Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 223 OF 2008 Rattiram & Ors. .............Appellant Versus State of M. P. Through Inspector of Police .........Respondent WITH CRIMINAL APPEAL NO. 458 OF 2008 Satyanarayan & ors. ............Appellant Versus The State of Madhya Pradesh Through Incharge, Police Station Cantt. .........Respondent J U D G M E N T

<NAME>, J.

Perceiving divergent and contradictory views as regards the effect and impact of not committing an accused in terms of Section 193 of the Code of Criminal Procedure (for short `the Code') in cases where charge-sheet is filed under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity `the Act') and cognizance is directly taken by the Special Judge under the Act, a two-Judge Bench thought it apposite to refer the matter to a larger Bench and on the basis of the said reference, the matter has been placed before us. At this juncture, it is requisite to clarify that the real conflict or discord is manifest in <CITATION> and <CITATION> on one hand wherein it has been held that the conviction by <ORG> is not sustainable if it has suo motu entertained and taken cognizance of the complaint directly without the case being committed to it and, therefore, there should be retrial or total setting aside of the conviction, as the case may be, and the other in State of M. P. v. Bhooraji & Ors.3 wherein, taking aid of Section 465 (1) of the Code , it has been opined that when a trial has been conducted by the court of competent jurisdiction and a conviction has been recorded on proper appreciation of evidence, the same cannot be erased or effaced merely on the ground that there had been no committal proceeding and cognizance was taken by <ORG> inasmuch as the same does not give rise to failure of justice.

1 AIR 2004 SC 1890 2 (2004) 1 SCC 215 3 AIR 2001 SC 3372

2. The necessitous facts required to be adumbrated for the purpose of answering the present reference are that the appellants were charge sheeted under Section 3 (1) (x) of the Act but eventually, charges were framed under Sections 147 , 148 and 302 read with Section 149 of the Indian Penal Code (for short, `the IPC '). The learned Trial Judge vide judgment dated 31.08.1996 in Sessions Trial No. 97 of 1995 convicted all the accused persons barring <NAME> for the offences under Section 302 read with Section 149  and sentenced them to imprisonment for life with a fine of Rs. 1000/-, in default of payment of fine, to suffer further rigorous imprisonment for three months and sentenced to one month rigorous imprisonment under Section 147 of the . The accused <NAME> was convicted for the offence under Sections 148 and 302 of the  and was sentenced to undergo one month rigorous imprisonment on the first score and to further life imprisonment and pay a fine of Rupees 1000/-, in default of payment of fine, to suffer further R.I. for three months on the second count.

3. Being dissatisfied with the judgment of conviction and the order of sentence, the appellants along with others preferred Criminal Appeal No. 1568 of 1996 before <ORG> at Jabalpur. Apart from raising various contentions on merits, it was pressed that the entire trial was vitiated as it had commenced and concluded without committal of the case to <ORG> as provided under Section 193 of the Code. Heavy reliance was placed on <CITATION> (supra) and Vidyadharan (supra) but the Division Bench placed reliance on <NAME> (supra) wherein <NAME> (supra) was distinguished keeping in view the stage of the case and regard being had to the provision contained in Section 465 of the Code and treated the same to be a binding precedent in view of the special Bench decision of <ORG> rendered in <CITATION> and repelled the contention accordingly. Thereafter, as the impugned judgment would reveal, the Bench proceeded to deal with the matter on merits and eventually sustained the conviction and affirmed the sentence as has been indicated hereinbefore.

4 AIR 2000 SC 740 5 2003 (1) MPJR 158

4. We have heard Mr. <NAME>, learned senior counsel and Mr. <NAME> for the appellants in both the appeals and Ms. <NAME>, learned counsel for the respondent-

State.

5. At the very outset, we shall advert to the jurisdiction or authority of <ORG> to take cognizance of the offence under the Act regardless of the interdict stipulated in Section 193 of the Code. Section 193 of the Code reads as follows:

"193. Cognizance of offence by Court of Session- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this code."

On a plain reading of the aforesaid provision, it is clear as noon day that <ORG> can take cognizance of any offence as a court of original jurisdiction except as otherwise expressly provided by the Code or any other law for the time being in force.

6. The questions that emanate, as a natural corollary, for consideration are whether <ORG> as constituted under the Act is <ORG>; and whether there is any special provision in the Act enabling the said court to take cognizance.

7. In <NAME> (supra), a two-Judge Bench of this <ORG>, after taking note of Section 6 of the Code and Section 14 of the Act, came to the conclusion that the intendment of the legislature is to treat <ORG> under the Act to be <ORG> even after specifying it as <ORG> and it would continue to be essentially <ORG> and not get denuded of its character or power as <ORG>. The <ORG> scanned the anatomy of the Act and analysed the postulates contained in Sections 4 and 5 of the Code and thereafter, referring to the <ORG> decisions in A. R.

<CITATION> and another6 and in <CITATION> and another7, expressed thus:

"16. Hence we have no doubt that <ORG> under this Act is essentially <ORG> and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code . In other words, a complaint or a charge-sheet cannot straight away be laid down before <ORG> under the Act.

6 (1984) 2 SCC 500 7 (1994) 3 SCC 440

8. In Vidyadharan (supra), the Court delved into the said issue and eventually proceeded to state as follows:

"23. Hence, we have no doubt that <ORG> under this Act is essentially <ORG> and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code . In other words, a complaint or a charge-sheet cannot straight away be laid down before <ORG> under the Act. We are reiterating the view taken by this Court in <CITATION> . [ : 2000 SCC (Cri) 488] in the above terms with which we are in respectful agreement. <ORG> in the case at hand, undisputedly, has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met." The aforesaid view was reiterated in <NAME> (supra). In M. A.

<CITATION> and another8, another two-Judge Bench ruled that the Special Judge under the Act cannot entertain a complaint filed before it and issue process after taking cognizance without the case being committed to it for trial by the competent Magistrate. It is apt to mention here that similar view has been spelt out in Bhooraji (supra).

9. After careful perusal of the aforesaid decisions, we have no scintilla of doubt that the view expressed which has a base of 8 (2004) 4 SCC 231 commonality is absolutely correct and there is no necessity to dwell upon the same more so when there is no cavil or conflict in this regard and there has been no reference on the said score.

Additionally, no doubt has been expressed relating to the exposition of the said view, and irrefragably correctly so.

10. The demonstrable facet of the discord is that if cognizance is directly taken by the Special Judge under the Act and an accused without assailing the same at the inception allows the trial to continue and invites a judgment of conviction, would he be permitted in law to question the same and seek quashment of the conviction on the bedrock that the trial Judge had no jurisdiction or authority to take cognizance without the case being committed to it and thereby violated the mandate enshrined under Section 193 of the Code.

11. To make the maze clear, it is profitable to note that in Gangula Ashok (supra), the appellants had called in question the legal substantiality of the order passed by the Single Judge of <ORG> who, after expressing the view that the Special Judge had no jurisdiction to take cognizance of the offence under the Act without the case being committed to it, set aside the proceedings of <ORG> and further directed the charge-sheet and the connected papers to be returned to the police officer concerned who, in turn, was required to present the same before the Judicial Magistrate of Ist Class for the purpose of committal to <ORG>. That apart, the Single Judge further directed that on such committal, <ORG> shall frame appropriate charges in the light of the observation made in the order.

12. The two-judge Bench accepted the view as far as it pertained to setting aside of the impugned order but did not approve the direction issued for the steps to be taken by the Special Judge for framing of charges as it was of the view that no direction could have been issued to <ORG> as it was open to the appellants therein to raise all their contentions at the stage of framing of charge if they wished to advance a plea for discharge. Thus, it is evident that the accused-appellants had challenged the order of framing of charge and sought quashing of the same before <ORG>. They did not wait for the trial to commence and the judgment of conviction to visit them.

13. After the dictum in Gangula Ashok (supra), <ORG> of Madhya Pradesh was dealing with an appeal, Bhooraji (supra), wherein the appellants were convicted under Sections 148 , 323 , 302 / 149  and sentenced to various punishments including imprisonment for life. It is worth noting that they were tried by the Special Judge under the Act as charge-sheet was filed under Section 3 (2) of the Act along with other offences of the IPC . When the matter came up before <ORG> of <ORG>, the learned Judges commenced the judgment with the prelude that the case had sluggished for more than nine years and the end was not in sight as direction for retrial seemed inevitable because of the decision rendered by this <ORG> in Gangula Ashok (supra).

