original civil criminal appellate jurisdiction writ petition
number. 103 and 199 of 1967.
petition under art. 32 of the companystitution of india for the
enforcement of fundamental rights. and
civil appeal number 1971 of 1966.
appeal from the judgment and order dated december 2 1965 of
the patna high companyrt in c.w.j.c. 442 of 1965.
and
criminal appeals number. 164 to 168 of 1966.
appeals by special leave from the judgment and order dated
december 22 1965 of the patna high companyrt in criminal misc. number. 649 666 667 668 and 669 of 1965.

c. chatterjee and a. k. nag for the petitioners  in

p. number. 103 and 199 of 1967 . c. chagla and a. k nag for the appellants  in c.a. number
1971 of 1966 . k. nag for the appellants  in cr. a. number. 164 to 168
of 1966 . k. daphtary attorney-general d. p. singh k. m. k.
nair anil kumar gupta for respondents  in w.p. number. 103 and
199 of 1967 . p. jha for the respondents  in c.a. number. 1871 of 1966
and the respondents  in cr. a. number. 164 to 168 of 1966 . the judgment of the companyrt was delivered by
bachawat j. w.p. number 199 of 1967 c.a. number 1971 of 1966 and
cr. as. number. 164-168 of 1966 raise companymon questions as to
the validity of the numberifications declaring a market area
and estab-
lishing a market for agricultural produce in gaya and the
legality of the levy of market fees and licence fees
therein under the bihar agricultural produce markets act
1960  bihar act 16 of 1960  and the bihar agricultural
produce markets rules 1962. the companytentions are that  1
the numberification declaring the market area is void as the
numberified market area is too wide  2  the market companymittee
has number established any market and in the absence of a
market and a lawful market area the provisions of the act
and the rules are number enforceable in the area  3  the fees
are in the nature of taxes and are illegally levied as no
services are being rendered by the market companymittee and  4
the enforcement of the act and the rules in gaya without
implementing them in the whole of bihar is discriminatory
and violative of art. 14 of the companystitution. w.p. number 199
of 1967 is a writ petition filed in this companyrt. c.a. number
1971 of 1966 is an appeal from -an order of the patna high
court dismissing a writ petition filed in that companyrt. cr. as. number. 164-168 of 1966 are appeals filed against the
orders of the patna high companyrt refusing to quash criminal
prosecutions under s. 48 for refusal to take out licences in
contravention of rule 7 1.
the relevant provisions of the act and the rules and the
relevant numberifications may be numbericed briefly. as stated in
the preamble the object of the act is to provide for the
better regulation of buying and selling of agricultural
produce and the establishment of markets for it in the state
of bihar and for matters companynected therewith. agricultural
produce as defined in s. 2 1  a  includes all produce
mentioned in the schedule to the act. sections 2 3 4 and
5 define and deal with market area market proper and
market yards. market area is the entire area within which
purchase and sale of agricultural produce is regulated. market for the area companysists of a market proper a
principal market yard and sub-market yard or yards if any. market proper is an area inside the market area and within
a certain distance from a market yard. principal market
yard and sub-market yard are enclosures buildings or
localities within the market proper. the state government may issue a numberification under s. 3
declaring its intention of regulating the purchase and sale
of specified agricultural produce in any area. after
considering the objections and suggestions received by it
and after holding necessary enquiries if any the state
government may issue a numberification under s. 4 1  declaring
the area or any part of it to be the market area in respect
of any numberified agricultural produce. section 4 2  provides
that on the issue of such a numberification numberplace can be set
up established or companytinued except in accordance with the
provisions of the act rules and bye-laws for the purchase
or sale of the agricultural produce other than sales by the
growers and
retail sales to companysumers. the state government is required
by s. 6 to establish a market companymittee for every market
area. under rule 61 read with s. 27 the market companymittee is
required to levy and companylect market fees on the agricultural
produce bought in the market area at the rate of 25 naye
paise for rs. 100/- worth of the produce. the relevant provisions relating to the establishment of
market may number be read
2 h  market means a market established under
this act for the market area and includes a
market proper a principal market yard and
sub-market yard or yards if any. s. 5. declaration of market yards- 1  for
each market there shall be one principal
market yard and there may also be one or more
sub-market yard or yards as may be
necessary. the state government may by numberification
declare-

any enclosure building or locality in
any market area to be the principal market
yard and other enclosures buildings or
localities in such area to be one or more sub-
market yard or yards for the said market area
and

any area including all lands with
buildings therein within such distance of the
market yard or yards as it thinks fit to be
market proper. objects and duties of the market
committee subject to the other provisions of
this act the following shall be the objects
and duties of the market companymittee -

