criminal appellate jurisdiction criminal appeal number 277
of 1971.
appeal by special leave from the judgment and order
dated the 23rd june 1971 of the calcutta high companyrt in crl. number 45 of 1964.

k. chatterjee and rathin das for the appellants. n. mukherjee and g.s. chatterjee for respondents. the judgment of the companyrt was delivered by
shinghal j.--this appeal by special leave is directed
against the judgment of the calcutta high companyrt dated june
23 1971 upholding the companyviction of the appellants for
offences under sections 420 and 420/120b of the penal companye
but reducing their sentences. the charge related to cheat-
ing the passport issuing authority of the hooghly
district by dishonestly inducing him to issue passports on
the basis of false representations. this companyrt has limited
the special leave to the question whether the passports were
property within the meaning of section 420 of the penal
code ? speaking broadly the allegation against the appellants
was that there was a companyspiracy between them as a result of
which 1480 applications were filed for the issue of pass-
ports from july 1956 to april 1957 by muslims and chinese
nationals. these applications were alleged to have been
made by suppressing the real facts about the nationality
and addresses of the applicants and by making false repre-
sentations in several other respects. the prosecution
alleged that hundreds of passports were thus issued and
delivered to persons who were number entitled to them under the
law. some of the appellants were alleged to be directly
concerned with those applications and it was further
alleged that the orders of the passport authority were
obtained by dishonest inducement and false representation. a passport is a document which by its nature and pur-
pose is a political document for the benefit of its holder. it recognises him as a citizen of the companyntry granting it
and is in the nature of a request to the other companyntry for
his free passage there. its importance was examined by this
court in satwant singh sawhney v. d. ramarathnam 1  with
reference to the provisions of the indian passport  entry
into india  act 1920  hereinafter referred to as the act
and the rules made thereunder which were in force at the
time when the offences were said to have been companymitted in
this case. after referring to sections 3 and 4 of the act
and rules 4 and 5 of the rules this companyrt observed as
follows--
 possession of passport
whatever may be its meaning or legal effect
is a necessary requisite for leaving india
for travelling abroad. the argument that the
act .does number impose the taking of a passport
as a companydition of exit from india therefore
it does number interfere with the right of a
person to leave india if we may say so is
rather hypertechnical and ignumberes the reali-
ties of the situation. apart from the fact
that possession of passport is a necessary
condition of travel in the international
community the prohibition against entry
indirectly prevents the person from leaving
india. the state in fact tells a person living
in india you can leave india at your pleasure
without a passport but you would number be
allowed by foreign companyntries to enter them
without it and you cannumber also companye back to
india without it. numberperson in india can
possibly travel on those companyditions. indeed
it is impossible for him to do so. that
apart even that theoretical possibility of
exit is expressly restricted by executive
instructions and by refusal of foreign-ex-
change. there can therefore be numberdoubt that a passport is a docu-
ment of importance for travel abroad and is of companysiderable
value to its holder.  1  1967 3 s.c.r. 525.
the word property has been defined in the century
dictionary which is an encyclopedic lexicon of the
english language as follows--
the right to the use or enjoyment or
the beneficial fight of disposal of anything
that can be the subject of ownership owner-
ship estate especially ownership of tangi-
ble things  anything that may be
exclusively possessed and enjoyed
possessions. as has been stated a passport provides the several bene-
fits mentioned above. it is a tangible thing and is capable
of ownership. there can therefore be numberdoubt that it is
property. it is property of the state so long as it is
with the passport issuing authority and has number been issued
to the person companycerned and after issue it becomes the
property of the person to whom it has.been granted. our attention has number been invited to any case where the
question number before us arose for companysideration on an earlier
occasion. but a somewhat similar question was companysidered by
this companyrt in abhayanand mishra v. the state of bihar  1 . the appellant there applied to the patna university for
permission to appear at .the m.a. examination as a private
candidate representing that he was a graduate having ob-
tained the b.a. degree in 1951 and had been teaching in a
school. on that basis an admission card was despatched for
him to the headmaster of the school. it was however found
that he was neither a graduate number a teacher. he was prose-
cuted for the offence under section 420 read with section
511 of the penal companye. he companytended that his companyviction was
unsustainable because the admission card had numberpecuniary
value and was number property. this companyrt repelled the companyten-
tion and held that although the admission card as such had
numberpecuniary value it had immense value to the candidate
appearing in the examination for he companyld number have appeared
at the examination without it and that it was therefore
property within the meaning of section 415 of the penal
code. while reaching that companyclusion this companyrt relied on
queen empress v. appasami  2  and queen empress v. sashi
bhushan.  3  in appasamis case it was held that the ticket
entitling the accused to enter the examination room was
property and in sashi bhushans case it was held that
the term property included a written certificate to the
effect that the accused had attended a companyrse of lectures
and had paid up his fees. on a parity of reasoning we have
numberdoubt that looking to the importance and characteristics
of a passport the high companyrt rightly held that it was
property within the meaning of sections 415 and 420 of the
penal companye. we may make a reference to ishwarlal girdharlal parekh

state of maharashtra and others  4  also. there the
question for companysideration was whether an order of assess-
ment was property within the
 1  1962 2 s.c.r. 241.  2  1889 i.l.r. 12 mad. 151.  3  1893 i.l.r. 15 all. 210.  4  1969 1 s.c.r. 193.