14. Be it noted, cognizance was taken directly by the Special Judge in the said case also. The anguish and the helplessness expressed by <ORG> was taken note of when the State of Madhya Pradesh approached this Court. This Court laid emphasis on the fact that it was a case where the accused neither raised any objection when they were heard at the time of framing of the charge nor did they raise such a plea at any stage either before or after the evidence was recorded by the trial Court but, a significant one, proponed such a contention only after the conviction was recorded and that too after the decision in Gangula Ashok (supra) was rendered.

15. As is perceptible, the Bench posed the question whether <ORG> necessarily should have quashed the trial proceedings to be repeated only on account of the declaration of the legal position made by this Court concerning the procedural aspect about the cases involving the offences under the Act. The Bench referred to the provisions contained in Sections 462 and 465 of the Code and adverted to the concept of "a failure of justice" and held thus:

"15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.

xxx xxx xxx xxx xxx

17. It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified <ORG> took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to <ORG> because that court being essentially <ORG> can take cognizance of any offence only then. But if a specified <ORG>, on the basis of the legal position then felt to be correct on account of a decision adopted by <ORG>, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course?

18. It is apposite to remember that during the period prior to the Code of Criminal Procedure 1973, the committal court, in police charge-

sheeted cases, could examine material witnesses, and such records also had to be sent over to <ORG> along with the committal order. But after 1973, the committal court, in police charge-sheeted cases, cannot examine any witness at all. The Magistrate in such cases has only to commit the cases involving offences exclusively triable by <ORG>. Perhaps it would have been possible for an accused to raise a contention before 1973 that skipping committal proceedings had deprived him of the opportunity to cross-examine witnesses in the committal court and that had caused prejudice to his defence. But even that is not available to an accused after 1973 in cases charge-sheeted by the police. We repeatedly asked the learned counsel for the accused to tell us what advantage the accused would secure if the case is sent back to <ORG> merely for the purpose of retransmission of the records to <ORG> through a committal order. We did not get any satisfactory answer to the above query put to the counsel."

16. After so stating, the Court proceeded to deal with the stance whether the Special Judge as a Court of Session would remain incompetent to try the case until the case is committed and, after critical ratiocination, declined to accept the said stand and opined that the expression "a Court of competent jurisdiction" as envisaged in Section 465 of the Code is to denote a validly constituted court conferred with the jurisdiction to try the offence or offences and such a court could not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-

compliance with the procedural requirement. The Bench further proceeded to lay down that the inability to take cognizance of an offence without a committal order does not mean that a duly constituted court becomes an incompetent court for all purposes.

It was also ruled that had an objection been raised at the earlier stage, the Special Judge could have sent the record to the Magistrate for adopting committal proceeding or return the police report to the Public Prosecutor or the police for presentation before the Magistrate. In essentiality, it has been laid down that the bar against taking cognizance of certain offences or by certain courts cannot govern the question whether the <ORG> concerned is a "<ORG> of competent jurisdiction" and further the condition precedent for taking cognizance is not the standard to determine whether the <ORG> concerned is "a <ORG> of competent jurisdiction". In the ultimate eventuate, <NAME> (supra) ruled that when the trial had been conducted by a <ORG> of competent jurisdiction, the same cannot be annulled by such a lapse and, accordingly, remitted the matter to the High <ORG> for disposal of the appeal afresh on the basis of evidence already on record. It needs no special emphasis to highlight that in <NAME> (supra), the controversy had emerged on the similar set of facts and the legal issues had emanated on the common platform and were dealt with. Therefore, unquestionably, it was a precedent operating in the field.

17. It is seemly to note that the decision in Bhooraji (supra) was possibly not brought to the notice of their Lordships who have decided the cases in Moly (supra) and Vidyadharan (supra). In Moly (supra), later two-Judge Bench set aside the judgment of conviction and remitted the matter as cognizance was directly taken by <ORG>. In Vidyadharan (supra), the Bench held thus:-

"24. The inevitable conclusion is that the learned Sessions Judge, as the undisputed factual position goes to show, could not have convicted the appellant for the offence relatable to Section 3(1)(xi) of the Act in the background of the legal position noted supra. That is, accordingly, set aside. However, for the offence under Sections 354 and 448 , custodial sentence for the period already undergone, which as the records reveal is about three months, would meet the ends of justice considering the background facts and the special features of the case."

As is perceivable, in one case, the matter was remitted and in the other, the conviction under Section 3 (1)(xi) was set aside and no retrial was directed.

18. At this stage, we may proceed to x-ray the ratio of M. A.

<NAME> (supra). In the said case, the challenge was to the order passed by <ORG> under Section 482 of the Code wherein the learned Judge had quashed the order of the Special Judge taking cognizance of the offence under Section 3 (1)(x) of the Act. The two-Judge Bench referred to the authorities in Gangula Ashok (supra) and <NAME> (supra) and gave the stamp of approval to the order passed by <ORG> and eventually, while dismissing the appeal, observed as follows:-

"However, it will be open to the appellant, if so advised, to file a complaint before a competent Magistrate who shall consider the complaint on its merit and then proceed in accordance with law. The learned <ORG> as well as <ORG> have made certain observations touching on the merit of the controversy. We make it clear that in case a complaint is filed by the appellant before a competent Magistrate, he shall proceed to consider the matter in accordance with law uninfluenced by any observation made either by the learned Special Judge or by <ORG>. Nothing said in this judgment also shall be construed as expression of opinion on the merit of the case."

19. It is apposite to note that in the said case, the assail was different and the Bench was not considering the effect of non-

committal under Section 193 of the Code after conviction was recorded. Though it referred to the authority in Vidyadharan (supra), yet that was to a limited extent. Hence, the said pronouncement cannot be regarded or treated to be one in line with Vidyadharan (supra) and is, therefore, kept out of the purview of conflict of opinion that has emerged in the two streams of authorities.

20. Before we advert whether Bhooraji (supra) was correctly decided or Moly (supra) and Vidyadharan (supra) laid down the law appositely, it is appropriate to dwell upon whether Bhooraji (supra) was a binding precedent and, what would be the consequent effect of the later decisions which have been rendered without noticing it.

21. <CITATION> (dead) by L. Rs. And Others9, <ORG>, speaking through <NAME>, CJ, has held thus:-

"We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by <ORG> or a Constitution Bench of the Court"

22. <CITATION> , <ORG> of the High Court had come to the conclusion that the decision in <CITATION> .11 was not a binding precedent in view of the later decisions of the co-equal 9 ( 1989) 2 SCC 754 10 AIR 1995 SC 1480 11 AIR 1977 SC 308 Bench of this Court in <CITATION> and <CITATION> . It is worth noting that <ORG> of the High Court proceeded that the decision in Ratna Prabha (supra) was no longer good law and binding on it. The matter was referred to <ORG> which overruled the decision passed by <ORG>. When the matter travelled to this Court, it observed thus:-

"<ORG> of <ORG> in 1989 MPLJ 20 was clearly in error in taking the view that the decision of this Court in Ratna Prabha (AIR 1977 SC 308) (supra) was not binding on it. In doing so, <ORG> of <ORG> did something which even a later co- equal Bench of this Court did not and could not do."

23. <CITATION> , a subsequent Constitution Bench reiterated the view that had already been stated in <NAME> (supra).

24. Thus viewed, the decision in Bhooraji (supra) was a binding precedent, and when in ignorance of it subsequent decisions have been rendered, the concept of per incuriam would come into play. In this context, it is useful to refer to a passage from A. R.

12 AIR 1980 SC 541 13 AIR 1985 SC 339 14 (2003) SCC (L & S) 827 Antulay (supra), wherein, <NAME>, J (as his Lordship then was), while dealing with the concept of per incuriam, had observed thus:-

""Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."

Again, in the said decision, at a later stage, the Court observed:-

"It is a settled rule that if a decision has been given per incuriam the court can ignore it."