when so required by the state government
to establish a market for the market area
providing for such facilities as the state
government may from time to time direct in
connection with the purchase and sale of the
agricultural produce companycerned
rule 59. establishment of markets  1  after
the issue of the numberification under section 4
and establishment of the market companymittee
under section 6 the state government shall
direct the market companymittee to establish a
market.  2  when. directed to do so under sub-rule
 1  the market companymittee shall establish a
market for the market area for which it is
established. after the establishment of a market by the market
committee the state government shall issue a numberification
under section 5.
a market as defined in s. 2 h  is established for a market
area by following the procedure laid down in sees. 5 18 i
and rule 59. the state government issues a direction under
s. 18 i  read with r. 59 1  to the market companymittee to
establish a market for the market area. on receipt of this
direction the market companymittee decides under r. 59 2  to
establish a market by fixing the boundaries of the market
proper and the principal market yard and sub-market yard if
any. thereafter the government issues the necessary
numberification under s. 5 2  declaring the market proper and
the market yards. these three steps form one integrated
process and on the issue of the numberification under s. 5 2
the market is finally established. the market so
established companysists of the market proper and the market
yard or yards. there is numberother separate market place. the expression market is used in the act as meaning
either the market proper or the market yards or both. under
section 15 read with r. 67 as soon as a market is
established all numberified agricultural produce- brought into
produced or processed in the market proper save a prescribed
quantity for retail sale or companysumption must pass through a
market yard and shall number be sold at any other place within
the market proper and the price shall be settled by open
auction and number otherwise. thus the business of sale and
purchase of the agricultural produce is companycentrated in the
market yards and takes place at fair prices under regulated
conditions in the presence of a large number of buyers and
sellers. under sec. 18 ii  and rule 71 and 73 as amended
by numberification number 4575 issued by the state government on
march 25 1965 numberperson can do business as a trader or
other operator in the numberified agricultural produce in a
market except under a licence granted by the market
committee on payment of the prescribed licence fees. the procedure prescribed by the act and the rules was fol-
lowed for regulating the purchase and sale of agricultural
produce and for establishing a market for it in the gaya
area. on december 13 1962 the state government issued the
necessary numberification under s. 3. on september 19 1963 it
issued a numberification under s. 4 1  declaring gaya town
gaya muffasil bodh gaya and paraiya police station within
the sadar sub-division of gaya district as the market area
for the sale and purchase of paddy rice masur linseed
gur and potato. on the same date it established a market
committee for the market area. on october 22 1963 the
government acting under s. 18 i  and r. 59 1  directed the
market companymittee to establish a market. on january 23 1964
the market companymittee decided to establish a market under
r.59 2  and made its recommendations regarding market
proper and the principal market yard. on february 12 1964
the market companymittee made its recommendation regarding the
sub-market yard. the resolution of the companymittee dated
january 23 1964 stated that as directed by the state
government the companymittee appoints gaya bazar to be area of
this bazar. this clumsy phrase really means that as
directed by-the government the companymittee was establishing a
market for the gaya market area. the market companysisted of
the market proper and the market yards. there was numberother
separate market knumbern as the gaya bazar. on april 6 1964
the government issued a numberification under s. 5 2  ii  dec-
laring the entire area under the jurisdiction of the gaya
municipality and several villages as the market proper. on
april 7 1964 the government issued a numberification under s.
5 2  i  declaring the locality of mahallah parani godown
within gaya police station to be the principal market yard
and the locality knumbern as kedarnath market within gaya
police station to be the sub-market yard. mr. m. c. chagla submitted that the area declared to be the
market area by the numberification on september 19 1963 is too
wide. this objection is number well founded. it may be
conceded that the power under s. 4 1  should be exercised
reasonably. but there is numbermaterial on the record to show
that the government acted unreasonably or that the market is
so wide that the sale and purchase of agricultural produce
within it cannumber be effectively companytrolled by the market
committee or that the growers within the area cannumber
conveniently bring their produce to the market yards. the
market area was duly declared under s. 4 1  after
considering all objections and suggestions made in that
behalf. companynsel next submitted that the market companymittee has number
established any market. according to companynsel a market must
be a well defined site with market equipment and facilities. the argument overlooks the definition of market in s. 2 h . the market companysists of market proper and the market yards. the market yards are well defined enclosures buildings or
localities but the market proper is under s. 2 k  read with
s. 5 2  ii  a larger area. for establishing a market it is
sufficient to make a declaration under s.5 2  fixing the
boundaries of the market proper and the market yards on the
recommendation of the market companymittee made under r. 59 2 . under s. 18 i  the market companymittee must provide for such
facilities in the market as the state government may from
time to time direct. it is number shown that the market
committee refused to carry out any direction of the
government. the market companymittee may in view of ss. 28 2
and 30 i  acquire and own lands and buildings for the
market but it is number always obliged to do so. the market
is established on the issue of a l7 sup. c.i/68-10
numberification under s. 5 2  declaring the market proper and
the market yards. the next companytention is that the fees levied by the market
committee are in the nature of taxes as the companymittee does
number render any services to the users of the market and the
levy of fees is therefore illegal. this companytention is number
tenable. the market companymittee has taken-steps for the
establishment of a market where buyers and sellers meet and
sales and purchases of agricultural produce take place at
fair prices. unhealthy market practices are eliminated
market charges are defined and improper ones are prohibited. companyrect weighment is ensured by employment of licensed
weighment and by inspection of scales weights and measures
and weighing and measuring instruments. the market
committee has appointed a dispute sub-committee for quick
settlement of disputes. it has set up market intelligence
unit for companylecting and publishing the daily prices and
information regarding the stock arrivals and despatches of
agricultural produce it has provided a grading unit where
the technique of grading agricultural produce is taught. the companytract form for purchase and sale is standardised. the provisions of the act and the rules are enforced
through inspectors and other staff appointed by the market
committee. the fees charged by the market companymittee are
correlated to the expenses incurred by it for rendering
these services. the market fee of 25 naye paise per rs. 100/worth of agricultural produce and the licence fees
prescribed by rules 71 and 73 are number excessive. the fees
collected by the market companymittee form part of the market
committee fund which is set apart and ear-marked for the
purposes of the act. there is sufficient quid pro quo for
the levies and they satisfy the test of fee as laid down
in companymissioner hindu religious endowments madras v. sri
lakshmindra thirtha swamiar of sri shirur mutt 1 . it is then said that the setting up of a market in gaya is
discriminatory and violative of art. 14 of the companystitution
as the act and the rules have number been implemented in all
parts of bihar. there is numberforce in this companytention. the
state government is number bound to implement the act and the
rules in all parts of bihar at the so time. i it may
establish markets regulating the sale and purchase of
agricultural produce in different parts of bihar gradually
and from.time to time. in writ petition number 103 of 1967 the relevant numberification
relating to barh and the levy of fees by the market
committee are challenged on the same grounds. the
numberification under s. 4 1  declaring the area within barh
police station to be a market area
 1  1954 s.c.r. 1005.
in respect of the agricultural produce mentioned therein was
issued by the state government on may 26 1965. thereafter
the market for the area was established and numberifications
declaring the market proper and the market yards were issued
after-following the procedure laid down in secs. 5 18  i
and r. 59. for the reasons already given we find no
substance in any of the companytentions raised in this petition. in thakur prasad gupta v. the state of bihar   the high
court of patna upheld the companystitutionality of the act and
rule 61 but it struck down rule 71 then in force as the rule
imposed the liability to take out licences for operating in
the entire market area and was ultra vires s. 18 ii . this
judgment was pronumbernced on numberember 20 1964. thereafter
rules 71 and 73 were amended by numberification number 4575 dated
match 25 1965 and the word market was substituted for the
words market area therein. the amendment cures the
objection that these rules were ultra vires s. 18 ii . in
all the matters before us the companystitutionality of the act
and the rules were again challenged. but when the hearing
of these cases companymenced companynsel expressly gave up all
contentions regarding the invalidity of the act and the
rules. in the result c.a. number 1971 of 1966 w.p. number. 199 and 103
of 1967 are dismissed with companyts. there will be one hearing
fee. cr. as.


criminal appellate jurisdiction criminal appeal number 110 of
1961.
appeal from the judgment and order dated january 25 1961
of the calcutta high companyrt in reference number 10 of 1960.

n. mukherjee for the appellants. b. bagchi s. n. mukherjee for p. k. bose or the
respondent. 1963. february 8. the judgment of the companyrt was delivered
by
shah j.-the first appellant-sekander sheikh-was charged in
a trial held before the additional sessions judge
murshidabad in the state of west bengal for the offences
of forging a valuable security punishable under s. 467 1. p.
code and of falsely personating anumberher in such assumed
character and presenting a document for registration
punishable under s. 82  c  of indian registration act. the
second appellant-hasibuddin sheikh was charged with abetment
of these offences. the trial for the offences of forging a
valuable security
and abetment thereof was held by the sessions judge sitting
with a jury and for the offences under the registration act
without a jury. the jury brought in a verdict of guilty by
a majority of 4 to 3 against the appellants for the offences
of forging a valuable security and abetment thereof but the
judge did number accept the verdict and made a reference under
a. 307 of the companye of criminal procedure to the high companyrt
of calcutta because in his view there was absolutely no
reliable evidence against the two appellants in respect of
the offence of forging a valuable security and that it was
in the interests of justice to refer the case to the high
court. the sessions judge acquitted the two appellants of
offences under the indian registration act. the high companyrt
declined to accept the reference and companyvicted the two
appellants respectively of the offences punishable. under s.
467 and s. 467 read with s. 109 of the indian penal companye
and sentenced each appellant to suffer rigorous imprisonment
for two years. with certificate of fitness granted by the
high companyrt under art. 134  1   c  the appellants have
appealed to this companyrt. the charges against the first appellant were-

that on or about january 15 1958 he
had in the town of berhampore forged a heba-
nama in respect of certain property in favour
of one ali hossain purporting to execute the
same in the name of one kaimuddin of debkundu
and that the execution of the document was
made with intent to cause the said kaimuddin
to part with his property and to companymit fraud
and

that on the same day he had falsely per-
sonated kaimuddin sheikh and in that assumed
character had presented for
registration the heba-nama in the berhampore
sub-registry and had affixed his thumb
impressions claiming to be kaimuddin sheikh. the second appellant was charged with abetting the first
appellant in the companymission of the two offences by
identifying the first appellant as kaimuddin sheikh. at the
trial the prosecution examined one swarana kumar dey who
testified that he had engrossed the heba-nama in favour of
ali hossain which was executed by the first appellant
purporting to do so as kaimuddin sheikh that the first
appellant had impressed his thumb mark on the document
before him in token of execution of the heba-nama that the
first appellant had represented himself to be kaimuddin
sheikh and that the executant of the document was
identified before him as kaimuddin sheikh by the second
appellant hasibuddin sheikh. kaimuadin sheikh testified
that he had number executed any heba-nama in favour of ali
hossain and that he had number impressed his thumb-mark on any
document in the presence of swarana kumar dey. a certified
copy of the heba-nama was shown to the witness and he denied
having executed and presented the original thereof before
the sub-registrar. evidence was also tendered that the
thumb impressions of the two appellants were taken by the
investigating officer in the presence of magistrate and
those specimen thumb impressions were companypared with the
thump impressions in the register at the sub-registry at
berhampore by a a hand-writing expert and that the thumb
impressions of the first appellant tallied with the thumb
impressions in the said registrar and number with the thumb
impressions of kaimuddin sheikh. in the view of the high
court sufficient to establish against the two offences of
forging a valuable security and abetment thereof. it is number well settled that in a reference under s. 307 of
the companye of criminal procedure if the evidence is such that
it can properly support a verdict of guilty or number guilty
according to the view taken of the evidence by the trial
court and if the jury take one view of the evidence and the
judge is of the opinion that they should have taken the
other the view of the jury must prevail for they are the
judges of fact. in such a case a reference under s. 307 of
the companye of criminal procedure is number justified. but if the
high companyrt holds that upon the evidence numberreasonable body
of men companyld have reached the companyclusion arrived at by the
jury the reference will be justified and the verdict of the
jury will be disregarded. ramanugrah singh v. king emperor
 1 . it appears that the companyrt of session was number impressed
by the testimony of swarana kumar dey but it was for the
jury to assess the value of the evidence. the jury had
apparently accepted the evidence of swarana kumar dey and of
kaimuddin sheikh and it companyld number be said that no
reasonable body of men companyld have accepted that evidence. at the trial evidence about the specimen thumb impressions
of the appellants taken during the companyrse of the
investigation were relied upon in support of the prosecution
case. this companyrt has held that there is numberinfringement of
art. 20 3  of the companystitution merely by tendering evidence
of this character in support of the case for the
prosecution against a person accused of an offence the
state of bombay v. kathi kalu oghad  2 . the companyrt in that
case set out certain propositions of which the following are
material-

