitted by section 8 of
the act. on the other hand the t.p. act only prohibits
suits in the the nature of champerty and maintenance based
on bare or naked right of litigation. the general provision
contained in section 6 e  of the t.p. act does number derogate
from the special protection of the minumbers interest and the
interest of a person claiming under him as afforded by the
guardianship act which is addressed to a specific problem
in any view companynsel says a sale by the guardian
otherwise than as permitted by section 8 is void and is
therefore incapable of passing a title. for all these
reasons mr. balakrishna submits that the suit was companypetent
and was rightly decreed on the facts found and the appeal
by the defendant has numbermerits. as companycurrently found by the companyrts below the sale
effected by the guardian during the minumberity of his daughter
was number in companypliance with the provisions of section 18 i
of the guardianship act. the property was transferred by
him without obtaining the previous permission of the companyrt
and the transfer was number for the benefit of the minumber. such
a sale by the minumbers father who is his natural guardian is
unlike in the case of transfer by a de facto guardian
 section 11  number a void sale but only a voidable sale. such a sale until set aside is sufficiently effective to
pass title but being a voidable sale what the buyer has
obtained is a defeasible title which is liable to be set
aside at the instance of the person entitled to impeach it. section 8 3  of the guardianship act says
any disposal of immovable property by a natural
guardian in companytravention of sub-section  1  or
sub-section  2  is voidable at the instance of the
minumber or any person claiming under him.  emphasis supplied
the effect of this sub-section is that any disposal of
immovable property by a natural guardian otherwise than for
the benefit of the minumber or without obtaining the previous
permission of the companyrt is voidable. a person entitled to
avoid such a sale is either the minumber or any person claiming
under him. this means that either the minumber or his legal
representative in the event of his death or his successor-
in-interest claiming under him by reason of transfer inter
vivos must bring action within the period prescribed for
such a suit i.e. three years from the date on which the
minumber died or attained majority as the case may be. in the
present case the suit was brought as found by the companyrts
below within three years after the minumber attained majority. mr. sampath however companytends that a person claiming
under a minumber referred to in section 8 3  can only be a
legal representative of a deceased minumber and number a person
succeeding to the interests of the minumber by reason of
transfer inter vivos. he refers to the decisions in
jhaverbhai hathibhai patel v. kabhai bechar patel ors air
1933 bom. 42 mon mohan bhattacharjee ors. v. bidhu bhusan
dutta ors. air 1939 cal 460 palani goundan anr. v.
vanjiakkal
anr. 1956 i.l.r. mad. 1062 premprakash surajmal v.
maharashtra revenue tribunal nagpur ors. air 1969
bom.361 and ghanshyam dass v. dr. shiva shankar lal ors. 1980 all. law journal 130 and other cases in which certain
high companyrts have taken the view that the right of the minumber
is a personal right and it cannumber be transferred otherwise
than by inheritence. the person claiming under him
mentioned under section 8 3  of the guardianship act
counsel says can only be a representative and number a
purchaser or transferee inter vivos. he refers to article
60 of the limitation act 1963 and submits that the
provision refers only to a legal representative and number any
other successor. in jhaverbhai hathibhai patel v. kabhai bechar patel
ors. air 1933 bom. 42 it was held
what was assigned by the minumber to the plaintiff in
that suit was number the property in question but his
right to sue for it and if he companyld establish his
allegation to have the sale avoided this i think
was numbermore than a right of suit and if i am
correct such a transfer is forbidden by s. 6 cl. t.p. act. similar reasoning was adopted in the other decisions cited
by mr. sampath on the point. the rationale of these
decisions is that the right to impeach a sale effected by
the guradian is a personal right vested in the minumber and it
is number transferable inter vivos. the expression person
claiming under him according to this line of reasoning
must therefore be understood as a legal representative and
number an assignee. on the other hand a division bench of the madras high
court in p. kamaraju v. c. gunnayya ors. air 1924 madras
322 held that the right of the minumber was number a bare right to
sue and it was an assignable right. the high companyrt held
. . . . .by selling the property to the plaintiff
on the footing that the sale by the mother was number
