PETITIONER: STATE OF PUNJAB Vs. RESPONDENT: <NAME> AND <NAME>. DATE OF JUDGMENT06/08/1973 BENCH: <NAME>, <NAME>: <NAME>, <NAME>, A. CITATION: 1973 AIR 2407 1974 SCR (1) 328 1974 SCC (3) 277 CITATOR INFO : RF 1973 SC2773 (25) R 1977 SC 472 (13) R 1983 SC 867 (25) ACT: Criminal practice and procedure-Appreciation of evidence and sentence. HEADNOTE: The respondents were convicted of murder and sentenced to death. <ORG> acquitted them in appeal. In appeal to this Court, setting aside the acquittal, HELD : (1) A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures. [337F-H] In the present case, <ORG> has rejected the prosecution evidence which was ex facie of a convincing nature on grounds which partake of the nature of conjectures and surmises. The view taken by <ORG> is manifestly unreasonable and has resulted in miscarriage of justice. A perusal of the judgment of <ORG> shows that in acquitting the accused respondents, <ORG> approached the entire matter in a spirit of distrust and suspicion of the various officers who dealt with the case. [337H-338B] (2) <ORG>, while rejecting the prosecution evidence, made unwarranted criticism couched in harsh language about the magistrate who received the copy of F.I.R., the doctor, the investigating officer and the Sessions Judge who tried the case. [337E-F] (3) In view of the fact that more than two years had elapsed since <ORG> acquitted the respondents, it would be more appropriate to sentence the accused to imprisonment for life instead of to the extreme penalty. [338B-C] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 7 of 1972.

Appeal by special Leave from the judgment and order dated 25-2-1971 of <ORG> in Crl. Appeal No. 1031/70.

<NAME> and <NAME>, for the appellant. <NAME> and <NAME>, for the respondents. The Judgment of the Court was delivered by <NAME>, <NAME> accused <NAME> (27), <NAME> (36), <NAME> (30), <NAME> (38), <NAME> (27). <NAME> (22), <NAME> (19), <NAME> (22) and <NAME> (23) were tried in the court of Sessions Judge <NAME> in connection, with an occurrence which took place on July 8, 1948 in village Longowal Khurd. In the course of that occurrence <NAME> (35), <NAME> (30,) and <NAME> (25) received fatal in-

juries. Injuries were also received by <NAME>, <NAME>, <NAME> and <NAME> PWs. Learned Sessions Judge convicted <NAME> and <NAME> under section 302 Indian Penal Code on two counts for causing the death of <NAME> and <NAME> deceased and sentenced them to death on each count. The said two accused were also convicted under section 302 read with section 34 Indian Penal Code in connection with the murder of <NAME> and were sentenced to undergo imprisonment for life on that account. In addition to that, the aforesaid two accused were convicted under section 307 Indian Penal Code on four counts for the injuries caused to <NAME>, <NAME>, <NAME> and <NAME> PWs and were sentenced to undergo rigorous imprisonment for a period of three years on each count. <NAME> accused was convicted under section 302 Indian Penal Code for causing the death of <NAME> deceased and was sentenced to death. In connection with the death of <NAME> and <NAME>, <NAME> was convicted under section 302 read with section 34 Indian Penal Code on two counts and was sentenced to undergo imprisonment for life. <NAME> was, in addition, convicted under section 307 read with section 34 Indian Penal Code for injuries caused to <NAME>, <NAME>, <NAME> and <NAME> and was sentenced to undergo rigorous imprisonment for a period of three years on each count. The remaining six accused were acquitted by the, Sessions Judge. On appeal and reference, <ORG> acquitted <NAME>, <NAME> and <NAME> by giving them the benefit of doubt. The State of Punjab has now come up in appeal to this Court by special leave against the judgment of <ORG> acquitting the above mentioned three accused respondents. Out of the nine accused, <NAME>, <NAME> and <NAME> are brothers. Likewise, <NAME>, <NAME> and <NAME> accused are brothers. <NAME> accused, who is a constable in <ORG>, add <NAME> accused too are brothers. <NAME> accused is the maternal uncle of <NAME>. Amongst the three deceased persons, <NAME> and <NAME> were brothers. <NAME> (PW 8) and <NAME> (PW 27) are the brothers of those two deceased persons. <NAME> (PW 21 ) is brother of <NAME> deceased. The prosecution case is that the relations between the party of the accused and that of the deceased persons were strained for about 10 or 12 years before the occurrence, and the two groups had since then been involved in a number of cross criminal cases. About two years before the occurrence, <NAME> deceased along with some others had caused injuries to <NAME> and <NAME>, uncle of <NAME> accused. A criminal case was on that account pending in. the court of Magistrate <NAME>. July 8, 1968 was the date of hearing in that case and on that day <NAME> (PW 8) accompanied <NAME> to the court at <NAME> for pursuing that case. After the proceedings of the case were over, <NAME> (PW 8) came back with <NAME> deceased to his house in village Longowal Khurd. Longowal Khurd is at a distance of about two-and-a-half miles from <NAME>. The house of <NAME> deceased was at a short distance from that of <NAME> in Longowal Khurd. <NAME> (PW 8) himself lived in Longowal Kalan which is at a distance of about two and a half furlongs from Longowal Khurd. When <NAME> (PW 8) was still present at the house of <NAME> deceased, it is stated, they heard the noise of changars (challenging shouts) from near the, house of <NAME> deceased. Hearing the noise of changars, <NAME> deceased and his brother <NAME>, (PW 21) went to the house of <NAME>. <NAME> PW also followed them to the house. of <NAME>. On arrival there <NAME> (PW