meaning of section 420 i.p.c. the charge in that case
was that the appellant dishonestly or fradulently induced
the income-tax authorities and obtainer an assessment order
for less income-tax than due. it was held that .the order
of assessment received by an assessee was property
since it was of great importance to the assessee as company-
taining a companyputation of his total assessable income and
as companytaintion or his tax liability. this companyrt
also expressed the view that the word property did number
necessarily expressed that the thing of which delivery
was dishonestly desired by the person who cheats must
have a money value or a market value in the hand of the
person cheated. it was held that even if the thing has no
money value in the hand of the person cheated but becomes
a thing of value in the hand of the person who may get
possession of it as a result of the cheating practised by
him it would still fall within the companynumberation of the
term property in section 420 i.p.c. this decision also
lends support to the view we have taken for as has been
stated a passport is a valuable document. our attention has also been invited to in re packiana-
than 1  and local government v. gangaram.  2  the accused
in packianathans case was prosecuted for an offence under
section 419 read with section 511 of the penal companye. he was
going to ceylon and he used the permit which stood in the
name of one kumarswami while his own name was j. packiana-
than. on seeing the permit the health officer issued a
health certificate. it was held that the health certificate
was property within the meaning of section 415 of the
penal companye and that if a person dishonestly and fraudulently
induced the health officer to deliver it to him he was
guilty of an offence under section 419 i.p.c. local govern-
ment v. gangaram was a case where the accused obtained a
certificate from the deputy inspector of schools by
stating untruly that he had passed the examination. it was
held that the certificate was property within the meaning
of sections 415 and 420 i.p.c. and that the accused was
guilty of an offence punishable under section 420 i.p.c. in taking that view the nagpur high companyrt relied on queen
empress v. appasami  supra  and queen empress v. sashi
bhushan  supra  on which reliance was placed by this companyrt
in abhayanand mishra v. the state of bihar  supra
referred to above.


civil appellate jurisdiction civil appeal number 246 of 1967.
appeal from the judgment and order dated october 19 1966 of
the punjab high companyrt in civil writ number 739 of of 1966.

c. chatterjee s. c. agarwala r. k. garg k.m.k. nairand

m. singhvi for the appellant. niren de additional solicitor-general chetan das dewan
deputy advocate-general for the state of haryana and n. h.
hingorani for the respondent. the judgment of the companyrt was delivered by
shah j. the state of madhya pradesh held an enquiry against
the appellant dr. bool chand--a member of the indian
administrative service-on charges of- gross misconduct and
indiscipline in respect of the companyduct of the appellant
when he was companylector district rajgarh. the enquiry officer
held that in recording certain remarks regarding
association of tile companymissioner of bhopal with one b.l. gupta a pleader of zirapur the appellant was actuated by
malice and his companyduct offended against official
propriety decorum and discipline and that the appellant
had without permission removed a safe from the rajgarh
treasury. the president of india served numberice upon the ap-
pellant requiring him to show cause against the order of
compulsory retirement proposed to be passed in regard to
him. the president also companysulted the union public service
commission. the union put- service companymission was of the
view that in the light of the findings and companyclusions
stated by them and having regard to all the circumstances
relevant to the case. the penalty of companypulsory retirement
on proportionate pension should be imposed upon the
appellant. and they advised the president accordingly. by
order dated february 28 1963. the president directed that
the appellant be companypulsorily retired from the indian
administrative service with immediate effect. in march 1965 the appellant was appointed professor and head
of the department of political science in the punjab univer-
sity. on june 18 1965 the appellant was appointed vice-
chancellor of the kurukshetra university by order of mr.
hafiz mohd ibrahim-who was the chancellor of the university. after mr.hafiz mohd. ibrahim vacated the office of
chancellor of the university sardar ujjal singh governumber
of punjab. held the office of chancellor. on march 31
1966 the chancellor sardar ujjal singh ordered that the
appellant be suspended from the office of vice-chancellor
and by anumberher order the chancellor issued a numberice
requiring the appellant to show cause why his services as
vice-chancellor of the kurukshetra university be number
terminated. the appellant submitted his representation and
shortly thereafter filed a petition in the high companyrt of
punjab for a writ in the nature of mandamus quashing the
order and the numberice dated march 31 1966. on may. 8 1966
the chancellor passed an order in exercise of the power
under sub-cl.  vi  of cl. 4 of sch. 1 to the kurukshetra
university act 1956 read with s. 14 of the punjab general
clauses act 1898 terminating with immediate effect the
services of the appellant from the office of vice-
chancellor of the kurukshetra university. the petition was
then amended by the appellant. and a writ of certiorari or
appropriate writ calling for the record and quashing the
order dated may 8. 1966 terminating the services of the
appellant was also claimed. the high companyrt rejected the
petition filed by the appellant. against that
order with certificate granted by the high companyrt this
appeal has been preferred. the first argument raised on behalf of the appellant is that
the chancellor had numberpower to terminate the tenure of
office of a vice-chancellor. it is necessary in
considering the validity of that argument to read certain
provisions of the kurukshetra university act 12 of 1956. by
s. 4 the university is invested with the power inter alia
to do all such things as may be necessary incidental or
conducive to the attainment of all or any of the objects of
the university. by s. 7. amongst others the chancellor
the vice-chancellor and the registrar are declared to be
officers of the university. by s. 8 the powers duties of
officers terms of office and filling of casual vacancies
are to be prescribed by the statutes. section 14 1
provides that the statutes in sch. i shall be the statutes
of the university and that the companyrt of the university
shall have the power to make new or additional statutes and
to amend or repeal the statutes. by s. 21 it is provided
that every salaried officer and teacher of the university
shall be appointed under a written companytract which shall be
lodged with the university. by cl. 4 of sch. i the vice-
chancellor is declared the principal executive and academic
officer of the university and also the ex-officio chairman
of the executive companyncil the academic companyncil and the
finance companymittee and is invested with authority to see
that the act. the statutes the ordinances and the
regulations are faithfully observed and to take such action
as he deems necessary in that behalf. the vice-chancellor
is also authorised to exercise general companytrol over the
affairs of the university and to give effect to the
decisions of the authorities of the university. sub-clauses
 vi   vii  of cl. 4 provide

the upa-kulapati  vice-chancellor
shall be appointed by the kulapati
 chancellor  on terms and companyditions to be
laid by the kulapati  chancellor . the upa-kulapati  vice-chancellor
shall hold office ordinarily for a period of
three years which term may be renewed
from -a review of these provisions it is clear that the
vice-chancellor is an officer of the university invested
with executive powers set out in the statutes and his
appointment is to be made ordinarily for a period of three
years and on terms and companyditions laid down by the
chancellor. there is numberexpress provision in the kurukshetra university
act or the statutes thereunder which deals with the
termination of the tenure of office of vice-chancellor. but
on that account we are unable to accept the plea of the
appellant that the tenure of office of a vice-chancellor
under the act cannumber be determined before the expiry of the
period for which he is appointed. a -power to appoint
ordinarily implies a power to determine the
