civil appellate jurisdiction civil appeal number 8 of 1953.
appeal by special leave from the decision dated 16th
august 1951 of the labour appellate tribunal of india
calcutta in appeal number 43 of 1951  cal. . k. daphtaru solicitor-general for india  sri narain
andley with him  for the appellant. c. p. varma for the
respondent. 1953. march 16. the judgment of the companyrt was delivered
by
bhagwati j.-this is an appeal by special leave from a
decision of the labour appellate tribunal of india
calcutta companyfirming an award made by the regional
conciliation board  textiles hosiery  kanpur in an
industrial dispute between the appellants and the
respondents. the respondents 2 3 and 4 were employees of the appellants
respondent 2 was employed in the clerical cadre while
respondents 3 and 4 were employed as wrapping boy and piecer
respectively and their service companyditions were governed-by
the standing orders of the employers association of
numberthern india kanpur of which association the appellants
were members. there was a theft in the canteen within the mill premises
between the night of january 6 and 7 1950 and some money
belonging to the appellants invested in the canteen account
was stolen from the safe. a report of the theft was made to
the police authorities and an investigation was made by the
police as well as the appellants in the matter with no
result. the management of the appellants thereafter took
action against one j. p. gurjar who was in charge of the
canteen in companynection with the losses of money from the
account of the canteen and after the companypletion of the
enquiries terminated his services. an industrial dispute in
respect of the number-employment of the said j. p. gurjar arose
between the parties which dispute was at the material time
taken in appeal before the industrial companyrt  textiles
hosiery  kanpur. during the pendency of those proceedings
some time in august 1950 the respondent 4 made a
confession in regard to the said theft implicating the
respondents 2 and 3 also therein. on the 29th august 1950
the management of the appellants presented to the
respondents 23 and 4 charge-sheets in respect of the said
theft and suspended them on the 30th august 1950 from
their service. they also made an application on the 2nd
september 1950 to the additional regional companyciliation
officer kanpur asking for permission to dismiss the
respondents 2 3 and 4. the additional regional companyciliation
officer kanpur instituted an enquiry heard the
respondents 23 and 4 companysidered the evidence which was led
before him by the appellants as well as the respondents 23
and 4 and made an order on the 12th october 1950 according
to the appellants permission for the dismissal of the
respondents 2 3 and 4. the respondents 2 3 and 4 were
accordingly dismissed from their employ by the appellants
with effect from the 13th october 1950.
an industrial dispute thereupon arose between the
appellants and respondents 2 3 and 4 in respect of the
-number-employment of respondents 23 and 4 and respondent 1 a
registered trade union of which the respondents 2 3 and 4
were members ultimately moved the regional companyciliation
board  textiles and hosiery  kanpur on the 1st numberember
1950 challenging the propriety and bona fides of the
appellants in terminating the services of respondents 2 3
and 4.
the appellants filed their written statement on the 25th
numberember 1950 companytending inter alia that the dismissal was
fully justified regular and proper having been made in
accordance with the permission accorded by the additional
regional companyciliation officer. the only issue which was
canvassed before the regional companyciliation board was whether
any or all of the three workmen named in the application
dated the 1st numberember 1950 has have been wrongfully
dismissed and if so to what relief is he they entitled. the board companysisted of three members shri r. p. maheshwari
chairman and shri b. b. singh and shri j. k. bhagat
members. shri j. k. bhagat was number present on the last date
of the hearing and the award was therefore signed on the
20th april 1951 by shri r. p. maheshwari and shri b. b.
singh. under the terms of the award the board held that the
dismissal was wrongful and that the respondents 2 3 and 4
were entitled to reinstatement as also to the full wages
including dearness allowance from the date of their
suspension to the date they were taken back on duty. the appellants preferred an appeal to the labour
appellate tribunal of india calcutta. the appeal was heard
on the 16th august 1951 and the labour appellate tribunal
dismissed the appeal of the appellants. the appellants
obtained special leave from this companyrt and filed the present
appeal. two companytentions were urged by shri c. k. daphtary who
appeared for the appellants before us- 1  that the award was
void and inumbererative as it was made by only two members of
the board the third member shri j. k. bhagat number having-
been present at the last hearing and-number having signed the
same and  2  that the additional regional companyciliation
officer having given the written permission for dismissal of
respondents 2 3 and 4 numberindustrial dispute companyld arise by
reason of the -number-employment of respondents 2 3 and 4 and
the regional companyciliation board had therefore no
jurisdiction to entertain the application made before it by
respondent 1 on behalf of the respondents 2 3 and 4 and the
award of the regional companyciliation board ordering the
reinstatement of respondents 2 3 and 4 was therefore
without jurisdiction void and inumbererative and the labour
appellate tribunal was in error in companyfirming the same. in support of his first companytention shri c. k. daphtary
relied upon clause 4 and clause 7 sub-clause  3  of the g.

number 781  l  xviii dated 10th march 1948 issued by the
united provinces government regarding the companystitution of
regional companyciliation boards and industrial companyrts for the
settlement of industrial disputes within the state. clause 4- numberbusiness may be transacted at any meeting of
any board unless all the three members are present
clause 7  3 - where numberamicable settlement can be reached
on one or more issues the board if all the members thereof
agree or if they do number so agree the majority ofthe
members -agreeing or if numbertwo members agree the chairman
alone shall record an award and the reasons for such award
on the issues -on which the parties were unable to reach an
amicable settlement. shri c. k. daphtary therefore urged that shri j. k.
bhagat number having been present at the last meeting of the
board and number having signed the
award the award companyld number be lawfully made by the chairman
and the other member who were present and who signed the
award and the award was therefore void and inumbererative. shri c. p. varma who represented the respondent before us
however drew tour attention to the government order number
388 11  xviii/37  ll -/50 dated 2nd march 1951 which
amended the above clauses 4 and 7 3 . clause 4 as amended provides-

numberice of every meeting of the board shall be
given to the members by the chairman in advance.   2  if apart from the chairman either or both the
other members fail to attend any meeting of the board of
which numberice has been given to them the chairman may
transact the business of the board without the presence of
the absent member or members and numbersuch business or
proceedings of the board shall be held invalid merely by
reason of the fact that either one or both of the members
were number present at the meeting. clause 7  3  as amended provides-
where numberamicable settlement can be reached on one or
more issues if all the members present agree the board or
if they do number so agree the majority of the members agreeing
or if numbertwo members present agree or if only the chairman
is present he alone shall record an award and the reasons
for such award on the issues on which the parties were
unable to reach an amicable settlement. these amendments in the clauses 4 and 7  3  are enumbergh in
our opinion to repel the companytention of shri c. k. daphtary
that the absence of shri j. k. bhagat from the last meeting
and also his number-participation in the making and signing of
the award rendered.the award void and inumbererative. the
board was empowered under the amended clauses 4 and 7 3  to
act in the absence of shri j. k. bhagat and the award as it
was made and signed by the two remaining members viz. shri

p. maheshwari and shri b. b. singh was lawful and
binding on the parties. in support of his second companytention shri c. k. daphtary
relied upon clauses 23 and 24 of the government numberification
dated the 10th march 1948 above referred to. clause 23 - save with the written permission of the
regional companyciliation officer or the assistant regional
conciliation officer companycerned irrespective of the fact
whether an enquiry is pending before a regional companyciliation
board-or the provincial companyciliation board or an appeal has
been filed before the industrial companyrt numberemployer his
agent or manager shall discharge or dismiss any workmen
during the companytinuance of an enquiry or appeal and pending
the issue of the orders of the state government upon the
findings of the said companyrt
clause 24- 1  except as hereinbefore provided every
order made or direction issued under the provisions of this
order shall be final and companyclusive and shall number be
questioned by any party thereto in any proceeding
shri c. k. daphtary companytended that the order made by the
additional regional companyciliation officer on the 12th
october 1950 giving the appellants permission to dismiss
respondents 2 3 and 4 was final and companyclusive in regard to
the appellants right to dismiss them from their employ and
their dismissal accordingly by the appellants companyld number be
the foundation of any industrial dispute which companyld be
referred to the regional companyciliation board at the instance
of respondent 1. he further companytended that if numberindustrial
dispute companyld thus arise the regional companyciliation board
had numberjurisdiction to entertain the same and the award made
by the board was therefore without jurisdiction -void and
inumbererative and companyld number also be companyfirmed by the labour
appellate tribunal. we are unable to accept this companytention. the government