25. <CITATION> Court, Chandigarh & Ors.15, another Constitution Bench, while dealing with the issue of per incuriam, opined as under:-

"The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this <ORG> has acted in ignorance of a previous decision of its own or when a High <ORG> has acted in ignorance of a decision of this <ORG>."

26. In State of U. P. And Another v. <ORG> And Another16, a two-Judge Bench adverted in 15 (1990) 3 SCC 682 16 (1991) 4 SCC 139 detail to the aspect of per incuriam and proceeded to highlight as follows:-

"`Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority'. (Young v. <ORG>). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law."

27. Recently, in <CITATION> . 18, while addressing the issue of per incuriam, a two-Judge Bench, speaking through one of us (<NAME>, J.), after referring to the dictum in <ORG> (supra) and certain passages from Halsbury's Laws of England and <NAME> (supra), has stated thus:-

"149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments 17 (1944) 1 KB 718 : (1944) 2 ALL ER 293 18 AIR 2011 SC 312 : ( 2011) 1 SCC 694 mentioned in paragraphs 135 and 136 are by two or three judges of this Court. These judgments have clearly ignored a <ORG> judgment of this Court in <NAME>'s case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.

150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength."

28. The sequitur of the above discussion is that the decisions rendered in Moly (supra) and Vidyadharan (supra) are certainly per incuriam.

29. Presently, we shall proceed to address which view should be accepted as just and flawless. The centripodal issue, as we understand, is whether non-compliance of the interdict as envisaged and engrafted under Section 193 of the Code nullifies the final verdict after the trial and warrants its total extinction resulting in retrial, or it is incumbent on the part of the convict to exposit and satisfy that such guillotining of the interdict has occasioned in `failure of justice' or culminated in causation of prejudice to him for the purpose of declaring that the trial was vitiated.

30. In <NAME> (supra), the Bench has referred to Sections 462 and 465 of the Code which occur in Chapter 35 of the Code .

Section 465 reads as follows:-

"465. Finding or sentence when reversible by reason of error, omission or irregularity.

- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the <ORG> shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

31. On a studied scrutiny of the anatomy of the said provision, it is luculent that the emphasis has been laid on a `court of competent jurisdiction' and `error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial' and `a failure of justice has in fact been occasioned thereby'. The legislative intendment inhered in the language employed is graphically clear that lancination or invalidation of a verdict after trial is not to be taken recourse to solely because there is an error, omission or irregularity in the proceeding. The term `a failure of justice' has been treated as the sine qua non for setting aside the conviction.

32. The submission of Mr. <NAME> and Mr. <NAME>, learned counsel for the appellants, is that it is not a mere irregularity but a substantial illegality. They have placed heavy reliance on paragraph 11 of Moly (supra) wherein the Bench has used the expression `that Section 193 imposes an interdict on all courts of Session against taking cognizance of an offence as a Court of original jurisdiction' and have also drawn inspiration from paragraph 17 of the said decision which uses the words `lack of jurisdiction'. The question posed by us fundamentally relates to the non-compliance of such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of the trial beyond any redemption or, for that matter it is such an omission or it is such an act that defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced.

A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.

33. <CITATION> 19, it has been laid down that `fair trial' includes fair and proper opportunities allowed by law to the accused to prove innocence and, therefore, adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial.

It is essential that rules of procedure designed to ensure justice should be scrupulously followed and the courts should be zealous in seeing that there is no breach of them.

34. In this regard, we may fruitfully reproduce the observations from <CITATION> )20 wherein it has been so stated: -

"In the Indian Criminal jurisprudence, the accused is placed on a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places 19 (2007) 2 SCC 258 20 (2010) 6 SCC 1 human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India."

[Underlining is ours]

35. It would not be an exaggeration if it is stated that a `fair trial' is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of `fair trial' is crucifixion of human rights. It is ingrained in the concept of due process of law. While emphasising the principle of `fair trial' and the practice of the same in the course of trial, it is obligatory on the part of the Courts to see whether in an individual case or category of cases, because of non-compliance of a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred. The seminal issue is whether protection given to the accused under the law has been jeopardised as a consequence of which there has been failure of justice or causation of any prejudice. In this regard, it is profitable to refer to the decision in <CITATION> 21 wherein a three-Judge Bench has opined thus:-

"This court in `<NAME> v. The state of Madhya Pradesh22 elaborately discussed the question of the applicability of Section 537 and came to the conclusion that in judging a question of prejudice, as a guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.

[Emphasis added]

36. Having dealt with regard to the concept of `fair trial' and its significant facets, it is apt to state that once prejudice is caused to the accused during trial, it occasions in `failure of justice'.

`Failure of justice' has its own connotation in various jurisprudences. As far as criminal jurisprudence is concerned, we may refer with profit to certain authorities. Be it noted that in Bhooraji (supra), the <ORG> has referred to <ORG>

21 AIR 1957 SC 623 22 1956 CriLJ 291 : AIR 1956 SC 116  <CITATION> wherein it has been observed as follows:-

"23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression `failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord <NAME> in <ORG> vs. <ORG>). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."

[Emphasis supplied]

37. In State by <CITATION> , <ORG> had upheld an order of discharge passed by the trial court on the ground that the sanction granted to prosecute the accused was not in order. The two-

Judge Bench referred to Sections 462 and 465 of the Code and ultimately held thus:-

23 (2001) 2 SCC 577 : 2001 SCC (Cri) 358 24 (1977) 1 All ER 813 25 AIR 2004 SC 5117 "13. In State of M.P.

v .

B hooraji and Ors. (2001) (7) SCC 679, the true essence of the expression "failure of justice" was highlighted.

Section 465 of the Code in fact deals with "finding or sentences when reversible by reason of error, omission or irregularity", in sanction.

14. In the instant case neither the Trial <ORG> nor <ORG> appears to have kept in view the requirements of sub-section (3) relating to question regarding "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the <ORG> records the satisfaction that such error, omission or irregularity has resulted in failure of justice.

The same logic also applies to the appellate or revisional <ORG>. The requirement of sub-

section (4) about raising the issue, at the earliest stage has not been also considered.

Unfortunately <ORG> by a practically non-reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require <ORG> to record findings in terms of Clause (b) of Sub-section (3) and Sub-section (4) of Section 19 ."

38. We have referred to the said authority only for the purpose of a failure of justice and the discernible factum that it had concurred with the view taken in Bhooraji (supra). That apart, the matter was remitted to adjudge the issue whether there had been failure of justice, and it was so directed as the controversy pertained to the discharge of the accused.

39. <CITATION> , it was observed: -

"10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error of irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court."

The concept of failure of justice was further elaborated as follows:-

"11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of 26 (1999) 8 SCC 501 providing such a filtering check is to safeguard public servants from frivolous of mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure."

40. Adverting to the factum of irregular investigation and eventual conviction, <ORG> in <NAME> v.

State of Mysore27 opined thus: -

"It has been emphasized in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation."

41. After adverting to the concept of failure of justice, it is obligatory to dwell upon the aspect whether there is or can be any failure of justice if a Special Judge directly takes cognizance of an offence under the Act. Section 209 of the Code deals with the commitment of case to <ORG> when an offence is triable exclusively by it. The said provision reads as follows: -

"209. Commitment of case to Court of Session when offence is triable exclusively by it. -

27 AIR 1971 SC 508 When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by <ORG>, he shall -

(a) Commit, after complying with the provisions of section 207 or section 208 , as the case may be, the case to <ORG>, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) Notify the Public Prosecutor of the commitment of the case to <ORG>."

42. Prior to coming into force of the present Code, Section 207 of the Code of Criminal Procedure, 1898 dealt with committal proceedings. By the Criminal Law Amendment Act , 1955, Section 207 of the Principal Act was substituted by Sections 207 and 207A . To appreciate the inherent aspects and the conceptual differences in the previous provisions and the present one, it is imperative to reproduce Sections 207 and 207A of the old Code. They read as under:

"207. In every inquiry before a magistrate where the case is triable exclusively by <ORG> or <ORG>, or, in the opinion of the magistrate, ought to be tried by such Court, the magistrate shall, -

(a) In any proceeding instituted on a police report, follow the procedure specified in section 207A ; and

(b) In any other proceeding, follow the procedure specified in the other provisions of this Chapter.