8) found <NAME>, <NAME> and <NAME> deceased as well as <NAME> (PW 19), <NAME> (PW 22), <NAME> (PW 27), <NAME> (PW 21), <NAME> (PW 25) and <NAME> (PW 26), present in the courtyard of <NAME> house. <NAME>, wife of <NAME>, and <NAME>, wife of <NAME>, too were present there. The nine accused are then stated to have come near the compound wall of the courtyard of <NAME>'s house. The compound wall was about sixand-a-half feet high from outside and four-and-a half feet high from inside because the courtyard was at a higher level than the ground outside. At the instigation of <NAME>, <NAME> and <NAME> accused, it is stated, <NAME> and <NAME> accused threw one hand-grenade each into the courtyard of <NAME>'s house. Both the hand-grenades exploded in the courtyard as a result of which <NAME>, <NAME> and <NAME> deceased and <NAME>, <NAME>, <NAME> and <NAME> PWs received injuries. All the nine accused then came inside the courtyard of the house of <NAME> deceased. <NAME> and <NAME> accused were armed with spears. <NAME>, <NAME>, <NAME>, <NAME> and <NAME> accused had kirpans, while <NAME> and <NAME> were empty handed. <NAME> accused on arrival delivered a spear blow in the left flank of <NAME> deceased. <NAME> accused also gave a spear blow on the right arm of <NAME> accused dealt a kirpan blow on the nose of <NAME> PW, while <NAME> accused gave a blow with his sheathed kirpan on the back of <NAME> PW. <NAME> accused stepped towards <NAME>,. (PW 8) for attacking him with a kirpan whereupon <NAME> (PW 8) took up a panda from the courtyard of <NAME> and brandished it towards <NAME>. One blow with that danda was given on the left shoulder of <NAME> accused. Those present in the courtyard also raised alarm whereupon the nine accused ran away.

Some water was then poured into the mouth of <NAME>, but he succumbed to the injuries received by Mm. <NAME> and <NAME> PWs then brought a cart from the house of <NAME> (PW 8). <NAME> and <NAME> deceased were laid an that cart. <NAME> (PW 8), <NAME>, <NAME> and <NAME> then took that cart to Batala hospital. When they arrived near the hospital, <NAME> (PW 8) went to police station Sadar Batala and lodged there report P.A. at 11.15 p.m. Sub Inspector <NAME> (PW 30) then went to the hospital. Before doing so, the Sub Inspector deputed two Assistant Sub Inspectors and four constables to proceed to the place of occurrence. Sub Inspector <NAME> found <NAME> and <NAME> present in the hospital. Their injuries were being examined by Dr. <NAME> when the Sub Inspector arrived there. On the applications of the Sub Inspector, Dr. <NAME> made an endorsement that <NAME> and <NAME> were in fit condition to make statements. The Sub Inspector then deputed a head constable to call the magistrate having jurisdiction in the area. It was raining heavily at that time and as the magistrate did not arrive, the Sub Inspector recorded the dying declarations of <NAME> and <NAME> in the presence of Dr. <NAME>. The condition of <NAME> and <NAME> was found to be serious and so they were sent to <ORG> Amritsar. Sub Inspector <NAME> then went from Batala hospital to the place of occurrence and reached there at 5 a.m. The Sub Inspector found the dead body of <NAME> lying on a cot. The Sub Inspector prepared inquest report relating to the dead body of <NAME>. Blood-stained earth was taken into possession from three places in the courtyard of <NAME>'s house. The, Sub Inspector also took into possession lever PI, percussion cap P2 and four pieces of exploded hand-grenade from the place of occurrence and put them into a sealed parcel.