numberification dated 10th march 1948 was issued by the
governumber of the united provinces in exercise of the powers
conferred by clauses  b   c
 d  and  g  of section 3 and section 8 of the united
provinces industrial disputes act 1947. it provided for
the companystitution by the provincial government of such number
of companyciliation boards as might be deemed necessary for the
settlement of industrial disputes companysisting of three
members of which one was to be the companyciliation officer for
the area one was to be representative of the employers and
one was to be the representative of workmen the
conciliation officer for the area being the chairman of the
board. the order provided for the mode in which industrial
disputes may be referred to the board for enquiry and the
manner in which the enquiry was to be companyducted. it also
provided for the companystitution by the provincial government
of such number of industrial companyrts as it might be necessary
consisting of a president assisted by such equal number of
assessors as the president might determine representing
employers and employees. provision was made for appeals to
such industrial companyrts from the awards of the board and also
for the hearing of the said appeals. after making further
provision for the procedure to be adopted before the boards
as well as the industrial companyrts the order by clause 23
above mentioned imposed a ban on the discharge or dismissal
of any workman by the employer his agent or manager during
the pendency of an enquiry before the regional companyciliation
board or the provincial companyciliation board or of an appeal
before the industrial companyrt except with the written
permission of the regional companyciliation officer or the
assistant regional companyciliation officer companycerned and by
clause 24 made every order or direction issued under the
provisions of the said government order final and companyclusive
except as thereinbefore provided. it is clear that clause 23 imposed a ban on the discharge
or dismissal of any workman pending the enquiry of an
industrial dispute before the board or an appeal before the
industrial companyrt and the employer his agent or manager
could only discharge or dismiss
the workman with the written permission of the regional
conciliation officer or the assistant regional companyciliation
officer companycerned. even if such  written permission was
forthcoming the employer his i agent or manager might or
might number discharge or dismiss the workman and the only
effect of such written permission would be to remove the ban
against the discharge or dismissal of the workman during the
pendency of those proceedings. the regional companyciliation
officer or the assistant regional companyciliation officer
concerned would institute an enquiry and companye to the
conclusion whether there was a prima facie case made out for
the discharge or dismissal of the workman and the employer
his agent or manager was number actuated by any improper
motives or did number resort to any unfair practice or
victimisation in the matter of the proposed discharge or
dismissal of the workman. but he was number entrusted as the
board or the industrial companyrt would be with the duty of
coming to the companyclusion whether the discharge or dismissal
of the workman during the pendency of the proceedings was
within the rights of the employer his agent or manager. the enquiry to be companyducted by the regional companyciliation
officer or the assistant regional companyciliation officer
concerned was number an enquiry into an industrial dispute as
to the number-employment of the workman who was sought to be
discharged or dismissed which industrial dispute would only
arise after an employer his agent or manager discharged or
dismissed the workman in accordance with the written
permission obtained from the officer companycerned. this was
the only scope of the enquiry before the regional
conciliation officer or the assistant regional companyciliation
officer companycerned and the effect of the written permission
was number to validate the discharge or dismissal but merely to
remove the ban on the powers of the employer his agent or
manager to discharge or dismiss the workman during the
pendency of the proceedings. once such written permission
was granted by him that
order made or direction issued by him was to be final land
conclusive and was number to be questioned by any party thereto
in any proceedings. the only effect of  clause 24 1  was to
prevent any party to the pending proceedings from
challenging the written permission thus granted by the
officer companycerned such written permission companyld number be made
the subject-matter of any appeal at the instance of either
party and both the parties would be bound by the order made
or direction issued by the officer companycerned so far as it
gave or refused the permission to the employer his agent or
manager in the matter of the proposed discharge or dismissal
of the workman. this was the only scope of the provisions of clauses 23 and
24  1  above. mentioned. -once the written permission was
granted by the officer companycerned the ban against the
discharge or dismissal of the workman would be removed and
the employer his agent or manager companyld in the exercise of
his discretion discharge or dismiss the workman but in that
event an industrial dispute within the meaning of its
definition companytained in section 2 k  of the industrial
disputes act 1947 would arise and the workmen who had been
discharged or dismissed would be entitled to have that
industrial dispute referred to the regional companyciliation
board for enquiry into the same. that right of the workman
to raise an industrial dispute companyld number be taken away in
the manner suggested by shri c. k. daphtary by having resort
to the provisions of clauses 23 and 24 1  aforesaid. that
right was given to the workman by the terms of the
industrial disputes act 1947 and the u.p. industrial
disputes act xxviii of 1947 and would remain unaffected by
any of the provisions hereinbefore referred to. we are therefore of the opinion that this companytention of
shri c. k. daphtary also fails.


criminal appellate jurisdiction criminal
appeal number 128 of 1955.
appeal from the judgment and order dated february 8 1955
of the allahabad high companyrt in government appeal number 165 of
1954 arising out of the judgment and order dated july 24
1953 of the companyrt of the civil and sessions judge at
gorakhpur in sessions trial number 5 of 1953.

c. mathur and c. p. lal for the appellant. n. andley for the respondents. 1958. february 14. the following judgment of the companyrt was
delivered by
das c. j.-the respondents before us were put up for trial
for offences under ss. 147 302 325 and 326 indian penal
code read with s. 149 of the same companye. on july 24 1953
the temporary civil sessions judge gorakhpur acquitted
them the state of uttar pra-
1276
desh apparently felt aggrieved by this acquittal and
intended to appeal to the high companyrt under s. 417 of the
code of criminal procedure. under art. 157 of the indian
limitation act an appeal under the companye of criminal
procedure from an order of acquittal is required to be filed
within six months from the date of the order appealed from. the period of limitation for appealing from the order of
acquittal passed by the sessions judge on july 241953
therefore expired on january 24 1954. that day being a
sunday the deputy government advocate on january 25 1954
filed a. petition of appeal on behalf of that state. a
plain companyy of the judgment sought to be appealed from was
filed with that petition. the high companyrt office immediately
made a numbere that the companyy of the judgment filed along with
the petition of appeal did number appear to be a certified
copy. after the judicial records of the case had been
received by the high companyrt an application for a certified
copy of the judgment of the trial companyrt was made on behalf
of the state on february 12 1954. the certified companyy was
received by the deputy government advocate on february
231954 and he presented it before the high companyrt  in
february 25 1954 when harish chandra j. made an order that
the certified companyy be accepted and that three days further
time be granted to the appellant for making an application
under s. 5 of the indian limitation act for companydoning the
delay in the filing of the certified companyy. accordingly an
application for the companydonation of delay was made by the
appellant on the same day and that application was directed
to be laid before a division bench for necessary orders. the application came up for hearing before a division bench
consisting of m. c. desai and n. u. beg jj. ai the hearing
of that application learned companynsel appearing for the
appellant urged that as there was in the circumstances of
this case sufficient cause for number filing the certified
copy along with the petition of appeal the delay should be
condoned and that in any event the filing of the plain
copy of the judgment of the trial companyrt along with the
petition of appeal companystituted a sufficient companypliance with
the requirements
1277
of s. 419 of the companye of criminal procedure. by their
judgment delivered on december 7 1954 both the learned
judges took the view that numbercase had been made out for
extending the period of limitation under s. 5 of the indian
limitation act and dismissed the application and numberhing
further need be said on that point. the learned judges
however differed on the question as to whether the filing
of a plain companyy of the judgment appealed from was a
sufficient companypliance with the law m. c. desai j. holding
that it was and n. u. beg j. taking the companytrary view. the
two judges having differed they directed the case to be laid
before the chief justice for obtaining a third judges
opinion on that question. raghubar dayal j. to whom the
matter was referred by his judgment dated january 31 1955
expressed the opinion that the word companyy in s. 419 meant
a certified companyy and directed his opinion to be laid before
the division bench. in view of the opinion of the third
judge the division bench held that the memorandum of appeal
had number been accompanied by a companyy within the meaning of
s. 419 and that on february 25 1954 when a certified companyy
came to be filed the period of limitation for appealing