207A. (1) When, in any proceeding instituted on a police report the magistrate receives the report forwarded under Section 173 , he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date of the receipt of the report, unless the magistrate, for reasons to be recorded, fixes any later date.

(2) If, at any time before such date, the officer conducting the prosecution applies to the magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.

(3) At the commencement of the inquiry, the magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the came to be so furnished.

(4) The magistrate shall then proceed to take the evidence of such persons, if any as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.

(5) The accused shall be at liberty to cross-

examine the witnesses examined under sub-

section (4), and in such case, the prosecutor may re-examine them.

(6) When the evidence referred to in sub-section (4) has been taken and the magistrate has considered all the documents referred to in section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him unless it appears to the Magistrate that such person should be tried before himself or some other magistrate, in which case he shall proceed accordingly.

(7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.

(8) As soon as such charge has been framed, it shall be read and explained to the accused and a copy thereof shall be given to him free of cost.

(9) The accused shall be required at once to give in, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence on his trial:

Provided that the magistrate may, in his discretion, allow the accused to give in his list or any further list of witnesses at a subsequent time; and, where the accused is committed for trial before <ORG>, nothing in this sub-

section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the <ORG> a further list of the persons whom he wishes to be summoned to give evidence on such trial.

(10) When the accused, on being required to give in a list under sub-section (9), has declined to do so, or when he has given in such list, the magistrate may make an order committing the accused for trial by <ORG> or <ORG>, as the case may be, and shall also record briefly the reasons for such commitment.

(11) When the accused has given in any list of witnesses under sub-section (9) and has been committed for trial, the magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed:

Provided that where the accused has been committed to <ORG>, the magistrate may, in his discretion, leave such witnesses to be summoned by the Clerk of the State and such witnesses may be summoned accordingly:

Provided also that if the magistrate thinks that any witness is included in the list for the purpose of vexation of delay, or of defeating the ends of justice, the magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material, and if he is not so satisfied, may refuse to summon the witness (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such magistrate thinks necessary to defray the expense of obtaining the attendance of the witness and all other proper expenses.

(12) Witnesses for the prosecution, whose attendance before <ORG> or <ORG> is necessary and who appear before the magistrate shall execute before him bonds binding themselves to be in attendance when called upon by <ORG> or <ORG> to give evidence.

(13) If any witness refuses to attend before <ORG> or <ORG>, or execute the bond above directed, the magistrate may detain him in custody until he executes such bond or until his attendance at <ORG> or <ORG> is required, when the magistrate shall send him in custody to <ORG> or <ORG> as the case may be.

(14) When the accused is committed for trial, the magistrate shall issue an order to such person as may be appointed by <ORG> in this behalf, notifying the commitment, and stating the offence in the same form as the charge; and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence, to <ORG> or where the commitment is made to <ORG>, to the Clerk of the <ORG> or other officer appointed in this behalf by <ORG>.

(15) When the commitment is made to <ORG> and any part of the record is not in English, an English translation of such part shall be forwarded with the record.

(16) Until and during the trial, the magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant to custody."

43. On a bare perusal of the above quoted provisions, it is plain as day that an exhaustive procedure was enumerated prior to commitment of the case to <ORG>. As is evincible, earlier if a case was instituted on a police report, the magistrate was required to hold enquiry, record satisfaction about various aspects, take evidence as regards the actual commission of the offence alleged and further was vested with the discretion to record evidence of one or more witnesses. Quite apart from the above, the accused was at liberty to cross-examine the witnesses and it was incumbent on the magistrate to consider the documents and, if necessary, examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him by the prosecution and afford the accused an opportunity of being heard and if there was no ground for committing the accused person for trial, record reasons and discharge him. Thus, the accused enjoyed a substantial right prior to commitment of the case. It was indeed a vital stage. But, in the committal proceedings in praesenti, the magistrate is only required to see whether the offence is exclusively triable by <ORG>. Mr. <NAME>, learned senior counsel, would submit that the use of the words "it appears to the magistrate" are of immense signification and the magistrate has the discretion to form an opinion about the case and not to accept the police report. To appreciate the said submission, it is apposite to refer to Section 207 of the 1973 Code which lays down for furnishing of certain documents to the accused free of cost. Section 209(a) clearly stipulates that providing of the documents as per Section 207 or Section 208 is the only condition precedent for commitment. It is noteworthy that after the words, namely, "it appears to the Magistrate", the words that follow are "that the offence is triable exclusively by <ORG>". The limited jurisdiction conferred on the magistrate is only to verify the nature of the offence. It is also worth noting that thereafter, a mandate is cast that he "shall commit". Evidently, there is a sea of difference in the proceeding for commitment to <ORG> under the old Code and under the existing Code. There is nothing in Section 209 of the Code to even remotely suggest that any of the protections as provided under the old Code has been telescoped to the existing one.

44. It is worth noting that under the Code of Criminal Procedure, 1898, a full-fledged Magisterial enquiry was postulated in the committal proceeding and the prosecution was then required to examine all the witnesses at this stage itself. In 1955, the <ORG> by Act 26 of 1955 curtailed the said procedure and brought in Section 207A to the old Code. Later on, <ORG> in its 41st Report, recommended thus:-

"18.19. After a careful consideration we are of the unanimous opinion that committal proceedings are largely a waste of time and effort and do not contribute appreciably to the efficiency of the trial before <ORG>. While they are obviously time- consuming, they do not serve any essential purpose. There can be no doubt or dispute as to the desirability of every trial, and more particularly of the trial for a grave offence, beginning as soon as practicable after the completion of investigation. Committal proceedings which only serve to delay this step, do not advance the cause of justice. The primary object of protecting the innocent accused from the ordeal of a sessions trial has not been achieved in practice; and the other main object of apprising the accused in sufficient detail of the case he has to meet at the trial could be achieved by other methods without going through a very partial and ineffective trial rehearsal before a Magistrate. We recommend that committal proceedings should be abolished."

We have reproduced the same to accentuate the change that has taken place in the existing Code. True it is, the committal proceedings have not been totally abolished but in the present incarnation, it has really been metamorphosed and the role of the Magistrate has been absolutely constricted.

45. In our considered opinion, because of the restricted role assigned to the Magistrate at the stage of commitment under the new Code, the non-compliance of the same and raising of any objection in that regard after conviction attracts the applicability of the principle of `failure of justice' and the convict-appellant becomes obliged in law to satisfy the appellate court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice. The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial.

46. At this juncture, we would like to refer to two other concepts, namely, speedy trial and treatment of a victim in criminal jurisprudence based on the constitutional paradigm and principle. The entitlement of the accused to speedy trial has been repeatedly emphasized by this Court. It has been recognised as an inherent and implicit aspect in the spectrum of Article 21 of the Constitution. The whole purpose of speedy trial is intended to avoid oppression and prevent delay. It is a sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of criminal justice becomes effective, vibrant and meaningful. The concept of speedy trial cannot be allowed to remain a mere formality (see  <CITATION> , <CITATION> and <CITATION> ).

47. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in <NAME> and <NAME>. v.

<NAME> and ors.31 wherein it has been observed thus: -

"Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence."

[Emphasis supplied]

48. It is worthnoting that the Constitution Bench in <CITATION> and another32, though in a different context, had also observed that delay in the prosecution of a guilty person comes to his 28  29 AIR 2007 SC 56 30 AIR 1998 SC 3281 31 AIR 2009 SC 1535 32 AIR 2005 SC 2119 advantage as witnesses becomes reluctant to give evidence and the evidence gets lost.

49. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused. Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple pie order in carrying out the adjective law, would only be sound and fury signifying nothing.

50. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him.

Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim's right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.

51. We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the <ORG> deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the <ORG> in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

52. Judged from these spectrums and analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act , 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji (supra) lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused. The decisions rendered in Moly (supra) and Vidyadharan (supra) have not noted the decision in Bhooraji (supra), a binding precedent, and hence they are per incuriam and further, the law laid down therein, whereby the conviction is set aside or matter is remanded after setting aside the conviction for fresh trial, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent, overruled.

53. The appeals be placed before the appropriate Bench for hearing on merits.

....................................J.

[Dalveer Bhandari] ....................................J.

[T. S. Thakur] ....................................J.