binding on him he has chosen to avoid it and the
result of it is that from his point of view he has
got a companyplete title. the title numberdoubt will only
be effective if the companyrt ultimately finds that the
sale by the mother is number binding on him. but
contingent on that event he has got a companyplete
title and this title is number a bare right to sue and
is therfore assignable. . . . . . . . in palaniappa goundan v. nallappa goundan ors. air 1951
madras 817 viswanatha sastri j. observed
where an ex-minumber transfers property
unauthorisedly sold by his guardian during his
minumberity he transfers number a mere right to use but
his interest in the property though a suit may be
necessary to avoid the transfer by the guardian
recover possession of the property from his
alienee. companyversely the liability of the
transferee from the guardian is number a liability to
pay damages for the unauthorised act of the
guardian but is a liability to restore the
property to the rightful owner or his transferee. similar view was expressed in karnam nagabhushana rao v.
karnam gowramma ors. 1968 2 andhra weekly reporter 57.
these decisions on which reliance was placed by the madras
high companyrt in the impugned judgment are to the effect that
the right of the minumber is number a bare or naked right to sue
but a right in property which is assignable. in halsburys laws of england 4th edn. vol. 6
paragraphs 86-87 at pages 49-50 this is what is stated
a bare right of litigation such as a mere right
to damages for a wrongful act is number assignable
on the principle that the law will number recognise
any transaction savouring of maintenance or
champerty. by way of exception to the rule stated in the
previous paragraph there is numberhing unlawful in
the purchase of property which the purchaser can
only enjoy by defeating existing adverse claims or
in the assignment  for example by mortgage  of
property being the fruits of litigation. in every
case it is a question whether the purchasers real
object was to acquire an interest in the property
or merely to acquire a right to bring an action
either alone or jointly with the vendor . . . in the instant case on the facts found the transfer
of the property made by the guardian was a voidable
transaction and it was therefore open to the minumber to
challenge it and seek recovery of possession. such a right
of the minumber is a right or interest in property
which he himself or any person claiming under him may
enforce by instituting a suit section 8 3  of the
guardianship act. any person claiming under him must
necessarily include a purchaser. section 8 3  companyfers a right of suit in the special
circumstances postulated in that provision. the object of
the act being the protection of the minumber the legislature
has thought it fit to companyfer a right of suit in certain
circumstances number only on the minumber but also on a person to
whom the minumber has transferred his rights. the right
transferred is an interest in property which is capable of
enforcement at the instance of the transferee as it was at
the instance of the ex-minumber prior to the transfer. such a
provision indeed specially for the protection of the
interests of the minumber must be read in harmony and
consistently with the general provisions companytained in
section 6 of the t.p. act. see the j.k. companyton spinning
weaving mills company limited v. the state of uttar pradesh ors. 1961 3 s.c.r. 185 194 and ashoka marketing limited anr. v.
punjab national bank ors. 1990 3 jt sc 417 439.
the transfer made by the father during his sons
minumberity was voidable at the instance of his son who was the
real owner and any person purchasing such property from the
natural guardian obtained only a defeasible title. the
minumber retained a right in the property to defeat existing
adverse claims and such right is an assignable right. we
are in companyplete agreement with what has been stated on the
point in palaniappa goundan v. nallappa goundan ors. air
1951 madras 817 and in p. kamaraju v. c. gunnayya ors. air 1924 madras 322. we do number agree with the companytrary view
expressed on the point in jhaverbhai hathibhai patel v.
kabhai bechar patel ors. air 1933 bom. 42 mon mohan
battacharjee ors. v. bidhu bhushan dutta ors. air 1939
cal. 460 and palani goundan anr. v. vanjiakkal anr. 1956 i.l.r. mad. 1062.
a companystruction which is unduly restrictive of the
statutory provisions intended for the protection of the
interest of the minumber must be avoided. this is all the more
so in view of section 5 b  of the guardianship act which
says. save as otherwise expressly provided in this
act
 a
 b  any other law in force immediately before the
com-
mencement of this act shall cease to have effect in
so far as it is inconsistent with any of the
provisions companytained in this act.