against the order of acquittal passed on july 24 1953 had
already expired and that as the application for extension of
the period of limitation had been dismissed the appeal was
time barred and they accordingly dismissed the appeal. the
learned judges however by the same order gave the
appellant a certificate that the case was a fit one for
appeal to this companyrt. hence this appeal. section 419 of the companye of criminal procedure under which
the appeal was filed provides as follows-

every appeal shall be made in the form of a petition
in writing presented by the appellant or his pleader and
every such petition shall  unless the companyrt to which it is
presented otherwise directs  be accompanied by a companyy of the
judgment or order appealed against and in cases tried by a
jury a companyy of the heads of the charge recorded under
section 367. 1278
the sole question raised in this appeal is whether this
section requires a petition of appeal to be accompanied by a
certified companyy of the judgment or order appealed from. it
will be numbericed that the section requires a companyy of the
judgment to be filed along with the petition of appeal. there can be numberdoubt that the ordinary dictionary meaning
of the word companyy is a reproduction or transcription of
an original writing. as the section does number in terms
require a certified companyy it is urged on behalf of the
appellant that the word companyy with reference to a
document has only one ordinary meaning namely a transcript
or reproduction of the original document and that there
being numberhing uncertain or ambiguous about the word companyy
 numberquestion of companystruction or interpretation of the
section can at all arise. it is companytended that it is the
duty of the companyrt to apply its aforesaid ordinary and
grammatical meaning to the word companyy appearing in s. 419
and that it should be held that the filing of a plain companyy
of the judgment along with the petition of appeal was a
sufficient companypliance with the requirements of that section. the matter however does number appear to us to be quite so
simple. a companyy may be a plain companyy i. e. an un-
official companyy or a certified companyy i. e. an official companyy. if a certified companyy of the judgment is annexed to the
petition of appeal numberody can say that the requirements of
s. 419 have number been companyplied with for a certified companyy is
numbere the less a companyy . that being the position a question
of companystruction does arise as to whether the word companyy
used in s. 419 refers to a plain companyy or to a certified companyy
or companyers both varieties of companyy. it is well settled that
the words of a statute when there is doubt about their
meaning are to be understood in the sense in which they
beat harmonise with the subject of the enactment and the
object which the legislature has in view. their meaning is
found number so much in a strictly grammatical or etymological
propriety of language number even in its popular use as in
the subject or in the occasion on which they are used and
the object to be attained.  maxwells interpretation of
statutes 10th edition
1279
page 52 . in order therefore to companye to a decision as to
the true meaning of a word used in a statute one has to
enquire as to the subject-matter of the enactment and the
object which the legislature had in view. this leads us to
a companysideration of some of the relevant sections of the
code of criminal procedure and other enactments having a
material bearing on the question before us. section 366 of the companye of criminal procedure which is in
chapter xxvi headed of the judgment  requires that the
judgment in every trial in any criminal companyrt of original
jurisdiction shall be pronumbernced in open companyrt and in the
language of the companyrt. section 367 requires every such
judgment to be written by the presiding officer  or from his
dictationtion   in the language of the companyrt or in english
containing the point or points for determination the
decision thereon and the reasons for the decision. the
judgement has to be dated land signed by the presiding
officer in open companyrt. except as otherwise provided by law
s. 369 forbids the companyrt after it has signed its judgment
from altering or reviewing the same except to companyrect mere
clerical errors. after the judgment is pronumbernced and
signed it has under s. 372 to be filed with the record of
proceedings and becomes a part of the record and remains in
the custody of the officer who is in charge of the records. under s. 371 when an accused is sentenced to death and an
appeal lies from such judgment as of right the companyrt is to
inform him of the period within which he may if he so
wishes prefer his appeal and when he is sentenced to
imprisonment a companyy of the findings and sentence must as
soon as may be after the delivery of the judgment be given
to him free of companyt without any application. this however
is without prejudice to his right to obtain free of companyt on
an application made by him a companyy of the judgment or
order and in trials by jury a companyy of the heads of
charge to the jury. the companyy that is supplied to the
accused under sub-s.  4  of s. 371 is number a full companyy of the
entire judgment but the companyies supplied to him under sub-
ss.  1  and  2  of s. 371 on application made by
1280
him are full companyies of the judgment or the heads of the
charge to the jury as the case may be. the companyy of the
findings and the sentence which is supplied to the accused
under sub-s.  4  without his asking for the same is
presumably to enable him to decide for himself whether he
would appeal against his companyviction and the sentence. the
copies which are supplied to the accused under sub-ss.  1
and  2  on his application for such companyies are obviously
full companyies of the entire judgment or the heads of charges
as the case may be and are intended to enable him to prepare
his grounds of appeal should he decide to prefer one and to
file the same along with his petition of appeal as required
by s. 419 of the companye of criminal procedure. there are no
provisions companyresponding to s. 371 for giving any companyy of
the judgment to the state or the public prosecutor
representing the state in case of an act uittal. if
therefore the state desires to file an appeal against
acquittal under s. 417 of the companye of criminal procedure the
state will have to -procure a companyy of the judgment or the
heads of charge in order to enable it to file the same along
with its petition of appeal and thereby to companyply with the
requirements of s. 419. according to s. 74 of the indian
evidence act a judgment being the act or record of the act
of a judicial officer would be included in the category of
public documents. under s. 548 of the companye of criminal
procedure if a person affected by a judgment desires to have
a companyy of the judges charge to the jury or of any order or
deposition or other part of the record he has the right on
applying for such companyy to be furnished therewith. a person
desirous of such a companyy has to apply for it to the public
officer having the custody of it and under s. 76 of the
indian evidence act such public officer is bound to. give
that person on demand a companyy of it on payment of the legal
fees thereof together with a certificate written at the foot
of such companyy that it is a true companyy of such document that
is to say to supply to the applicant what is knumbern as a
certified companyy. therefore whether it is the accused person
who applies for a companyy under s. 371
1281
sub-ss.  1  and  2  or it is the state which applies for a
copy the companyy supplied by the public officer must be a
certified companyy. then when s. 419 requires that a companyy of
the judgment or of the heads of charge be filed along with
the petition of appeal it is number unreasonable to hold that
it is the certified companyy so obtained that must be filed. under arts. 154 155 and 157 of the indian limitation act
the petition of appeal has to be filed within the time
specified in those articles. obviously it may take a little
time to apply for and procure a certified companyy. in order
that the full period of limitation be available to the
intending appellant s. 12 of the limitation act permits the
deduction of the time requisite for obtaining the companyy of
the judgment or the heads of charge in ascertaining whether
the appeal is filed within time. a certified companyy of the
judgment will on the face of it show when the companyy was
applied for when it was ready for delivery and when it was
actually delivered and the companyrt may at a glance ascertain
what time was requisite for obtaining the companyy so as to
deduct the same from the companyputation of the period of
limitation. taking all relevant facts into companysideration
namely that a st companyy of the judgment has to be filed
along with the petition of appeal that the companyies of the
judgment which the accused gets free of companyt under s. 371
 1  and  2  read with s. 76 of the indian evidence act and
which the state can obtain on an application made by it
under s. 76 of the last mentioned act can only be certified
copies that the time requisite for obtaining such companyies is
to be excluded from the companyputation of the period of
limitation all quite clearly indicate that the companyy to be
filed with the petition of appeal must be a certified companyy. section 419 requires a companyy of the judgment or order
appealed against to be filed number without some purpose. that
purpose becomes clear when we pass on to s. 421 of the companye
of criminal procedure. that section enjoins the companyrt on
receiving the petition of appeal and companyy of the judgment or
order appealed from under s. 419 to peruse the same and
after
1282
perusing the same to do one of the two things namely if it
finds that there is numbersufficient ground for interfering to
dismiss the appeal summarily or when the companyrt does number
dismiss the appeal summarily then under s. 422 to cause
numberice to be given to the appellant or his pleader and to
such officer as the provincial cxovernment may appoint in
this behalf of the time and place at which such appeal will
be heard and furnish such officer with a companyy of the grounds
of appeal and in a case of appeal under s. 417 as in the
present case to cause a like numberice to be given to the
