PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF PUNJAB DATE OF JUDGMENT28/11/1995 BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) MUKHERJEE M.K. (J) CITATION: 1996 SCC (1) 458 JT 1995 (8) 434 1995 SCALE (6)653 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T S.B. <NAME> J.

Appellant, <NAME> has brought in challenge his conviction and sentence as imposed upon him by <ORG> at Chandigarh in Criminal Appeal No.637-DB of 1981. While allowing his appeal against conviction under Section 302 Indian Penal Code (in short ` IPC ') <ORG> has convicted him for the lesser offence under Section 304 Part I, IPC and sentenced him to undergo rigorous imprisonment for 10 years. The appellant's grievance is that he is not liable to be convicted even under the said provision.

In order to appreciate the grievance of the appellant a few relevant facts leading to this appeal deserve to be noted at the outset.

BACKGROUND FACTS :

The appellant who was accused no.1 along with two other accused <NAME> and <NAME> were charged with offences under Sections 302 , 307 , 325 , 324 , 323 read with Section 34 of the  on the allegation that on 11th January 1981 at about 6.00 p.m. in the area of village Nizamwala, in furtherance of their common intention which was to commit the murder of one lady Smt. <NAME>, the appellant did commit murder of the aforesaid Mst. <NAME> by intentionally causing her death whereas the other two accused committed offences under Section 302 read with Section 34 of the . Accused <NAME> was also charged with an offence under Section 307  for having fired a gun shot at one <NAME> with such intention and under such circumstances that if by that act he had caused the death of <NAME> he would have been guilty of murder while the appellant was charged with an offence under Section 307 read with Section 34 . It was also alleged that at the same time and place in furtherance of their common intention accused <NAME> Voluntarily caused hurt to <NAME> by means of a `gandasa', which is an instrument of cutting, and thereby committed an offence punishable under Section 324  whereas appellant and <NAME> accused were alleged to have committed offences punishable under Section 324 read with Section 34 of the . They were similarly charged for an offence for having caused hurt to one <NAME> by means of a `gandasa', which is an instrument of cutting. Appellant was also charged along with other co-accused for having committed an offence under Section 325 read with Section 34 of the  for having voluntarily caused grievous hurt to one <NAME>. Appellant was lastly charged with an offence under Section 27 of the Arms Act on the allegation that on the same date, time and place he had in his possession a single barreled 12 bore gun with intent to use the same for an unlawful purpose, that is, to commit the murder of Mst. <NAME> and that he actually used it for the above-said purpose thereby committing an offence under Section 325 of the .

The prosecution story briefly is to the effect that accused <NAME> is the sister's son of <NAME> accused and the appellant who belongs to village Baghewala, is their partyman. That prosecution witnesses, <NAME> and <NAME>, are the real brothers and Mst. <NAME> deceased was the wife of <NAME> and <NAME> is the nephew of <NAME>, <NAME> is the cousin of <NAME> and <NAME> is the nephew of <NAME>. That PW <NAME> was to celebrate Lohri festival in connection with the birth of his grand-child. He went to <NAME> at village Akku Masteke on 10th January 1981 to request him (<NAME>) to join the celebration of Lohri festival at his house. On 11th January 1981 at about 9.00 a.m. <NAME> came to the house of <NAME> and remained there upto 6.00 p.m. in connection with the distribution of sweets on the occasion of the birth of his (<NAME>'s) grand- child. At about 6.00 p.m. <NAME>, his wife Mst. <NAME>, his brother <NAME> came out of the house along with <NAME> to see the letter off. They were standing in front of the gate of his (<NAME>'s) house. At that time electric light which was fitted at his house, was illuminating in which a human being could be identified. <NAME> was going to connect his tractor with his trolley. Meanwhile, <NAME> accused armed with his D.B.B.L. gun, <NAME> accused armed with a single barrelled gun and <NAME> accused armed with `grandasa' came to the house of <NAME> and <NAME> raising `lalkaras'. <NAME> accused raised a `lalkara' that he and his companion co-accused were going to teach <NAME> and others a lesson for parking the tractor trolley in the lane. <NAME> accused opened the attack by firing from his D.B.B.L. gun towards <NAME>. However, the fire missed the target as he (<NAME>) had knelt down to save himself and the fire passed over his head. Thereafter appellant fired from his single barrelled gun and the shot hit Mst. <NAME> deceased near he pelvic region. On receipt of this injury, she fell down on the ground. Thereafter <NAME> accused dealt a `gandasa' blow on the head of <NAME> from its sharp side. Meanwhile <NAME> accused dealt blow with the butt of his gun on the left hand of <NAME> and another blow from the said butt on his right ear. Then <NAME> accused dealt a `gandasa' blow on the head of <NAME> from its reverse side. Thereupon <NAME>, <NAME> and <NAME> raised `raula' and on this, the accused decamped with their weapons. Before that, <NAME> and <NAME> also caused injuries on the person of appellant in their self- defence. Thereafter the PWs arranged a car in which <NAME> was placed. <NAME> and <NAME> accompanied her to Civil Hospital, Forezepore, at a distance of 14/15 kilometers. The car left village Nizamwala at about 6.45 p.m. but <NAME> died on the way at a distance of 6/7 miles near village Sodhiwala on their way to the Hospital.

On receipt of telephonic message, Inspector <NAME> of <ORG> Mallanwala went to <ORG>, Ferozepore, and recorded the statement of <NAME>, which formed the basis of the First Information Report. The inspector held inquest and sent the dead body of Smt. <NAME> to the mortuary for autopsy. Thereafter, he went to the spot, lifted blood-stained earth and recovered one empty catridge case from there. The accused were arrested on 17th January 1981 and their weapons were taken into possession.

After investigation the appellant along with his co- accused were chargesheeted and ultimately their case was committed to the court of Sessions for trial. The learned Trial Judge after recording evidence and hearing the rival versions took the view that appellant was guilty of an offence under Section 302 of the  for killing Smt. <NAME> and ordered him to undergo imprisonment for life and to pay a fine of Rs.3,000/- or in default to further undergo rigorous imprisonment for one and a half years, while <NAME> and <NAME> accused were sentenced under Section 302 read with Section 34 of  and were directed to undergo imprisonment for life and to pay a fine of Rs.1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each. <NAME> accused was sentenced under Section 307  and was directed to undergo rigorous imprisonment for one and a half years and to pay a fine of Rs.300/- and in default of payment of fine to further undergo rigorous imprisonment for two months while the appellant and another accused <NAME> were sentenced under Section 307 read with Section 34  and were directed to undergo rigorous imprisonment for six months each and to pay a fine of Rs.100/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each. Appellant was also sentenced under Sections 324 and 325 read with Section 34 for the injuries caused to the concerned PWs as mentioned in the charge. He was sentenced to undergo rigorous imprisonment for six months under Section 27 of the Arms Act.

The aforesaid decision of <ORG> resulted in criminal appeal moved by the appellant and the other two accused <NAME> and <NAME> in <ORG> at Chandigarh. <ORG> of <ORG> after hearing the contesting parties came to the conclusion that the co-accused <NAME> and <NAME> deserved to be acquitted of the offences with which they were charged and the appeal qua them was fully allowed while so far as the appellant was concerned, he was acquitted of offences under Section 302 , Section 307 read with Section 34 , Sections 324 and 325 read with Section 34 I.P.C. However, he was held guilty of an offence under Section 304 Part I, IPC . He was sentenced as aforesaid. His conviction and sentence under Section 27 of the Arms Act were also maintained. That is how the appellant is before us in the present appeal.