civil appellate jurisdiction civil appeal number 1743 of 1967.
appeal by special leave from the judgment and decree dated
15th october 1958 of the patna high companyrt in appeal from
appellate decree number 552 of 1953.

s. desai and d. goburdhan for the appellants. sarjoo prasad r. k. jain and e.c. agarwal for respondents
number. 2- to 12.
the judgment of the companyrt was delivered by
beg j. in this appeal by special leave the short question
involved relates to an application of sec. 141 of the indian
succession act to the facts of the case. this section reads
as follows

if a legacy is bequeathed to a person
who is named an executor of the will be shall
number take the legacy
unless he proves the will or otherwise
manifests an intention to act as executor. illustration
a legacy is given to a who is named an
executor. a orders the funeral according to
the directions companytained in the will and dies
a few days after the testator without having
proved the will. a has manifested an
intention to act as executor. the plaintiffs-appellants before us claim as the heirs of
sham narain singh who died issueless in august 1913. one
achhaiber singh a companylateral of shyam narain singh had
made a will on 3rd july 1912 under which he gave life
interests in the properties owned by him to his three
daughters-in-law deolagan kuer chapkali kuer and alodhan
kuer. he laid down that after the death of these three
ladies a half share in the properties would go to the two
daughters of alodhan kuer and anumberher half to the above
mentioned shyam narain singh a grandson of the testators
first companysin achhaiber singh died in numberember 1912. it
was found by all the companyrts that shyam narain sing took part
in the cremation ceremony of achhaiber singh. apparently
the members of the family in which achhaiber singh had been
adopted were number well disposed towards him. it was
therefore number surprising that shyam narain singh with
whom he was well pleased should tight the funeral pyre as
his agnate in the absence of his sons who had predeceased
him. it has also been found that chapkali kuer and alodhan
kuer had applied for the probate of the will of achhaiber
singh after the death of shyam narain singh. hence shyam
narain singh companyld number possibly join them at that time. he
had died before the will companyld be duly proved. he was also
said to have looked after the properties of the two ladies. the question before us is whether by taking part in
cremation ceremonies and by helping two daughters in-law to
manage properties shyam narain singh manifested his inten-
tion to act as an executor so as to be companyered by sec. 141
of the indian succession act and therefore to claim his
legacy. we may mention here that there was some previous litigation
also between the parties. in suit number 144 of 1946 brought
by the heirs of shyam narain singh against some of the
defendants in the suit before us the precise question
before us for decision had arisen but the high companyrt had
number decided it. it had dismissed the suit on the ground
that the plaintiffs had number locus standi. on the strength
of that decision the bar of res-judicata is relied upon by
the defendants respondents before us as it was in the companyrts
below. but as this appeal can be disposed of on the first
question already mentioned by us relating to the
application of section 141 indian succession act. we need
number deal with the plea of res-judicata. the suit before us was filed by the heirs of shyam narain
singh for a declaration of the rights of shyam narain singh
in the property bequeathed and for a declaration that the
compromise decree in suit number 74 of 1944 was fraudulent
collusive invalid and number binding upon
the plaintiffs. the trial companyrt and then the additional
district judge of patna on the first appeal of the
defendants-respondents before us had decreed the
plaintiffs suit. the additional district judge had held
that by taking part in the cremation ceremonies and by
helping the two legatees daughters-in-law of the testator
shyam narain singh had manifested an intention to act as an
executor before he died. the additional district judge had
also taken into account the fact that the heirs of shyam
narain singh had taken some interest in the properties left
by achhaiber singh by litigating for it. he thought that
this was only possible if shyam narain singh had himself
manifested an interest in his right- under the will. this
evidence was companysidered sufficient for holding that shyam
narain singh had manifested an intention to act as executor. the high companyrt of patna had allowed the second appeal of
defendants on the ground that the findings of fact recorded
by companyrts below were number enumbergh to attract the application
of section 141 of the indian succession act. the companyduct of
the relations of shyam narain singh in litigating for the
properly left by achhaiber singh was as the high companyrt
rightly pointed out number relevant for determining the
intentions of shyam narain singh. number was the fact that he
looked after the proprieties of the two companylegatees who
were widows a manifestation of his own intention to assert
his own rights as an executor. what was most important was
the provision in the will itself which had been overlooked
by the first two companyrts. achhaiber singh had laid down in
the will that on the death of me the executant the
aforesaid executors should perform the shradh ceremonies of
me the executant according to the means and custom in the
family. the high companyrt had accepted the companytention that
there was numberevidence that shyam narain singh had performed
shradh ceremonies of achhaiber singh in accordance with the
means and the custom in the family. the only companytention which companyld be advanced before us on
behalf of the plaintiffs-appellants was that cremation
ceremonies do number end with actual cremation of the testator
but include other ceremonies such as sraddha ceremonies
which companye later. in reply we have been referred to the
meaning of the term sraddha given in sir m. monier-
williams sanskrit-english dictionary  p. 1097  as follows
a ceremony in honumberr and for the
benefit of dead relatives observed with great
strictness at various fixed periods and on
occasions of rejoicing as well as mourning by
the surviving relatives  these ceremonies are
performed by the daily offering of water and
on stated occasions by the offering of pindas
or balls of rice and meal to three paternal
and three maternal forefathers i.e. to
father grand-father and great grandfather
it should be borne in mind that a sraddha is
number a funeral ceremony  antyeshti  but a
supplement to such a ceremony it is an act of
reverential homage to a deceased person
performed by relatives and is moreover
supposed to supply the dead with strengthening
nutriment after the performance of the
previous funeral ceremonies has endowed
the with ethereal bodies indeed until those
antyeshti or funeral rites have been
performed and until the succeeding first
sraddha has been celebrated the deceased
relative is a prata or restless wandering
ghost and has numberreal body  only a
lingrasarira q.v.  it is number until the first
sraddha has taken place that he attains a
position among the pitris or divine fathers in
their blissful abode called pitri-loka and
the sro is most desirable and efficacious when
performed by a son
thus it is clear that there is a distinction between
cremation ceremonies and sraddha ceremonies which are
periodic. it is also evident that what the testator desired
his executors to do was that they should perform his sraddha
ceremonies. the manner in which he refers to shyam narain
singh in his will almost as a substitute for a son shows
that he expected shyam narain singh to perform his sraddha
ceremonies as his own sons had predeceased him. there is
numberevidence whatsoever on record that shyam narain singh
ever performed any such ceremony.


civil appellate jurisdiction civil appeal number 5720 of
1985.
from the judgment and order dated 20.7.1985 of the j.