[Dipak Misra] New Delhi;

February 17, 2012.


CASE NO.: Writ Petition (civil) 202 of 1955 PETITIONER: RAGHUBAR SARUP NAWAB JAMSHED ALI KHAN RESPONDENT: STATE OF U.P. DATE OF JUDGMENT: 18/12/1958 BENCH: S.R. DAS CJI & S.K. DAS & P.B. GAJENDRAGADKAR & K.N. WANCHOO & M. HIDAYATULLAH JUDGMENT:

JUDGMENT AIR 1959 SC 909 WANCHOO, J. : These petitions under Article 32 of the Constitution and appeals on certificates granted by <ORG> question the action taken by the State of Uttar Pradesh under the U. P. Zamindari Abolition and Land Reforms Act, No. I of 1951, (hereinafter called the Abolition Act) and the Rampur Thekedari and Pattedari Abolition Act No. X of 1954, (hereinafter called the Thekedad Act). We propose to deal with them by one judgment as they raise common points and in the case of some petitioners lands covered by both the Acts are involved.

2. The former State of Rampur was an independent State under the paramountcy of the British Crown before 1947. When India became a <ORG> on the passing of the Indian Independence Act of 1947, the State of Rampur acceded in August, 1947, to the <ORG> of India by means of an instrument of accession. This was followed by a merger agreement between the Ruler of the Rampur State and the <ORG> of India on May 15, 1949, by which the Ruler agreed to transfer the entire administration of the State to the <ORG> as from July 1, 1949. The Governor General then passed an order on July 1, 1949, known as the Rampur (Administration) Order by which a Chief Commissioner was appointed to administer the area of the former Rampur State under <ORG>. This was followed on November 29, 1949, by the States Merger (United Provinces) Order, 1949, promulgated by the Governor General by which the administration of the former State of Rampur was transferred to <ORG> and Rampur thereafter became a district in the State of Uttar Pradesh. In 1951 the State of Uttar Pradesh passed the Abolition Act. It was, however, not applied to the district of Rampur initially; but power was reserved under S. 2 to apply the whole or any provisions of the Act to Rampur as defined in the Rampur (Administration) Order, 1949, subject to such exceptions or modifications, not affecting the substance, as the circumstances of the case may require. By virtue of this power, notification No. 3168/1-A-559/ 1951 was issued on June 30, 1954, applying the Abolition Act to Rampur. This was followed by another notification No. 3169/1-A559/1951 on July 1, 1954, declaring that all estates situate in Rampur vested in the State of Uttar Pradesh. These notifications are the target of attack in the petitions and appeals relating to jagirs, zamindaris and muafis in Rampur.

3. The system of land tenure in the former Rampur <ORG> was this. In a portion of the <ORG> known as Ileqz Jadid, which was ceded by <ORG> to the former Rampur <ORG> in 1857, there were intermediaries called Zamindars who were in all respects similar to the Zamindars in the <ORG> of Uttar Pradesh. Secondly, some lands had been conferred by the Ruler of the <ORG> on certain persons as jagirs or muafis. The holders of these estates did not pay any land revenue which was payable by the Zamindars; they only paid a local rate or abvab. Thirdly, the rest of the land in the <ORG> consisted of Ehau villages, i. e. lands belonging to the <ORG> in which there were no intermediaries between the <ORG> and the tillers of the soil. In this class of lands, there were villages which were almost uninhabited and very little land in these villages was under cultivation. The Ruler of Rampur decided in March 1949 to lease out some of these villages to persons who were called Thekedars or Pattedars in order that these persons might settle tenants and invest money in the villages so that lands lying uncultivated might be brought under cultivation and the production of food grains might increase. These leases were to be in the first instance for a period of ten years with a right to the <ORG> to extend the period by another ten years. The leases provided what the Thekedars were to do in order to bring lands in villages leased to them under cultivation and also provided what percentage of the profits was to be paid to the <ORG> as revenue. The leases further provided for a review after three years, six years and ten years whether the conditions had been carried out and for increase of the <ORG>'s share of the profit after each review. It was also provided that in case the conditions were not carried out, the leases would be terminated and the villages taken under direct management by the <ORG>. Many petitioners and appellants before us are Thekedars or Pattedars to whom such leases were granted and the initial period of ten years has yet to run out.

4. The Abolition Act did not obviously apply to these leases. In 1954 the State of Uttar Pradesh decided to abolish this system of thekedari and pattedari prevalent in Rampur with a view to facilitating the introduction of land reforms therein. Consequently, the Thekedari Act was passed and received the assent of the President on April 18, 1954 and was to come into force from July 1, 1954. Section 2(6) of the Thekedari Act defines the word lease in terms to cover these leases Section 3 provides for determination of such leases and section 4 for the consequence of such determination. Sections 7 to 17 lay down the principles and procedure for payment of compensation to the lessees. The vires of this Act has also been challenged.

5. We shall first deal with the cases relating to jagirs, zamindaris and muafis. The contention in these cases was two-fold. In the first place, reliance was placed on the agreements entered into between the Ruler of Rampur and <ORG> and it was urged that in view of these agreements it was not open to the State of Uttar Pradesh to abolish estates in Rampur. In the second place, it was contended that S. 2(1) of the Abolition Act was ultra vires as it amounted to excessive delegation of essential legislative functions to the executive, and in any case the notification of June 30, 1954, was bad inasmuch as it effected substantial changes in the definition of the word 'estate' in the said Act.

6. We are of opinion that there is no force in these contentions. The petitioners and the appellants in these cases cannot in the first place rely on the provisions of the agreement between the Ruler of Rampur and the Dominion of India and raise any dispute on the basis of this agreement in view of the bar of Art. 363 of the Constitution; (see. <CITATION> , 1955-2 SCR 164: ( (S) AIR 1955 SC 540). In any case even if one looks at clauses (iii) and (x) of the collateral letter which are the basis of this argument, it is found that there is nothing in this argument even on merits. Clause (iii) reads as follows:-

"All contracts and agreements entered into by your Highness before the date on which the administration is made over to <ORG> will be honoured except in so far as any of these contracts or agreements may either be repugnant to the provisions of a law made applicable to the State or inconsistent with any general policy of the successor Government."

Assuming that the jagirs, zamindaris and muafis with which we are concerned here are the result of some contracts or agreements entered into by Ruler of <NAME>, clause (iii) makes it clear that these contracts and agreements would only be honoured except where they become inconsistent with any general policy of the successor Government. As soon therefore as the State of Uttar Pradesh which is the successor Government for present purposes decided to abolish the jagirs, zamindaris and muafis in pursuance of a general policy to abolish all estates in the whole of Uttar Pradesh, these contracts and agreements must fall and those deriving benefits from these contracts and agreements cannot put them forward against the general policy of the successor Government.

7. Clause (x) is in these terms---

"The present grants and allowances to the <NAME> mothers, brothers, sisters, and other members of the <NAME> family, list attached, will be continued during their life time and, will be charged on the revenue of the <ORG>."

<NAME> is a brother of the Ruler and he falls back on this clause. It is enough to say, as pointed out by <ORG>, that this clause deals with cash allowances to the relations of the Ruler, which will be clear from the list attached and also from the fact that the clause provides that these grants and allowances would be charged on the revenue of the <ORG>. <NAME>'s name does not appear in the list attached, and, therefore, he cannot take advantage of this clause. The contention based on the agreement, therefore, fails. Our attention was also drawn to Articles 7 and 8 of the <ORG>s Merger (Governors' Provinces) Order 1949, which also applied to the <ORG>s Merger (United Provinces) Order 1949. Those Articles have no relevance so far as jagirs, zamindaris and muafis are concerned. They transfer the liability in respect of loans, guarantees and other financial obligations of <ORG> arising out of the governance of the merged <ORG> to the absorbing provinces and lay down that any contract made before the appointed day on behalf of the Dominion of India for the purposes connected with the governance of the merged <ORG> shall have effect as if it had been made by or on behalf of the absorbing <ORG> unless it is wholly or in part for central purposes. These provisions therefore have no earing on the questions canvassed before us.