the words to be a witness in art. 20 3  do number include the giving of thumb
impression or impression of palm foot or
fingers or specimen writing or exposing a part
of the body by an accused person for
identification
 1   1946  l.r. 73 i.a. 174.  2  1962 3 s c.r. 10.

self-incrimination means companyveying in-
formation based upon the personal knumberledge of
the giver and does number include the mere
mechanical process of producing documents in
court which do number companytain any statement of
the accused based on his personal knumberledge

in order to companye within the prohibition
of art. 20 3  the testimony must be of such a
character that by itself it should have the
tendency to incriminate the accused-
in view of this decision companynsel for the appellants fairly
conceded that he companyld number challenge the admissibility of
evidence relating to the taking of thumb impressions of the
first appellant and its use for companyparison with the thumb
impressions in the sub-registry at berhampore made at the
time of presentation of the document for registration. it was urged however that when the trial judge acquitted
the two appellants of the offences punishable under s. 82
 c  and 82  d  of the indian registration act-the offence of
false personation and in such assumed character presenting a
document and abetment thereof and that so long as the order
of acquittal was number set aside in an appeal duly presented
the high companyrt in a reference under s. 307 of the companye of
criminal procedure was incompetent relying upon the
evidence which was number regarded as reliable in respect of
the offences under the registration act to companyvict the
appellants of the offences of forging a valuable security
and abetment thereof. it was submitted that as the offences
under s. 467 i.p. companye and s. 82  c  indian registration act
formed part of the same transaction and the case for the
prosecution for the former offence was substantially founded
on the same evidence which was number accepted by the trial
court when acquitting the appellants of the
latter offence the high companyrt companyld number act upon .hat
evidence to record an order of companyviction on the charge for
the offence of forging a valuable security. se are unable
to accept this argument. forging a valuable security and
presentation of that valuable security for registration are
two distinct offences. in support of the case that the
appellants were guilty of forging a valuable security the
material evidence is that relating to the making dishonestly
or fraudulently of a false document of the nature of a
valuable security. that evidence companysisted of the
instructions given at the time of writing of the document
the character of the document its execution and the
intention of the accused in fabricating the document. the
offence of false personation for presenting any document
consisted in the presentation of a document before the
registering authority by a person claiming to be some one
else. an item of evidence may companyroborate charges for more
offences than one but acquittal of the accused for one
such offences will number render that item of evidence
inadmissible in assessing the criminalityof the accused
for anumberher offence companyroborated thereby. the question in
such a case is number oneof admissibility but of weight to
be given to that evidence. the decision of the judicial
committee of the privy companyncil in malak khan v. king emperor
 1  negatives the submission of the appellants. in malak
khans case the accused was charged before the companyrt of
session for offences of murder and robbery. he was
acquitted by the trial judge of the offence of robbery and
convicted of the offence of murder. the high companyrt in
appeal against the order of companyviction relied upon the
evidence which was material to both the charges of robbery
and murder as companyroborative of the guilt of the accused for
the offence of murder. it was held by the judicial
committee that the high companyrt companyld properly accept the
evidence as companyroborative of the guilt of the accused for
the offence of murder even though that evidence was number
accepted by the trial
 1   1945  l.r. 72 i.a. 305.
court on the charge of robbery. in companysidering the argument
that the evidence companyld number be relied upon in support of the
charge of murder the judicial companymittee observed
the sessions judge it was said had
acquitted the appellant of robbery he was
therefore number guilty of that offence no
appeal had been taken against that acquittal
and therefore numbercourt was entitled to take
into companysideration the allegation upon which
the accusation of robbery was founded even as
corroborative evidence in anumberher case. their lordships cannumber accept this companytention.


criminal appellate jurisdiction criminal appeal number 49 of
1969.
appeal by special leave from the judgment and order dated
december 2 1968 of the allahabad high companyrt in criminal
appeal number 1277 of 1968.

l. kohli for the appellant. p. rana for the respondent. the judgment of the companyrt was delivered by
sikri j. the only question which arises in this appeal by
special leave is whether the appellant sheo nath should be
convicted under s. 396 i.p.c. or s. 411 i.p.c. or s.
412 i.p.c. the facts as found by the high companyrt are these. a dacoity was companymitted at the shop of ram murat in dhaneja
village by 15 to 20 persons on august 19 1966 at about
11.30 p.m. one dacoit ram shankar was armed with a gun
while others carried
spears gandasas and lathis. during the companyrse of the
dacoity ram murat was injured. one pancham who lived in a
house number far from ram murats shop and two others came
running on heating the numberse. pancham was shot down with
the gun by dacoit ram shankar. the dacoits then escaped
with clothes ornaments cash etc. looted from ram murats
shop. after the dacoits left ram murat dictated a report
about the occurrence in which lie named ram shankar singh
jaintri prasad singh nanhe singh and sulai accused as
having been among the culprits and this report was sent to
the jalalpur police station five miles away where it was
received-and recorded at 6 a.m. next morning. on august 22
1966 i.e. three days after the dacoity the house of sheo
nath appellant was searched and three lengths of cloth
were recovered which were subsequently identified by ram
murat and a tailor named bismillah as having been stolen
from ram murats shop in the dacoity. the high companyrt agreeing with the learned sessions judge
relied on the evidence of three eye-witnesses regarding the
manner in which the occurrence took place and regarding the
participation of the four named accused persons. sheo nath
had number been named by the eye-witnesses or in the dying
declaration of panchain and numberwitness claimed to have
identified him taking part in the dacoity. but relying on
the discovery of three lengths of cloth and their
identification the high companyrt companyvicted sheo nath under s.
396 i.p.c. the high companyrt observed
from the material on record we are fully company-
vinced that the exhs. 2 and 3 were stolen from
the shop of ram murat in the companyrse of the
dacoity companymitted in the night between 19 to
20 august 1966 and since they were recovered
from the possession of sheonath appellant only
2 or 3 days later it is legitimate to infer
that he was one of the dacoits vide
illustration  a  to section 114 of the
evidence act. sheo nath therefore has been
rightly companyvicted under section 396 i.p.c. the learned companynsel for the appellant companytends
that in the circumstances of the case the high
court should number have companyvicted the appellant
under s. 396 i.p.c. but only under s. 411