Injuries of <NAME>, <NAME> and <NAME> were examined by Dr. <NAME> on July 9. <NAME> was found to have two lacerated wounds, one on his right index finger and the other on the bridge of his nose. Both the injuries were grievous. <NAME> was found to have one punctured wound with averted lacerated margins on his right thigh, while <NAME> had one lacerated wound on the right side of his neck. The injuries of <NAME> and <NAME> were found to be simple. <NAME> was examined by Dr. <NAME> on July 10, 1968 and was found to have four simple injuries on his person.

<NAME> and <NAME> who were sent to <ORG> Amritsar succumbed to their injuries on July 10 and 11, 1968 respectively. Post mortem examination on the dead bodies of <NAME> and <NAME> was performed by Dr. <NAME> on July 11, 1968.

The lever, precussion cap and the other parts of the hand- grenades which had been recovered from the place of occurrence were sent to PW 20 <NAME>, Senior Inspector of Explosives. <NAME> expressed the opinion that the above articles were the remnants of an exploded hand-grenade.

At the trial the plea of the nine accused was denial simpliciter. <NAME> and <NAME> accused, in the course of their statements ' also added that they had heard changers on the night of occurrence at about 10 p.m. from the direction of guru dwarf. The explosion of a bomb was also heard at that time but these two accused did not stir out of their houses. Defence evidence was led on behalf of the accused. The purport of the defence evidence was that one <NAME> had been admitted into <ORG> with multiple injuries on the night between July 8 and 9, 1968. A metallic substance was thereafter recovered from the body of <NAME> on July 20, 1968. Defence evidence was also led to show that <NAME> deceased, who was a bus driver of the Punjab Roadways, was away to Pathankot at about 7 p.m. on the day of occurrence.

Learned Sessions Judge found that the prosecution case against <NAME>, <NAME> and <NAME> accused had been proved beyond any shadow of doubt. He accepted the ocular evidence produced in the case. Reliance was, however, not placed upon the dying declarations of <NAME> and <NAME>. The remaining six accused were given the benefit of doubt and were acquitted. <ORG> on appeal and reference acquitted <NAME>, <NAME> and <NAME> also by giving them the benefit of doubt for reasons which would be dealt with hereafter. In appeal before us Mr. <NAME> on behalf of the appellant state has argued that <ORG> was in error in setting aside the conviction of the three accused- respondents and the view taken by <ORG> was manifestly unreasonable. As against that Mr. <NAME> on behalf of the respondents has canvassed for the correctness of the view taken by <ORG>. There is, in our opinion, considerable force in the stand taken on behalf of the appellant. The evidence of Dr. <NAME>, who performed postmortem examination on the body of <NAME>, shows that there were five injuries on the body of the deceased. Out of them, three could be caused with a hand-grenade, while two had been caused with a sharp pointed weapon. One of the last two mentioned injuries was a punctured incised wound on the back of the right forearm, while the other injury.was as under :

"Punctured incised wound 1"X3/4" with clean cut margins, over 5th rib and 5th left intercostal space in mid axillary line with fracture of 5th rib, puncture of left lung near the fissure, went through the entire lung, cross punctured the walls of left auricle, haematoma over the lung and pleural cavity pleura punctured left side, pericardium puncture".

The above mentioned injury was sufficient in ordinary course of nature to cause death. The evidence of Dr. <NAME>, who performed postmortem examination on the bodies of <NAME> and <NAME>, shows that <NAME> had three lacerated wounds which could be caused with a hand-grenade. Likewise, <NAME> had two injuries which could be caused with a hand-grenade. The following injury of <NAME> was sufficient in ordinary course of nature to cause death :

"A penetrating wound 1-1/2" roundish, with lacerated margins 1"' to the left of the mid- epigastric line 3" above the umbilicus with omentum seen out of the wound. There was no charring of the margins."