8. The second contention relates to the vires of S. 2(1) of the Abolition Act and the notification, of June 30, 1954. We are of opinion that it is unnecessary to go into this question now, in view of the amendment made in the Abolition Act by U. P. Zamindari Abolition and Land Reforms (Amendment) Act, No. XIV of 1958. The main attack originally was that even if power of delegation under S. 2(1) of the Abolition Act was not excessive, the notification of June 30, 1954, by changing the definition of the word "estate" while applying the Abolition Act to Rampur made a change of substance therein. This argument now falls because U. P. Act No. XIV of 1958 has retrospectively amended the definition of the word "estate" in section 3(8) of the Abolition Act. Section 1(2) of the U. P. Act XIV of 1958 provides that the Act shall be deemed to have come into force from the 1st of July, 1952. Section 2 provides that the following shall be and shall be deemed to have always been substituted for clause (8) of S. 3 of the Abolition Act. The new definition of the word "estate" begins with the words "estate means and shall be deemed to have always meant". By this amendment the change made in the notification of June 30, 1954 in the definition of the word "estate" in the Abolition Act has now been made a legislative provision in force from July 1, 1952. It is not disputed that with this change in the definition of the word "estate" from July 1, 1952, all jagirs, zamindaris and muafis in Rampur would be covered by the word "estate" as now defined. So far as the power given to <ORG> to extend the Abolition Act to other areas in the State of Uttar Pradesh to which it was not initially applied is concerned, it cannot be said that this power amounts to excessive delegation, for it is well settled that the legislature may leave it to the executive to apply the provisions of an Act to different geographical areas at different times depending on various considerations. This point, therefore, also fails in view of U. P. Act XIV of 1958. The contention that pending litigation is saved is not sound because the new law applies to all estates and no saving in respect of pending litigation can be implied; (see <NAME>, v. Mt. <NAME>, 63 Ind App 47 : (AIR 1936 PC 49). No other points were urged before us. All the petitions and appeals relating to jagirs, zamindaris and muafis must therefore be dismissed. But it is only proper that parties should bear their own costs as the amendment came in 1958.

9. This brings us to the petitions and appeals relating to thekedari and pattedari. In these cases also, reliance was placed on the agreements between the Ruler of Rampur and the Dominion of India. We have dealt with that already in the earlier part of this judgment and we reject the contention based on these agreements.

10. Then it was urged that the leases given to the thekedars and pattedars could not be determined under the Thekedari Act, because a perusal of the terms of the leases shows that in substance the person to whom the leases were granted was only a 'manager'. We find it difficult to appreciate this argument. We have already briefly summarised the terms of these leases. Those terms indubitably show that the persons to whom these leases were granted were not mere managers of these villages on behalf of the <ORG>. In the first place, the instruments show that they were in terms called leases and the persons to whom they were granted were called lessees. These persons were not managers in the sense of being employees of the <ORG>. They certainly had interest in the lands leased to them. As a matter of fact, three of the terms show that if certain conditions were not fulfilled the lease was to be determined and the management taken over directly by the <ORG>. The lessees were to invest their own money, and had to pay what was called revenue and their interest was heritable. In the face of these terms the lessees can in no circumstances be called mere managers, and they cannot, therefore, say that the Thekedari Act which applies to lessees of these leases does not apply to them. The Thekedari Act in terms becomes applicable to leases of this kind under the definition in S. 2(6) and the lessees are directly hit by it. It is not disputed that <ORG> had power to enact this law under Entry 18 of List II of the Seventh Schedule to the Constitution. Further, no argument was addressed before us against the adequacy of compensation provided in the Thekedari Act. In the circumstances, the Thekedari Act being within the powers of the legislature and complying with the provisions of Art. 31(2) is a valid piece of legislation to which no exception can be taken. No other point was urged before us in this connection. There is no force, therefore, in these petitions and appeals relating to thekedari and pattedari lands, and they must be dismissed.

11. We, therefore, dismiss all the petitions and appeals relating to jagirs, zamindaris and muafis; but in the circumstances pass no order as to costs in them.

12. We further dismiss all the petitions and appeals relating to thekedari and pattedari lands and order one set of costs to the State of Uttar Pradesh in them.

13. C. As. Nos. 530, 540, 569, 600, 601 and 617 of 1957 have abated and are hereby dismissed.

14. C. As. Nos. 547, 553, 555, 578, 595 and 598 of 1957 are dismissed for non prosecution.


IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 11080 of 2013 Date of Decision: 21.5.2013 Mrs. <NAME> .....Petitioner. Vs. State of Haryana and others .....Respondents. <NAME> : HON'BLE MR. JUSTICE <NAME> Present : Mr. <NAME>, Advocate for Mr. <NAME>, Advocate for the petitioner. ****

<NAME> (ORAL) Feeling aggrieved against the alleged inaction on the part of respondent authorities and particularly respondent No.3, petitioner has approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of mandamus directing the respondent authorities to execute the conveyance deed in favour of the petitioner, as per the entitlement of the petitioner.

Learned counsel for the petitioner submits that the share of the petitioner in the respondent-<ORG>, is not in dispute. Allotment has already been made and possession has also been delivered. However, the conveyance deed is not being executed in favour of the petitioner. When the genuine grievance of the petitioner was not being redressed, she approached respondent No.3 by way of representation dated 25.4.2012 (Annexure P-8), but the same is also pending decision. Learned counsel for the petitioner further submits that the petitioner will be satisfied in case respondent No.3 is directed, to decide the representation of the petitioner within a reasonable time by passing an appropriate order, in accordance with law.

Having heard the learned counsel for the petitioner and without expressing any opinion on the merits of the case, including the issue of limitation, if any, <ORG>, Wazirabad, Gurgaon through its Board of Administrators-respondent No.3 is directed to consider the grievance of the petitioner, which prima facie seems to be genuine and decide the representation dated 25.4.2012 (Annexure P-8), by passing an appropriate order thereon, in accordance with law, within a period of three months from the date of receipt of a certified copy of this order.

With the observations made above, the present writ petition stands disposed of.

(<NAME>) JUDGE 21.5.2013 <NAME>


IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 2.1.2012 CORAM THE HONOURABLE MR.JUSTICE <NAME> Writ Petition No.18031 of 2001 <NAME>, <NAME>. ... Petitioners -Vs.- 1.The Government of Tamil Nadu, represented by its Commissioner and Secretary to Government, <NAME> and <ORG>, Fort St. George, Chennai-9. 2.The District Collector, Villupuram District, Villupuram. 3.The Special Tahsildar, (Land Acquisition) (ADW), Dindivanam, Villupuram District. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, calling for the records relating to the proceedings in M1/1721/98 dated 14.12.2000 on the file of the second respondent published in No.20, Villupuram District Gazette dated 1.3.2001 under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act 1978, and quash the same relating to lands in R.S.No.63/1A, 63/1C2 and 64/1, of Ottai Village, Vannur Taluk, Villupuram District, of total extent 6.39 Acres concerned. For petitioners : Mrs.<NAME> For respondents : Mr.<NAME>, Additional Government Pleader. ----- O R D E R

Writ Petition is filed praying to issue a Writ of Certiorari, calling for the records relating to the proceedings in M1/1721/98 dated 14.12.2000 on the file of the second respondent published in No.20, Villupuram District Gazette dated 1.3.2001 under Section 4(1) of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act 1978, and quash the same relating to lands in R.S.No.63/1A, 63/1C2 and 64/1, of Ottai Village, Vannur Taluk, Villupuram District, of total extent 6.39 Acres concerned.

2. Heard Mrs.<NAME>, learned counsel appearing for the petitioners and <NAME>, learned Additional Government Pleader appearing for the respondents.

3. The first plea taken by the learned counsel appearing for the petitioners is that the District Collector alone is the competent authority to satisfy himself with the acquisition of land, whereas in this case Notification has been issued stating that the Government is intending to acquire the land under the Act and therefore, the Notification is bad. The second and the main plea taken by the petitioners is that after the enquiry by the authorised authority, a report has been submitted to the District Collector for consideration and that report has not been furnished to the petitioners, thereby prejudice is caused and consequently the acquisition proceedings have to be set aside. On the above plea, the writ petition is canvassed.