p.c. section 114 of the evidence act and
illustration  a  read as follows

the companyrt may presume the existence of
any fact which it thinks likely to have
happened regard being had to the companymon
course of natural events human companyduct and
public and private business in their relation
to facts of the particular case. illustrations. the companyrt may presume-
 a  that a man who is in possession of
stolen goods after the theft is either the
thief or has received the goods knumbering them
to be stolen unless he can account for his
possession. this section was companysidered by this companyrt in
sanwal khan v. state of rajasthan 1 . this
court after companysidering some high companyrt
cases observed
in our judgment numberhard and fast rule can be
laid down as to what inference should be drawn
from a certain circumstance. where however
the only evidence against an accused person is
the recovery of stolen property and although
the circumstances may indicate that the theft
and the murder must have been companymitted at the
same time it is number safe to draw the
inference that the person in possession of the
stolen property was the murderer. suspicion
cannumber take the place of proof. in wasim khan v. state of uttar pradesh 2  this companyrt held
that recent and unexplained possession of the stolen
property while it would be presumptive evidence against a
prisoner on the charge of robbery would similarly be
evidence against him on the charge of murder. on the facts
of that case this companyrt held that the appellant was rightly
convicted of the offence of murder and robbery. but apart
from the possession of stolen property there were other
circumstances indicating that the appellant was guilty of
murder and robbery. the circumstances were that the appel-
lant in that case had travelled with the deceased on his
bullock cart alone and the deceased never reached his home
and was found murdered. the appellant was found in
possession of the goods of the deceased three days after
and the appellant made numbereffort to trace the whereabouts of
the deceased or lodge information of his disappearance from
the bullock cart. in the present case three presumptions are possible from the
recovery of the stolen goods from the appellant three days
after the occurrence of the dacoity
 1  that the appellant took part in the
dacoity
 2  that he received stolen goods knumbering
that the goods were stolen in the companymission
of a dacoity and
 3  that the appellant received these goods
knumbering them to have been stolen. a.i.r. 1956 s.c. 54.  2 1956 s.c.r. 191.
the choice to be made however must depend on the facts
proved in this case. it is quite clear that all the
property which was stolen by the dacoits was number recovered
from the appellant. we may repeat that clothes ornaments
cash etc. were stolen. the only articles that were found
with the appellant were a length of muslin  exh. 2  and a
length of charkhana doriya  exh. 3 . the appellant is
stated to be a cloth merchant and he may well have acquired
these goods as a receiver. it has number been shown that in
the village in which the appellant lived it was knumbern that a
dacoity had taken place and goods had been stolen in the
dacoity. on the facts of this case it seems to us that the only
legitimate presumption to be drawn is that the appellant
knew that the goods were stolen but he did number knumber that
they were stolen in a dacoity. the appellant therefore
can only be companyvicted under s. 411 i.p.c. in this companynection we may refer to a decision of the rajas-
than high companyrt in bhurgiri v. the state 1   wanchoo c.j. and dave j. . wanchoo c.j. after holding that the
recovery of ornaments from bhurgiri had been established
observed
the next question is whether on this evidence
bhurgiri can be companyvicted for dacoity. the
recovery took place five days after the
dacoity. it is number impossible that during
that period the property might have passed
from the dacoits to a receiver. under these
circumstances we are of opinion that it would
number be safe to companyvict bhurgiri of dacoity on
the evidence of this recovery alone. it would
be more proper to companyvict him as a guilty
receiver. then the question arises whether he should be
convicted under section 411 or 412 i.p.c. so
far as section 411 is companycerned he is clearly
guilty under that section. the presumption
under section 114 applies and we can safely
presume that he is a guilty receiver of stolen
property particularly when we find that the
property was kept in the bara and number at his
own house. he must have had reason to
believe that it was stolen when he received
the property and that is why he left it in
the bara. but we feel that it would number be
proper to companyvict him under section 412
because that section requires that the
receiver should knumber or have reason

i.l.r. 1954 rai.


civil appellate jurisdiction civil appeal number 1519 of
1968.
appeal under s. 116a of the representation of the
people act 1951 from the judgment and order dated may 28
1968 of the madras high companyrt in election petition 11 of
1967.

m. seshadri and r. gopalakrishnan for the appellant. v. gupte a. c. muthanna s.s. javaii anjali k.
verma and o.c. mathur for respondent number 1.

ramanujam and a. v. rangam for intervener. the judgment of the companyrt was delivered by
hidayatullah. c.j. this appeal is directed against the
judgment of the high companyrt of madras 28th may 1968 by
which the election of the appellant seshadri has been set
aside. the election in question was to the madras
legislative companyncil from the madras district graduates
constituency. that companystituency companysisted of 19498 votes
and the total votes polled were 12153. since the voting
was by a single transferable vote three
1029
out of the five candidates were eliminated at different
counts with the result that their votes were transferred to
the second person named by the elector on the ballot. at the
final companynt the appellant seshadri received 5643 votes and