Learned advocate appearing for the appellant contended that when <ORG> came to the conclusion that the appellant had a right of private defence of body having received number of injuries in the incident, <ORG> instead of carrying this conclusion to its logical end, wrongly assumed that the appellant had exceeded his right of private defence of body as his reasonable apprehension could be of having caused simple hurt at the hands of the complainant party and, therefore, he had a right to give only grievous hurt but could not have caused any fatal injury by the use of his firearm. It was vehemently contended that looking to the evidence on record the aforesaid finding of <ORG> is not well sustained. Learned counsel for the respondent State of Punjab on the other hand tried to support the reasoning and the final conclusion to which <ORG> reached. In our view the decision of <ORG> to the effect that the appellant had exceeded the right of private defence cannot be supported on the evidence on record. It will be profitable to extract what <ORG> has said in this connection in the penultimate paragraph of its judgment at page 15 :

"...<NAME> appellant and <NAME> had sustained as many as 12 injuries and out of them 2 injuries on the person of <NAME> and one injury on the person of <NAME> were on the vital parts of their bodies. In such a situation, the accused party could legitimately harbour the apprehension that the complainant party would cause them simple hurt. But <NAME> appellant had over stepped the legal limits of the defence of person by firing a shot from his gun which hit Smt. <NAME> and proved fatal. The occurrence appears to have taken place all of a sudden and it was not a pre- planned attack. When <NAME> appellant apprehended simple hurt at the hands of the compainant party, he had the right to give a grievous hurt but he obviously exceeded the right of private defence of his person and caused one fire arm injury, which proved fatal. Consequently <NAME> is found guilty for an offence under section 304 Part I, Indian Penal Code ..."

Now it must be noted that according to <ORG> the appellant had a right of private defence as he had sustained number of injuries in the incident. So far as his injuries are concerned, Dr. <NAME>, PW.1 has described the injuries by stating as under :

"I conducted medico legal examination on the person of <NAME> accused and found the following injuries on his person:-

1. Incised wound of the size 5.5 cm x 1 cm bone deep at the right front pariental region 9.5 cm from the right eye-brow, obliquely placed and 8 cm from the right pinna. Blood clot was present.

X-ray was advised.

2. Swelling of the size 3.5 cm x 3.5 cm on the left side of the fore-head 1.5 cm above the left eye-brow. X-ray was advised.

3. Reddish swelling of the size 5 cm x 3.5 cm with overlying abrasion 2 cm x 0.5 cm, at the back and upper part of left fore-arm.

4. Swelling of the size 2.5 cm x 2.5 cm with overlying lacerated wound 0.75 cm x 0.25 cm back and middle of left middle finger of hand. X-ray was advised.

5. Swelling 1 cm x 1.5 cm at the tip of middle finger of left hand. X-ray was advised.

6. Abrasion 0.5 cm x 0.5 cm on medical aspect and middle of left index finger.

7. Reddish contusion 5.5 cm x 2 cm at the upper and lateral aspect of right upper arm. X-ray was advised.

8. Reddish contusion 5 cm x 3 cm on the front and middle of right upper arm.

9. Abrasion 3 cm x 2 cm on front of right elbow joint.

The patient was conscious. Pulse was 72 per minute. B.P. 130/70. Nature of the injuries. Injuries nos :

1,2,3,4,5 and 7 were kept under observation for X-ray. Injuries nos:

3,6,8 and 9 were declared simple. The probable duration of the injuries was within six hours. The weapon declared for injury no.1 was sharp edged. Rest all by blunt weapon. On receiving X-ray report No.10/60, dated 13.1.1981, injuries nos : 1,2,4,5, and 7 were declared simple."

Now it becomes at once clear that the appellant had received as many as nine injuries out of which first two injuries were on a very vital part, namely, on his head and injury no.1 was an incised wound which was caused by a sharp-edged weapon. Under these circumstances if the appellant fired one shot from his gun in his self-defense it could not be said that he had exceeded the right of private defence as the nature of assault by the complainant party which left him with the aforesaid injuries certainly could be said to have caused a reasonable apprehension in his mind that grievous hurt would otherwise be the consequence of such an assault. In this connection it will be profitable to look at Section 100 of the Indian Penal Code which reads as under :

"100. When the right of private defence of the body extends to causing death.-- The right of private defence of body extends, under the restrictions mentioned in the last preceding section, to the Voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :- First:- Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;

Secondly:- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; Thirdly.- An assault with the intention of committing rape;

Fourthly.- An assault with the intention of gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly.- An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."

It is not the case of the prosecution that any of the restrictions mentioned in Section 99 can be invoked by the prosecution against the appellant. Once that is so, clause `secondly' of Section 100 would squarely get attracted. It is difficult to appreciate the reasoning of <ORG> that the reasonable apprehension in the mind of the appellant who had received two injuries on his head and seven other injuries on his body would be the apprehension that only simple hurt would be caused to him and not grievous hurt. It is true that the first injury caused on his head had fortunately not resulted into a fracture but when it was caused with a sharp cutting instrument on the vital part of his body, namely, right side of head, it cannot be gainsaid that at least a reasonable apprehension would arise in his mind at the spur of the moment that if he does not retaliate by using his weapon, namely, the gun with which he was armed he would certainly suffer at least a grievous hurt as a consequence of the assault by the c party. Under these circumstances the right of private defence of body available to the appellant would extend to even causing death. It is of course true that his, gun shot unfortunately hit an innocent person like Smt. <NAME> who was present on the scene of occurrence but as at the very same time and place the appellant had suffered an assault at the hands of the assailants comprising of the complainant party, right of private defence of body which would extend to even causing death of the assailant would arise in favour of the appellant on the facts of the present case and in exercise of that right if death is caused not of the assailant but of any other person it cannot be said that the right of private defence extending up to causing death of the assailant would not be available to the accused qua even an innocent party which got fatally hurt on account of the exercise of such a right of private defence which ensured for the appellant under Section 100 clause secondly of the IPC . It is obvious that if an accused with an intention to kill his victim fires a shot at him which misses the target and hits any other innocent person fatally he would remain guilty of an offence of murder but if the accused had no such intention and was protected by right of private defence under the situation and circumstances in which it could extend to even causing death of assailant as laid down by Section 100 and if in exercise of that right of private defence the blow fatally falls on an innocent person the action would still remain protected under Section 100 of the . In this connection we may refer to Section 301 , IPC which reads as under :

"301. Culpable homicide by causing death of person other than person whose death was intended.- If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause."

For applicability of that Section the act must amount to culpable homicide in the first place. If the act is not culpable at all, then even if it results into homicide of an innocent person, in view of Section 100  as in the present case, Section 301 will have no operation.

While judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the cool atmosphere of the court room. Such situations have to be judged in the `light of what happens on the spur of the moment on spot and keeping in view the normal course of human conduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation. Such situation have to be judged from the subjective point of view of the accused concerned who is confronted with such a situation on spot and cannot be subjected to any microscopic and pedantic scrutiny. In this connection it is profitable to refer to two decisions of this Court. In the case of <CITATION> (1980 Supp. SCC 215), a Division Bench of this Court speaking through <NAME>, J. made the following pertinent observations :

"...the onus which rests on an accused person under Section 105 , Evidence Act , to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. It is further well established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in `golden scales' the precise force needed to repel the danger. Even if he in the heat of the moment carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it..."

In the case of <CITATION> . (1973 (1) SCC

347), this Court was concerned with a situation where the accused had received a blow on head by a `lathi' and in self-defence he had used his spear in retaliation. While holding that the accused was entitled to the right of private defence extending to even causing death, in such a case, he was acquitted of the offence under Section 302 . In this connection <NAME>, J., speaking for this Court in paragraph 5 of the Report has made these pertinent observations :

"In our opinion, <ORG> does seem to have erred in law in convicting the appellant on the ground that he had exceeded the right of private defence. What <ORG> really seems to have missed is the provision of law embodied in Section 102 , I.P.C . According to that section the right of private defence of the body commences as soon as a reasonable apprehension of dager to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self- defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the <ORG> (which has a duty to maintain law and order) and not in private individuals. . ............. the approach of <ORG> that merely because the complainat's party had used lathis, the appellant was not justified in using his spear is no less misconceived and insupportable, During the course of a marpeet, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehensions that death or grievous hurt would result from an injury caused thereby. It cannot be laid down as a general rule that the use of a lathi as distinguished from the use of a spear must always be held to result only in milder injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. Indeed, even a spear is capable of being so used as to cause a very minor injury. <ORG> seems in this connection to have overlooked the provision contained in section 100 , I.P.C . We do not have any evidence about the size or the nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by a lathi on the head may prove instantaneously fatal and cases are not unknown in which such a blow by a lathi has actually proved instantaneously fatal. If, therefore, a blow with a lathi is aimed at a vulnerable part like the head we do not think it can be laid down as a sound proposition of law that in such cases the victim is not justified in using his spear in defending himself. In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to cooly weigh, as if in golden scales, and clamly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. No doubt, <ORG> does seem to be aware of this aspect because the other accused persons were given the benefit of this rule. But while dealing with the appellant's case curiously enough <ORG> has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of <ORG> is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such case the matter cannot be weighed in scales of gold."