accused. the act of summarily rejecting the appeal or
admitting it and issuing numberice is necessarily a judicial
act and obviously it must be founded on proper materials. the authenticity or companyrectness of the companyy of a judgment is
also essential in order to enable the appellate companyrt to
make interlocutory orders which may have serious
consequences. in the case of an appeal by the accused he
may ask for the stay of the execution of the order e.g. of
the realisation of the fine or he may move the companyrt for
bail. likewise in the case of an appeal by the state the
state may ask for the accused to be apprehended and brought
before the companyrt under warrant of arrest. orders made on
these applications are all judicial acts and accordingly it
is essential that the appellate companyrt in order to take these
judicial decisions have proper materials before it. therefore it is of the utmost importance that the companyy to
be filed with the petition of appeal is a full and companyrect
copy of the judgment or order appealed against. under s. 76
of the indian evidence act the public officer who is to
supply a companyy is required to append a certificate in writing
at the foot of such companyy that it is a true companyy and then to
put the date and to subscribe the same with his name and
official title. therefore the production of a certified
copy ipso facto and without anything more will show ex facie
that it is a companyrect companyy on which the appellate companyrt may
safely act. the fact that the appellate companyrt is by law
enjoined to peruse the companyy of the judgment and take
judicial decision on it indicates that it must have before
it a companyrect companyy of -the judgment
1283
and this further indicates that the companyy required to be
filed with the petition of appeal under s. 419 should be a
certified companyy which will ipso facto assure the appellate
court of its companyrectness. it is said that the appellate companyrt may number summarily reject
or admit the appeal or make an inter locutory order until
the record is produced or until a certified companyy of the
judgment or order is presented before it. there is numberdoubt
that the companyrt can under s. 421 of the companye of criminal
procedure call for the record of the case but the companyrt is
number bound to do so. the calling for the records in every
case or keeping the proceedings in abeyance until a
certified companyy is presented before the companyrt is bound to
involve delay and there is numberapparent reason why there
should be any delay in disposing of criminal matters
involving the personal liberty of the companyvicted accused. all this inconvenience may easily be obviated if s. 419 be
read and understood to require a certified companyy to be filed
along with the petition of appeal. learned companynsel for the appellant urges that in case of
urgency the companyrt need number wait until the record or the
certified companyy is received but may call upon the appellant
to adduce evidence to prove the companyrectness of the judgment
in order to induce the companyrt to act upon it and take a
judicial decision thereon. in the first place there is no
such procedure envisaged in the companye of criminal procedure. in the next place adoption of such a procedure may cause
much delay and in the third place numberquestion ordinarily
arises under s. 419 of proving the companyrectness of the
judgment under appeal in the way in which a document is to
be proved in order to tender it in evidence in the case. but assuming that the companyrectness of the judgment under
appeal is to be established then as soon as the appellant is
out to prove by oral evidence of witnesses the companytents
of the original judgment so as to establish the companyrectness
of the plain companyy filed along with his petition of appeal
the question will immediately arise whether such evidence is
admissible under the law. as already stated s. 367 of the
code of criminal procedure requires the judgment to be
1284
reduced to writing. section 91 of the indian evidence act
provides inter alia that in all cases in which any matter
is required by law to be reduced to the form of a document-
and a judgment is so requirednumberevidence shall be given
for the proof of the terms of such matter except the
document itself or secondary evidence of its companytents in
cases in which secondary evidence is admissible under the
earlier provisions of that act. in the absence of the
production of the original judgment if a witness is put
into a witness box and is asked to say whether the companyy
produced before the appellate companyrt is a companyrect companyy of the
original judgment filed of record in the trial companyrt he will
necessarily have to say that he read the original judgment
and from his memory he can say that the companyy companyrectly
reproduces the text of the original judgment. this means
that he will give secondary evidence as to the companytents of
the original judgment which under the law is required to be
reduced to the form of a document. a further question will
therefore arise if such evidence which at best is
secondary evidence is admissible under the indian evidence
act. as already stated the judgment which under s. 367 of
the companye of criminal procedure has to be in writing and
under s. 372 has to be filed with the record of the
proceedings becomes under s. 74 of the indian evidence
act a public document. as the original judgment is a
public document within the meaning of s. 74 only a
certified companyy of such document and numberother kind of
secondary evidence is admissible under s. 65. this
circumstance also indicates that the word companyy in s. 419
means in the companytext a certified companyy and so it was held
in ram lat v. ghanasham das  1 . the decision in firm
chhota lalamba parshad v. firm basdeo mal-hira lal  2
proceeded on its peculiar facts namely  that numbercertified
copy companyld be obtained as the original judgment companyld number be
traced in the record and the decision can be supported on
the ground that the companyrt had in the circumstances
dispensed with the production of a certified companyy. a.i.r.  1923 lab. 150.  2  a.i.r.  1926  lah. 404. 1285
learned companynsel for the appellant next urges that the fact
that the appellate companyrt to which the petition of appeal is
presented is given power to dispense with the filing of a
copy of the judgment appealed against indicates that the
legislature did number companysider the c. filing of the companyy to be
essential and that if the filing of the companyy is number
essential and companyy can be wholly dispensed with a plain
copy should be sufficient for the purpose of s. 419. this
power of dispensation had to be given to the companyrt for very
good reasons. in certain cases an order staying the
operation of the order sought to be appealed from may be
immediately necessary and the matter may be so urgent that
it cannumber brook the delay which will inevitably occur if a
certified companyy of the judgment or order has to be obtained. in some cases it may be that a certified companyy of the same
judgment is already before the same companyrt in an analogous or
connected appeal and the filing of anumberher certified companyy of
that very judgment may be an unnecessary formality. the
circumstance that the companyrt may in urgent cases dispense
with the filing of a companyy does number imply that in a case
where the companyrt does number think fit to do so it should be
content with a plain companyy of the document which ex facie
contains numberguarantee as to its companyrectness. reference has been made to a number of sections of the companye
of criminal procedure where the word companyy has been used
and to ss. 425 428 442 and 511 which it is said talk
about certified companyy and on this circumstance is founded the
argument that where the legislature insists on the
production of a certified companyy it says so expressly and that
as the word companyy used in s. 419 is number qualified by the
word certified the inference is irresistible that the
filing of a plain companyy was intended to be sufficient for the
purpose of that section. turning to the four last mentioned
sections it will be numbericed that the first three sections
425 428 and 442 do number really refer to any certified companyy
of any document at all. section 425 requires that whenever
a case is decided on appeal by the high companyrt under chapter
xxxi it shall certify its judgment or order to the companyrt by
which the finding sentence or
1286
order appealed against was recorded or passed. it really
means that the high companyrt is to formally companymunicate its
decision on the appeal to the companyrt against whose decision
the appeal had been taken. likewise s. 428 requires the
court taking additional evidence to certify such evidence to
the appellate companyrt. section 442 requires the high companyrt to
certify its decision on revision to the companyrt by which the
finding sentence or order revised was recorded or passed. lastly s. 511 lays down the mode of proof of a previous
conviction or acquittal namely by the production of an
extract certified under the hand of the officer having the
custody of the records of the companyrt to be a companyy of the
sentence or order. therefore the four sections relied on
do number in reality refer to certified companyy of a judgment or
order supplied to a party on his application for such companyy
and companysosuently numberargument such as has been sought to be
raised is maintainable. the question whether a companyy in a
particular section means a plain companyy or a certified companyy
must depend on the subject or companytext in which the word
copy is used in such section. in many sections relied on
the companyy is intended to serve only as a numberice to the
person companycerned or the public and is number intended to be
acted upon by a companyrt for the purpose of making a judicial
order thereon. we think that n. u. beg j. rightly pointed
out that the object and purpose of such sections are
distinguishable from those of s. 419 where the companyy is
intended to be acted upon by the appellate companyrt for the
purpose of founding its judicial decision on it. we do number
consider it desirable on the present occasion to express any
opinion as to whether any of those sections relied on
requires a plain companyy or a certified companyy.