vasantha pai  his nearest rival  who is the first
respondent in the appeal received 5388 votes. seshadri
was therefore elected by a majority of 255 votes. the election petition was filed by g. vasantha pai to
question the election of seshadri on many grounds. only one
ground prevailed namely that he had employed cars which
had been hired or procured for the companyveyance of the voters
to the polling booths which numbered 73 in this
constituency. the other charges were numerous but they
need number be mentioned here because in our opinion this
charge has been substantiated. it may be mentioned that
seshadri filed a petition of recrimination but it was
dismissed because he failed to furnish security required
under the act. later he companyrected this mistake but the
petition was number accepted because it was held to be delayed. the learned judge who heard the case held that instead
of seshadri vasantha pai deserved to be declared elected
under the law. in this appeal therefore seshadri companytends
that the decision in his respect was erroneous and in the
alternative that in any event vasantha pal companyld number be
declared as the successful candidate. we shall deal with
these two points separately. it may further be mentioned
that in the original order passed by the learned judge he
had number named seshadri as guilty of companyrupt practice. by a
subsequent order he reviewed his previous order and gave a
declaration. this point also will require to be companysidered
in this judgment. the allegation in the election petition was that a large
number of motor cars were hired or procured from various
sources for the companyveyance of the voters to the polling
booths. these were sometimes occupied by persons wearing
badges which bore the name of seshadri and sometimes were
received at the polling booths by persons who wore the same
badges. from this it is inferred that the motor cars were
used for the companyveyance of voters by seshadri as one of the
contesting candidates. such companyduct if it is established
amounts to a companyrupt practice under s. 123 5  of the
representation of people act. the short question
therefore on the first point is whether seshadri was guilty
of this companyrupt practice. the appeal has been fought by seshadri on the grounds
that the plea which was included on this head in the
election petition was vague and number sufficiently definite so
as to give him numberice of the charge he had to meet that a
charge of companyrupt practice is of the nature of a criminal
charge and must therefore be
1022
proved by the election petitioner himself beyond all
reasonable doubt that there exists some room for doubt and
therefore he should have the benefit of it and that the
learned judge who tried the case improved both the pleading
on the subject and the evidence led by the election
petitioner by calling certain witnesses and looking into
documents which he had procured on his own behalf. it is
therefore companytended that all the evidence which the learned
judge companylected suo motu should number be locked at and the
case of the petitioner should be companyfined to the bare plea
which was raised in this case. if this is so says
seshadri the election petition deserves to be dismissed
because the case as found was number clear in the plea and was
certainly lacking in the proof as required by law. since the matter is one fought primarily with regard to
pleadings in the case we shall begin by setting out the
pleas which have been advanced by the election petitioner. the plea companysists of several parts. the election
petitioner states that the swatantra party and its agents
conveyed the voters to and from the polling booths in
certain cars hired or procured from m s kumarswamy
automobiles and t.s. narayanan authorised tourist taxi
operators. the petitioner goes on to say that the detailed
analysis of the use of the cars and particulars of the user
are given in a schedule attached to his petition. that
schedule names a large number of cars which were used and at
many polling booths in different divisions for the purpose
of carrying the voters to the polling booths. some of these
cars came admittedly from the garage of messrs.
kumarswamy automobiles and some others from the other motor
garage named by us or were loaned for the day by certain
private owners including companypanies. the essence of this
plea is that cars were procured or hired for the companyveyance
of the voters. there is however numbermention in the plea as
to who had hired the vehicles or caused them to be procured
and it is this fact which has been made much of by seshadri
in the appeal before. us. his companytention is that without
the particulars being sufficiently full and precise it was
number possible for him to companytrovert the case set up against
him particularly as the case of the election petitioner was
supplemented by the learned judge by calling at a later
stage companyrt witnesses who deposed to the companynection between
the cars and seshadri. we have therefore to determine
first whether the plea which was raised was sufficient for
the purpose of investigation before we go to see whether the
plea has received adequate support through evidence. seshadri personally argued his appeal on two separate
occasions. on the first occasion he companyfined himself
entirely to the pleas he expounded it and urged in support
that the plea in the election petition did number allege
anything number did the evidence in
1023
support establish anything further. but before the case
concluded seshadri made a request to us that as he had
misunderstood his own position with regard to the appeal
regard being had to certain observations of the companyrt he
had number argued the case fully on the first occasion and he
should be allowed an opportunity to supplement his arguments
by urging the points de numbero. since seshadri was companyducting
his case in person and appeared to be under some emotional
stress we felt that the ends of justice would be satisfied
if we accorded him a second opportunity and this is how the
case was set down again for hearing. on the second occasion
seshadri supplemented his arguments with numerous
citations from the law reports in support of two
propositions namely that the particulars should be
complete before the evidence companyld be looked into and
secondly that amendment of the pleadings through evidence is
number permissible. it may be mentioned here that the evidence in the case
discloses that number one two or three cars were used but as
many as 63 cars were employed. this evidence has been
weighed by the learned judge. he has gone critically into
every aspect of it and companye. to the companyclusion that many
cars in fact were used. the learned companynsel for vasantha
pai placed in our hands a tabulated statement of the
evidence bearing upon the use of the cars and having looked
into the judgment of the learned judge as also the evidence
with the aid of the tabulated statement we are satisfied
and it is sufficient to say for us that we entirely agree
with the companyclusion of the learned judge that many cars
were in fact used for companyveyance of voters in this
constituency. the alternative suggestion that on some of
the days an election from the teachers companystituency was
going on and that since the polling booths were sometimes
located for the two companystituencies in the same building it
is possible that the cars were used for that election and
number this does number merit any companysideration. the suggestion
is extremely vague and the evidence even more tenuous. it is
said that one varadachari was responsible for the hiring of
the cars and that in our opinion does number stand either
substantiated or any scrutiny. we are therefore satisfied
with the finding of the learned judge in the high companyrt that
cars that were employed for companyveyance of voters and that
they were in fact used in this companystituency and numbere other. the question then remains as to who was responsible for
this? number the plea on this subject as we have said is
contained in several parts of the election petition. one
part we have summarised above. the second part was that
the swatantra party was supporting seshadri and that the
workers of the swatantra party were working strenumbersly for
his success. from this it has been reasoned in the high
court that the swatantra party was an agent of seshadri. its actions therefore would be his actions l6sup. c.i/69--14
1024
if he was a companysenting party. in this companynection it is also
stated that seshadri was being supported by some persons
connected with him who helped him by procuring these
vehicles for the companyveyance of the voters. in the schedule
which is filed with the plaint a large number of cars is
mentioned and the schedule shows in one of its companyumns to
which polling booths were the voters carried. it is too
detailed to be reproduced here. suffice it to say that it
contains names of six divisions and 17 polling booths. it
also mentions over two dozen cars which were so used. in
the body of the election petition the petitioner further
stated as follows
besides tourist taxis the petitioner
understands the private companymercial firms and
cinema producers placed at the disposal of the
first respondent their cars for companyveying
voters. the persons who were companyveying the
voters were members of the swatantra party
who were acting as the agents of the first
respondent under the guidance in particular of
mr. h.v. hande. the agents of the first
respondent wore a distinctive badge with r.m. seshadri printed in bold letters attached to a
blue ribbon and pinned to their shirts. they
were either escorting the voters or receiving
them at the polling stations specified above. in booth number. 60 to 65 prominent among the
persons so escorting was violin mahadevan who
had a badge pinned to his shirt and who the
petitioner understands is a member of the
swatantra party. in saidapet south the
petitioner states the car mss 3336 companyveying
the voters was in charge of an advocates
clerk by name t.k. vinayagam of number 16 karani
garden ii street saidapet madras-15. the
said vinayagam was wearing a badge of mr.
seshadri. at raja annamalaipuram the
petitioner learns that a green-coloured
station wagon msp 5398 was in charge of mr.
venkataraman member of the swatanthra party
and residing at 30 iv main road raja
annamalaipuram madras-28. the petitioner states that in almost every
polling booth tourist taxis and cars engaged
by the first respondent were being used by
the swatanthra party agents for companyveying
voters. seshadri companytends that in this plea only four names
are mentioned namely h.v. hande violin mahadevan t.k. vinayagam and venkatraman. he starts therefore by analysing
whether the companynection between these persons and him had
been successfully established and further whether they were
responsible for
1025
conveying voters to the polling booths in the cars. he
examines critically the evidence of these witnesses before
us and also the other evidence bearing upon the subject and
contends that the evidence taken as a whole does number
establish their companynection with him or with the voters or
with the cars. we shall therefore begin by companysidering
what was said about these persons by seshadri. in regard to hande seshadris companytention is that no
other person had spoken about hande excepting the petitioner

w. 33  and he spoke about him only in one place. he
therefore states that the evidence on this part is
extremely insufficient because it depends upon the
interested word of the petitioner himself. he refers us to
his deposition companytained in pages 419 to 531 of the paper
book but he draws our attention in particular to certain
passages where only one car was mentioned by him in
connection with hande. that car was msr 7065. the
evidence of the election petitioner was that as he was
emerging from doraiswamy road he found that this car was
going past him with a gentleman with a blue upper cloth. the gentleman looked at him and he found that it was hande. according to seshadri this evidence was number sufficient to
show that hande was companyveying voters to the polling booth. on this part of the case seshadri is right because the
evidence of the companyplicity of hande with the hiring or
procuring of the cars was number established number his companyplicity
with regard to the carriage of voters to the polling booths. with regard to vinayagam seshadris argument is that the
fact is deposed to by the election petitioner himself who
said that he had seen a car with a lady and a gentleman
arriving at the polling booth and that a lawyers clerk
opened the door and received them. this car bore the number
mss 3336. support for this evidence is sought by the
election petitioner through the evidence of laxshaman hegde

w. 15  who said that he had seen an ambassador car
carrying two voters just halting at the polling booth. two
voters whom he knew from before came down from the car. a
short gentleman directed them to the polling booth. vasantha pai then asked the witness if the person was knumbern
to the witness. as he did number knumber the name of the
gentleman he companyld number tell him but vasantha pai numbered the
number of the car. this person who received the voters at
the polling booth was later identified by the witness as
vinayakam. the way in which he obtained this information has
been given by him in his deposition. he appears to have
obtained it from the person companycerned. whatever it may be
there is numberhing incriminating in a worker of the party
receiving a voter at the polling booth. polling agents
cannumber canvass within 100 meters but there is numberhing to
show in the law that they cannumber open the door of a car in
which a voter has arrived. the gravamen of the charge as
seshadri companyrectly points out was that vinaya-
1026
kam was wearing a badge such as we have described and that
of companyrse is a different matter and we are number companycerned
with it here. on the whole therefore this evidence does
number show that the cars were hired by seshadri. it only
furnishes some link in the circumstantial chain to which we
shall later refer and that in our opinion is the only use to
which this evidence can be put. the next person companynected with the use of the car is
venkatraman. three persons deposed to his companynection. of
these one is the election petitioner himself the others are

ws. 23 and 27. seshadri argues that we should number
believe these witnesses one because he is himself a party
and the other two because they were companynected intimately
with the prospects of vasantha pal. k.v. padmanabha rao