In the case of <NAME>, the fatal injury was in the abdominal cavity. Operation had been performed at the site of the injury in an attempt to save <NAME>. According to the prosecution case, the hand-grenade injuries to the three deceased persons and injured prosecution witnesses were caused by <NAME> and <NAME> accused when they threw the handgrenades in the courtyard of <NAME> house. It is further the case of the prosecution that the fatal punctured incised wound in mid axillary line of <NAME> deceased was caused by <NAME> accused when he gave the spear blow to <NAME> deceased. The prosecution in support of the above allegations has examined <NAME> (PW 9), <NAME> (PW

19), <NAME> (PW 21), <NAME> (PW 22), <NAME> (PW 25), <NAME> s/o <NAME> (PW 26) and <NAME> (PW 27) as eye witnesses of the occurrence. There appears, in our opinion. to be no cogent ground as to why the evidence of the above mention'ed witnesses. regarding the complicity of the accused-respondents be not accepted. It is, no doubt, true as pointed out by Mr. <NAME>, that these witnesses belong to the party of the deceased but that fact, in our opinion, would only make the court scrutinise the evidence of these witnesses more closely. If their evidence can stand that test, as it does in the present case, there is no reason why it should not be acted upon. Some of the witnesses are close relatives of the deceased persons and it is most difficult to believe that they would spare the real assailants and falsely mention the names of innocent persons as having caused the injuries to the deceased persons. Four of the eye witnesses, namely, <NAME> (PW 19), <NAME> (PW

21), <NAME> (PW 22) and <NAME> (PW 27) received injuries during the course of the present occurrence and there can be hardly any manner of doubt re- garding their presence at the scene of occurrence. It is not possible to accept the contention that these witnesses in spite of the attack upon them and the three deceased persons failed to fix the identity of the assailants. Another fact of which note should be taken is that the first information report in this case was lodged at 11.15 p.m., within a few hours of the occurrence. Although Mr. <NAME> has urged that there was delay in lodging the first information report, we find it difficult to accept this submission. The occurrence, according to the prosecution case, took place at 7.15 p.m. As a result of the occurrence, <NAME> died soon thereafter, while <NAME> and <NAME> received serious injuries. In addition to that, four prosecution witnesses also received injuries. It is plain that the prosecution witnesses must have got stunned because of the sudden occurrence in the course of which three of their close relatives received injuries which ultimately proved fatal and four others were also injured. Attempt was made to pour water into the mouth of <NAME> deceased but <NAME> died soon thereafter. It must have taken some time for <NAME> and others to get out of the state of shock and regain their composure'. They then arranged for a cart which was brought from <NAME>'s house in Longowal Kalan. <NAME> and <NAME> were then laid in that cart and the same was taken to Batala, at a distance of two-and-a-half miles. It cannot, in the circumstances, be said that the period of four hours which was taken in lodging the report at the police station was in any way inordinately long. The fact that the first information report was lodged at the time it Purports to have been done can also be not disputed because the first lnformation report was received by the magistrate having jurisdiction in the area at 1 a.m. as is borne out by the endorsement of the magistrate on the report. The first information report, lodged at the police station within a few hours of the occurrence, contained all the, material facts and, in our opinion, the first information report lends considerable corroboration to the ocular evidence adduced at the trial. The defence suggestion which was put in the cross examination of the prosecution witnesses was that a number of persons had Collected near the village gurudwara when a hand-grenade exploded there and the three deceased persons and the prosecution witnesses received injuries. This suggestion, in the circumstances of the case, was, in our opinion, wholly unfounded. The evidence of Sub Inspector <NAME> shows that when he arrived at the scene of occurrence, he found the different pieces of exploded hand- grenade in the courtyard of the house of <NAME> deceased. This fact would tend to show that the explosion had taken place in the courtyard and not at the gurudwar-. It is also not clear as to what advantage the prosecution would have derived in suppressing the actual place of occurrence and in mentioning a wrong place of occurrence. As would appear from the narration of facts, only members of one party received injuries as a result of the explosion of hand-grenade. If the hand-grenade had exploded in a large gathering near the village gurudwara, it is not likely that the splinters from the exploded hand-grenade would hit the members of only one party and avoid those not belonging to that party. <NAME> deceased at the time of the present occurrence was wearing only a kachha besides a parna, on his head. It is not likely that <NAME> would have gone in that state without a shirt to the gatliering near the village gurudwara. On the contrary, the fact that <NAME> was without a shirt points to the inference that the occurrence took place in the courtyard of his house. <ORG> while rejecting the prosecution evidence referred to the fact that in one of the plans, height of the outer wall of the courtyard of <NAME> house was mentioned to be 6-1/2 ft. while in the other, it was mentioned to be 4-1/2 ft. This discrepancy has been explained by <NAME> (PW 9), whose evidence shows that the level of the courtyard of <NAME>'s house was higher than the ground outside. The height of the boundary wall consequently measured to be 6-1/2 ft from outside and 4-1/2 ft from inside. No question was put to the witness in cross-examination, and we can find no cogent reason as to why the evidence of <NAME> be not accepted. There could also, in our opinion, be no difficulty for those present inside the courtyard from seeing as to who were the persons who threw the hand-grenades, because a 41 ft high wall could not obstruct their view in fixing the identity of the culprits.