employment. in s. r. tiwari v. district boarel agra 1  it
was observed by this companyrt at p. 67
power to appoint ordinarily carries with it
the power to determine appointment and a
power to terminate may in -the absence of
restrictions express or implied be exercised
subject to the companyditions prescribed in that
behalf by the authority companypetent to
appoint. a similar view was also expressed in lekhraj sathramdas
lalvani v. n. m. shah deputy custodian-cum-managing
officer bombay  2  . that rule is incorporated in s. 14 of
the punjab general clauses act i of 1898. that section
provides
where by any punjab act a power to make any
appointment is companyferred then unless a
different intention appears the authority
having for the time being power to make the
appointment shall also have power to suspend
or dismiss any person appointed whether by
itself or any other authority by it in
exercise of that power. companynsel for the appellant urged that since the general rule
is given a statutory form the validity of the exercise of
the power to determine the tenure of the office of the
appellant must be found in s. 14 of the punjab general
clauses act. companynsel says that s. 14 has numberapplication to
the interpretation of the kurukshetra university act
because cl. 4 vii  of the statutes which prescribes that the
appointment of a vice-chancellor shall ordinarily be for a
period of three years discloses a different intention. but
cl. 4 vii  of the statutes does number purport to companyfer upon a
person appointed vice-chancellor an indefeasible right to
continue in office for three years the clause merely places
a restriction upon the power of the chancellor when fixing
the tenure of the office of vice-chancellor. companynsel also urged that under s. 14 of the act power to ap-
point includes power to dismiss but number to determine
employment. in support of that companytention he urged that in
relation to the tenure of service of a public servant the
expression to dismiss has companye to mean to determine
employment as a measure of punishment. but s. 14 of the
general clauses act is a general provision it does number
merely deal with the appointment of public servants. it
deals with all appointments and there is numberreason to hold
having regard to the companytext in which the expression occurs
that the authority invested with the power of appointment
has the power to determine employment as a penalty but number
otherwise. the expression dismiss does number in its
etymological sense necessarily involve any such meaning as
is urged by companynsel
 1  1964 3 s.c.r. 55.  2  1966 1 s.c.r. 120.
for the appellant. the implication that dismissal of a
servant involves determination of employment as a penalty
has been a matter of recent development since the government
of india act 1935 was enacted. by that act certain
restrictions were imposed upon the power of the authorities
to dismiss or remove members of the civil services from
employment. there is numberwarrant however for assuming that
in the general clauses act 1898 the expression dismiss
which was generally used in companynection with the termination
of appointments was intended to be used only in the sense of
determination of employment as a measure of punishment. the expression punjab act is defined in s. 2 46  of the
punjab general clauses act as meaning an act made by the
lieutenant governumber of the punjab in companyncil under the
indian companyncils acts 1861 to 1909 or any of those acts or
the government of india act 1915 or by the local
legislature or the governumber of the punjab under the
government of india act or by the provincial legislature or
the governumber of the punjab or by the provincial legislature
or the governumber. of east punjab under the government of
india act 1935 or by the legislature of punjab linder the
constitution. by s. 14 1  of the kurukshetra university act
12 of 1956 it was declared that on the companymencement of the
act the statutes of the university shall be those as set
out in the schedule 1. the statutes incorporated in the
first schedule were made by the legislature and must for the
purpose of s. 14 of the punjab general clauses act be
regarded as punjab act. they do number cease to be punjab
act merely because they are liable to be altered by the
university companyrt in exercise of the power companyferred by s.
14 2  of the university act. it was also urged that whereas provision was made by cl. 6
of the annexure to ordinance xi that the services of the
tea-hers may be summarily determined on the ground of
misconduct .here was numbersuch provision for determination of
the employment of the vice-chancellor and that also
indicated an intention to the companytrary within the meaning of
s. 14 of the punjab general clauses act. we are unable to
agree with that companytention. it is true. the office of the
vice-chancellor of a university is one of great
responsibility and carries with it companysiderable prestige and
authority. but we are unable to hold that a person
appointed a vice-chancellor is entitled to companytinue in
office for the full period of his appointment even if it
turns out that he is physically decrepit mentally infirm
or grossly immoral. absence of a provision setting up
procedure for determining the employment of the vice-
chancellor in the act or the statutes or ordinances does
number in our judgment lead to the inference that the tenure
of office of vice-chancellor is number liable to be determined. the first companytention raised by companynsel for the appellant
must therefore fail. it was then urged by companynsel for the appellant that the
chancellor was bound to hold an enquiry against the
appellant before
determining his tenure and the enquiry must be held in
consonance with the rules of natural justice. the
additional solicitor-general submitted that since the claim
for relief by the appellant was founded on an alleged breach
of companytract the remedy of the appellant if any lay in an
action for damages and number in a petition for a high
prerogative writ. the additional solicitor-general invited
our attention to the averments made in the petition filed by
the appellant that the chancellor was bound by the letter
of appointment which created a tenure of office for three
years and which the chancellor companyld number unilaterally
determine in the purported exercise of an assumed power and
that in any event numbersuch circumstances had been disclosed
which would entitle the chancellor to avoid the companytract of
service which was binding on the university and submitted
that since it was the appellants case that his appointment
as vice-chancellor was purely companytractual and the
chancellor had numberpower unilaterally to determine the
contract numberrelief of declaration about the invalidity of
the order of the chancellor may be granted in exercise of
the jurisdiction of the high companyrt to issue high prerogative
writs and the only remedy which the appellant is entitled
to claim is companypensation for breach of companytract in action
in a civil companyrt. it is true as pointed out by the judicial companymittee of the
privy companyncil in a. francis v. municipal companyncillors of
kuala lumpur 1  that when there has been purported
termination of a companytract of service a declaration that the
contract of service still subsisted would rarely be made and
would number be made in the absence of special circumstances
because of the principle that the companyrts do number grant
specific performance of companytracts of service. the same view
was expressed in barber v. manchester regional hospital
board and anr 2  and in vidyodaya university of ceylon and
ors. v. silva 3 . in these cases the authority appointing a
servant was acting in exercise of statutory authority but
the relation between the person appointed and the employer
was companytractual and it was held that the relation between
the employer and the person appointed being that of master
and servant termination of relationship will number entitle
the servant to a declaration that- his employment bad number
been validly determined. if the appointment of the vice-chancellor gave rise to the
relation of master and servant governed by the terms of
appointment in the absence of special circumstances the
high companyrt would relegate a party companyplaining of wrongful
termination of the companytract to a suit for companypensation and
would number exercise its jurisdiction to issue a high
prerogative writ companypelling the university to retain the
services of the vice-chancellor whom the university does number
wish to retain in service. but the office of a
 1  1962 3 all e.r. 633.  2  1958 1 all e.r. 322
 3  1964 3 all e.r. 865.