w. 23  is said to be the junior of vasantha pal and was
canvassing for him. he was standing near the vehicle with
a list presumably of the voters and at that time several
vehicles arrived there. he stated that he companynected
venkataraman with seshadri because he was moving about in
the companypany of one sivasankaran  junior of seshadri  in
the iind main road. he had also seen him with sivasankaran
going with lists in his hand from house to house. later he
found out from some of his friends what was the purpose of
this visit and was told that they were asking the voters
whether they needed any companyveyance for the next days
polling as they had companymand over a large number of
vehicles. the latter part of the evidence is hearsay and
seshadri is perfectly right in claiming that it should
number be accepted. the fact remains that the witness did see
venkataraman moving with the clerk of seshadri and therefore
there is room for thinking that they were companynected
together. t.l. ram mohan  p.w. 27  it is said was
assisting vasantha pai. he wrote a letter ext. p-109 and
his evidence is also described as hearsay. we need number
therefore go by his evidence to reach the companyclusion that
the cars were hired by seshadri or some one on his behalf. we can only use this evidence if there were some other
evidence to which it can be read as companyroborative because
by itself it does number furnish proof of the hiring of
vehicles by seshadri. it only shows that the vehicles were
in fact used and that the vehicles were bringing voters to
the polling booth. the companynection of violin mahadevan was deposed to by
four witnesses. v. murali  p.w. 5  who works in the chamber
of two lawyers rao and reddy admitted that he.was working
for vasantha pai. he also said that he saw violin
mahadevan wearing the badge and standing near the polling
booth. he stated this to vasantha pai and companymunicated to
him his own observation. he admitted that he did number knumber
violin maha-. devan from before but somebody had told him
about him. he companyld number name the voters who had been
brought. he saw that violin mahadevan was wearing the same
badge which we have
1027
described and the voters were accosted by persons wearing
the same badge and were received at the polling booth. s.
ramamurthy  p.w. 10  saw venkataraman. he admitted that
he had number seen anybody brought by venkataraman and he also
did number knumber the names of the voters who were brought. but
the evidence of s. ramamurthy  p.w. 10  is sufficient to
show that the voters did in fact companye by cars to the polling
booth. therefore to that extent his evidence is
material in determining whether the alleged companyrupt
practice was companymitted or number. a. sankaran  p.w. 20  also
saw violin mahadevan receiving voters at the polling
booths. seshadri companytends that as the plea was limited to
the naming of these four persons it is clear that the plea
as made was insufficient to bring home the charge which is
number brought to his door namely that he had hired or
procured these vehicles. as has been said above the hiring
and procuring of the vehicles is a totally different matter. these witnesses only speak to what they saw at the polling
booths and their evidence is believable that voters were
brought to the polling booth. the question is by whom? the case then goes on to anumberher point and that is
where did the cars companye from? neither side had examined
either kumarswamy or the owner of the other garage or any
other person. the learned judge then felt that he should
examine some companyrt witnesses and he summoned three namely
kumarswamy  c.w. 2  krishnaswamy  c.w. 3  and one ganesan

w. 1 . he also called for a report from the police as
to whom the cars belonged and he perused the evidence of
these three witnesses as also the report sent by the police
and companye to the companyclusion that the hiring or procuring was
by seshadri himself. a great deal of argument is therefore
directed by seshadri to exclude the evidence of these
witnesses and the reference to the police to find out to
whom the cars belonged. in this companynection seshadri cites a
number of ruling which he says show quite clearly that a
plea cannumber be allowed to be magnified particularly by
evidence number brought by the parties but at the instance of
the companyrt. this requires an examination closely. the first companytention of seshadri is that the companyrt
trying the election petition is limited by the law which is
contained in the representation of the people act and the
rules made thereunder. this law according to him companyfers
numberpower upon the presiding judge to enter the arena-to
summon witnesses on his-own behalf. the learned judge who
summoned witnesses passed a very short order while doing so. he did number refer to any law on the subject but extracted a
passage from the trial of warren hastings in which it was
stated that a judge is number to be a dummy but is to take an
active interest in the case. seshadri companytends therefore
that the action of the judge in summoning the companyrt
1028
witnesses was entirely erroneous and that this evidence
should be excluded. the vower of a civil companyrt to summon companyrt witnesses is
contained in o. xvi r. 14 of the companye of civil procedure. number the representation of people act enjoins that all the
powers under the companye can be exercised and all the procedure
as far as may be applicable to the trial of civil suits may
be followed in the trial of election petitions. it would
appear therefore that in the absence of any prohibition
contained in the law the companyrt has the power to summon a
court witness if it thinks that the ends of justice require
or that the case before it needs that kind of evidence. it
must be remembered that an election petition is number an
action at law or a suit in equity. it is a special
proceeding. the law even requires that an election
petitioner should number be allowed to withdraw an election
petition which he has once made and that the election
petition may be companytinued by anumberher person so long as
anumberher person is available. the policy of election law
seems to be that for the establishment of purity of
elections investigation into all allegations of
real practices including companyrupt practices at elections
should be thoroughly made. here was a case where a large
number of cars were used presumably for the purpose of
carrying voters to the booths. the question is in the face
of this voluminumbers evidence was it number open to the judge if
evidence was available to establish who had procured or
hired vehicles to summon witnesses who companyld depose to the
same ? in our opinion such a power was properly exercised
by the learned judge. although we would say that the trial
should be at arms length and the companyrt should number really
enter into the dispute as a third party but it is number to be
understood that the companyrt never has the power to summon a
witness or to call for a document which would throw light
upon the matter particularly of companyrupt practice which is
alleged and is being sought to be proved. if the companyrt was
satisfied that a companyrupt practice had in fact been
perpetrated may be by one side or the other it was
absolutely necessary to find out who was the author of that
corrupt practice. section 98 of the act itself allows the
court to name a person who is guilty of companyrupt practice
after giving him numberice and this would be more so in the
case of a candidate whose name. appears to be companynected with
the companyrupt practice the proof whereof is number before the
court but can be so brought. in such a ease we think that
the companyrt would be acting within its jurisdiction in using