The facts of the present case are almost parallel to the facts of the aforesaid case. Consequently it must be held that the appellant had a right of private defence of body which extended to even causing death and in exercise of that right if he fired one gun shot which unfortunately killed an innocent person that is, Smt. <NAME>, it cannot be said that he was guilty of an offence even under Section 304 Part of the  on the ground that he had exceeded his right of private defence. Consequently the conviction of the appellant under Section 304 part I, IPC as pendered by <ORG> is quashod and set aside. <ORG> has already acquitted the appellant of charges under Sections 307 , 324 and 325 of the . So far as his conviction under Section 27 of the Arms Act is concerned even that would not survive as it could not be said that he has used his gun of any unlawful purpose, that is to commit culpable homicide of Mst. <NAME> not amounting to murder. The appeal is accordingly allowed. Accused is no bail. His bail bound shall stand discharged.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> AND ANOTHER. DATE OF JUDGMENT: 05/05/1954 BENCH: <NAME>, B.K. BENCH: <NAME>, B.K. AIYYAR, T.L. VENKATARAMA MAHAJAN, <NAME>, <NAME>, NATWARLAL H. CITATION: 1954 AIR 440 1955 SCR 250 CITATOR INFO : R 1955 SC 233 (10,19,21,22) R 1955 SC 756 (2,6) R 1957 SC 804 (10) R 1958 SC 398 (19) F 1958 SC 845 (20) R 1959 SC 725 (11) R 1960 SC 321 (10,11,22,23) R 1962 SC1621 (5,75,113) F 1966 SC 81 (4) RF 1967 SC 1 (53,82) RF 1970 SC1334 (11) R 1973 SC2684 (7) R 1981 SC 789 (11) F 1990 SC 487 (10) RF 1992 SC 435 (19) ACT: Constitution of India- Article 226- Certiorari, writ of General principles governing the issue thereof-Manifest and patent error apparent on the face of proceedings-Clear ignorance or disregard of a provision of law-Absence or excess of jurisdiction. HEADNOTE: The issue of prerogative writs in the nature of habeas corpus, mandamus, quo warrantto, prohibition and certiorari had their origin in England-in the <NAME>'s prerogative power of superintendence over the due observance of law by his officials and <ORG>s. The powers of <ORG> as well as of all the <ORG> in India under articles 32 and 226 of the Constitution respectively are very wide. <ORG> as well as the <ORG> in India can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner so long as the broad and fundamental principles of English law regulating the exercise of jurisdiction in the matter of granting such writs are adhered to. A writ of certiorari can be availed of only to remove or adjudicate upon the validity of judicial acts, which expression includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions but does not include purely ministerial acts. In granting a writ of certiorari the superior <ORG> does not exercise the power of an appellate <ORG>, the control exercised through it being merely in a supervisory and not appellate capacity. It does not review or reweigh the evidence upon which the determination of the inferior <ORG> is based nor does it substitute its own views for those of the inferior <ORG>. A writ of certiorari is generally granted when a <ORG> has acted without or in excess of its jurisdiction. The want of jurisdiction may &rise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the <ORG> itself may not be legally constituted or may suffer from a certain disability by reason of extraneous circumstances. If the jurisdiction of the <ORG> depends upon the existence of some collateral fact the <ORG> cannot by a wrong decision of the fact assume jurisdiction which it would not otherwise possess. A writ of certiorari is available in those cases where a <ORG> though competent to enter upon an enquiry acts in flagrant disregard of the rules of procedure or violates the principles of natural justice where no particular procedure is prescribed. 251 A mere wrong decision cannot be corrected by a writ of certiorari as that would be -using it as the cloak of an appeal in disguise but a manifest error apparent on the face of the proceeding based on a clear ignorance or disregard of the provisions of law or absence of or excess of jurisdiction, when shown, can be so corrected. Held, that in view of the facts and circumstances of the case the High <ORG> was not right in holding that sufficient and proper grounds existed for the issue of certiorari in the present case. <CITATION> (70 I.A. 129, 140); <CITATION> ( S.C.R. 1144, 1150). <NAME> v. Electricity Commissioners ( 1 K.B. 171, 205); <ORG> v. <ORG> (4 A.C. 30, 39); <NAME> v. <ORG> ([19221 2 A.C. 128, 156); <NAME> v. <NAME>, (9 Exch. 111); <NAME> v. Commissioners for Special Purposes of the Income Tax (21 Q.B.D. 313); <NAME> v. Northumberland Compensation Appellate <ORG> ( 1 K.B. 338, 357); <CITATION> ., ([19521 S.C.R. 583, 594); and <ORG>, 2nd edition, page 880, referred to. JUDGMENT:

<ORG> Appellate JURISDICTION: Civil Appeal No. 48 of 1954. Appeal from the Judgment and Order dated the 1 1 th January, 1954, of <ORG> in Civil Petition No. 29 of 1953, quashing the Order of the Election Tribunal, Shimoga, dated the 15th January, 1953, in Shimoga No. I of 1952-53.

<NAME> (<NAME> and <NAME>, with him) for the appellant. Dr. <NAME> (<NAME> and <NAME>, with him) for respondent No. 1.

<NAME>, Solicitor-General for India (<NAME>, <NAME> and <NAME>, with him) for respondent No. 3.

1954. May 5. The Judgment of the Court was delivered by <NAME> is directed against a judgment of <ORG> of <ORG>, dated the 11th January, 1954, by which the learned Judges granted an application, presented by the respondent No. I under article 226 of the Constitution, and directed a writ of certiorari to issue quashing the,, proceedings and order of <ORG>, Shimoga, dated the 15th January, 1953, in Shimoga Election Case No. 1 of 1952-53.

The facts material for purposes of this appeal may be briefly narrated as follows: The appellant and respondent No. 1, as well as eight other persons, who figured as respondents Nos. 2 to 9 in the proceeding before <ORG>, were duly nominated candidates for election to <ORG> from Tarikere Constituency at the general election of that State held in January , 1952. Five of these nominated candidates withdrew their candidature within the prescribed period and the actual contest at the election was between the remaining five candidates including the appellant and respondept No. 1. The polling took place on the 4th January, 1952, and the votes were counted on the 26th of January following. As a result, of the counting the respondent No. 1 was found to have secured 8,093 votes which was the largest in number and the appellant followed him closely having obtained 8,059 votes. The remaining three candidates, who were respondents Nos. 2, 3 and 4 before <ORG>, got respectively 6,239, 1,644 and 1,142 votes. The Returning Officer declared the respondent No. 1 to be the successful candidate and this declaration was published in <ORG> on the 11th February, 1952. The respondent No. 1. lodged his return of election expenses with the necessary declaration sometime after that and notice of this return was published on the 31st March, 1952. The appellant thereafter filed a petition before <ORG>, challenging the validity of the election, inter alia, on the grounds that there was violation of the election rules in regard, to certain matters and that the respondent No. I by himself or through his agents were guilty of a number of major corrupt practices which materially affected the result of the election. The petitioner prayed for a declaration that the election of respondent No. I was void and that he himself was duly elected. This petition, which bears date, 10th of April, 1952, was sent by registered post to <ORG> and was -actually received by the latter on the 14th of April,; following. <ORG> referred the matter for determination by <ORG> at Shimoga and it came up for hearing before it on the 25th of October, 1952. On that date the appellant filed an application for amendment of the -petition, heading it as one under Order VI, rule 17, of the Civil Procedure Code, and the only amendment sought for was a modification of the prayer clause by adding a prayer for declaring the entire election to be void. It was stated at the same time that in case this relief could not be granted, the petitioner would, in the alternative pray for the relief originally claimed by him, namely, that the election of respondent No. I should be declared to be void and the petitioner himself be held to be the elected candidate at the election. Despite the objection of respondent No. 1, the <ORG> granted this prayer for amendment. The hearing of the case then proceeded and on the averments made by the respective parties, as many as 27 issues were framed. Of them, issues Nos. 1, 5, 6, 11, 12 and 14 are material for our present purpose and they stand as follows :

(1) Has there been infringement of the rules relating to the time of commencement of poll by reason of the fact that the polling at Booth No. I for Ajjampur fixed at Ajjampur to take place at 8 A.m. did not really commence until about half an hour later as alleged in paragraph 4 of the petition ?