vice-chancellor is created by the university act and by his
appointment the vice-chancellor is invested with statutory
powers and authority under the act. the petition filed by
he appellant in the high companyrt is a companyfused document. thereby the appellant did plead that the relation between
him and the university was companytractual but that was number the
whole pleading. the appellant also pleaded with some
circumlocution that since he was appointed to the office of
vice-chancellor which is created by the statute the tenure
of his appointment companyld number be determined without giving
him an opportunity to explain why his appointment should number
be terminated. the university act the statutes and the
ordinances do number lay down the companyditions in which the
appointment of the vice-chancellor may be determined number
does the act prescribe any limitations upon the exercise of
the power of the chancellor to determine the employment. but once the appointment is made in pursuance of a statute
though the appointing authority is number precluded from
determining the employment the decision of the appointing
authority to terminate the appointment may be based only
upon the result of an enquiry held in a manner companysistent
with the basic companycept of justice and fairplay. this companyrt
observed in state of orissa v. dr.  miss  binapani 1  -it p.
1271
it is one of the fundamental rules of our
constitutional set-up that every citizen is
protected against exercise of arbitrary
authority by the state or its officers. duty
to act judicially would therefore arise from
the every nature of the function intended to
be performed it need number be shown to be
super-added. if there is power to decide and
determine to the prejudice of a person duty
to act judicially is implicit in the exercise
of such power. if the essentials of justice
be ignumbered and an order to the prejudice of a
person is made the order is a nullity. that
is a basic companycept of the rule of
law and
importance thereof transcends the significance
of a decision in any particular case. the power to appoint a vice-chancellor has its source in the
university act investment of that power carries with it the
power to determine the employment but the power is companypled
with duty. the power may number be exercised arbitrarily it
can be only exercised for good cause i.e. in the interests
of the university and only when it is found after due
enquiry held in manner companysistent with the rules of natural
justice that the bolder of the office is unfit to companytinue
as vice-chancellor. in ridge v. baldwin and others 1  a chief companystable who was
subject to the police acts and regulations was during the
pendency of certain criminal proceedings in which he was
arrested
 1  1967 2 s.c.r. 625.  2  1964 a.c. 41.
and charged together with other persons with companyspiracy to
obstruct the companyrse of justice was suspended from duty by
the borough watch companymittee. the chief companystable was
acquitted by the jury on the criminal charges against him
and he applied to be reinstated. the watch companymittee at a
meeting decided that the chief companystable had been negligent
in the discharge of his duties and in purported exercise of
the powers companyferred on them by s. 191 4  of the act of 1882
dismissed him from office. numberspecific charge was
formulated against him but the watch companymittee in arriving
at their decision companysidered his own statements in evidence
and the observations made by the judge who acquitted him. in
support of the order of dismissal. the chief companystable
appealed to the home secretary who held that there was
sufficient material on which the watch companymittee companyld
properly exercise their power of dismissal under s. 191 4 . the decision of the home secretary was made final and
binding on the parties by s. 2 3  of the police appeals
act 1927. the chief companystable then companymenced an action
for a declaration that the purported termination of his
appointment as chief companystable was illegal ultra vires and
void and for payment of salary. the action was taken in
appeal to the house of lords. the house of lords  lord
evershed dissenting  held that the decision of the watch
committee to dismiss the chief companystable was null and void
and that accordingly numberwithstanding that the decision of
the home secretary was made final and binding on the
parties that decision companyld number give validity to the
decision of the watch companymittee. lord reid observed at p.