4. A counter-affidavit has been filed touching upon the factual aspects of the case. The prejudice caused by acquisition alone has been dealt with by the Special Tahsildar who has filed the counter-affidavit. On the legal plea that the copy of the report/remarks of the authorised officer has not been furnished to the land owner, there is no specific denial by the Special Tahsildar. The court on various occasions permitted the <ORG> to furnish records (i.e.) on 22.7.2011, 26.8.2011, 9.9.2011, 23.9.2011, 14.10.2011, 18.11.2011 and 10.12.2011. In spite of the specific adjournments, the records have not been produced before this Court. It is, therefore, to be presumed that the respondents have no records to produce in support of their case.

5. The issue raised in the present writ petition is squarely covered by the <ORG> decision of this Court in <CITATION> reported in 2006(4) CTC 609 wherein the <ORG> of this Court held in paras 42 and 43 as follows:-

42. However, it is necessary to enter a small caveat. The observation made by <ORG> or the single Judge regarding requirement to indicate reason while passing the order has to be understood in the context of non-application of mind. Even though in a given case the order which is communicated to the land owner does not indicate any reason why the objection has been rejected, if the application of mind is reflected in the file even by way of notings and endorsements, the ultimate decision to acquire the land cannot be said to be vitiated merely because the order which is communicated to the land owner/objector does not contain any detailed reasons. The requirement is that the materials on record, that is to say the relevant file, should indicate application of mind to the relevant facts and circumstances and not passing of a formal reasoned order as is required in judicial or quasi-judicial proceedings. The function obviously being administrative in nature, it is futile to expect furnishing of detailed reasons in the order which is communicated to the person. It is necessary to enter such caveat lest it may be construed that in every case, where the order of rejection communicated to the land owner does not contain the reasons, the proceeding stands vitiated. Ultimately the <ORG> is required to find out in each case whether there has been application of mind. Therefore, the brief reasons, which are contemplated, can be given either in the file in the shape of notings, endorsements, etc., or even can be reflected in the order. But, mere non-reflection of reasons in the order communicated or in the notice published in the <ORG>, would not be sufficient to hold that there has been non-application of mind and the question as to whether there has been application of mind or non-application is required to be considered on the basis of the return filed and the relevant file to be produced before the <ORG>.

43. In view of the aforesaid discussion, our conclusions are as follows:

The owner should be furnished with a copy of the report/recommendation of the authorised officer. Thereafter, he should be given two weeks' time to make further representation, if any, before the District Collector. It is not necessary for the District Collector to give a further personal hearing or make any further enquiry. However, mere non-furnishing of the report would not have the ipso facto effect of vitiating the proceedings and the question of prejudice to the land owner is required to be considered in each case depending upon the facts and circumstances. The District Collector is expected to reflect the reason, but merely because the communication to the land owner does not contain the reasons, the decision of the Collector is non ipso facto vitiated and it would always open to the concerned authority to prove before the <ORG>, if such action of the Collector is challenged, that there has been application of mind and the reasons are available in the relevant records relating to such acquisition. The necessity to record the reasons is applicable where the Collector himself makes the enquiry and also where the Collector takes an appropriate decision on the basis of the report/recommendation made by the authorised officer.

6. The fact that the copy of the report/recommendation of the authorised officer has not been given to the owners of the land, the petitioners herein, so as to submit their objection to the District Collector vitiates the proceedings in terms of the <ORG> decision as above. The counter-affidavit refers to the various objections raised by the petitioners and is countered. This could have been considered by the District Collector, if an opportunity had been given by furnishing the report. The failure to give them opportunity at the stage of consideration by the Collector justifies the plea of prejudice. The non furnishing of the report/remarks of the authorised officer to the land owners, the petitioners herein, vitiate the proceedings in view of the <ORG> decision.

7. In view of the above, the Notification under challenge so far as it relates to the petitioners land is concerned is quashed. The Writ Petition is allowed as above. No costs.

ts To

1.The Commissioner and Secretary to Government, <NAME> and <ORG>, Fort St. George, Chennai-9.


PETITIONER: THE STATE OF WEST BENGAL & ORS. Vs. RESPONDENT: SRI KARTICK CHANDRA DAS & ORS. DATE OF JUDGMENT: 06/05/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J) CITATION: JT 1996 (6) 627 1996 SCALE (5)140 ACT: HEADNOTE: JUDGMENT:

O R D E R Leave granted.

We have heard learned counsel on both sides. The learned single Judge of <ORG> exercising the power under Article 226 of the Constitution in Civil Order No.241(W) of 1992 directed the appellant to grant registration in terms of the West Bengal Cinemas Development Scheme, 1976 and to grant subsidy to the respondents as per the said scheme. The appellant had carried the matter in appeal against the said order in FMAT No.3244/92 with an application for stay of the operation of the order. We are informed that the appeal is pending. Pending appeal the respondent had taken out contempt proceedings against the appellant for non-enforcement of the direction issued by the-learned single Judge. Against the contempt notice, the appellants have filed a Letters Patent Appeal to the <ORG> bench. The <ORG> Bench in the impugned order dated November 4, 1994 passed the order as under:

"Having heard the learned counsel for the parties we are of the opinion that the delay in filing this appeal being not condonable as section 5 of the Limitation Act does not apply the appeal is dismissed. The application under the Limitation Act is also dismissed."

Thus this appeal by special leave.

It is not in dispute that under Section 19 of the Contempt of Courts Act, an appeal would lie to the Division Bench and limitation of 30 days from the date of the order has been prescribed subject to the exclusion of the time taken for obtaining the certified copy thereof. We have seen that the appellate side rules of <ORG> applicable to the area other than the city of Calcutta had not expressly excluded the application of the limitation under the Limitation Act .

Learned counsel for the respondent sought to contend that by operation of Rule 3 of Chapter 8 of the appellate side rules under the letters patent the memorandum of appeal drawn up under Order 41 Rule 1 CPC requires to be complied with as envisaged thereunder since it had not been provided with any limitation. The <ORG> bench was, therefore, right in holding that the Limitation Act was not extended for an appeal filed under clause 15 of the letters patent against the order passed by the learned single Judge under the provisions of the Contempt of Courts Act . It is seen that under the Contempt of Court Act ; <ORG> has framed the rules. Rule 35 envisages that;

"In respect of appeals from the orders of any Judge or Bench of the Original Side the rules of the Original Side relating to appeals and in respect of appeals from the order of any Judge or Bench of the Appellate Side, the rules of the Appellate Side shall apply mutatis mutandis."

Therefore, for the appeals filed under clause 15 of the Letters Patent against the order of the learned single Judge for the contempt proceedings by necessary consequences, the procedure prescribed on the appellate side would also be applicable and followed.

Section 29 of the Limitation envisages 'Savings'. Sub- section (2) thereof reads thus:

(2) where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by any Special or local law, the provisions contained in Sections 4 to 24 (inclusive)shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law "

In consequence, by operation of Section 29(2) read with Section 3 of the Limitation Act, limitation stands prescribed as a special law under Section 19 of the Contempt of Courts Act and limitation in filing Letters Patent Appeal stands attracted In consequence, Sections 4 to 24 of the Limitation Act stands attracted to Letters Patent Appeal insofar as and to the extent to which they are not expressly excluded either by special or local law Since the rules made on the appellate side, either for entertaining the appeals under clause 15 of the Letters Patent or appeals arising under the contempt of courts, had not expressly excluded, Section 4 of the Limitation Act becomes applicable we hold that Section 5 of the Limitation Act does apply to appeals filed against the order to the learned single Judge for the enforcement by way of a contempt. <ORG>, therefore, was not right in holding that Section 5 of the Limitation Act does not apply. The delay stands condoned. Since <ORG> had not dealt with the matter on merits, we decline to express any opinion on merits. The case stands remitted to the division bench for decision on merits.

The appeal is accordingly allowed. No costs.


ORDER <NAME>, J.