(5) Did the 1st respondent hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one <NAME>, as alleged in paragraph I of the particulars and thereby commit the corrupt practice referred to in it ?

(6) Did the 1st respondent take the assistance of a number of Government servants to further the prospects of his election as alleged in paragraph 2 of the list of particulars ?

(11) Is the return of election expenses lodged by the 1st respondent false in material particulars and has the 1st respondent omitted to include in the return of election expenses, expenses incurred by him in connection with the election which would easily exceed the sanctioned limit of, Rs. 5,000 as per particulars stated in paragraph 7 of the list of particulars (12) Has the election of the 1st respondent been procured and induced by the said corrupt practices with the result that the election has been materially affected ? (14) Would the petitioner have obtained a majority of votes had it not been for the aforesaid corrupt and illegal practices on the part of the first respondent? The <ORG> by a majority of 2 to 1 found all these issues in favour of the petitioner and against the respondent No. 1 and on the strength of their findings on these issues, declared the election of respondent No. 1 to be void and the petitioner to have been duly elected. The judgment of the <ORG> is dated the 15th of January, 1953. On the 5th February, 1953, the respondent No. I presented an application before <ORG> under article 226 of the Constitution praying for a writ or direction in the nature of certiorari calling for the records of the proceeding of the Election <ORG> in Election Petition No. I of 195253 and quashing the same including the order pro- nounced by the <ORG> as mentioned above. This application was heard by a Division Bench consisting of <NAME> and <NAME> and by their judgment dated the. 11th January, 1954, the learned Judges allowed the petition of respondent No. 1 and directed the issue of a writ of certiorari as praved for. It is against this judgment that the appellant has come up to this Court on the strength of a certificate granted by <ORG> under articles 132(1) and 133(1) (c) of the Constitution. The substantial contention raised by Mr. <NAME>, who appeared in support of the appeal, is, that the learned Judges of <ORG> misdirected themselves both on facts and law, in granting certiorari in the present case to quash the determination of the Election <ORG>. It is urged, that the <ORG> in deciding the matter in the way it did did not act either without jurisdiction or in excess of its authority, nor was there any error apparent on the face of the proceedings which could justify the issuing of a writ to quash the same. It is argued by the learned counsel that, what <ORG> has chosen to describe as errors of jurisdiction are really not matters which affect the competency of the <ORG> to enter or adjudicate upon the, matter in controversy between the parties and the reasons assigned by the learned Judges in support of their decision proceed upon a misreading and misconception of the :findings of fact which the <ORG> arrived at. Two points really arise for our consideration upon the contentions raised in this appeal. The first is, on what grounds could <ORG>, in exercise of its powers under article 226 of the Constitution, grant a writ of certiorari to quash the adjudication of the Election <ORG> ? The second is, whether such grounds did actually exist in the present case and are <ORG>'s findings on that point proper findings which should not be disturbed in appeal ? The principles upon which the superior <ORG> in England interfere by issuing writs of certiorari are fairly well known and they have generally formed the basis of decisions in our Indian <ORG>. It is true that there is lack of uniformity even in the pronouncements of English Judges, with regard to the grounds upon which a writ, or, as it is now said, an order of certiorari, could issue, but such differences of opinion are unavoidable in judge-made law which has developed through a long course of years. As is well known, the issue of the prerogative writs, within which certiorari is included, had their origin in England in the King's prerogative power of superintendence over the due observance of law by his officials and <ORG>s. The writ of certiorari is so named because in its original form it required that the King should be " certified of " the proceedings to be investigated and the object was to secure by the authority of a superior Court, that the jurisdiction of the inferior <ORG> should be properly exercised (1). These principles were transplanted to other parts of the King's dominions. In India, during the British days' the three chartered High <ORG> of Calcutta, Bombay and Madras were alone competent to issue (1) Vide Ryots of Garbandho v, <NAME> of Parlkime 70 I,A. 129 at page 140 writs and that too within specified limits and the power was not exercisable by the other High <ORG> at all. " In that situation " as this Court observed in <CITATION> (1), " the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the <ORG> in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on <ORG>s of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions " for any other purpose " being also included with a view apparently to place all <ORG>s-in this country in somewhat the same position as <ORG> in England."

The language used in articles 32 and 226 of our Constitution is very wide and the powers of <ORG> as well as of all the <ORG> in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be 'considered necessary for enforcement of the fundamental rights and in the case of the <ORG>, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law. One of the fundamental principles in regard to the issuing of a writ of certiorari is, that the. writ can be (I [1953] S.C.R. 1114 at 1150, of judicial acts. The expression " judicial acts " includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. <NAME> thus summed up the law on this point in <NAME> v. <ORG> (1) : " Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling Jurisdiction of the King's Bench Division exercised in these writs."

The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial <ORG>s or bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior <ORG> does not exercise the powers of an appellate <ORG>. It does not review or reweigh the evidence upon which the determination of the inferior <ORG> purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior <ORG>. The offending order or proceeding so to say is put out of the way as one which should not be used to the detriment of any person(2).

The supervision of the superior <ORG> exercised through writs of certiorari goes on two points, as has been expressed by Lord <NAME> in King v. <ORG> (3). One is the area of inferior jurisdiction and the qualifications and conditions of its exercise ; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of certiorari could be demanded. In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case.

(I) (1924] I K.B. 17I at 205.

(2) Vide Per Lord Cairns in Walshall's Overseers v. <ORG>, 4 A.C. 30, 39.

(3) [1922) 2 A.C. 128, 156,  Certiorari may lie and is generally granted when a <ORG> has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject-matter of the proceeding or from the absence of some preliminary proceeding or the <ORG> itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances(1). When the jurisdiction of the <ORG> depends upon the existence of some collateral fact, it is well settled that the <ORG> cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess (2).

A <ORG> may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of certiorari may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be amanifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. The essential features of the remedy by way of certiorari have been stated with remarkable brevity and clearness by <NAME> in the recent case of <NAME> v. Northumberland Compensation Appellate <ORG>(3). The Lord Justice says:

It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the, face of an order or decision or irregularity or absence of or excess of jurisdiction when shown."

In dealing with the powers of <ORG> under article 226 of the Constitution this <ORG> has expressed itself in almost similar terms(1) and said (I) Vide Halsbury, 2nd edition, Vol. IX, page 88o. (2) Vide Banbury v. <NAME>, 9 Exch. III ; R. v. Income Tax Special Purposes Commissioners, 21 Q,B.D. 313. (3) [19521 1 K.B. 338 at 357.

(4) Vide Veerappa Pillai v, <ORG>, [1952] S.C.R. at 594.

"Such writs as are referred to in article 226 are obviously intended to enable <ORG> to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction ,vested in them, or there is an error apparent on the face of the, record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable <ORG> to convert itself into <ORG> and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."

These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution.

We will now proceed to examine the judgment of <ORG> and see whether the learned Judges were right in holding that sufficient and proper grounds existed for the issue of certiorari in the present case.