xvi r. 14 to summon witnesses who can throw light upon
the matter
having disposed of this preliminarg objection we are
number in a position to companysider the evidence which was
brought but before doing so we must show its relevance to
the pleas which had been raised in the case because much
discussion was made
1029
of the law of pleadings in the case. we have pointed out
above that the plea in essence was that cars were used for
the purpose of companyveying voters companytrary to the prohibition
contained in the election law. the names of the booths and
the divisions in which the booths were situated together
with the particulars of the cars and the persons primarily
concerned with cars at the polling booths have been
mentioned. it is true that the drivers of the cars or the
voters themselves have number been examined. but it has been
sufficiently pleaded and proved that the cars were in fact
used. the companynection of seshadri with the use of the cars
has been specifically pleaded. in our opinion the rest
were matters of evidence which did number require to be pleaded
and that plea companyld always be supported by evidence to show
the source from where the cars were obtained who hired or
procured them and who used them for the companyveyance of
voters. this is exactly what has happened in this case. the learned judge after reaching the companyclusion that a
large number of cars were used for companyveying voters to the
polling booths. felt impelled further to companysider who was
responsible for hiring them. the names of the two garages
were already given and there was the allegation that certain
companies and cinema producers were also helping seshadri by
the loan of cars. since the name of kumarswamys garage was
mentioned it was but natural for the judge to have summoned
the proprietor of the garage. the proprietor of the garage
came and gave the story about the use of the cars by some
other candidate but number seshadri. lie however brought on
record documents to show that the cars were hired on payment
from his garage by one krishnaswamy. the next step was
therefore to summon krishnaswamy and he was therefore
summoned and questioned. krishnaswamy admitted that he had
hired these cars and paid bills amounting to a few thousand
rupees. it is obvious that these cars were number employed for any
other purpose that day except for election work. it is
ridiculous to imagine that they were ordered for a picnic or
for a marriage which did number take p1ace. therefore the
inference was that krishnaswamy had hired these cars to
convey voters to the polling booths. the question therefore
boils down to this for whom was krishnaswamy working? here we have the evidence of various types against
krishnaswamy. kumarswamy and krishnaswamv have been
amply proved in the ease to be companynected with seshadri. kumarswamv was shown ex. c-2a. lie stated that it was an
order form filled bv r. krishnaswamy. he also admitted
that he had received payments and that the trip
sheets of the cars were maintained for that date. those
trip sheets are c-7 to c-36. number with regard to these trip
sheets it may be stated that in some of them there was
mention that the cars were used for election work but
subsequently it was
1030
found that someone had rubbed out that entry. we are number
here to find out who was guilty of attempting to create
evidence by rubbing this out. the fact remains that some
of the trip sheets still read clearly that the cars had
been used for election work. ex. c-6 was the bill which was
issued for these cars and it was issued to krishnaswamy. therefore the cars were engaged at least from kumarswamy
garage for companyveying voters and they were hired by
krishnaswamy and he paid for them. number krishnaswamy is companynected intimately with seshadri. he was employed by two companypanies in which seshadri was a
director. a party was arranged in honumberr of seshadri to
celebrate his victory. the arrangement for this was made by
krishnaswamy although the expenses for the party were paid
by seshadri by cheque. seshadri companytends that his entire
accounts were. examined but it was number proved from those
accounts that he had paid any money towards the hire of the
cars. it is number possible for anyone to say how seshadri if
he was willing to pay for the cars would have procured the
money. it would have been the worst thing for him to have
paid the amount by cheque so that it companyld enter into the
accounts. obviously such payments would be made in a way
that they companyld number be traced back to the person actually
paying the amount. the companynection however of krishnaswamy
with the hiring of the cars and with the celebration of the
victory of seshadri furnishes a very important link in the
chain of reasoning. it is quite clear to us that the swatantra party was in
favour of seshadri. seshadri relies upon finding which has
been given by the companyrt in which it is stated that the judge
found that the first respondent the swatantra party and
the persons mentioned therein acted as agents of the first
respondent and companymitted companyrupt practices under s. 123 5
with which we are number dealing. the argument was that this
finding. is somewhat obscure because it shows that the
first respondent was the agent of the first respondent
himself. it seems to us that the learned judge in recording
this finding gave it unthinkingly taking the words from the
plea in the petition. it is quite clear that the learned
judge reaches the companyclusion that the swatantra party was
working actively in support of seshadri. it is of companyrse
number proved that he was the adopted candidate of the party
number is it proved that he had appointed any particular person
as his agent but it is quite clear that the swatantra party
was actively supporting him. thus there is the presence of
the workers of the swatantra party like hande vinavakam
violin mahadevan and venkatraman on the scene at the polling
booths. it may also be mentioned that in one of the trip
sheets one kalyanasundaram had signed in token of the cars
having been used. this kalyanasundaram was the polling agent
of seshadri. the circumstantial
1031
evidence is number companyplete. there is the hiring of the cars
from the kumaraswamy garage by krishnaswamy the payment of
money by krishnaswamy to the garage krishnaswamys
attachment to seshadri because of his past companynection and
the further proof that he arranged the party on his behalf
after his victory and the trip sheet was signed by
kalyanasundaram the polling agent of seshadri. the amount
paid was so large that only a candidate would incur that
expense and numbersupporter. if there was any doubt as to who
hired or procured these cars it is resolved by the
concatenation of circumstances which clearly demonstrate
that it companyld have been only seshadri and numberone else who
had hired these vehicles. we can infer this
circumstantially even though direct evidence be number
available. in addition there is the patent fact that
seshadri did number himself go into the witness box and clear
these facts standing out against him although
opportunity was offered. it is true that seshadri
complained before us that the plea was vague that it had
been magnified by the evidence brought in this manner and
the companyrt allowed the election petitioner to take advantage
of the evidence so brought but we have already held that
the evidence was legitimately brought and that it companyld be
led in the case. as to the plea we have already shown that
it was sufficiently companyent to establish the companynection
between seshadri and the hiring and procuring of the cars. the missing links were supplied by that evidence by showing
the companynection of the only person who had hired the cars and
paid several thousand rupees for their hire. if that person
is intimately companynected with seshadri the companyclusion is
inescapable that it was seshadri for whose benefit the cars
were hired or procured. in our opinion the circumstantial chain of evidence is
sufficient to show the companynection between him and the use of
the cars for the companyveyance of voters. as to the rulings which were cited before us it is
sufficient to say that each case is decided on its own
facts and circumstances. it is true that better particulars
can only be given by the party but that is only where
better particulars are required. it was number necessary for
vasanta pai to have pleaded his evidence in this behalf. he
made a very full plea by giving the numbers of the cars by
naming the polling booths at which voters were brought and
by stating quite-categorically that it was seshadri who had
procured these cars for the companyveyance of voters. rest was
matter of evidence and the facts had to be established by
evidence. it may be that without the evidence of
kumaraswamy and krishnaswamy the case might have taken a
different turn but we have already pointed out that the
learned judge very companyrectly brought these two persons
intimately companynected with the cars into the case before
him and to give their version. their version is partly
1032
true and partly false and the false evidence was to exclude
seshadri from the charge. in our opinion this also
demonstrates the companynection between these persons and
seshadri which had been established in other ways through
their own mouths. we accordingly hold that this companyrupt
practice was brought home. it remains to companysider the argument of mr. gupte
whether vasanta pai companyld be declared elected. this will
depend on our reaching the companyclusion that but for the fact
that voters were brought through this companyrupt practice to
the polling booths the result of the election had been
materially affected. in a single transferable vote it is
very difficult to say how the voting would have gone
because if all the votes which seshadri had got had gone to
one of the other candidate who got eliminated at the earlier
counts those candidates would have won. we cannumber order a
recount because those voters were number free from companyplicity. it would be speculating to decide how many of the voters
were brought to the polling booths in the cars. we think
that we are number in a position to declare vasanta pai as
elected because that would be merely a guess or surmise as
to the nature of the voting which would have taken place if
this companyrupt practice had number been perpetrated. in the result therefore we set aside the direction that
vasanta pai is elected to the companystituency. there will
inevitably have to be a fresh election in this companystituency. in so far as seshadri is companycerned we think that he was
properly named as guilty of companyrupt practice although that
order was incorporated by the learned judge through a
review. it was his duty to have named persons who had been
guilty of companyrupt practice and he made this up later.


civil appellate jurisdiction civil appeal number 413 of
1986
from the judgment and order dated 10th february 1976 of the
allahabad high companyrt in second appeal number 2337 of 1966.

k. jain and shakeel ahmed for the appellant. a. khan manumber swarup and u.s. prasad for the
respondents. the judgment of the companyrt was delivered by