1. The judgment<ORG>debtor in the E.P. No. 110/2005 in O.S. No. 210/1988, on the file of the learned <ORG>, Alandur, is the Revision Petitioner before this <ORG>. The respondent herein filed O.S. No. 19 8/1988 before the <ORG><ORG><ORG>, Poonamallee for a declaration that the 'B' schedule property mentioned in the schedule is his absolute property and for directing the 1st defendant/Revision Petitioner to put the the decree holder/respondent in vacant possession of the suit property. By judgment and decree dated 31.10.1995, the trial court decreed the suit for title and dismissed the same for possession. The respondent/plaintiff herein alone filed an appeal in A.S. No. 385/1996 before this <ORG> and <ORG> of this <ORG> by its elaborate judgment dated 29.3.2005 allowed the appeal and granted the decree for possession also. Against the judgment and decree dated 29.3.2005, the Revision Petitioner filed Special Leave Petition. But the same was also dismissed by the Hon'ble Supreme <ORG> on 13.5.2005. The respondent/decree holder filed E.P. No. 110/2005 to execute the decree and after receiving the notice in the execution proceedings, the Revision Petitioner filed an Execution Application under Section 47 and with a prayer to declare that the decree dated 31.10.1995 is null and void and not executable against him. The execution court by order dated 14.3.2 006 in unnumbered SR No. 11420/2005 in E.P. No. 110/2005 rejected the same and challenging the order dated 14.3.2006, the above Revision Petition has been filed by the Revision Petitioner herein.

2. Heard the Learned Counsel for the Revision Petitioner and also the Learned Counsel for the respondent. I have also perused the documents filed in support of their submissions.

3. Learned counsel for the Revision Petitioner contended that the execution court has failed to exercise its jurisdiction to decide the issue in accordance with Section 47 of C.P.C., read with Rule 143 of the Civil Rules of Practice. He further submitted that the Revision Petitioner had no occasion to bring it to the notice of the court during the hearing of the suit and appeal about the fraud played by the decree holder against the courts and other authorities which came to light when he took steps to obey and to give effect to the decree in the suit.

4. Per contra, Learned Counsel for the respondent submitted that the executing court has rightly rejected the Section 47 application as the executing court cannot go behind the decree and reopen the matter afresh.

5. It is the case of the Revision Petitioner that he pursued the suit and appeal bonafidely without realising that the respondent herein played premeditated fraud by making and fabricating successive documents and obtained orders suppressing the public records with the calculated intention to cheat the real owner and legally interested persons. Therefore, according to him, the decree in O.S. No. 210/1988 is a nullity and unenforceable. It is the revision petitioner's further case that the decree is not executable against the petitioner in view of the inherent defect in the title of the property and also description of the property mentioned in the schedule in the decree. Learned counsel for the petitioner relied on the judgment ( <CITATION> ) to contend that objection under Section 47 about the executability of the decree can be allowed if it is found that the decree is a nullity.

6. In the above judgment, <ORG> has elaborately dealt with the power of the executing court under Section 47 of C.P.C., and held as follows:

23. Under Section 47 of the Code, all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of decree have got to be determined by the court executing the decree and not by a separate suit. The powers of the court under Section 47 are quite different and much narrower than its powers of appeal, revision or review. A first appellate court is not only entitled but obliged under law to go into the questions of facts as well, like the trial court, apart from questions of law. Powers of the second appellate court under different statutes like Section 100 of the Code, as it stood before its amendment by Central Act 104 of 1976 with effect from 1.2 .1977, could be exercised only on questions of law. Powers under statutes which are akin to Section 100 of the Code, as amended and substituted by the aforesaid Central Act , have been further narrowed down as now in such an appeal only a substantial question of law can be considered. The powers of this <ORG> under Article 136 of the Constitution of India, should not be exercised simply because substantial question of law arises in a case, but there is further requirement that such question must be of general public importance and it requires decision of this <ORG>. Powers of revision under Section 115 of the Code cannot be exercised merely because the order suffers from legal infirmity or substantial question of law arises, but such an error must suffer with the vice of error of jurisdiction. Of course, the revisional powers exercisable under the Code of Criminal Procedure and likewise in similar statutes stand on entirely different footing and are much wider as there the court can go into the correctness, legality or propriety of the order and regularity of proceeding of the inferior court. It does not mean that in each and every case the revisional court is obliged to consider questions of facts as well like a first appellate court, but the court has discretion to consider the same in appropriate cases whenever it is found expedient and not in each and every case. Discretion, undoubtedly, means judicial discretion and not whim, caprice or fancy of a Judge. Powers of review cannot be invoked unless it is shown that there is error apparent on the face of the record in the order sought to be reviewed.

24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. In the case on hand, the decree was passed against <ORG> of the College which was the defendant without seeking leave of the court to continue the suit against the <ORG> upon whom the interest of the original defendant devolved and impleading it. Such an omission would not make the decree void ab initio so as to invoke application of Section 47 of the Code and entail dismissal of execution. The validity or otherwise of a decree may be challenged by filing a properly constituted suit or taking any other remedy available under law on the ground that the original defendant absented himself from the proceedings of the suit after appearance as he had no longer any interest in the subject of dispute or did not purposely take interest in the proceedings or colluded with the adversary or any other ground permissible under law.

7. From the above judgment, it is very clear that the powers of the court under Section 47 are much narrower than its powers of the appeal, revision or review. The executing court can allow objections under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was obtained passed in ignorance of such a provision of law or the law as promulgated making the decree in-executable after its passing. The validity or otherwise of a decree may be challenged by getting a properly instituted suit or taking any other remedy under law. The executing court cannot go behind t he decree except when the decree is a nullity or is without jurisdiction.

8. Learned counsel for the respondent relied on the judgment of <ORG> ( <CITATION> .) to submit that <ORG> should not enlarge the scope of the execution proceeding and treat it as a Full-blown suit. In the above judgment, <ORG> held as follows:

7. In support of the appeals, Learned Counsel for the appellant submitted that a new dimension has been given by the Division Bench. Admittedly, Respondent 1 does not claim any right of ownership over the attached properties. No claims of the nature set forth by Respondent 1 can be examined in terms of Section 47 or Order 21 Rule 58 CPC. By the impugned judgment, <ORG> has enlarged the scope of the execution proceedings and has treated it as a full-blown suit without even recording any reason as to how Respondent 1 has any adjudicable interest in the proceedings. The question of tenancy of tenancy cannot be decided by the executing court.

10. The executing court cannot go beyond the decree. It is settled position in law which flows from Section 38 CPC, except when the decree is a nullity or is without jurisdiction. The crucial expression in Section 47 is "All questions arising between the parties to the suit" "or their representatives". Order 21 Rule 54 deals with attachment of immovable property, while Rule 58 deals with adjudication of claims to, or objections to attachment of property. Case of Respondent 1is not covered by Section 47 or Order 21 Rule 54 or Rule 58. <ORG> misconceived the nature of claim set up by Respondent 1. Learned Single Judge rightly noted that Respondent 1 was not having independent right to the properties. It found that the right claimed was as assignee under the judgment-debtor. The agreement, if any, in that regard was not produced before the <ORG> and, therefore, the learned Single Judge drew adverse inference. Before <ORG>, the stand of Respondent 1was that it was a tenant. Without indicating any reason as to how the reasoning of the learned Single Judge was wrong <ORG> enlarged the scope of the controversy and directed the executing court to decide the question of tenancy, which is legally impermissible.

9. In the light of the well settled legal principles, let me examine the case on hand.

10. It is not in dispute that having suffered a decree, the Revision Petitioner did not file a regular appeal questioning the title of the respondent herein. It is only the respondent who filed an appeal before the court challenging the disallowed portion in the decree. The trial court rendered a finding that the revision petitioner herein is a trespasser and he is a person in possession without any authority. This finding was not at all challenged by the revision petitioner and the same reached its finality. In such circumstances it is not for the revision petitioner herein to contend that by the respondent creating and fabricating documents is thus cheating the true and real owner and legally interested persons.

11. The revision petitioner herein filed S. 47 application on the ground that the respondent herein did not have proper title and the documents he filed before the trial court to prove the title are bogus documents. Such kind of plea cannot be allowed to be raised for the first time by the petitioner in Section 47 application and if it is allowed to be raised the same will defeat the very decree itself and in such a case the executing court has to travel beyond the scope of the decree which is not permissible that too at the instance of a trespasser.

12. The court below has considered the entire facts and rightly came to the conclusion that all the documents relied on by the revision petitioner related to his defence in relation to the declaration relief sought for by the respondent herein which was already held against the petitioner. In such circumstances, I do not find any merit in the Revision Petition and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. C.M.P. No. 5 604/2006 is also dismissed.