The grounds upon which <ORG> has granted the writ have been placed in the judgment itself under three heads. The first head point; out in what matters <ORG> acted without jurisdiction. It is said, in this connection, that the <ORG> had no jurisdiction to extend the period of limitation for the presentation of the election petition and it had no authority also to allow the petitioner's prayer for amendment and to hear and dispose of the case on the basis of the amended petition. The second head relaters to acts in excess of jurisdiction. The <ORG>, it is said' acted in excess of jurisdiction in so far as it went into and decided questions not definitely pleaded and put in issue, and not only did it set aside the election of respondent No. 1 but declared the petitioner to have been duly elected, although there was no definite finding and no proper materials for arriving at a finding, that the petitioner could secure more votes than respondent No. 1 but for the corrupt practices of the latter.

The third head purports to deal with errors apparent on the face of the record. These apparent errors, according to <ORG>,, vitiated three of the material findings upon which the <ORG> based its decision. These findings relate to the commencement of polling at one of the polling booths much later than the scheduled time, the respondent No. 1's obtaining the services of a Government servant to further his prospects of election and also to his lodging a false return of expenses. We will take up these points for consideration one after another.

As regards absence of jurisdiction <ORG> is of opinion that the <ORG> acted without jurisdiction, first in extending the period of limitation in presentation of the election petition and secondly in allowing the petitioner's prayer for amendment and dealing with the case on the -basis of the amended petition. The view taken by <ORG> seems to be that under the Representation of the People Act (hereinafter called "the Act"), -no power is given to the Election <ORG> to condone the delay, if an election petition is presented after the period prescribed by the rules, nor is it competent to allow an amendment of the petition after it is presented, except in the matter of supplying further and better particulars of the illegal and corrupt practices set out in the list annexed to the petition, as contemplated by section 83(3) of the Act. Assuming, though not admitting, that the propositions of law enunciated by the learned Judges are correct, we do not think that they at all arise for consideration on the actual facts of the present case. As regards the first matter, the election petition, as stated above, was despatched bythe petitioner by registered post to <ORG> on the II th of April, 1952, and it reached the <ORG> on the 14th of April following. We may take it therefore that 14th of April was the date when the election petition could be deemed to have been presented to <ORG> under section 81(2)(b) of the Act. Under rule 119 of the Election Rules framed under the Act, an election petition against a returned candidate is to be presented at any time after the publication of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under rule 113, that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer. It is not disputed that this notice of the return of election expenses was published in <ORG> on the 31st of March, 1952, and the petition therefore was just in time as it was presented within and not later than 14 days from that date. <ORG> seems to think that in computing the period of 14 days the date of publication is to be included. This seems to us to be an unwarrantable view to take which is opposed to the ordinary canons of construction. Dr. <NAME> appearing for the respondent No. 1 plainly confessed his inability to support this view and we must hold therefore that there is no question of the <ORG>'s entertaining the election petition after the prescribed period in the present case.

Coming now to the question of amendment, <ORG>, after an elaborate discussion of the various provisions of the Act, came to the conclusion that <ORG> which is a special <ORG> endowed with special jurisdiction has no general power of allowing amendment of the pleadings, and that the express provision of section 83(3) of the Act, which empowers the <ORG> to allow amendments with respect to certain specified matters, impliedly excludes the power of allowing general amendment as is contemplated by Order VI, rule 17, of the Civil Procedure Code. Here again the discussion embarked upon by <ORG> seems to us to be unnecessary and uncalled for. The only amendment applied for by the petitioner was a modification in the prayer clause by insertion of an alternative prayer to the original prayer in the petition. No change whatsoever was sought to be introduced in- the actual averments in the petition and the original prayer which was kept intact was repeated in the application for amendment. The alternative prayer introduced by the amendment was not eventually allowed by the <ORG> which granted the prayer of the petitioner as it originally stood. In these circumstances the mere fact that the <ORG> granted the petitioner's application for amendment becomes altogether immaterial and has absolutely no bearing on the actual decision in the case. We are unable to hold therefore that the <ORG> acted without jurisdiction in respect to either of these two matters. The High <ORG> has held that the <ORG> acted in excess of its jurisdiction in entering into certain questions which are not covered by the pleadings of the parties and not specifically put in issue. The other act in excess of its authority committed by the <ORG>, according to <ORG>, is that it declared the petitioner to be a duly elected candidate, on a mere speculation although it did not find and had no materials to find that the petitioner could secure more votes than the respondent No. 1. On the first point the learned Judges have referred only to the allegation of corrupt practice made by the appellant, regarding the hiring and procuring by the respondent No. 1 of a motor bus belonging to <NAME> for transporting his voters to the polling booths. The issue framed on this point is issue No. 5 which is worded as follows: "Did the first respondent hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one <NAME>, as alleged in paragraph 1 of the list of particulars and thereby commit the corrupt practice referred to in it?"

The <ORG> found that the hiring of the bus by respondent No. 1 was not proved, but it was proved that the first respondent did procure the service bus of <NAME>, who was acting as his agent, for conveying his voters. The <ORG> further found that even if <NAME> was not an agent of the first respondent, as - he was actually carrying the voters of the latter from Gowrapur to Sollapur in a bus, which bore the first respondent's election symbol, with his knowledge and connivance, the first respondent must be held guilty of the corrupt practice in question. <ORG> says that as it was nowhere alleged in the petition that <NAME> was an agent of respondent No. I or that he was carrving the voters with his connivance, the <ORG> must be held to have acted 'in excess of its jurisdiction in going into matters which were not definitely pleaded. We do not think that this view of <ORG> can be supported. In paragraph 8 of the petition the appellant definitely stated that the first respondent by himself and through his agent committed major corrupt practices, one of which was the hiring or procuring of <NAME>'s motor bus. The <ORG> found, on a consideration of the evidence adduced in the case, that the motor bus was procured by the first respondent and his conduct in this respect, as disclosed by the evidence, showed that his voters were being carried by <NAME> with his knowledge and connivance. It may be pointed out that in

-paragraph 9 of the petition the petitioner clearly stated that the corrupt practices were committed by respondent No. 1, or his agents, or by several persons with his knowledge and connivance. The finding of the <ORG> arrived at on this point is a finding of fact based on evidence adduced by the parties and it is not in any way outside the pleadings or inconsistent therewith.

The other ground put forward by <ORG> that the <ORG> exceeded its jurisdiction in declaring the appellant to be the duly elected candidate, although it had no materials to come to the conclusion that he could have secured more votes than respondent No. 1 but for the corrupt practices committed by the latter, seems to us to be without substance. It appears that the learned Judges did not properly advert to the findings arrived at on this point by the Election <ORG>. The petitioner, it may be noted, got only 34 votes less than the respondent No. 1. The <ORG> has found that the bus of <NAME>, which was procured by respondent No. 1, did carry to the polling booths about 60 voters in two trips and in the, circumstances of the case it could be legitimately presumed that the majority of them did vote for respondent No. 1. If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latter's majority by 34 votes would be completely wiped out and the petitioner would gain an undisputed majority. In paragraph 33 of its judgment the <ORG>states as follows: "Hence on the 14th issue we hold that the petitioner would have obtained a majority of votes had it not been for the aforesaid corrupt practices on the part of the first respondent."

Thus the finding is there and there is evidence in support of it. Whether it is right or wrong is another matter and it may be that the view taken by the dissenting member of the <ORG> was the more proper; but it cannot be said that the <ORG> exceeded its jurisdiction in dealing with this matter.

We now come to what <ORG> has described as errors apparent on the face of the record. These errors, according to <ORG>, appear in respect of three of the findings arrived at by the <ORG>. The first of these findings relates to the time when the polling at Booth No. I at Ajjampur commenced on the date of election. The <ORG> has held that the time fixed by notification was 8 A.M. in the morning but the polling did not commence till 25 minutes after that and the result was that a number of voters went away. It is said that some of these voters would in all probability have voted for the appellant and as there was a difference of only 34 votes between him and the respondent No. 1 the results of the election have been materially affected by this irregularity or violation of the election rules. There was evidence undoubtedly to show that some of the voters went away as the polling did not commence at the scheduled time; but the exact number of these persons is not known and there could not be any positive evidence to show as to how many of them would have voted for the appellant. If the <ORG> had on the basis of these facts alone declared the appellant to be the duly elected candidate holding that he could have secured more votes than respondent No. 1, obviously this would have been an error apparent on the face of the record, as such conclusion would rest merely on a surmise and nothing else. The <ORG> however discussed this matter only in connection with the question as to whether the violation of any statutory rule or order in the holding of election did materially affect the result of the election which would entitle the <ORG> to declare the election of the returned candidate to be void under section 100(2) (c) of the Act. This, the <ORG> *as competent to do under the provisions of the Act and in doing so it could take into consideration the circumstances And probabilities of the case. But as we have stated already, the <ORG> declared the appellant to be duly elected upon the specific finding that, but for the corrupt' practice of respondent No. I in the matter of procuring the service bus of <NAME>, the appellant would have got majority of the votes. We cannot say that this is an error apparent on the face of the record which would entitle <ORG> to interfere by writ of certiorari.