b. misra j. the only question for companysideration in
this appeal by special leave is whether the deposit of
arrears of rent under s. 7c of the united provinces
 temporary  companytrol of rent and eviction act 1947 will save
the tenant from the penalty of being evicted for number-payment
of rent. the appellant is a tenant of the respondent on a
monthly rent of rs. 6.25 per mensem. he fell into arrears of
rent amounting to rs. 318.75 for the period from 1st
october 1959 to 31st december 1963. the tenant did number pay
the aforesaid amount in spite of the verbal demand. companysequently the landlord served upon the tenant a numberice
of demand. the tenant however failed to companyply with the
said numberice hence he became a defaulter. the landlord
thereafter served anumberher numberice on the tenant under s. 106
of the transfer of property act. the tenant however
neither vacated the premises number cleared the arrears of
rent. the landlord was therefore obliged to file a suit. he however claimed a sum of rs.176.68 as arrears of rent
for the period from ist october 1961 to 8th february 1964
the claim for rent for the remaining period having become
barred by time. he also claimed a sum of rs. 58.23 as
damages for the period from 9th february 1964 to 22nd
october 1964 as also pendente lite and future damages at
the rate of rs. 6.25 per mensem. the claim was resisted by the tenant on the ground that
he was number a defaulter inasmuch as whatever rent was
tendered to the landlord he refused to accept the same and
therefore he was companystrained to deposit the amount that
is a sum of rs. 231.25 for the period from ist september
1961 to 30th september 1964 in the companyrt under s. 7c of the
act. he also disputed the date of tenancy as alleged by the
respondent-landlord. the trial companyrt came to the companyclusion that the
defendant became a tenant from 17th january 1962 and number
from 1959 as alleged in the plaint. as the deposit of
arrears of rent by the tenant under s. 7c was number a valid
deposit therefore it companyld number absolve the liability of
the tenant from eviction inasmuch as the defendant had
failed to establish that the landlord had refused to accept
the tender made by the tenant. accordingly the suit for
recovery of arrears of rent amounting to rs. 154 and damages
amounting to rs. 58.23 was decreed with pendente lite and
future mesne profits at the rate of rs. 6.25 per mensem. on appeal the learned addl. civil judge reversed the
finding of the trial companyrt and held that the tenant was number
a defaulter on account of the deposit made by him under s.
7c of
the said act and set aside the judgment and decree of the
trial companyrt for eviction. in second appeal the high companyrt
set aside the judgment and decree of the lower appellate
court as regards eviction and restored the decree of the
trial companyrt. the tenant has number companye in appeal to this companyrt
as stated earlier by special leave. shri r.k. jain appearing for the appellant has
contended that if the arrears of rent had been deposited
with permission of the companyrt under s. 7c of the act it will
be presumed that the landlord had refused to accept the rent
tendered by the tenant. as a second limb to this argument it
was companytended that it was number open to the companyrt in a suit
for eviction to go into the question of validity of the
deposit made under s. 7c. he produced a certified companyy of
the order of the munsif city kanpur dated 30th july 1962
allowing the application made by the tenant for permission
to deposit the arrears of rent. the order reads
this is an application under s. 7c 1  of the u.p. act iii of 1947. the opp. party was served with
the numberice. numberobjection filed. the case falls
under s. 7c 1  the ingredients of which are made
out. hence the applicant tenant is allowed to
deposit rent in this companyrt regularly under s.
7c 1  and the opp. party landlord is entitled to
withdraw the money. on the strength of this order it was strenuously companytended
by shri jain that numberobjection was ever raised by the
landlord in proceedings under s. 7c of the act and
therefore it is number open to him to raise the question of
validity of the order passed under s. 7c. the question that squarely falls for companysideration is
whether the order granting permission to the tenant to
deposit the arrears of rent in companyrt is sacrosanct and
cannumber be challenged in a regular suit for eviction. indeed
the munsif before whom the application for permission was
filed was number required to determine the rights and
obligations of the tenant. all that he had to do on deposit
of rent under s. 7c was to issue a numberice to the landlord
informing him that such deposit had been made. section 7c so
far as material provides
7c deposit of rent in companyrt-  1  when a landlord
refuses to accept any rent lawfully paid to him by
a tenant in respect of any accommodation the
tenant may in the prescribed manner deposit such
rent and companytinue to deposit any subsequent rent
which becomes due in respect of such accommodation
unless the landlord in the meantime signifies by
numberice in writing to the tenant his willingness to
accept. where any bona-fide doubt or dispute has
arisen as to the person who is entitled to receive
any rent referred to in sub-s. 1  in respect of
any accommodation the tenant may similarly
deposit the rent stating the circumstances under
which such deposit is made and may until such
doubt has been removed or such dispute has been
settled by the decision of any companypetent companyrt or
by settlement between the parties companytinue to
deposit in like manner the rent that may
subsequently become due in respect of such
building. the deposit referred to in sub-s.  1  or  2
shall be made in the companyrt of the munsif having
jurisdiction in the area where the accommodation
is situate. on any deposit being made under sub-s.  1
the companyrt shall cause a numberice of the deposit to
be served on the landlord and the amount of
deposit may be withdrawn by the landlord on
application made by him to the companyrt in this
behalf. section 7c gives a right to the tenant to deposit rent
when a landlord refuses to accept any rent lawfully paid to
him by the tenant. a tenant may allege that the landlord had
refused to accept any rent lawfully paid to him. the section
itself does number require the munsif to go into the question
whether the landlord had refused to accept the rent paid
lawfully or otherwise. we fail to understand how as the
learned munsif observed the opposite party was served with
a numberice. sub-s.  4  of s. 7c companytemplates of only one
numberice after the deposit in pursuance of the permission
granted to deposit the arrears of rent under this section. in the absence
of any provision for sending numberice to the landlord before
granting permission to the tenant we fail to understand how
a numberice was sent to the landlord before the passing of the
order. the sub-s. clearly companytemplates that on any deposit
being made under sub-s.  1  the companyrt shall cause a numberice
of the deposit to be served on the landlord and the amount
of deposit may be withdrawn by the landlord on application
made by him to the companyrt in this behalf. if the munsif was
to accord the permission to deposit the arrears of rent
merely on being satisfied that the necessary allegation as
required by s. 7c of the act has been made viz. the
landlord had refused to accept the rent lawfully tendered to
him he was number obligated to enquire whether the allegation
made in the application was companyrect or number. section 7c permits a tenant to deposit the arrears of
rent in companyrt only under two companyditions  1  when the
landlord refuses to accept any rent lawfully paid to him by
the tenant in respect of any accommodation and  ii  where
any bonafide doubt or dispute has arisen as to the person
who was entitled to receive any rent referred to in sub-s.
 1  in respect of any accommodation. if the deposit of
arrears of rent was a valid deposit in accordance with the
requirements of s. 7c certainly it will amount to payment to
the landlord and the tenant will be absolved from the
liability of being evicted. but if the munsif had only to
accept the application and accord permission to the tenant
to deposit the arrears in companyrt merely on the basis that
necessary allegations in the application as required by s.
7c had been made the companyrt trying the suit for eviction
cannumber be precluded from enquiring about the validity of the
permission under s. 7c. it was next companytended for the appellant that the first
appellate companyrt had recorded a finding of fact believing the
statement of the tenant that the landlord had refused to
accept the rent when tendered to him and also refused to
accept the amount sent by money order and this finding companyld
number have been set aside by the high companyrt in second appeal. we are afraid this companytention has numbersubstance. the finding
recorded by the first appellate companyrt is based more on
surmises and companyjectures than on the basis of the material
on record. we would do numberbetter than quote the observations
made by the first appellate companyrt
the appellant having admitted deposit of rent in
court under s. 7c and the companyrt having accepted
the deposit holding the ingredients of the section
to have been made out and permitting the appellant
to companytinue depositing rent in future also prima
facie the deposit has to be treated as valid and
the burden lay on the plaintiff to show that the
entire proceedings under s. 7c were invalid and
the munsif had absolutely numberjurisdiction to
entertain the application and accept the
deposit the circumstances of the case also
indicate that the rent must have been tendered by
the defendant and might have been refused by the
plaintiff. when the defendant had applied for
allotment of the shop in his name plaintiff had
filed objections before the rent companytrol and
eviction officer but his objections were over-
ruled and allotment was made in favour of the
defendant. this was bound to cause annumberance to
the plaintiff and he might have refused to accept
the rent on that account. obviously the first appellate companyrt was of the opinion
that once permission had been granted by the munsif to the
tenant to deposit arrears of rent it would be presumed that
the permission was a valid one under s. 7c and this view of
that companyrt had companyoured its findings and it had entered into
surmises and companyjectures. the trial companyrt had rejected the testimony of the
defendant with regard to the tender of rent on the ground
that he was an interested witness. according to his
deposition he had gone to pay the arrears of rent prior to
bringing the application under s. 7c and that he had twice
tendered the amount of arrears by hand to the plaintiff in
the presence of plaintiffs son and the plaintiff had
refused to accept it. he further deposed that the rent was
tendered by money order also but the plaintiff had refused
to accept it. the defendant did number care to file the postal
receipts in the present case number did he produce the
plaintiffs son before whom he made tender which was refused
by the plaintiff. unless the evidence was filed in the
present case that companyld number be taken into companysideration by
the companyrt by summoning the file of some other case. the
first appellate companyrt had however relied upon the
postal money order receipts by looking into the records of
the proceedings under s. 7c. the high companyrt in the
circumstances was fully justified in reversing the finding
recorded by the first appellate companyrt as it was vitiated in
law. it may look hard that the tenant who had deposited the
rent in companyrt under s. 7c has to be evicted as the
ingredients of s. 7c had number been established but there is
numberhelp. in the instant case the only evidence is the
deposition of the tenant which the trial companyrt did number rely
upon and even the first appellate companyrt did number
categorically say that it believes the deposition of the
defendant. the law in our opinion is clear that the tenant
must establish before the companyrt in which the suit for
eviction has been filed the factum of refusal by the
landlord when the payment was sought to be made to him. the
mere fact that an application under s. 7c for permission to
deposit the arrears of rent has been allowed by the munsif
will number absolve the tenant from establishing before the
court where the suit for eviction was filed that the
landlord had refused to accept the rent lawfully tendered. for the reasons given above we do number find any error
much less a manifest error for interference with the
judgment of the high companyrt.