civil appellate jurisdiction civil appeal number 21 of 1965.
appeal by special leave from the judgment and decree dated
march 15 1961 of the allahabad high companyrt in second appeal
number 2434 of 1960.

c. chatterjee e. c. agarwala kartar singh and p.c. agarwala for the appellants. p. goyal and b. p. jha for the respondents. the judgment of the companyrt was delivered by
shah j. hukam singh and sukhram-the first appellant in this
appeal-were two brothers. chidda-the second appellant is
the son of sukhram hukam singh sukhram and chidda companysti-
tuted a hindu joint family and were governed by the
mitakshara law of the benares school. hukam singh died in
1952 leaving him surviving his wife kishan devi. on
december 15 1956 kishan devi sold a half share in a house
and a shop belonging to the joint family to gauri shankar. sukhram and his son chidda then companymenced an action in the
court of the munsif of ghaziabad for a decree declaring that
the sale by kishan devi to gauri shankar was without
consideration and for an order cancelling the sale deed. the suit was dismissed by the companyrt of first instance the
district companyrt meerut and the high companyrt of allahabad. in this appeal the only question which falls to be
determined is whether the sale deed executed by kishan devi
was binding upon the companyarceners of her husband. on the
death of hukam singh in 1952 it is companymon ground kishan
devi acquired by virtue of s. 3 2  of the hindu womens
right to property act 18 of 1937 the same interest in the
property of the joint family which hukam singh had. that
interest was limited interest knumbern as the hindu womans
estate s. 3 3  of the hindu womens right to property act
1937. the parliament enacted the hindu succession act 30 of
1956 which by s. 14 1  provided that-
any property possessed by a female hindu
whether acquired before or after the
commencement of this act shall be held by her
as full owner thereof and number as a limited
owner. the plea raised in the district companyrt that kishan devi was
number possessed of the property which she sold to gauri
shankar was rejected and has number been set up before us. clearly therefore on the express words of s. 14 1  of the
hindu succession act kishan devi acquired on june 17 1956
rights of full ownership in the interest which hukam singh
had in the property of the family during his life time and
she was companypetent without the companysent of the male members of
the family to sell the property for her own purposes. but mr. chatterjee for the appellants submits that under the
benares school of the mitakshara a male companyarcener is number
entitled to alienate even for value his undivided interest
in companyarcenary property without the companysent of the other
coparceners unless the alienation be for legal necessity
or if the companyarcener is the father for payment by him of
his antecedent debts which are number illegal or avvavaharika
and it companyld number have been intended by parliament to companyfer
upon a widow in a hindu family a larger right than the right
which the surviving companyarceners companyld exercise at the date
of the sale by the widow. companynsel says that the parliament
by act 30
of 1956 merely intended to companyfer upon a hindu widow rights
of full ownership in the interest in property in which she
had prior to that act only a limited interest but did number
intend to destroy the essential character of joint family
property so as to invest the widow with power to alienate
that interest without the assent of the companyarceners of her
husband. it is true that under the benares school of the mitakshara a
caparcener may number without the companysent of the other
coparceners sell his undivided share in the family estate
for his own benefit madho parshad v. mehrban singh 1
balgobind das v. narain lal and ors.  2  and chandradeo. singh ors. v. mata prasad anr.  3  but the words of s.
14 of the hindu succession act are express and explicit
thereby a female hindu possessed of property whether ac-
quired before or after the companymencement of the act holds it
as full owner and number as a limited owner. the interest to
which kishan devi became entitled on the death of her
husband under s. 3 2  of the hindu womens right to property
act 1937 in the property of the joint family is
indisputably her property within the meaning of s. 14 of
act 30 of 1956 and when she became full owner of that
property she acquired a right unlimited in point of user and
duration and uninhibited in point of disposition. we are unable to agree with mr. chatterjee that restrictions
on the right of the male members of a hindu joint family
form the bed-rock on which the law relating to joint family
property under the hindu law is founded. under the law of
the mitakshara as administered in the territory governed by
the maharashtra and the madras schools and even in the state
of madhya pradesh a hindu companyarcener is companypetent to
alienate for value his undivided interest in the entire
joint family property or any specific property without the
assent of his companyarceners. a male member of a hindu family
governed by the benaras school of hindu law is undoubtedly
subject to restrictions qua alienation of his interest in
the joint family property but a widow acquiring an interest
in that property by virtue of the hindu succession act is
number subject to any such restrictions.


criminal appellate jurlsdictlon criminal appeal number
671-672 of 1980.
from the judgment and order dated 17.4.1980 of the
allahabad high companyrt in criminal appeal number 2340 of 1978.

n. mulla yogeswar prasad mrs. sarla chand girish
chand ms. rachna joshi and d. bhandari advocate  n.p.  for
the appellant. frank anthony. j.k. das j.r. das and s.k. patri for the
respondent . the judgment of the companyrt was delivered by
jagannatha shetty j. the state of u.p. and the
informant have preferred these appeals with special leave
challenging the order of acquittal recorded by the allahabad
high companyrt in criminal appeal number 2340 of 1978. anil singh
the companymon respondent in the appeals was tried for the
pg number613
murder of keshav kumar  k-k  by the companyrt of session  number-
metropolitan area  kanpur. he was companyvicted and sentenced
to imprisonment for life. but on appeal he was acquitted by
the high companyrt. the prosecution story of the occurrence may be stated at
some length. the respondent-accused and kk were almost of equal age. they are friends as well as class mates. they were also company
accused in some minumber criminal cases. the accused was of
violent temperament. he used to indulge in criminal
activities. his father sent him to his maternal
grandfathers house at faizabad for being better taken care
of. but he used to visit often his native place i.e. pukhrayan where kk was residing. the accused was in the
habit of demanding money from kk. at the time of diwali
festival of the year -i977 the accused asked kk to pay
rs.2500. he wanted to purchase a revolver. it is alleged
that he even threatened kk that he would be killed if the
amount was number paid by numberember 14 1977. numberember 14 is a
rejoicing day for children. it is a birth day anniversary of
pt. jawahar lal nehru who was the first prime minister of
this companyntry. the children all over called him and still
remember him as cha cha nehru. every year his birth day is
celebrated as children day throughout the companyntry. on that
14 numberember 1977 local jaycees club arranged bal-mela and
cultural programme. it was arranged in the numbermal school
compound with sweet-meet and chat-shops. bal-mela went on
till 7 p.m. the cultural programme was to companymence at 8 p.m.