high companyrt in cmp number 645 of 1985 in w.p. number 122 of
1983.
soli j. sorabjee j.b. dadachanji f.h. talyarkhan

p. gupta mrs. a.k. verma and d.n. mishra for the
appellant. 1071

datta additional solicitor general gauri shankar

n. kacker r.n. poddar ms. a. subhashini m. beg e.c. agarwala z.a. shah pradeep bakshi and lalit gupta for the
respondents. the order of the companyrt was delivered by
tulzapurkar j. leave granted. heard companynsel for the parties as also for cbdt and
wealth tax officer. the short question raised in this appeal is whether
inspection of the jewellery and other valuable articles of
personal use companytained in six boxes lying in srinagar
toshakhana - which boxes are at present kept under lock and
seal of the companymissioner appointed by the j k high companyrt
under its order dated june 22 1984 - was improperly
declined by the learned single judge by his order dated july
20 1985 pending disposal of the main writ petition number 122
of 1984. the learned judge has rejected the appellants
prayer for inspection by observing thus
be that as it may at this stage without
speculating on the merits of the petition i find
that numberuseful purpose will be served by granting
relief to the petitioner which he has prayed in
the present cmp. according to the appellant there were two matters
before the government of india  i  whether the appellant was
the owner of the jewellery or other valuable articles of
personal use lying in those boxes on the ground that the
properties are heirlooms and  ii  whether exemption in
respect of such items of properties as heirlooms under
s.5 1   xiv  of the wealth tax act in wealth tax assessment
proceedings of the appellant as huf was available to him or
number and for both these matters it was necessary to have an
inspection of the items by experts to establish whether the
properties are heirlooms or number. in fact the prayer for
inspection was made by him on the basis of two letters one
dated 12th of february 1985 and the other dated 13th of
june 1985 issued from the ministry of finance central
board of direct taxes particularly the former wherein in
the companytext of the appellants application for exemption
under s.5 1   xiv  it was suggested by the cbdt that the
appellant should arrange for the physical inspection of the
items in question by the member  wtj  who would be
accompanied by some experts such as director general
archaelogical survey of india director antiques
1072
director national museum and approved valuers of jewellery
and others for that purpose. even then the prayer for such
inspection was rejected. the relevance and necessity of such inspection in the
context of the two matters that are pending before the
government of india cannumber be disputed for the main issue
arising between the parties is whether the jewellery and
other valuable articles of personal use companytained in the six
boxes lying in srinagar toshakhana are heirlooms of the
appellant and his family as claimed by him or number and such
inspection by experts will unquestionably facilitate its
determination. we therefore fail to appreciate how the
learned judge felt that numberuseful purpose will be served by
the inspection sought by the appellant. companynsel for the union of india as well as the learned
advocate general of j k appearing for the state
strenuously urged before us that the appellants claim of
ownership or title to these items has been refuted in the
counter affidavits that have been filed in the main writ
petition where the property has been claimed to be state
property and in this behalf reference was also made to one
of the preliminary objections raised by the union of india
to the maintainability of the writ petition on the ground
that at the time of the settlement arrived at between the
acceding ruler maharaja hari singh and government of india
numbersuch claim was made and that under art. 363 1  of the
constitution neith government merger agreement number any
dispute or obligation arising therefrom is justiciable and
therefore the writ petition deserves to be dismissed. it
was therefore urged that unless the appellant shows some
prima facie title to the property in question inspection
would be premature and uncalled for. questions of
maintainability of the writ petition and appellants title
to the property in question would undoubtedly be gone into
at the final hearing of the writ petition but it cannumber be
gain-said that the inspection by experts which will have a
bearing on the nature and character of the property in
question will be useful for determination of the appellants
title to the property in case the preliminary objection
fails and at this stage numberone can proceed on the assumption
that the preliminary objection will necessarily be upheld. but apart from this on prima facie title the claim for
exemption under s.5 1  xiv  of the wealth tax act  under
both the limbs of the provision  was pending before the
wealth tax authorities and we are number informed that for the
three assessment years 1978-79 1979-80 1980-81 assessment
orders under the wealth tax act have
1073
been passed by the wealth tax officer a ward jammu wherein
the estate belonging to the appellants family lying in the
srinagar toshakhana has been valued at a companysiderably
enhanced figure over and above the value returned by the
appellant in his returns and the exemption claimed by him
under s.5 1   xiv  of the wealth tax act in respect of the
heirlooms has been declined and his estate has been
assessed. the relevant portion in each of the assessment
orders in this behalf runs thus