Another circumstance which weighed with '<ORG> in rejecting the prosecution evidence was the nature of the injury, on the nose of <NAME> (PW 21). According to the evidence of the prosecution witnesses, the above injury had been caused with a kirpan by <NAME>. <ORG> took the view that the said injury had been caused by a hand-grenade splinter. It was 'held that as the witnesses had deposed that the injury had been caused by a kirpan blow, the evidence of the witnesses was not trustworthy. In this respect we find that the evidence of Dr. <NAME> shows that he expressed the opinion in answer to a police query that the injury on the nose of <NAME> could have been caused with a kirpan. It is, no doubt, true that Dr. <NAME> also expressed the opinion that the said injury could have been caused by a missile or other object, but this fact would not necessarily show that the eye witnesses in this case have made false statements regarding the injury on the nose of <NAME>. In order to draw an inference about the falsity of the evidence of prosecution witnesses in this respect, it is not enough to show that the injury on the nose of <NAME> could have been caused either with a kirpan or with a missile, it is also necessary to rule out the Possibility of the said injury having been caused with a kirpan. The evidence of Dr. <NAME> plainly does not rule out such a possibility.

<ORG> also appears to have been impressed by the defence version that <NAME> deceased was present in Pathankot at about 7 p.m. on the day of occurrence. Reliance in this context was placed upon tile testimony of <NAME> (DW 3) who was conductor of Bus PNP 6972 and who has deposed about <NAME> having driven that bus to Pathankot on the, day of occurrence and about that bus having reached Pathankot at 7 p.m. We find it most difficult to accept this statement of <NAME> in the face of other evidence brought on the record and the surrounding circumstances of the case. <NAME> (PW 11) is a yard master of <ORG> depot at Pathankot. The evidence of this witness was given on the basis of the relevant records. According to this witness, two drivers had been allotted for the bus in question and they were <NAME> deceased and <NAME> (PW 12). <NAME>'s testimony shows that on the day of occurrence it was <NAME> who brought the bus in question to Pathankot at 7 p.m. As the evidence of this witness is based upon the records , it is difficult to discard his testimony. The evidence of <NAME> gets corroboration from the testimony of <NAME> who has deposed that when the said bus arrived at Batala at about 5 p.m. on the day of occurrence on its way from Amritsar to Pathankot, the witness relieved <NAME> deceased. <NAME> then got down from the-bus at Batala and the witness took it to Pathankot. Another witness who has been examined on the point is <NAME> (DW 2), who was the booking clerk of the <ORG> office at Pathankot. According to this witness, the advance way bill of the bus in question showed that its driver was <NAME> when it left Amritsar for Pthankot. The witness, however, admitted that the entry in the way bill was made at the commencement of the journey. In the circumstances, the evidence of the witness is quite consistent with <NAME> having been relieved by <NAME> at Batala.

<NAME> admittedly died during the course of this occurrence. Had he been at Batala at 7 p.m. on the day of occurrence, it is not likely that he could have reached his village before 9.30 or 10 p.m. on the day of occurrence. It is in evidence that a bus takes two hours to travel from Pathankot to Batala. It is difficult to believe that a report about the occurrence at Longowal Khurd could have been lodged at Batala Sadar police station at 11-15 p.m. if, in fact, the occurrence had taken place after 9.30 or 10 p.m.