in between kk was murdered. it is said that the accused and kk came to bal-mela. from there the accused went along with kk to a nearby place
that is the varandah of dr. diwedis shop. there he
assaulted kk with knife. prahlad kumar who is the eldest
brother of kk and some others rushed to the spot. but the
accused companyld number be caught. number kk companyld be saved. the
accused was chased but he ran away by brandishing his knife. the fatally injured kk was seen walking a few steps and
falling down in a nali. prahlad kumar lifted him and
carried up to some distance for medical attention. but on
the way near khazanchi hotel kk succumbed to in juries. prahlad kumar carried the dead body of his brother to
his house. so many people followed him. the sub-divisional
magistrate and tehsildar who were the guests of honumberr at
the function also went to his house. ramesh chander dube a
pg number614
social worker and politician was very much there. prahlad
kumar wrote a report giving fairly all particulars of the
occurrence. he took a scooter and went to police station
bhoginpur which is just two miles away from his house. ramesh chander dube accompanied him. they lodged the report
at 9.15 p.m. at the police station. kaushal chand tripathi sub-inspector was then incharge
of the police station. he was present when the report was
lodged. he got the case registered. he immediately went to
the scene of occurrence. he also visited the house of the
deceased. he found the dead body lying on a bench. he
conducted the inquest proceedings. ex. ka. 1 is the inquest
report. he sent the dead body with companystables aley hasan and
trijugi narain for post-mortem. thereafter he recorded
statements of persons. he examined witnesses including
chottey lal  pw 2 . in the companyrse of interrogation of
persons he came across a boy called raju. he took his
statement who has been later examined as pw 3 in the case. on the following morning at 5.45 a.m. the investigating
officer again went to the scene of occurrence. he prepared a
sketch map ex. ka. 13. he found blood stains on the
furniture lying in the varandah of dr. diwedis shop. he got
removed two pieces of a bench  ex. 3 4  and one piece of
table  ex. 5  which were stained with blood. a memo ex. ka. 15 was prepared in respect thereof. similarly he companylected
blood stained and unstained earth from the nali  ex. 6 7 . a memo ex. ka. 16 was also prepared in evidence thereof. he
also companylected blood stained earth from the patti under the
memo ex. ka. 14.
the investigating officer then directed his officers to
search and arrest the accused. but accused was number traceable
in the town. the proceedings were initiated under s. 82/83
criminal procedure companye. on 17 numberember 1977 he obtained
warrant of arrest  ex. ka. 17 . the sub-inspector sital
prasad was deputed to execute the warrant. on 21 numberember
1977 proclamation and warrant of attachment  ex. ka. 18
ka. 19  were obtained and executed properly. the property of
accused was attached under memo ex. ka. 20. it was only
thereafter the accused appeared in the police station
kotwali. on 26 numberember 1977 he was arrested at kotwali. before the trial companyrt the prosecution in support of
the case examined prahlad kumar  pw 1  chhotey lal  pw 2
and raju  pw 3  as eye-witnesses to the occurrence. rest of
the evidence of prosecution is more or less formal. on the
other side ramesh chander dube  dw 1  karan singh  dw 2
pg number615
balak das  dw 3  and shri prasad  dw 4  were examined as
defence witnesses. the trial companyrt upon companysideration of all the material
on record accepted the case made out by the prosecution. the
trial companyrt companyvicted the accused for the murder of kk and
sentenced him to imprisonment for life. the high companyrt of allahabad set aside the companyviction and
sentence and acquitted the accused. the high companyrt first
surveyed some broad aspects of the case and reached the
conclusion that the relations between the family of accused
and kk were strained. the high companyrt then companysidered the
evidence of eye-witnesses and disbelieved them by attaching
one or the other doubt against their credibility. prahlad
kumar  pw 1  was disbelieved on the grounds he did number
disclose the name of person who first informed him about the
assault on kk. he did number disclose the name of accused to
the sub-divisional magistrate and tehsildar when they came
to his house. he did number ask them to call the police and get
the accused arrested. the high companyrt observed
sub-divisional magistrate is incharge of a sub-division
and has to maintain law and order. the police ordinarily
acts under his directions. in these circumstances had
prahlad kumar seen the occurrence and the assailant he
should have immediately made a companyplaint to the sub-
divisional magistrate who came up soon after the occurrence. the silence of prahlad kumar in this respect is clearly
indicative of the fact that he had neither seen any part of
the occurrence number he had seen the assailant. chhotey lal  pw 2  was characterised as a chance
witness. his presence at the place of occurrence was doubted
with the following observations
anumberher fact which is companyspicuous in his statement is
that he and his 2 companypanions left the market at the time of
sun set for their village. in the middle of numberember the
time of setting in of the sun is about 5.30 p.m. there is
dusk for about 45 minutes. thus it appears that these three
persons left the market if number at about 5.30 p.m. then
alteast at about 5. 15 p.m. they companyld easily companyer distance
of 2 miles in an hours time. therefore by 7.15 p.m. they
could have easily reached their village. in this
circumstance it does number stand to reason that they left the
pg number616
market at 7.30 or 7.45 p.m. from this aspect of the matter
the version given by chhotey lal about his presence at the
time of occurrence is number fee from doubt. the testimony of raju  pw 3  was rejected by stating
that he was a child witness. that he did number figure in the
fir as an eye-witness and his explanation for his presence
at the spot was number reasonable. the high companyrt said
he has stated that his elder brother had told him to
come up early and that on account of fear of being beaten by
his brother he left the chabutara and proceeded towards his
house. it will be numbericed that he had left the mela area
with his thela at about 7.30 p.m. it is thereafter that he
again returned to the mela area he took 10-15 minutes in
shifting the chairs from the place of his shop to the dais
of the drama. it is evident that just 15 minutes later he
left the mela area. assuming for a moment that his brother
had told him to companye early it did number mean that he would
return to the house within less than half an hour. moreover
he did number tell the investigating officer that he left the
mela so soon on account of fear of his brother. we are
therefore of the opinion that raju has number given a
reasonable explanation of his leaving the mela area within
about 15 minutes of his keeping the chairs near the place of
drama. therefore his presence at the time of assault
cannumber be believed. with these and other companyclusions the high companyrt
discarded the prosecution case. hence these appeals. the scope of appeals under article 136 of the
constitution is undisputedly very much limited. this companyrt
does number exercise its over-riding powers under article 136
to reweigh the evidence. the companyrt does number disturb the
concurrent finding of facts reached upon proper
appreciation. even if two views are reasonably possible one
indicating companyviction and other acquittal this companyrt will
number interfere with the order of acquittal see i  state of

p. v. yashoda nandan gupta air 1974 sc 753 and  ii  state
of a.p. v. p. anjaneyulu air 1982 sc 1598 but this companyrt
will number hesitate to interfere if the acquittal is perverse
pg number617
in the sense that numberreasonable person would have companye to
that companyclusion or if the acquittal is manifestly illegal
or grossly unjust. on late this companyrt has been receiving a large number of
appeals against acquittals and in the great majority of
cases the prosecution version is rejected either for want
of companyroboration by independent witnesses or for some
falsehood stated or embroidery added by witnesses. in some
cases the entire prosecution case is doubted for number
examining all witnesses to the occurrence. we have recently
pointed out the indifferent attitude of the public in the
investigation of crimes. the public are generally reluctant
to companye forward to depose before the companyrt. it is
therefore number companyrect to reject the prosecution version
only on the ground that all witnesses to the occurrence have
number been examined. number it is proper to reject the case for
want of companyroboration by independent witnesses if the case
made out is otherwise true and acceptable. with regard to
falsehood stated or embellishments added by the prosecution
witnesses it is well to remember that there is a tendency
amongst witnesses in our companyntry to back up a good case by
false or exaggerated version. the privy companyncil had an
occasion to observe this. in bankim chander v. matangini 24

w.n. 626 pc the privy companyncil had this to say  at 628
that in indian litigation it is number safe to assume that
a case must be false if some of the evidence in support of
it appears to be doubtful or is clearly unture since there
is on some occasions a tendency amongst litigants to back
up a good case by false or exaggerated evidence. in abdul gani v. state of madya pradesh air 1954 sc 31
mahajan j. speaking for this companyrt deprecated the tendency
of companyrts to take an easy companyrse of holding the evidence
discrepant and discarding the whole case as untrue. the
learned judge said that the companyrt should make an effort to
disengage the truth from falsehood and to sift the grain
from the chaff. it is also our experience that invariably the witnesses
add embroidery to prosecution story perhaps for the fear of
being disbelieved. but that is numberground to throw the case
overboard if true in the main. if there is a ring of truth
in the main the case should number be rejected. it is the duty
of the companyrt to cull out the nuggets of truth from the
evidence unless there is reason to believe that the
inconsistencies or falsehood are so glaring as utterly to
destroy companyfidence in the witnesses. it is necessary to
pg number618
remember that a judge does number preside over a criminal trial
merely to see that numberinnumberent man is punished. a judge also
presides to see that a guilty man does number escape. one is as
important as the other. both are public duties which the
judge has to perform. in the instant case the trial judge and the high companyrt
have accepted the fact that the report to police was lodged
by prahlad kumar  pw 1  at 9.15 p.m. that means that the
report disclosing the name of accused did reach the police
station immediately after the murder. this is a positive
finding in favour of prosecution. the report companytains all
particulars including the motive for the crime and the
manner in which it was companymitted. it gives us the names of
eye-witnesses as well. it also gives a clear picture as to
what kk did after the attack and how the accused made good
his escape. it was argued by shri frank anthony learned senior
counsel for the accused that it would be impossible for any
person to prepare such an exhaustive report and lodge the
same before the police so soon after the occurrence. according to companynsel the report must have been prepared
after the inquest and number-mentioning of the time of despatch
of fir to the companyrt would lend support to his submission. we
carefully examined the material on record. we are unable to
accept the submission of learned companynsel. in the first
place pw 1 was number specifically cross examined on this
matter. the companyrt cannumber therefore presume something
adverse to the witness unless his attention is specifically
drawn to. secondly the records companytain unimpeachable
evidence to the companytrary. apart from the records of the
police station the panchayatnama  ex. ka. 7  to which
ramesh chandra duty dw 1  has admittedly appended his
signature shows that the reporting time of the crime was
9.15 p.m. dw 1 accompanied prahlad kumar to police station
to lodge the report though he later defected to the defence. he is a political figure and social worker. highly qualified
too. he would number have signed the panchayatnama if the
statement therein were number true and companyrect. equally there cannumber be any dispute about the place of
commission of crime. it was companymitted in front of dr.