the assessee has claimed exemption of this
estate  estate lying in srinagar toshakhana  under
s.5 1   xiv  of the w.t. act 1961. however i
have been given to understand that the cbdt has
number given recognition to the claim of the
assessee. therefore the estate is assessed. the appellant has challenged these assessment orders in
appeals which are pending. these assessment orders though
made on protective basis and subject to the final valuation
of the estates clearly show that the wealth tax
authorities and the cbdt revenue department ministry of
finance government of india are treating the estate lying
in the srinagar toshakhana as property belonging to the
appellants family. having regard to the aforesaid facts the impugned order
dated july 20 1985 in our view is clearly erroneous and
the inspection sought ought to have been granted. we therefore direct that the six boxes companytaining the
jewellery and other valuable articles lying in srinagar
toshakhana under the lock and seal of the companymissioner of
the high companyrt shall be opened for the purposes of
inspection by the member central board of direct taxes
 wtj  who will be accompanied by the director general of
archaelogical survey of india director antiques director
national museum and approved valuers of jewellery for
determining the true nature and character of the same and
whether any and if so what items companystitute heirlooms or
articles of personal use of the appellant and his family. such inspection will be taken in the presence of the
appellants representative as also a representative of the
state government but such representatives shall number work on
the panel of the inspection companymittee but may render such
assistance as may be necessary to the members of the panel. the inspection companymittee will companyplete the inspection and
submit its report to the high
1074
court within three months from the companymencement thereof.


criminal appellate jurisdiction criminal appeal number 116 of
1961.
appeal from the judgment and order dated december 14 1960
of the madras high companyrt in criminal appeal number 933 of 1959.

mohan kumar mangalam r. ganapathy iyer and g.
gopalakrishan for the appellant. k. daphtary solicitor general of india d

prem r. n. sachthey and p. d. menumber for the
respondent. 1962. august 28. the judgement of the companyrt was delivered
by
das gupta j. the appellant who was the assistant
controller of imports in the office of the joint chief
controller of imports and exports madras was tried by the
special judge madras on three charges-one under section 161
of the indian penal companye anumberher under s. 5  1   d  read
with s. 5  2  of the prevention of companyruption act and the
third-which was added later-under s. 165 of the indian penal
code. he was acquitted of the first two charges but was
convicted of an offence under s. 165 of the indian penal
code and sentenced to rigorous imprisonment for one year. he appealed to the high companyrt of madras but the high companyrt
dismissed the appeal and affirmed the order of companyviction
but reduced the sentence to that of fine of rs. 400/- in
default rigorous imprisonment for three months. the high
court has however granted a certificate under article 134
 1   c  of the companystitution that this was a fit case for
appeal to this companyrt. on the basis of that certificate this
appeal has been filed. this prosecution case is that one k. r. naidu  who has been
examined as prosecution witness number 8  a merchant having
export business in onions chillies and groundnuts made on
january 21 1958 an application for export of chillies. he
was informed by a letter dated march 5 1958 that the
application had been rejected. this letter was purported to
be signed by the assistant companytroller
of exports for the joint chief companytroller of imports and
exports. arumugam  prosecution witness number 1  who bad been
acting on behalf of naidu in this matter then sought the
assistance of this appellant for getting a permit for naidu. when he met the appellant later the same evening the
appellant told him that an appeal would have to be preferred
against the rejection order to the joint chief companytroller of
imports and exports rangaswamy. the appellant also
proposed that if he was given two bags of cement and rs. 50/-he would use his influence and help him to get him the
permit. arumugam agreed and the appellant gave arumugam a
sheet of paper stating the address to which the cement was
to be sent. on the next day the memorandum of appeal was
sent by registered post to rangaswamy the joint chief
controller. the same day arumugam saw the deputy
superintendent special police establishment and gave him a
complaint in writing mentioning all the facts. a trap was
thereafter laid with a view to catch the appellant in the
actual act of accepting the bribe. on the evening of april
3 1958 arumugam went to the house of the appellant with
two cement bags which had been marked by putting attested
cards inside the bags and rs. 50/in currency numberes the
number of which were numbered by the deputy superintendent of
police. the appellant accepted the cement bags and the
money from arumugam the two cement bags were put in a. room
of the building as directed by the appellant. immediately
after this the deputy superintendent of police who had been
waiting according to the arrangement a little distance away
from the house came into the cause on getting the pre-
arranged signal from arumugam. he revealed his identity to
the appellant and asked him to produce the money and cement
bags. the accused then took him upstairs and opened an
almirah with his own keys
and produced from inside the almirah the very numberes of which
the number had been taken by the deputy superintendent of
police. the cement bags with the marks inside were also
found down-stairs. the accused pleaded number guilty. he admits the recovery of
the cement bags and the currency numberes from his house but
pleads that neither of these have been given to him and that
the numberes were found on the table and the cement bags were
in the hall nearby and these had been kept in his house
without his knumberledge or companysent by arumugam who wanted to
make up a false case against him. according to him the
whole story of his being approached by arumugam or his
asking for cement bags or money or accepting them is
entirely false. the special judge as also the high companyrt accepted the
prosecution evidence in these matters as true and rejected
the defence version and mr. kumaramangalam has rightly number
tried to challenge before us the findings of facts. his
principal companytention in support of the appeal is that
assuming the findings to be true an offence under s. 165
indian penal companye had number been established. this companytention
is based mainly on the fact that the appellant was assistant
controller of imports only and had numberconnection with the
issue of export permits. according to the learned companynsel
he was number therefore subordinate to the joint chief companyt-
roller of imports and exports to whom the appeal petition
had been filed and companysequently his acceptance of cement
bags from arumugam did number amount to an offence under
section 165 of the indian penal companye. section 165 of the
indian penal companye runs thus-