We are also not impressed by the reasoning that the occurrence took place at a late hour when it was not possible to fix the identity of the assailants. The case of the prosecution, as mentioned earlier, is that the occurrence took place at 7.15 p.m. The sun set on the day of occurrence ,it 7.28 p.m. There was full moon on July 9 and the occurrence took place a day earlier than that. As the occurrence took place before sun set there could, in our opinion be no difficultly in fixing the identity of the assailants. Even if the occurrence had taken place after the sun-set time, there could still be no difficulty in finding out as to who the assailants were. A number of persons were present in the courtyard of <NAME> house. There is no suggestion that a lamp had been lighted at that time. The fact that a large number of persons were present in the courtyard without lighting a lamp would show that there was enough light at that time. It is also significant that the assailants gave two <NAME> blows to <NAME> de- ceased. If there was enough light to enable the assailants to fix the identity of <NAME> before they gave <NAME> blows to him, it stands to reason that the same light would be enough for others to see as to who the assailants were. We, therefore, have no hesitation in rejecting, the argument that there was not enough light at the time of occurrence to enable the prosecution witnesses to fix identity of the, culprits.

Another factor which weighed with <ORG> in discarding the prosecution evidence was that <NAME> (DW 6) was admitted in Batala hospital a few minutes before <NAME> and <NAME> deceased were brought there. According to the testimony of Dr. <NAME>, a metallic foreign substance was recovered from the arm of <NAME> on July 20, 1968. <ORG> took the view that <NAME> too had been injured during the course of the present occurrence and the fact that no reference was made to <NAME> either in the first information report or in the evidence of the prosecution witnesses would go to show that the prosecution evidence is not worthy of credence. In this respect we find that <NAME> was examined as a defence witness. <NAME> in the course of his evidence denied being present at the scene of occurrence and having been injured at that time. According to <NAME>, he had received an injury during the course of a dispute with his father. <NAME>, sister of <NAME>, was also examined as DW 4. She too has denied that <NAME> was present at the time of the present occurrence. It is, in our opinion, not necessary to dilate upon the injury of <NAME> because even if it may be assumed that <NAME> too received an injury during the course of the present occurrence, that would not materially affect the substance of the prosecution evidence regarding the guilt of the three accused- respondents.

The learned judges of <ORG> in rejecting the prosecution evidence have made observations critical about the magistrate, who received the copy of the first information report, as well as about Dr. <NAME>, Sub Inspector <NAME> and. the learned Sessions Judge. So far as the magistrate is concerned, it observed that he was an irresponsible lazy officer as he could not reach the hospital at about 1 a.m. on the night of occurrence in spite of heavy rain for recording the dying declarations of <NAME> and <NAME>. As, regards Dr. <NAME>, the criticism leveled is that he expressed an opinion in answer to the query of the investigating officer that the injury on the nose of <NAME> could be caused with a kirpan. It was observed that the doctor had gone out of the way to please the investigating officer. The doctor was also criticized for attesting the dying declarations. Regarding Sub Inspector <NAME>, <ORG> formed the impression that he was a domineering police officer because lie obtained opinion favorable to the prosecution from Dr. <NAME>. It was also observed that the Sub Inspector had tried to be over clever. There was enough material available, according to <ORG>, which could have been made better use of by a more imaginative officer without artificially or artfully advancing the time of occurrence to day time. As regards the learned Sessions Judge, <ORG> observed that the present marathon trial appeared to have strained his capacities to the maximum limits. The criticism leveled by <ORG> against the above mentioned officers, in our opinion, was not warranted and was couched in language, which was rather harsh.

Perusal of the judgment of <ORG> shows that in acquitting the accused-respondents, <ORG> approached the entire matter in a spirit of distrust and suspicion of the various officers who dealt with this case. We further find that the judgment of <ORG> is based upon conjectures, surmises and suspicion. Looked at in the context of the facts of the case, we find that the view taken by <ORG> is manifestly unreasonable. It is consequently not possible to sustain the judgment of <ORG>.

A criminal trial is not like a fairy tale wherein one in free to give flight to one's imagination and phantasm. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriv- ing at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon' its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.