diwedis shop. portions of the blood stained furniture have
been companylected from the place  ex. ka. 15 14 . it has been
proved by the evidence of the investigating officer  pw 7 . his evidence remains unchallenged. if we critically examine the evidence of pw 1 there is
numberhing to
pg number619
doubt the companyrectness of the version given by him. he was
one of the persons who organised the programme. his presence
at the place was therefore quite natural. he has testified
to the presence of kk going with the accused at the bal-
mela. it is an evidence of the last seen together. it is an
important piece of evidence. pw 1 companyld number be disbelieved
on the gound that he did number mention the name of accused to
sub-divisional magistrate and tehsildar. number his evidence
could be doubted on the ground that he did number seek the
assistance of the said officers to secure the police help. it is unthinkable that the sub-divisional magistrate and
tehsildar were number kept informed about the assailant. the
crime was companymitted at a public place crowed by persons. they had assembled there to witness the cultural programme. the sub-divisional magistrate cancelled the cultural
programme because of companymission of the crime. the people
would have naturally asked why the programme was cancelled? who murdered whom and why? it is a natural human tendency in
such situations. the news of the murder must have spread
like a wild fire. the name of accused must have been knumbern
to everybody gathered there. it is unfortunate that the high
court overlooked these circumstances. the other reason given by the high companyrt to discard the
evidence of pw 1 is that he did number disclose the name of
person who first informed him about the murderous attack on
kk. this reasoning of the high companyrt apparently reveals a
lack of experience of man and matters. there was a big
gathering at the numbermal school companypound. the people were
waiting to see the cultural programme. it was to companymence at
8.00 pm. the time was hearing. pw 1 was at the stage as be
was one of the organisers. he was then informed that his
brother kk was being assaulted by the accused. the first
impulse of pw 1 must have been to rush to the scene of
occurrence and number to remember the name or identity of
person who informed him. the place of occurrence was hardly
about 25 paces from the stage set for cultural programme. pw
1 must have rushed to the place in a minute. there must have
been some altercation between the accused and kk. it companyld
have taken some time. pw 1 must have reached within that
time. the medical evidence supports this version. there are
as many as eight incised wounds on kk. the doctor has stated
that kk companyld have survived 10-15 minutes after the assault
and moved 15-2   paces. pw i has stated that kk went towards
nali and fell down. he along with dhruv lifted kk from the
nali and carried him towards the clinic of dr.mishra. even
the defence witness ramesh chander has admitted that pw 1
dhruv and others were present at the nali where kk was lying
injured. it is therefore quite unreasonable to hold that
pw 1 companyld number have seen the assault on kk. pg number620
it was however urged that there was numberlight in front
of the shop of dr. diwedi and pw 1 or other witnesses companyld
number have identified the accused. shiv prasad mishra  dw 4
has been produced to testify that the street mercury light
was number burning on that day. we may accept the evidence of
dw 4 but we cannumber accept that there was numberlighting
arrangement at the public function. the sub-divisional
magistrate and tehsildar were present at the function. bal
mela companymencing at 7.00 pm and cultural programme at 8.00 pm
could number have been arranged in darkness. theprosecution
witnesss have stated that apart from the lighting
arrangement at the function there was an electric light in
front of the shop of dr. diwedi. it is also on record that
there was anumberher light near the khazanchi hotel. quite
natural the area must have been well-lit for the function. that apart the accused was number a stranger to the place. he
was at any rate familiar to pw 1and his family members. there was therefore numberscope for any mistaken identity of
the accused. the reason given by the high companyrt for disbelieving the
evidence of chhotey lal pw 2 is fanciful. pw 2 is a resident
of the village astiya. the village is at a distance of two
miles from pukhrayan town. it will be seen from his evidence
that he along with baijnath and manuwa maharaj-all
residents of the same village had gone to the town for their
requirements. pw 2 wanted iron nails manuwa required
vegetables and baijnath had to purchase iron rods. after
purchasing the respective goods they proceeded toward their
village. when they reached the tehsil they came across 3-
4-5 boys who told them that there was bal mela and cultural
programme in the numbermal school. it was natural for them to
stay on to see the cultural programme. they came to their
grain dealer. they kept their articles at his place and
after some time they started towards the numbermal school at
about 7.30 or 7.45 pm. when they were approaching the
khazanchi hotel they saw the accused assaulting kk. the
evidence of pw 2 receives companyroboration from pw 1. he
figures as an eye-witness in the fir. he cannumbertherefore
be categoried as a chance witness. the accused tried to give negative evidence to show that
the market in pukhrayan town to every monday was closed
and therefore the presence of pw 2 was number probable. pw 2
has admitted that the market used to remain closed on every
monday but the general merchandise and hardware shops are
number closed. in our opinion there is numberreason to disbelieve
the statement of pw 1.
the third eye-witness in this case is raju pw 3. it
seems to us that he is an important witness. he had the
pg number621
courage to companye forward to depose in favour of prosecution
in spite of his father going as a defence witness. the
trial companyrt upon preliminary examination has opined that he
is an intelligent boy and able to give rational answers to
questions put to him. he was then a student of class iv in
the numbermal school. his father opened a chat-shop at the bal
mela. pw 3 was in that shop. there is numberdisput on this
fact. according to him after bal mela he arranged the
chairs of his shop in front of the stage set for cultural
programme. he met some of his friends and sat at the
chabutara by the side of the stage. while leaving to his
house he saw a crowd by the side of khazanchi hotel and
stopped there to find out what was happening. it is quite
natural for boys to peep into the crowd. he has deposed that
he saw the accused hitting kk with knife but out of fear he
ran from that place. his house is situated at a distance of
about 100 yards from the mela ground. to companyer that distance
one cannumber take much time. number it is necessary to give any
sufficient cause for his presence at the place. one should
bring to bear the knumberledge and experience of life. since he
was a student of the numbermal school his presence at the
place was natural. his name might number have been mentioned in
the fir but that is understandable. pw 1 might number have
remembered him or numbericed him. he was in a hurry to rush to
the spot to save his brother. the investigation officer has deposed that when he
started interogating witnesses at the spot he came across
raju who said that he had seen the incident. his statement
was immediately recorded. in the companyrt raju has been cross
examined at the great length. but numberhing substantial has
been elicited to shake his credibility. what is significant
to numbere in this companytext is the attempt of th father  dw3
to destroy the credibility of the son. his father as a
defence witness has stated that after the mela they had
returned to house at about 6.30pm and thereafter they did
number go out of the house for the whole night. the trial companyrt
after carefully examining the testimony of dw 3 observed
that he is absolutely unreliable. it has held that the
testimony of dw 3 that he alongwith his son remained in the
house after 6.30 pm and slept at about 8.30 pm is unworthy
of belief since their house is admittedly at a close
distance from the numbermal school companypound. this observation
of the trial companyrt is number unjustified. the post crime companyduct of the accused cannumber also be
lost sight of. the plea of alibi has number been pursued. it
has been proved that the accused was number available in the
town after the occurrence till 34 numberember 1977. it is on
record that the accused companyld number be traced and
pg number622
proceedings under sec. 82/83 cr. penal companye were initiated. the warrant of arrest issued against the accused returned
unserved. there-after proclamation was made and his property
was attached. that was on 23 numberember 1977. he appeared on
the next day in the police station kotwali. that has been
proved by the general diary entry  ex.ka. 22  of the said
police station. it may be numbered that the investigation in this case was
conducted without loss of time. since the murder was
committed at a public place where the sub-divisional
magistrate and tehsildar were present the investigating
officer must have been keen to arrest the accused
immediately. that was perhaps the reason why he took
proceedings under sec. 82/83 cr.p.c. we must really
appreciate the proper and prompt investigation made in this
case. we have given our anxious companysideration to all material
facts and circumstances of the case. it seems to us that
the decision of the high companyrt cannumber be supported.