whoever being a public servant
accepts or obtains or agrees to accept or
attempts to obtain for himself or for any
other person any valuable thing without
consideration or for a companysideration which
knumbers to be inadequate from any person whom he
knumbers to have been or to be or to be likely
to be companycerned in any proceeding or business
transacted or about to be transacted by such
public servant or having arty companynection with
the official functions of himself or of any
public servant to whom he is subordinate or
from any person whom he knumbers to be interested
in or related to the person so companycerned shall
be punished with imprisonment of either
description for a term which may extend to
three years or with fine or with both. what has been proved in this case is  1  that the
appellant a public servant accepted some valuable things
from arumugam without companysideration.  2  arumugam was
concerned in an appeal against an order rejecting an
application for export licence.  3  this proceeding bad
connection with the official functions of the joint chief
controller of imports and exports who was a public servant. the appellant knew that arumugam was companycerned in this
proceeding having companynection with the official function of
the joint chief companytroller of imports and exports.  5  the
appellant was in respect of his official position
subordinate to the joint chief companytroller of imports and
exports. it may be mentioned that it is number disputed that
at the relevant time viz. march 1958 the accused was the
assistant companytroller of imports only and had numberhing to do
with export permits. all the ingredients of an offence under s.165 indian penal
code appear therefore to have been proved prima facie. mr.
kumaramangalams companytention is that the fifth fact mentioned
above viz. that the appellant was in respect of his
official position subordinate to the joint chief
controller of imports and export is number sufficient to
establish his subordination to the joint chief companytroller
of imports and exports within the meaning of s. 165.
subordination of public servants to other public servants is
a well knumbern and inevitable feature of public
administration. and when a question arises in any case
whether a public servant a is a subordinate to public
servant b it presents little difficulty. thus in that
branch of the states public administration which deals with
regulation of imports into and exports from india one would
state without difficulty that an assistant companytroller of
imports is subordinate to the joint chief companytroller of
imports and exports so also the assistant companytroller of
exports is subordinate to the joint chief companytroller of
imports and exports but the assistant companytroller of exports
is number subordinate to the assistant companytroller of imports
number is the assistant companytroller of import subordinate to the
assistant companytroller of exports. according to the learned
counsel in s. 165 the word subordinate should be
interpreted as functionally subordinate. he companytends that
while the appellant was administratively subordinate to the
joint chief companytroller of imports and exports he was number
functionally subordinate to that officer as assistant
controller of imports he had numberhing to do with the matter
of appeal against the rejection of the application for
exports so he was number subordinate to the joint chief
controller within the meaning of the section. the use of the words functionally subordinate does number
appear to be very happy as in every case of administrative
subordination there is also subordination in respect of some
functions at least. what the learned companynsel really means
by his argument is that subordinate in the section means
subordinate in respect of those very official functions
with which the business or transaction has companynection. in
support of his arguments he has drawn our attention to the
provisions of a. 161 s. 162 and s. 163 of the indian penal
code and he points out that s. 161 makes punishable the
taking by a public servant of gratification in respect of
his officials act or his official functions s. 162 makes
punishable the taking of gratification by any person for
inducing by companyrupt or illegal means a public servant to do
or number to do some thing in companynection with his official
functions s. 163 makes punishable the taking of
gratification by any person for inducing by the exercise of
personal influence a public servant to do or number to do
something in companynection with his officials function. section 164 it may be mentioned makes punishable the
abetment of offences under s. 162 and 163. in this companytext
the learned companynsel argues the words in s. 165 should be so
interpreted as to make punishable only such taking of
gratification by a public servant as has in some way
connection with his own official functions and so he argues
subordinate in the section should be interpreted as
suggested by him. to a emphasise his point he gave this
illustration  x the companylector of a district is dealing with
a matter of assessment of revenue on as application. y a
office peon of a department under the companylector which has
numberhing to do with revenue matters accepts money from a
knumbering that a has such business with x y will then be
committing an offence under is. 165 even though y has no
connection whatsoever with the functions of x in respect of
as application. it will perhaps number often happen that y will have an
opportunity of accepting money from a
when he has number even a plausible chance of doing something
for a in companynection with the application. but assuming
that he has that opportunity and does accept the money as
stated in the illustration above we cannumber see what
untoward companysequences will ensue if ys companyduct is made
punishable under s. 165. it has to be numbericed that s. 165
has been so worded as to companyer cases of companyruption which do
number companye within s. 161 or a. 162 or s. 163. when with that
intention the legislature has used the word subordinate in
s. 165 without any limitation there is numberjustification for
reading into the word the limitation suggested by the
learned companynsel by the words in respect of those very
functions. it is plain that the interpretation suggested
by mr. kumaramangalam needs the addition of some words in
the section and that is clearly number permissible. by the
use of the word subordinate without any qualifying words
the legislature has expressed its legislative intention of
making punishable such subordinates also who have no
connection with the function with which the business or
transaction is companycerned. to limit the meaning of
subordinate in the section as suggested by the learned
counsel would be defeating that legislative intention and
laying down a different legislative policy. this the companyrt
has numberpower to do. the argument that subordinate means
something-more than administratively subordinate must
therefore be rejected the appellant has therefore rightly
been held to be subordinate to the joint chief companytroller
even though the appellant had numberfunctions to discharge in
connection with the appeal before the joint chief companytroller
of imports and exports. mr. kumaramangalam then wanted to argue that the facts and
circumstances of the case showed that arumugam was a police
informer and that he was really number companycerned in the appeal
before the
joint chief companytroller of imports and exports. therefore
he points out it would be reasonable to hold that no
offence under s. 165 had been companymitted by his client.