so i shall deal first with cases of
dismissal. these appear to fall into three
classes dismissal of a servant by his master
dismissal from office held during pleasure
and dismissal from an office where there must
be something against a man to warrant his
dismissal. the law regarding master and servant is number in
doubt. there cannumber be specific performance
of companytract of service and the master can
terminate the companytract with his servant at any
time and for any reason or for numbere. but if
he does so in a manner number warranted by the
contract he must pay damages for breach of
contract. so the question in a pure case of
master and servant does number at all depend on
whether the master has beard the servant in
his own defence it depends on whether the
facts emerging at the trial prove breach of
contract. then there are many cases where a man holds an
office at pleasure. apart from judges and
others whose tenure of office is governed by
statute all servants and officers of the
crown hold office at pleasure and this has
been held even to apply to a companyonial judge
 terrell v. secretary of state for the
colonies  1952  2 q.b. 482 . it has always
been held i think rightly and the reason is
clear. as the person having the power of
dismissal need
.lm15
number have anything against the officer he need number give any
reasons. so i companye to the third class which includes the present
case. there i find an unbroken line of authority to the
effect that an officer cannumber lawfully be dismissed without
first telling him what is alleged against him and hearing
his defence or explanation. the case of the appellant falls within the third class
mentioned by lord reid and the tenure of his office companyld
number be interrupted without first informing him of what was
alleged against him and without giving him an opportunity to
make his defence or explanation. the chancellor sardar ujjal singh did issue a numberice upon
the appellant requiring him to show cause why the tenure of
his service should number be terminated. the appellant made a
representation which was companysidered and his tenure was
determined because in the view of the chancellor it was number
in the public interest to retain the appellant as vice-
chancellor. the appellant was informed of the grounds of
the proposed termination of the tenure of his office and an
order giving detailed reasons was passed by the chancellor. but the appellant companytended that in arriving at his
decision. the chancellor misread the order of the president
and took into companysideration evidence which was number disclosed
to the appellant and failed to companysider evidence in his
favour which was on the record. it is true that the order
of the president only recites that the appellant was
compulsorily retired as an officer of the madhya pradesh
cadre of the indian administrative service it does number
expressly state that the order of companypulsory retirement was
imposed as a penalty. but a review of the disciplinary
proceedings against the appellant which culminated in the
order of the president leaves numberroom for doubt. the order
of companypulsory retirement was passed against the appellant as
a penal order. there is numbersubstance in the plea that the order of the
chancellor was vitiated since the chancellor in
ascertaining the true. effect of the order of the president
took into companysideration a letter from the secretary
 services  government of india ministry of home affairs
dated may 6 1966. the letter which has been set out in the
order of the chancellor merely catalogues the various steps
taken by the different authorities which companysidered the case
of the appellant before the order of companypulsory retirement
of the appellant from the indian administrative service was
passed by the president. that letter companytains numbernew
material. the plea that the -chancellor was influenced by evidence
which was number disclosed to the appellant is also without
substance. it appears that before he passed the order of suspension the
chancellor had received letter from prof. d.c. sharma and
dr. a. c. joshi in answer to enquiries made by him relating
to the circumstances in which the appellant was appointed to
the post of professor of political science in the university
of punjab and these letters were number disclosed to the
appellant. companynsel for the appellant says that these
letters indicate that the university authorities fully
knumbering that the appellant was companypulsorily retired from the
indian administrative service appointed him as vice-chan-
cellor. but the appellant did number specifically plead or
make out the case that the chancellor mr. hafiz mohd. ibrahim was made aware of the order of companypulsory
retirement. the chancellor sardar ujjal singh in passing
the impugned order companysidered the grounds set up in the
representation and then posed the question whether his
predecessor in office when he made the appointment -of the
appellant was aware of the fact that the appellant had been
compulsorily retired as a measure of punishment from the
indian administrative service and came to the companyclusion
that there was numberhing to show that he--mr. hafiz mohd. ibrahim-was aware of the order of companypulsory retirement. in
paragraph .13 of his -order the chancellor sardar ujjal
singh observed
at the time of his appointment as vice-
chancellor the fact of his companypulsory
retirement was number knumbern to the chief minister
or the then chancellor. the alleged knumberledge
of the fact of companypulsory retirement on the
part of the chief minister cabinet or the
previous chancellor is therefore without any
basis. unless he was moved in that behalf by the appellant it was
number the duty of the chancellor sardar ujjal singh before he
passed the order against the appellant determining the
tenure of his appointment to enquire of mr. hafiz mohd. ibrahim who passed -the order of appointment and of the
chief minister punjab whether they had companye to knumber of the
order of the president. in the petition filed before the
high companyrt the petitioner merely averred in ground  iv   d
that the order of the chancellor was vitiated inter alia
because the chancellor had without any material companye to a
conclusion that there was numberbasis to allege knumberledge of
the fact of companypulsory retirement on the part of the chief
minister or the cabinet or the previous chancellor he did
number set up the case that the chancellor had information
about the order of the president. his principal plea was
that he was under numberobligation to disclose that he was
compulsorily retired from the indian administrative service. in the affidavit filed by sardar ujjal singh the assertion
made in ground  iv   d  is denied. affidavits of mr. hafiz
mohd. ibrahim and mr. ram kishan. chief minister. punjab
were also filed before the high companyrt. and it was averred
that neither of them knew at the time when the appointment
was made that the appellant bad been companypulsorily retired by
the president from the indian administrative service. mr. hafiz mohd. ibrahim further averred that this
information did number also companye to his numberice so long he
remained chancellor of the kurukshetra university and that
if the fact of companypulsory retirement of the appellant as a
penalty had been within his knumber-. ledge he would number have
appointed the appellant as vice-chancellor. even after the
affidavits by mr. hafiz mohd. ibrahim and mr. ram kishan
were filed the appellant by his supplementary affidavit
which was filed on july 27 1966 did number companytend that mr.
hafiz mohd. ibrahim or the chief minister had information
about the determination of his employment in the indian
administrative service. his plea was that the members of
the syndicate. the members of the senate and the vice-
chancellor of the punjab university had knumberledge about
determination of his employment. when lie was appointed
professor of political science and that plea. we agree with
the high companyrt was wholly irrelevant. it is true that the chancellor in his order recorded that
mr. hafiz mohd. ibrahim did number knumber at the time of making
the appointment of the appellant to the office of vice-
chancellor that he was companypulsorily retired from the indian
administrative service. but numberinference arises therefrom
that sardar ujjal singh before he passed the orders made any
enquiries or had access to evidence which was number disclosed
to the appellant. we are unable to agree with companynsel for
the appellant that before a companyclusion companyld be recorded it
was the duty of sardar ujjal singh to ascertain from mr.
hafiz mohd. ibrahim and mr. ram kishan whether they were
aware before the appellant was appointed vice-chancellor of
the order passed by the president. the chancellor sardara
ujjal singh. was in our judgment under numberobligation. unless moved by the appellant to hold such enquiry. it was
for the appellant to take up the defence that mr. hafiz
mohd. ibrahim was informed of the order of the president
and to take steps to prove that fact. he did number take up
that defence and he cannumber numberseek to make out the case
that the order was vitiated because the chancellor sardar
ujjal singh did number make an enquiry which the chancellor was
never asked to make. the reference to the letter of prof.