As regards the other two findings, one relates to the receiving of assistance from <NAME>, who is a Patel, by respondent No. 1, in furtherance of his prospects of election. <ORG> does not dispute the facts alleged by the appellant that <NAME> accompanied the first respondent and actually canvassed at several places and that he openly canvassed at one polling booth on the polling day. The ]earned Judges say that even if these facts are believed, they only establish that <NAME> canvassed for the petitioner but that would not amount to respondent No. 1's taking assistance from him. This does not seem to us to be a proper view to take. There was allegation by the appellant of the respondent No. 1's taking assistance from a Government servant within the meaning of section 123(8) of the Act. In proof of the allegation evidence was given of the facts mentioned above. If from these facts, which were found to be true, the <ORG> drew the conclusion that there )lad been an assistance taken from a Government servant which would come within the purview of section 123(8) of the Act, it is impossible to say that this is an error apparent on the face of the record.

The remaining finding relates to the allegation of the petitioner that the respondent No. 1 in his return of election expenses omitted to include several items and if they had been taken into account the election expenses would have exceeded the sanctioned limit. The <ORG> has held that the respondent No. 1 omitted to include, in his return of expenses, the petrol charges, the hiring charges in respect of some cars and vans hired by him and also the dinner expenses incurred in the hotels. <ORG> has observed that as regards the first item the finding of the <ORG> is based on no evidence and rests on mere speculation. We do not think that we can accept this view as correct. The first respondent stated that he had used two cars which were his own and incurred petrol expenses to the extent of Rs. 1,083-3-0. The <ORG> has found in paragraph 29 of its order on the basis of both documentary and oral evidence that the respondent No. I had used six other cars and had purchased petrol for them for the purpose of his election campaign. The <ORG> held that the first respondent must have spent not less than the sum of Rs. 1,250 on this account which was not included in the list of expenses. We are unable to say that this finding rests on no evidence.

As regards the omission to include hiring charges <ORG> has observed that the <ORG> did not record any finding that such hiring was proved. The <ORG> has in fact found that as regards some cars they were hired, while others had been taken on loan, the money value for their use having been paid by the first respondent which is tantamount to saying that he had to pay the hiring charges. The matter has been dealt with in paragraph 29(d) of the <ORG>'s order and the entire evidence has been gone through. We are unable to say that the finding of the <ORG> that the respondent No. 1 had omitted to include in his return of election expenses the dinner and hotel charges is a finding unsupported by any evidence. Reference may be made in this connection to paragraph 29(f) of the <ORG>'s order which deals with the matter in detail. On the whole our opinion is that the so-called apparent errors pointed out by <ORG> are neither errors of law nor do they appear on the face of the record. An appellate Court might have on a review of this evidence come to a different conclusion but these are not matters which would justify the issue of a writ of certiorari. In our opinion the judgment of <ORG> cannot be supported and this appeal must be allowed. The writ issued by <ORG> will therefore be vacated. We make no order as to costs of this appeal.

Appeal allowed.


<NAME>, J.

1. In the year 1872 one <NAME> Chuckerbutty died leaving no child or near relation. Prior to his death he had been living with one <NAME> as his wife, and at his death this woman managed the ceremonies of his funeral, no other relative having then come forward, and she continued to live in <NAME>'s house and took possession of his property. About a year before his death, <NAME> had obtained a loan from the present plaintiff for a small amount. After <NAME>'s death, the plaintiff sued <NAME> as representative of <NAME>, describing her as his widow, for the amount of the loan. She did not defend the suit, and the plaintiff obtained a decree for Rs. 71-3-9.

2. When, however, the plaintiff went to execute his decree against the property of <NAME>, he found that it had all been transferred to the possession of the present defendant, <NAME>, the brother of <NAME>, with whom she had gone to reside. <NAME> was a distant relative of <NAME>, but he made no claim to the property on that account. He claimed under a will, by which he alleged that <NAME> had made him devisee of his whole property for the maintenance of <NAME> and the performance of certain religious ceremonies, and subject thereto for his own benefit.

3. The value of the estate is not mentioned, but it is very small. There were some other debts due by the estate.

4. <NAME>, after the plaintiff had got his decree against <NAME>, obtained probate of the will, and then applied that the property which the plaintiff had attached in execution of his decree might be released from attachment, which application was granted.

5. The plaintiff then brought this suit to have it declared that the property of <NAME> in the hands of <NAME> was liable to satisfy the decree which he obtained against <NAME> as representative of the deceased.

6. The Courts below have found upon evidence that the debt was really due by <NAME>; that the plaintiff brought his suit against <NAME> in good faith, believing her to be the true representative of <NAME>; and that <NAME>, though he was aware of these proceedings, and knew what mistake the plaintiff was making, purposely abstained from coming forward or saying anything about the will. It also appears that <NAME> was not the wife of <NAME>, but the widow of a relation living under his protection. Both Courts have declared the property in the hands of the defendant <NAME>, belonging to the estate of <NAME>, to be liable to be taken in execution of the plaintiff's decree. The defendant <NAME> has appealed. There is no doubt that it will be a grievous hardship upon the plaintiff if he fails in this suit. If he cannot enforce the decree which he obtained against <NAME>, he will lose the debt which is justly due to him; for the cause of action on the original bond has been barred long ago, and yet the plaintiff has been diligently pursuing his remedy against the person who, he had every reason to believe, was the true representative of the deceased.

7. The question is really this--are the creditors of a deceased person liable to have their claims defeated by the trick of keeping secret the existence of a will until their claims are barred by limitation?

8. If this had been the estate of a European British subject, there would have been no difficulty. Under Section 206 of the Succession Act, the plaintiff as a creditor might have applied for letters of administration. Then, whether the party in possession of the will had produced it or not, the administration would have gone on, and the creditors would not have lost their remedy. But Section 206 of the Succession Act does not apply to Hindus.

9. The executor does not represent the deceased by virtue of the will until he has obtained probate. Who then represents the deceased who has left a will from his death until probate has been obtained? Surely some one must do so, or the law would not have provided that the Statute of Limitations should run between the death and the grant of probate as it undoubtedly does.

10. The decisions of the Courts in India have been liberal in recognizing the acts of the de facto manager of a deceased's estate as valid. If <NAME> had actually paid the debt of the plaintiff, or if the plaintiff had actually seized and sold the property of the deceased whilst in her possession, and had received payment out of the proceeds, I do not think the executor could have recovered back either the money paid to the plaintiff or the property sold in execution (see the cases set out in my judgment in the case of <CITATION> , 4 Cal. p. 142, see p. 156; s.c., 2 C.L.R., 223).

11. Upon the whole, I think that, until some other claimant comes forward, the party who takes possession of the estate of a deceased Hindu must, in the present state of the law, be treated for some purposes as his representative, and that a judgment obtained against such a representative is not a mere nullity. Even if it cannot be executed against the estate in the hands of the executor when be has taken out probate, it is at any rate sufficient to enable the plaintiff to bring a suit against the executor in order to have the decree satisfied.

12. I give this opinion with some hesitation as the subject is one which in its general bearings has not been much considered. But, on the whole, I think that this view of the matter, whilst it meets the justice of the case, is in accordance with decided cases.

13. I think, therefore, that the decree of the <NAME> was right, and should be affirmed, and that this appeal should be dismissed with costs.


ORDER

1. Having regard to the fact that no appeal has been carried against the orders of identical assessment for the previous year, the civil appeals and special leave petitions are dismissed.