criminal appellate jurisdiction criminal appeal number
307 of 1983
appeal by special leave from the judgment and order
dated the 8th numberember 1982 of the andhra pradesh high
court in criminal miscellaneous petition number 1936 of 1982.

subba rao for the appellant. kanta rao for the respondent. the judgment of the companyrt was delivered by
ranganath misra j.- the short question arising in this
appeal by special leave is whether in the absence of
necessary companyplaint by the civil companyrt where a money receipt
alleged to have been forged was produced prosecution for
offences punishable under sections 467 and 471 read with s.
34 of the indian penal companye would be maintainable. the
accused are the appellants and they challenge the dismissal
of their application under section 482 of the companye of
criminal procedure  companye for short  by the high companyrt of
andhra pradesh. the appellants are father and son respectively. they
took a printing press from the 1st respondent in terms of an
agreement dated december 3 1980 with a view to carrying on
the printing business. the agreement stipulated that the
appellants would have to deposit rs. 20000 with the 1st
respondent and pay rs. 500 p.m. as also 50 of the net
profits to 1st respondent. dispute arose between the parties
over the companypliance of the terms of the agreement whereupon
the 1st respondent filed against the appellants o.s. number
609/81 for mandatory injunction and o.s. number 1140/81 for
recovery of damages. appellants filed o.s. number 358/81 for
refund of rs. 20000 claimed to have been deposited with 1st
respondent and for recovery of rs. 8638 on the footing that
the same had been paid to 1st respondent by cheques and in
cash. along with their plaint appellants produced the
original companytract as also the money receipt for rs. 20000
in support of the claim in the suit. after production of the
money receipt in companyrt 1st respondent filed a companyplaint
against the appellants alleging forgery of his signature on
the money receipt and thereby companymission of offences
punishable under sections 467 and 471 i.p.c. on receiving
summonses from the companyrt the appellants objected to
maintainability of the criminal action and
later move the high companyrt of andhra pradesh for quashing the
said proceedings by companytending that in the absence of
complaint from the companyrt the prosecution was barred in view
of s. 195  1   b   ii  of the companye. in support of this
contention reliance was placed on s. 340 of the companye. the
high companyrt referred to the provisions of ss. 463 465 467 471
and 474 of the penal companye and observed. from the above provisions it is quite
manifest that the offence which is mentioned in
the companyplaint carries greater punishment namely
10 years imprisonment whereas under s. 463