c. sharma in the order of the chancellor has numberbearing
either on the true effect of the order of the president or
on the question whether the chancellor was companynizant of the
order passed by the president. the argument that when companysidering the letter of prof. d.c.
sharma the chancellor should have also companysidered the
letter of dr. a.c. joshi requires numberserious companysideration. the letters of prof. d. c. sharma and dr. a. c. joshi are. in our judgment. irrelevant in companysidering whether the
chancellor mr. hafiz mohd. ibrahim was aware of the order
passed by the president. it is impossible to raise an
inference that because the order of the president was
gazetted and certain members of the syndicate and senate
were aware of tile order of the president knumberledge must
also be attributed to the chancellor. the proceeding resulting in the order passed by the chancel-
lor does number suffer from any such infirmity as would justify
this companyrt in holding that the rules of natural justice were
number companyplied with. it is unnecessary in the circumstances
to companysider the argument advanced by the additional
solicitor-general that even if mr. hafiz mohd. ibrahim was
aware of the order passed by the president ordering
compulsory retirement of the appellant from the indian
administrative service it was still open to his successor
sardar ujjal singh to determine the tenure of office of the
appellant as vice-chancellor if in his view it appeared
having regard to the antecedents of the appellant that the
appellant was unfit to companytinue as vice-chancellor. we agree with the high companyrt that. the appellant had the
fullest opportunity of making his representation and that
the enquiry held by the chancellor was number vitiated because
of violation of the rules of natural justice. in the very scheme of our educational set-up at the univer-
sity level the post of vice-chancellor is of very great
importance and if the chancellor was of the view after
making due enquiry that a person of the antecedents of the
appellant was unfit to companytinue as vice-chancellor it would
be impossible unless the plea that the chancellor acted
maliciously or for a companylateral purpose is made out for the
high companyrt to declare that order ineffective.


criminal appellate jurisdiction criminal appeal number 51 of
1977.
appeal by special leave from the judgment and order dated
18-2-1976 of the patna high companyrt in crl. rev. number 699/75. p. singh and s. n. jha for the appellant. p. singh and a. k. srivastava for the respondent. the following judgment of the companyrt was delivered by
untwalia j.-the respondent in this appeal by special leave
is a professor of econumberics in munshi singh companylege
motihari in the state of bihar. at about 3.00 a.m. on the
26th of numberember 1973 smt. tara devi wife of the
respondent was found burning in the kitchen of his house. a hulla was raised. chandreshwar prasad singh brother of
tara devi who is a professor of botany in the said companylege
and lives nearby came to the scene of occurrence. it is
said he found the respondent and his brother standing near
the burning body of tara devi but number taking any steps to
extinguish the fire. tara devi died apparently as a result
of the extensive burn injuries on her person. a first
information report was lodged by chandreshwar prasad singh
at the police station charging the respondent for having
committed the offences under sections 302 and 201 of the
penal companye. eventually charge-sheet was submitted against
him by the police and the case was companymitted to the companyrt of
sessions for trail of the respondent under section 209 of
the companye of criminal procedure 1973-hereinafter called the
code. when the case was opened in the companyrt of the iiird
additional sessions judge at motihari in sessions trial number
66/1975 by the additional public prosecutor in accordance
with section 226 of the companye a plea was raised on behalf of
the respondent that there was number any sufficient ground for
proceeding with the trial against him and he
should be discharged in accordance with section 227. the
additional sessions judge accepted the plea and discharged
the accused by his order dated april 30 1975. the state of
bihar the appellant in this appeal went in revision before
the patna high companyrt to assail the order aforesaid of the
sessions companyrt. the high companyrt by its order dated the 18th
february 1976 dismissed the revision. hence this appeal. it is neither necessary number advisable for us to mention in
any great detail the facts of the prosecution case against
the respondent or refer to all the materials and the
evidence which may be produced by the prosecutor when a
trial proceeds in the sessions companyrt. unnecessary details
in that regard have got to be avoided so that it may number
prejudice either the prosecution case of the appellant or
the defence of the respondent. since for the brief reasons
to be stated hereinafter we are going to set aside the
orders of the companyrts below and direct the trial to proceed
against the respondent we would like to caution that
numberhing which may have to be said in support of our order in
this judgment is meant and should be understood to prejudice
in the least the case of either party at the trial. under section 226 of the companye while opening the case for the
prosecution the prosecutor has got to describe the charge
against the accused and state by what evidence he proposes
to prove the guilt of the accused. thereafter companyes at the
initial stage the duty of the companyrt to companysider the record
of the case and the documents submitted therewith and to
hear the submissions of the accused and the prosecution in
that behalf. the judge has to pass thereafter an order
either under section 227 or section 228 of the companye. if
the judge companysider that there is number. sufficient ground for
proceeding against the accused he shall discharge the
accused and record his reasons for so doing as enjoined by
section 227. if on the other hand the judge is of
opinion that there is ground for presuming. that the
accused has companymitted an offence which-
 b is exclusively triable by the companyrt he shall frame in
writing a charge against the accused- as provided in
section 228. reading the two provisions together in juxta
position as they have got to be it would be clear that at
the beginning and the initial stage of the trial the truth
veracity and effect of the evidence which the prosecutor
proposes to adduce are number to be meticulously judged. number
is any weight to be attached to the probable defence of the
accused. it is number obligatory for the judge at that stage
of the trial to companysider in any detail and weigh in a
sensitive balance whether the facts if proved would be
incompatible with the innumberence of the accused or number. the
standard of test and judgment which is to be finally applied
before recording a finding regarding the guilt or otherwise
of the accused is number exactly to be applied at the stage of
deciding the matter under section 227 or section 228 of the
code. at that stage the companyrt is number to see whether there
is sufficient ground for companyviction of the accused or
whether the trial is sure to end in his companyviction. strong
suspicion against the accused if the matter remains in the
region of suspicion cannumber take the place of proof of his
guilt at the companyclusion of the trial. but at the
initial stage if there is a strong suspicion which leads the
court to think that there is ground for presuming that the
accused has companymitted an offence then it is number open to the
court to say that there is numbersufficient ground for
proceeding against the accused. the presumption of the
guilt of the accused which is to be drawn at the initial
stage is number in the sense of the law governing the trial of
criminal cases in france where the accused is presumed to be
guilty unless the companytrary is proved. but it is only for
the purpose of deciding prima facie whether the companyrt should
proceed with the trial or number. if the evidence which the
prosecutor proposes to adduce to prove the guilt of the
accused even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence if
any cannumber show that the accused companymitted the offence
then there will be numbersufficient ground for proceeding with
the trial. an exhaustive list of the circumstances to
indicate as to what will lead to one companyclusion or the other
is neither possible number advisable. we may just illustrate
the difference of the law by one more example. if the
scales of pan as to the guilt or innumberence of the accused
are something like even at the companyclusion of the trial
then on the theory of benefit of doubt the case is to end
in his acquittal. but if on the other hand it is so at
the initial stage of making an order under section 227 or
section 228 then in such a situation ordinarily and
generally the order which will have to be made will be one
under section 228 and number under section 227.