2. No order as to costs.


PETITIONER: D.R. NIM, I. P. S. Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 05/01/1967 BENCH: <NAME>, S.M. BENCH: <NAME>, S.M. RAO, K. SUBBA (CJ) SHAH, J.C. RAMASWAMI, V. VAIDYIALINGAM, C.A. CITATION: 1967 AIR 1301 1967 SCR (2) 325 CITATOR INFO : F 1969 SC1249 (26) RF 1971 SC1814 (6,11,17) R 1972 SC2350 (14) R 1975 SC 538 (27) F 1983 SC 130 (52) R 1986 SC 638 (19) RF 1992 SC1363 (11) ACT: Civil Service--Indian Police Service (Regulation of Seniority) Rules, 1954, r. 3--Officer appointed by promotion--Seniority, how determined. HEADNOTE: Under r. 3 of <ORG> (Regulation of Seniority) Rules, 1954, issued under s. 3(1) of the All India Services Act, 1951, he mode of determining the seniority of officers of <ORG> is as follows : The officers are divided into categories : (1) those in the Service at the commencement of the Rules, and (2) those appointed to the Service after the commencement of the Rules. The second category is divided into two sub- categories : (a) officers appointed as a result of a competitive examination, and (b) officers appointed by promotion in accordance with r. 9 of the Recruitment Rules. The year of allotment of an office which determines his seniority, is determined according to r. 3(3)(a) or (b). But if an officer started officiating continuously in a senior post from a date earlier than the date on which any of the officers was recruited to the Service by competition, the year of allotment had to be determined ad hoc by <ORG>, under proviso (1) to r. 3(3)(b), and under proviso (2) to r. 3(3)(b) the period of officiation before the date of inclusion of the name of an officer in the Select List prepared in accordance with the requirements of <ORG> (Appointment by Promotion) Regulations. would be counted, only if such period was approved by <ORG> in consultation with <ORG>. The appellant was officiating as Superintendent of Police from June 1947, that is from a date earlier than the date of any officer recruited by competition, and was appointed to <ORG> by promotion in 1955 after the commencement of the Seniority Rules. His name was included in the Select List in 1956. The Government passed an order on 25th August 1955, that officers promoted to <ORG> should be allowed the benefit of their continuous officiation with effect only from 19th May 1951. The appellant challenged the order by a petition under Art. 226 , because the period of his officiation from June 1947 to May 1951 has excluded for the purpose of fixation of his seniority. <ORG> dismissed the petition. In appeal to this Court, HELD: The impugned order dated 25th August, 1955 should be quashed and <ORG> directed to fix the year of allotment and seniority of the appellant according to law. The date 19th May 1951, was an artificial and arbitrary date having nothing to, do with the application of the first and the second provisos to r. 3(3). It has some relevance for <ORG>, but why it should be applied to <ORG> was not adequately explained. Under the two provisos, <ORG> had to determine ad hoc the year of allotment after approving or not approving the period of officiation in consultation with <ORG> taking into consideration all the relevant facts. <ORG> cannot pick out a date and say that a period prior to that date would not be deemed to be approved by <ORG> within the second proviso. [331 B, E-G] (2) In view of the facts that he was officiating for eight years, that he had never been reverted and that he was appointed to the post when vacancies fell,. it could not be held that the appellant's continuous officiation a mere temporary or local or stop-gap arrangement, within the meaning of Explanation 1 to r. 3 (3) (b). [3 32 G] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 371 of 1965- Appeal by special leave from the judgment and order dated December 8, 1961 of <ORG> at Delhi in Civil Writ No, 507-D of 1961.

<NAME>, <NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, <NAME> and <NAME>, for the respondent.

<NAME>, <NAME> and <NAME>, for the intervener.

The Judgment of the Court was delivered by <NAME>, J. This appeal by special leave is directed against the judgment of the Circuit Bench of <ORG> at Delhi, dismissing in limine the petition under art. 226 of the Constitution filed by the appellant, <NAME>. The appellant had impugned in this petition an order dated August 25, 1955, passed by <ORG>, (<ORG> referred to as the impugned order-as being contrary to law and art. 14 of the Constitution.

The relevant facts for the determination of the validity of the impugned order are as follows: The appellant was appointed to <ORG> as a result of a competitive examination held in 1938. In course of time he was appointed officiating Superintendent of Police with effect from June 25, 1947. He continued to officiate till he was appointed to <ORG> against the promotion quota of <ORG> Cadre of Uttar Pradesh with effect from October 22, 1955. By the time he was appointed to <ORG> various Rules and Regulations governing <ORG> had been issued by <ORG> in exercise of the powers conferred by sub-s. (1) of s. 3 of the All India Services Act (LXI of 1951). We are concerned particularly with <ORG> (Regulation of Seniority) Rules, 1954, hereinafter referred to as the Seniority Rules. The seniority of the appellant has to be determined under these Seniority Rules. The first thing to be done under the Seniority Rules is to determine the year of allotment of the appellant. The appellant claims that a wrong year of allotment has been given to him by the application of the impugned order, which, according to him, is a void order. Rule 3, which deals with the assignment of the year of allotment reads as follows:

"3. Assignment of Year of Allotment.-(1) Every officer shall be assigned a year of allotment in accordance with the provisions hereinafter contained in this rule. (2) The year of allotment of an officer in service at the commencement of these rules shall be the same as has been assigned to him or may be assigned to him by <ORG> in accordance with the orders and instructions in force immediately before the commencement of these rules:

Provided that where the year of allotment of an officer appointed in accordance with rule 9 of the Recruitment Rules has not been determined prior to the commencement of these Rules, his year of allotment shall be determined in accordance with the provision in clause (b) of sub-rule (3) of this rule and for this purpose, such officer shall be deemed to have officiated in a senior post only if and for the period for which he was approved for such officiation by <ORG> in consultation with the <ORG>. (3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be

(a) where the officer is appointed to the Service on the results of a competitive examination, the year following the year in which such examination was held;

(b) where the officer is appointed to the Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior-most among the officers recruited to the Service in accordance with rule 7 of those Rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former: Provided that the year of appointment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined ad hoc by <ORG> in consultation with the State Government concerned Provided further that an officer appointed to the Service after the commencement of these Rules in accor-

dance with rule 9 of the Recruitment Rules shall be deemed to have officiated continuously in a senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulations framed under rule 9 of the Recruitment Rules, if the period of such officiation prior to that date is approved by <ORG> in consultation with the <ORG>. Explanation 1.-An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion as senior post otherwise than as a purely temporary or local arrangement.

Explanation 2.-An officer shall be treated as having officiated in a senior post during any period in respect of which <ORG> concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post of any other exceptional circumstance."

Sub-rule (1) clearly makes Rule 3 the Controlling Rule for the purposes of assignment of the year of allotment. The Rule then divides officers into two categories: (1) an officer in <ORG> at the commencement of the Rules, and (2) an officer appointed to <ORG> after the commencement of the Rules. We are concerned with the second category as the appellant was appointed to <ORG> in 1955. The second category is again divided into two sub-categories: (a) officer appointed to the service as a result of a competitive examination, and (b) officer appointed to the service by promotion in accordance with Rule 9 of the Recruitment Rules. As the appellant was appointed to the Service by promotion, we are concerned with the second sub- category. The formula adopted works out as follows first find out the year of allotment of the junior-most among the officers recruited to the service by competition, who officiated continuously in a senior post from a date earlier than the date of commencement of officiation of the appellant. We may again mention that the appellant started officiating as Superintendent of Police on June 25, 1947. But, according to the first proviso, if the appellant started officiating continuously in a senior post from a date earlier than the date of any officer recruited by competition his allotment had to be determined ad hoc by <ORG>. According to the facts of this case, the first proviso applies and not the test provided in rule 3(3) (b) of the Seniority Rules. The second proviso limits the operation of the first proviso by dividing the officiating period into two classes: first, a period before the date of inclusion of an officer in the Select List and, secondly, the period after that date. The first period can only be counted if such period is approved by <ORG> in consultation with the <ORG>. The appellant's name was included in the Select List of 1956. Therefore, in the case of the appellant, the period prior to 1956 had to be approved by <ORG> in consultation with the <ORG>.