p.c. the punishment is infinitely lesser than
the one under s. 467 namely 2 years of fine or
both. that apart in a case reported in 1979 crl. r. at 228 it has been held by the gujarat high
court that the offences laid down under ss. 474
and 471 i.p.c. are distinct. in that case it was
contended that a companyplaint by a to police under s.
474 that was in possession of forged documents
with intention to use them in companyrt proceedings
and thereafter producing documents in companyrt and
thereby companymitting offence under s. 471 did number
wipe out the offence under s. 474. the high companyrt
held under these circumstances that the magistrate
can proceed with case under s. 474 against
grounding the reason that s. 195  1   b   ii  is
number attracted. the penal provisions as it is fairly settled
ought to be interpreted very strictly and
therefore on the foregoing analysis i have no
hesitation in holding that s. 463 cannumber be
construed to include s. 467 as well and
therefore certainly it is companypetent for the
magistrate to take companynizance of and try the same
as it is needless to follow the case. hence the
contention on the basis of the provisions in s.
340 of the companye of criminal procedure fails and
the same is rejected. there is numberdispute that the alleged forged document
was produced in the suit brought by the appellants. section
340 of the companye provides
340.  1  when upon an application made to
it in this behalf or otherwise any companyrt is of
opinion that it is expedient in the interest of
justice that an inquiry
should be made into any offence referred to in
clause  b  of sub-section  1  of section 195
which appears to have been companymitted in or in
relation to a proceeding in that companyrt or as the
case may be in respect of a document produced or
given in evidence in a proceeding in that companyrt
such companyrt may after such preliminary inquiry if
any as it thinks necessary-
 a  record a finding to that effect
 b  make a companyplaint thereof in writing
 c  send it to a magistrate of the class having
jurisdiction
 d  take sufficient security for the appearance of the
accused before such magistrate or if the alleged
offence is number-bailable and the companyrt thinks it
necessary so to do send the accused in custody to
such magistrate and
 e  bind over any person to appear and give evidence
before such magistrate. the relevant part of s. 195 referred to in s. 340 of
the companye reads thus
195.  1  numbercourt shall take companynizance-
x x x x
 b  ii  of any offence described in section
463 or punishable under section 471 section 475
or section 476 of the said companye when such
offence is alleged to have been companymitted in
respect of a document produced or given in
evidence in a proceeding in any companyrt  except
on the companyplaint in writing of that companyrt or of
some other companyrt to which that companyrt is
subordinate.  underlining is ours . if s. 195  1   b   ii  is attracted to the facts of the
present case in the absence of a companyplaint in writing of
the civil companyrt where the alleged forged receipt has been
produced taking of companynizance of the offence would be bad
in law and the prosecution being number maintainable there
would be absolutely numberjustification to harass
the appellants by allowing prosecution to have a full
dressed trial. section 195  1   b   ii  uses two different
expressions in regard to s. 463 of the indian penal companye it
says offence described while in regard to ss. 471 and
475 or 476 of the i.p.c. it says punishable. the high
court has number made any reference to s. 471 of i.p.c. while
rejecting the submissions of the appellants apparently
because s. 471 in terms has been mentioned in the provision. so far as s. 463 is companycerned the high companyrt has taken the
view as we have already indicated that section 463 cannumber
be companystrued to include s. 467. section 463 of the i.p.c. provides

forgery-whoever makes any false
document or part of a document with intent to
cause damage or injury to the public or to any
person or to support any claim or title or to
cause any person to part with property or to
enter into any express or implied companytract or
with intent to companymit fraud or that fraud may be
committed companymits forgery. it is the opening section of chapter xviii of the penal
code dealing with offences relating to documents and to
property marks. this opening section in a sense defines the
offence of forgery. section 467 of the penal companye provides

forgery of valuable security will etc.- whoever
forges a document which purports to be a valuable security
or a will or an authority to adopt a son or which purports
to give authority to any person to make or transfer any
valuable security or to receive the principal interest or
dividends thereon or to receive or deliver any money
movable property or valuable security or any document
purporting to be an acquittance or receipt acknumberledging the
payment of money or an acquittance or receipt for the
delivery of any movable property or valuable security shall
be punished with imprisonment for life or with imprisonment
of either description for a term which may extend to ten
years and shall also be liable to fine. the purpose of our extracting the two sections of the penal
code is to show the offence which is made punishable under
s. 467 of
the penal companye is in respect of an offence described in s.

once it is accepted that s. 463 defines forgery and s.
467 punishes forgery of a particular category the provision
in s. 195  1   b   ii  of the companye would immediately be
attracted and on the basis that the offence punishable under
s. 467 of the penal companye is an offence described in s. 463
in the absence of a companyplaint by the companyrt the prosecution
would number be maintainable. we have numberdoubt in our mind that
the high companyrt took a wrong view of the matter. we may briefly refer to two decisions of this companyrt. in
patel laljibhai somabhai v. the state of gujarat 1  the
accused had filed a suit for recovery of certain money on
the basis of a forged cheque and a private companyplaint had
been filed before the companyrt of the judicial magistrate
alleging offences under ss. 467 and 471 of the i.p.c. the
appellant raised an objection that in view of s. 195  1   c
of the companye of criminal procedure companynizance of the offence
could number be taken on a private companyplaint. the high companyrt
upheld the order of companymitment by finding that though there
would be a bar for prosecution for offences punishable under
ss. 467 and 471 of the i.p.c. on a private companyplaint in the
facts of the case that question did number arise and this companyrt
refused to interfere by holding that the alleged offences
had been companymitted at a time when the accused was number a
party to the civil proceeding. number the companyclusion but the
ratio supports our view. in s.l. goswami v. high companyrt of madhya pradesh at
jabalpur 2  to which one of us was a party. it was held
that an offence under s. 466 i.p.c. was companyered by clause
 c  of s. 195  1  of the companye and it came within the purview
of the section as the offence under s. 463 i.p.c. is dealt
with in s. 466 i.p.c. section 466 i p.c. it was pointed
out was an aggravated form of forgery in that the forgery
should relate to a document specified in that section. section 466 i.p.c. was therefore an offence as described
in s. 463 i.p.c. which was companymitted in relation to a
record or proceeding of or in a companyrt of justice. what was
said in the aforesaid decision in regard to the offence
under s. 466 i.p.c. has full application to an offence
under s 467 i.p.c.