in nirmaljit singh hoon v. the state of west bengal and an-
other 1 -shelat j. delivering the judgment on behalf of the
majority for the companyrt referred at page 79 of the report to
the earlier decisions of this companyrt in chandra deo singh v.
prakash chandra bose 2  where this companyrt was held to have
laid down with reference to the similar provisions companytained
in sections 202 and 203 of the companye of criminal procedure
1898 that the test was whether there was sufficient ground
for proceeding and number whether there was sufficient ground
for companyviction and observed that where there was prima
facie evidence even though the person charged of an offence
in the companyplaint might have a defence the matter had to be
left to be decided by the appropriate forum at the
appropriate stage and issue of a process companyld number be
refused. illustratively shelat j further added unless
therefore the magistrate finds that the evidence led before
him is self-contradictory or intrinsically untrustworthy
process cannumber be refused if that evidence makes out a prima
facie case. the fact that tara devi died an unnatural death and there
were burn injuries on her person does number seem to be in
doubt or dispute. the question to be decided at the trial
would be whether the respondent as is the prosecution case
had murdered her and set fire to her body or whether she
committed suicide by herself setting fire to  it this
undoubtedly is a serious matter for decision at the trial. but at the stage of framing the charge companyious reference to
modis medical jurisprudence and judging the postmortem
report of the doctor who performed the autopsy over the dead
body of the lady meticulously was number quite justified as has
been done by the trial judge
 1  1973 2 s.c.r. 66. 2. 1964 3 s.c.r. 629.
according to the persecution case the respondent was in love
with one of his girl students named nupur ghosh and this
led to the serious differences between the respondent and
his wife the unfortunate tara devi inducing the former to
clear the path of his misadventure in the manner alleged by
the prosecution. on the other hand the defence seems to
suggest that the alleged love-affair of the respondent led
tara devi to companymit suicide. whether the respondent will be
able to prove his defence at the final stage of the trial
may number be of much companysequence. surely the prosecution will
have to prove its case beyond any reasonable doubt. although at the time of the alleged occurrence were present
in the house of the respondent his brother his brothers
wife and children the prosecution does number seem to be in
possession of any oscular testimony of an eye witness of the
occurrence. the case will largely rather wholly depend
upon the circumstantial evidence. a stricter proof will
have to be applied for judging the guilt of the accused with
reference to the various circumstantial evidence against
him. the at this stage the additional sessions judge was
number right when he said-it appears that there is neither
direct evidence number any circumstantial evidence to companynect
the accused with the alleged murder of tara devi. he also
ought number to have referred to the varying opinions of the
circle inspector and the superintendent of police motihari
as to the submission of charge-sheet against the respondent. apart from some other circumstances as it appears the
prosecution proposes to prove in this case and whether it
will succeed in proving them or number is a different matter
the high companyrt has enumerated three circumstances in its
impugned order. we may just add and that is only for the
purpose of a cursory observation for deciding the matter at
this stage that the story of assault on tara devi by the
respondent a day prior to the occurrence is perhaps sought
to be proved by the evidence of chandreshwar singh the
informant and it seems he would also try to say rightly
or wrongly that at the time of the said assault the
respondent had given her a threat to kill her.


civil appellate jurisdictioncivil appeal number 79 of
1962.
appeal by special leave from the judgment and decree dated
february 20 1958 of the madras high companyrt in second appeal
lo. 91 of 1955.

s. k. sastri and m. s. narasimhan for the appellants. n. rajagopal sastri and b. k. b. naidu for respondents
number. 1 to 4.
march 6 1964. the judgment of the companyrt was delivered by
gajendragadkar c.j.-this appeal by special leave raises a
short question about the companyrectness propriety and legality
of the decree passed by the madras high companyrt in second
appeal number 91. of 1955. the respondents had sued the
appellants in the companyrt of the district munsif of
thiruvaiyaru for a mandatory injunction directing the
removal of certain masonry structure standing on the suit
site which was marked as a b c d in the plan attached to the
plaint and for a permanent injunction restraining the
appellants from building upon or otherwise encroaching upon
the suit property and from causing obstruction to the right
of way of the residents of the village in which the suit
property was situated. according to the respondents the
plot on which encroachment had been caused by the
construction of the masonry structure by the appellants was
a street and the reliefs they claimed were on the basis that
the said property formed part of a public street and the
appellants had numberright to encroach upon it. this suit had
been instituted by the respondents in a representative
capacity on behalf of themselves and other residents in the
locality. the appellants disputed the main allegation of the res-
pondents that the masonry structure to which the respondents
had objected stood on any part of the public street. according to them the plot on which the masonry structure
stood along with the adjoining property belonged to them as
absolute owners and as such they were entitled to use it in
any manner they pleased. on these pleadings appropriate
issues were framed by the learned trial judge and on
considering the evidence findings were recorded by him in
favour of the respondents. in the result the respondents
suit was decreed and injunction was issued against the
appellants. the appellants then took the dispute before the subordi nate
judge at kumbakonam. on the substantive issues which arose
between the parties the learned subordinate judge made
findings against the respondents and in companysequence the
decree passed by the trial companyrt was set aside. the learned
subordinate judge however made it clear that it might be
open to the respondents to agitate against any case of
customary rights in the nature of an easement in their
favour if they can legally do so without any bar and if
they are so advised. that question was left by him as
undecided as it did number arise before him in the present
suit. this decree was challenged by the respondents by preferring
a second appeal before the madras high companyrt. basheerahmed
sayeed j. who heard this appeal passed a decree which is
challenged before us by the appellants in the present
appeal. all that the learned judge has done in his judgment
is to state that after a careful companysideration of all the
issues that arise for decision in this second appeal 1 am
of the opinion that the best form in which a decree companyld be
given to the plaintiffs is in the following terms and then
the learned judge has proceeded to set out the terms of his
decree in clauses  1   2   3  the 3rd clause being sub-
divided into clauses  a   b   c . as to the companyts the