We may here notice Explanation 1 to Rule 3, because the government of India also say that the appellant officiated continuously as a temporary or local arrangement. We will deal with this aspect later, but for the time being we assume that there is no force in <ORG> contention and the Explanation does not apply to the facts of the present case. Therefore, according to the Rule <ORG> had to determine ad hoc the year of allotment after approving or not approving the period of officiation of the appellant before 1956. <ORG> say that they determined this by issuing the impugned order, the relevant part of which reads as follows:

"<ORG> have now decided with the concurrence of the <ORG> that the State Civil Service Officers who were officiating prior to 19th May, 1951, but have been appointed to <ORG> after that date should, for purposes of fixation of seniority, be allowed the benefit of their continuous officiation in senior posts with effect from the 19th May, 1951. The same decision will also apply in the case of State Police Officers promoted to <ORG> after the 19th May, 1951."

The result of this decision, as far as the appellant is concerned, is that the period of officiation as Superintendent of Police from June 25, 1947 to May 19, 1951, is excluded for the purpose of fixation of seniority. Why the date May 19, 1951, was chosen is explained by <ORG> in the following terms in paras 8 and 9 of the affidavit dated May 15, 1966:

"8. While recruitment to the Service through these diverse unconventional sources was being made over the years, the question of fixation of seniority and year of allotment was subseqently considered and instructions were issued vide Shri <NAME> letter No. 1/18/51-AIS dated 22nd June, 1951 prescribing the detailed procedure as to how the seniority and the year of allotment of each officer and for each category of recruitment should be fixed. The said letter finds mention in the appeal paper book at pages 45-49. It can be said that with the issue of this le tter the position regarding principles for the fixation of seniority and year of allotment of officers that had been recruited to the <ORG> prior to this date had been finalised and stabilised.

9.At this stage, it was noticed that there still were some <ORG> Officers who had not qualified at the various recruitments made for the <ORG> in previous years and continued to hold senior posts on account of paucity of officers. It was further realised that if, for determination of seniority and year of allotment, the principle of date of continuous officiation is applied in such case such <ORG> Officers who had been rejected on earlier occasions would on eventual absorption into the <ORG> through the regular promotion quota become entitled to higher seniority and year of allotment than those who had been selected in preference to them at the time of the promotions made and the Special Recruitment held in earlier years. This would have been a very anomalous position for those selected on such occasions who would have found themselves junior to those who had been rejected at the time of such selection. In consultation with <ORG> and with <ORG>, it was, therefore, decided that in the case of <ORG> Officers appointed to the <ORG> after 19th May, 1951, their officiation prior to this date would not count for purposes of seniority and year of allotment. In other words, all such officiation prior to this date would be regarded as fortuitous. It was also felt that since 19th May, 1951 was the date on which the Gradation List for all the earlier persons recruited to the <ORG> had been finalised and issued in a somewhat stable stage, this may be a crucial date, and officiation prior to which could be regarded as fortuitous. It may be mentioned that this date refers to the finalisation of the Gradation List for the <ORG> but since the same principles were extended to the <ORG> as well, it was decided to retain this as the crucial date. It may be reiterated that this decision was taken after consultation with the State Governments and the U.P.S.C. I would say that there is no arbitrariness in this matter and that this was done after consulting all concerned and after evolving a sound principle which would be consistent with the view that those who had been selected for recruitment on earlier occasions should not, by application of a principle, become junior to those who on such occasions had been rejected. I may also mention that the said date had been uniformly applied to all officers in this category."

It would be noticed that the date, May 19, 1951, to begin with had nothing to do with the finlisation of the Gradation List of <ORG> because it was a date which had reference to the finalisation of the Gradation List for the <ORG> Further this date does not seem to have much relevance to the question of avoiding the anomalous position mentioned in para 9 of the affidavit, reproduced above. This date was apparently chosen for the <ORG> because on this date the Gradation List for in the earlier persons recruited to the Service had been finalised and issued in a somewhat stable stage. But why should this date be applied to <ORG> has not been adequately explained. Mr. <NAME>, the learned counsel for the appellant, strongly urges that selection of May 19, 1951, as a crucial date for classifying people is arbitrary and irrational. We agree with him in this respect. It further appears from the affidavit of Mr. <NAME>, Deputy Secretary to <ORG>, <ORG>, dated December 9, 1966, that "<ORG> have recently decided in consultation with <ORG> that the <ORG> letter No. 2/32/51-AIS, dated the 25th August, 1955, will not be applicable to those SCS/ SPS officers, who were a pointed to <ORG> prior to the promulgation of <ORG> (Regulation of Seniority) Rules, 1954, and the date of the issue of the above letter if their earlier continuous officiation' was approved by the <ORG> and <ORG>." It further,appears that "in the case of <NAME> also, an <ORG> officer of Bihar, a decision has been taken to give the benefit of full continuous officiation in senior posts and to revise his year of allotment accordingly." But, it is stated that "as <NAME> was appointed to <ORG> on the 22nd October, 1955, i.e. after the promulgation of <ORG> (Regulation of Seniority) Rules, 1954, and after the issue of letter dated 25-8-1955, his case does not fall even under this category." The above statement of the case of the <ORG> further shows that the date, May 19, 1951 was an artificial and arbitrary date having nothing to do with the application of the first and the second provisos to Rule 3(3). It appears to us that under the second proviso to Rule 3(3) the period of officiation of a particular officer has to be considered and approved or disapproved by the Central <ORG> in consultation with the <ORG> considering all the relevant facts. The Central <ORG> cannot pick out a date from a hat and that is what it seems to have done in this case-and say that a period prior to that date would not be deemed to be approved by the Central <ORG> within the second proviso.

Mr. <NAME> had contended before us that on a proper construction of the rules, the entire period of officiation in a senior post has to be counted towards the seniority of the appellant. We have already discussed this point above and, in our opinion, there is no force in this contention. As we have said, <ORG> must consider the question of approval of the officiation period and come to an ad hoc decision after considering all the relevant circumstances in consultation with <ORG> concerned and fix the year of allotment. The next point Mr. <NAME> raised was that the letter dated August 25, 1955, was without any legal authority and was contrary to rules. It seems to us that the fixing of an artificial date, like May 19, 1951, as the date prior to which period of officiation would not be deemed to be approved by <ORG> is contrary to Rule 3. The last point which Mr. <NAME> raised was that the appellant for no valid reason has been treated unequally among his equals. It is not necessary to decide this point because the appeal has to be accepted on the ground that the selection of May 19, 1951, as a ,crucial date for classifying people is arbitrary and contrary to Rule 3. We had earlier left open the point raised by <ORG>India that the appellant's continuous officiation was a temporary or local arrangement within Explanation 1 to Rule

3. This is sought to be sustained by the following statement in the affidavit dated March 15, 1966:

"When vacancies could not be filled up even by this method, recruitment from the open market was resorted to. All officers thus recruited to the Service were initially appointed in the Junior Scale of the I.P.S.

The result was that there were some senior posts that had to be filled and some State Polic e Service Officers who had not been selected to the Service through any of the above recruitment methods were, in view of the existing paucity of officers, allowed to officiate on senior posts as a stop-gap arrangement. I say that all such <ORG> Officers who were officiating on senior posts due to shortage of officers were primarily those who had been considered for absorption into the <ORG> under the Promotion Quota or under the Emergency Recruitment but had not been found fit for such absorption." This statement is denied by the appellant. We agree with him that such a stop-gap arrangement cannot last for eight years :and it has not been shown that the appellant was appointed temporarily in place of some persons as subsequently he has never been reverted. Further the fact that he was appointed to the post at the time when vacancies fell negatives that it was merely a temporary arrangement. In the result we accept the appeal, quash the impugned order dated August 25, 1955, and direct <ORG> to fix the year of allotment and seniority of the appellant in accordance ,with this judgment and the law. The respondent will pay costs of the appellant in this appeal. Appeal allowed.

V.P.S.