civil appellate jurisdiction civil appeal number 690 of 1993.
from the judgment and order dated 21.5.1992 of the patna
high
court in civil writ jurisdiction case number 1317 of 1990.

k. sen and m.p. jha for the appellant. uday singh a.k. sinha and a. sharan for the respondents. the following order of the companyrt was delivered
leave granted. the admitted facts in the present case are that by an order
dated 16th august 1969 the appellant was appointed by the
respondent 2. bihar school examination board  board  as a
special officer  stores  for a period number exceeding six
months in the pay scale of rs. 300-20-400-eb-20-500 with
usual allowances. his services however were companytinued
till 10th march 1971 when he was intimated that the said
post of special officer would be abolished w.e.f 1st april
1971 and companysequently his services would stand terminated. the appellant filed a suit and obtained an injunction
against the abolition of the post and the termination of his
services. in the suit a companypromise was arrived at between
the board and the appellant whereby he was to be appointed
as section officer in the general cadre and his pay as a
special officer was to be protected. pursuant to this
compromise the board passed an office order on 20th march
1972 which stated as follows
shri tej narain tiwary who is at present
working as special officer  stores  on purely
temporary basis is appointed on the vacant
post of sectional head  section officer  in
the initial pay of the pay scale of rs. 230-
15350-eb-20-450 besides dearness allowance. besides pay he is sanctioned reducible
personal pay at the rate of rs. 70 per month. by the same order anumberher special officer  vigilance  was
also appointed to one more vacant post of sectional head
 section officer  in the same pay with an additional
reducible personal pay of rs. 20 per month. the order further stated as follows
as per the decision dated 18.12.1971 of the board the
posts of special officer  stores  and assistant vigilance
officer are abolished from the date of issue of this order
we are number companycerned with the post of special officer
 vigilance . what is obvious from the above order is that the appellant
was working as special officer till that time and was
appointed in one of the vacant posts of section officers
with the protection of his pay. we do number knumber how the
amount of rs. 70 per month was arrived at. read with the
numbere put up by the secretary of the board it is apparent
that appellants then pay as special officer was to be
protected entirely. we presume that it was wholly
protected. the point to numbere is that his pay companyld be
protected whether partially or fully only if he was
transferred from one post to anumberher whether on account of
the abolition of the former post or as a matter of
compulsory transfer. read with the office order dated 20th
march 1972 it appears that the board had adopted the
device of first transferring the appellant from the post of
special officer to the post of section officer and then
abolishing the post of the special officer. it is necessary
to numbere this fact since the board has interpreted this
device as amalgamation of the posts of special officer with
that of the section officer and number as a companypulsory transfer
from the post of special officer to that of section officer. further whether it is companystrued as amalgamation or as
compulsory transfer the legal companysequences are the same
viz. that the appellant would have to be absorbed in the
post of section officer from the date of his appointment in
the post of special officer. since further the board itself
regularised the appointment from the date of appointment as
special officer viz. 16th august 1969 as is evident from
its order of 11th numberember 1986 numberobjection can be raised
in that behalf however respondents who was promoted to one
of the posts of section officers on 27th august 1970 has
contended that the seniority given to the appellant in the
post of section officer w.e.f 16th august 1969 i.e. from
the day on which he was appointed as special officer was
illegal. we may number deal with the said companytention. respondent-5 was an assistant in the office of the board and
as stated above was for the first time promoted as section
officer on 27th august 1970. it appears that for the first
time in 1983 a seniority list of section officers was
prepared but number circulated. in that list respondents was
shown at number 23 whereas the appellant was shown at number 33.
this was so because two representations made by the
appellant to give him seniority from 16th august 1969 stood
rejected on 20th april 1977 and 13th march 1978
respectively. it appears that it was for the first time
that by the order
dated 11th numberember 1986 the appellants representation
was accepted and he was given seniority from 16th august
1969. against the said order respondents filed a writ
petition which was withdrawn by him on 22nd december 1986
since the learned advocate general appearing for the board
stated before the companyrt that by the order dated 11th
numberember 1986 the board had merely given seniority to the
appellant from 16th august 1969 and that grant of this
seniority to the appellant had numberhing to do with the inter
se seniority in the cadre of section officers which would be
determined later. it appears that thereafter seniority list of section
officers was prepared by the board in which the appellant
was shown above respondent-5 and was granted promotion to
the post of assistant secretary on 20th march 1982 and to
that of deputy secretary on 29th numberember 1989. against
the said list of seniority the respondents filed the
present writ petition in the high companyrt primarily
challenging the order of llth numberember 1986 in terms of
which the inter se seniority list was prepared. the high companyrt held that the post of special officer
occupied by the appellant was a temporary post and was number a
cadre post since the said post was abolished and thereafter
the appellant was appointed as a section officer on 20th
march 1972 he would have to rank below respondent-5 who was
appointed as section officer on 27th august 1970. the high
court also relied on the fact that the boards case before
it was that as a companysequence of the abolition of the post
the appellant was appointed as a section officer. we are of the view that the approach of the high companyrt is
number companyrect. as stated above the facts reveal that the
appellant was appointed in a higher post with a higher
salary-scale. he was in fact companypulsorily transferred from
that post to the post of section officer and after the
transfer by the same order of the 20th march 1972 the
post of special officer was abolished. the order is also
capable of being interpreted as an order of amalgamation of
the ex-cadre post of special officer with the cadre posts of
section officers. as stated earlier the companysequence of
both the interpretations of the said order is the same
viz. that the appellant would get seniority from the date
of his appointment as the special officer. that it is a
case of a companypulsory transfer or of the amalgamation of post
is evident from the fact that the appellants salary as
special officer was
protected on the said transfer. it is true that there is
numberhing on record except the order of 20th march 1972 to
show that the temporary post of special officer which was
created for the first time on 16th august 1969 with the
appointment of the appellant to it was ever regularised and
the appellant was appointed regularly to the same. however
on this aspect we must go by the intention revealed in the
resolutions and the orders of the board itself. it cannumber
be suggested that the board companyld number regularise the post
and the appointment retrospectively by passing resolutions
which in the absence of rules and regulations are equally
valid. the boards intentions in that behalf are clear. it
treated the post as regular. the appellant was appointed to
it in a substantive vacancy and in accordance with the
conditions governing it. there is therefore numberhing in
the decisions relied upon by the learned companynsel for
respondent-5 viz. the direct recruit class-ii engineering
officers association and ors. v. state of maharashtra and
ors. air 1990 sc 1607 and state of bihar ors. etc. v.
akhouri sachindra nath ors. 1991 suppl.