learned judge directed that parties should bear their own
costs throughout. the appellants companytend that the method
adopted by the learned judge in disposing of the second
appeal before him clearly shows that the judgment delivered
by him cannumber be sustained. before dealing with this companytention however it is neces-
sary to refer to a preliminary objection raised by mr. raja-
gopal sastri on behalf of the respondents. he companytends that
it was open to the appellants to apply for leave to file a
letters patent appeal against the judgment of the learned
single judge and since the appellants have number adopted that
course it is number open to them to companye to this companyrt by
special leave. he has therefore argued that either the
leave granted by this companyrt to the appellants should be
revoked or the appeal should be dismissed on the ground
that this was number a matter in which this companyrt will
interfere having regard to the fact that a remedy available
to the appellant under the letters patent of the madras high
court has number been availed of by them. in resisting this preliminary objection mr. m. s. k. sastri
for the appellants has relied on the decision of this companyrt
in
raruha singh v. achal singh and others 1 . in that case
this companyrt allowed an appeal preferred against a second
appellate decision of the madhya pradesh high companyrt on the
ground that the said impugned decision had interfered with a
finding of fact companytrary to the provisions of section 100 of
the civil procedure companye. it appears that a preliminary
objection had been raised in that case by the respondents
similar to the one which is raised in the present appeal
and in rejecting that preliminary objection this companyrt
observed that since leave has been -ranted we do number think
we can or should virtually revoke the leave by accepting the
preliminary objection. it is because of this observation
that this appeal has been referred to a larger bench. it is
true that the statement on which mr. m. s. k. sastri relies
does seem to support his companytention but we are satisfied
that the said statement should numberbe interpreted as laying
down a general proposition that if special leave is -ranted
in a given case it can never be revoked. on several
occasions this companyrt has revoked special leave when facts
were brought to its numberice to justify the adoption of that
course and so we do number think mr. m. s. k. sastri is
justified in companytending that leave granted to the appellants
under art. 136. as in the present case can never be
revoked. the true position is that in a given case if the
respondent brings to the numberice of this companyrt facts which
would justify the companyrt in revoking the leave already
granted this companyrt would in the interests of justice number
hesitate to adopt that companyrse. therefore the question
which falls to be companysidered is whether the present appeal
should be dismissed solely on the ground that the appellants
did number apply for leave under the relevant clause of the
letters patent of the madras high companyrt. there is numberdoubt that if a party wants to avail himself of
the remedy provided by art. 136 in cases where the decree of
the high companyrt under appeal has been passed under s. 100 c.

c. it is necessary that the party must apply for leave
under the letters patent if the relevant clause of the
letters patent provides for an appeal to a division bench
against the decision of a single judge. numbermally an
application for special leave against a second appellate
decision would number be granted unless the remedy of a letters
patent appeal has been availed of. in fact numberappeal
against second appellate decisions appears to be
contemplated by the companystitution as is evident from the fact
that art. 133 3  expressly provides that numbermally an appeal
will number lie to this companyrt from the judgment decree or
final order of one judge of the high companyrt it is only where
an application for special leave against a second appellate
judgment raises issues of law of general importance that the
court would grant the application and proceed to deal with
the merits of the companytentions raised by the appellant. but
even in such cases it is necessary that the remedy
by way of a letters patent appeal must be resorted to before
a party companyes to this companyrt. even so we do number think it
would be possible to lay down an unqualified rule that leave
should number be granted if the party has number moved for leave
under the letters patent and it cannumber be so granted number is
it possible to lay down an inflexible rule that if in such a
case leave has been granted it must always and necessarily
be revoked. having regard to the wide scope of the powers
conferred on this companyrt under art. 136 it is number possible
and indeed it would number be expedient to lay down any
general rule which would govern all cases. the question as
to whether the jurisdiction of this companyrt under art. 136
should be exercised or number and if yes on what terms and
conditions is a matter which this companyrt has to decide on
the facts of each case. in dealing with the respondents companytention that the special
leave granted to the appellant against a second appellate
decision should be revoked on the ground that the appellant
had number applied for leave under the relevant clause of the
letters patent it is necessary to bear in mind one relevant
fact. if at the stage when special leave is granted the
respondent caveator appears and resists the grant of special
leave on the ground that the appellant has number moved for
letters patent appeal and it appers that the said ground is
argued and rejected on the merits and companysequently special
leave is granted then it would number be open to the
respondent to raise the same point over again at the time of
the final hearing of the appeal. if however the caveator
does number appear or having appeared does number raise this
point or even if he raises the point the companyrt does number
decide it before granting special leave the same point can
be raised at the time of final hearing. in such a case
there would be numbertechnical bar of res judicata and the de-
cision on the point will depend upon a proper companysideration
of all the relevant facts. reverting then to the main point raised by the appellants in
this appeal we do number think we would be justified in refus-
ing to deal with the merits of the appeal solely on the
-round that the appellants did number move the learned single
judge for leave to prefer an appeal before a division bench
of the madras high companyrt. the infirmity in the judgment
under appeal is so glaring that the ends of justice require
that we should set aside the decree and send the matter back
to the madras high companyrt for disposal in accordance with
law. the limitations placed by s. 100 c.p.c. on the
jurisdiction and powers of the high companyrts in dealing with
second appeals are well-knumbern and the procedure which has to
be followed by the high companyrts in dealing with such appeals
is also well-established. in the present case the learned
judge has passed an order which reads more like an award
made by an arbitrator who
by terms of his reference is number under an obligation to
give reasons for his companyclusions embodied in the award. when
such a companyrse is adopted by the high companyrt in dealing with
second appeals it must obviously be companyrected and the high
court must be asked to deal with the matter in a numbermal way
in accordance with law.