<ORG> in the present case, in our- opinion, has rejected the prosecution evidence which was ex facie of a convincing nature on grounds which partake of the nature of conjectures and surmises. The view taken by <ORG>, as already observed, is manifestly unreasonable and has resulted in miscarriage of justice. We accordingly accept the appeal, set aside the judgment of <ORG> and convict the accused-respondents for the offences for which they were convicted by the trial court. As regards the sentence for the offence under section 302 Indian Penal Code, we find that a period of more than two years has elapsed since the acquittal of the accused-respondents by <ORG>. It would, in the circumstances, be appropriate if the extreme penalty for the offence under section 302 Indian Penal Code is not exacted from the accused-respondents. We, therefore, :sentence- the accused-respondents for the offence under section 302 Indian Penal Code to imprisonment for life. The sentences imposed upon the accused-respondents for the offences under section 302 read with section 34 , section 307 and section 307 read with section 34 Indian Penal Code are maintained. The sentences of each of the accused- respondents would run concurrently, V.P.S.

Appeal allowed.


CASE NO.: Appeal (civil) 5460 of 1999 PETITIONER: OM PRAKASH GUPTA Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 18/01/2002 BENCH: <NAME> & <NAME> JUDGMENT:

<NAME>, J.

The suit premises are described as booth no.13, Sector 8, Panchkula. These premises were let out by the plaintiff-respondent to the defendant-appellant sometime in August, 1989 on a monthly rent of Rs.2650/-, excluding electricity charges. Since then the defendant-appellant has been running therein a shop of provision goods and general stores. He fell into arrears of rent and electricity charges with effect from 1st April, 1990. The plaintiff-respondent served on him a notice demanding payment of arrears and terminating his tenancy. On failure to comply with the notice a suit for eviction was filed in <ORG> on 12.9.1990. The defendant-appellant contested the suit mainly on the ground of notice of ejectment being defective. <ORG>, by its judgment dated 11th June, 1998, answered all the issues in favour of the plaintiff-respondent and directed the suit for eviction and recovery of arrears to be decreed. First and second appeals preferred by the defendant-appellant have been dismissed. This is an appeal filed by special leave.

It has been common case at the <ORG> that the suit premises are situated in the State of Haryana where the provisions of the Transfer of Property Act are not applicable and the rights and obligations of the parties are to be worked out and governed under common law of the land. At the time of hearing it was conceded by the learned counsel for the appellant that no fault can be found with the decree of <ORG> as confirmed by <ORG> and <ORG>. However, the learned counsel for the appellant submitted that there has been a subsequent event having a material bearing on the judgment under appeal and the right of the respondent to decree. Such subsequent event is now the core of controversy, the relevant facts relating to which, are stated in the succeeding paragraphs.

It appears that the suit premises have been constructed by <ORG> (<ORG>, for short), governed by the provisions of The <ORG> Act, 1977 (the Act, for short). The premises have been allotted by <ORG> to the plaintiff-respondent and the latter is required to pay certain instalments to <ORG> and a failure in payment of instalments renders the allotment liable to cancellation with recovery of arrears, imposition of penalty and resumption of possession under Section 17 of the Act. <ORG> rendered its judgment in Second Appeal on 15.12.1998. The only contention dealt with by <ORG>, in view of the singular submission made before it, was to allow the appellant three months' time for vacating the premises subject to an undertaking for vacating the premises on expiry of three months. SLP was filed on 8.3.1999. On 30.3.1999 this Court directed a notice on SLP to be issued to the respondent and at the same time passed an interim order staying the operation of the decree appealed against. On 15.3.1999, the date on which the time appointed by <ORG> for vacating the premises was coming to an end, the tenant-appellant moved an application before <ORG> seeking one month's extension of time for compliance with the direction of <ORG> on two grounds: firstly, that though the SLP was filed in this Court it was yet to be taken up for hearing; and secondly, <ORG> had initiated proceedings for resumption of the suit premises against the plaintiff-respondent. It appears that <ORG> extended the time for vacating the premises till 20.4.1999. In the meantime, as already stated, this Court granted interim relief to the appellant although the factum of extension of time granted by <ORG> and the grounds therefor were not brought to the notice of this Court. All these facts were brought to the notice of this Court through an affidavit filed (by way of counter-affidavit to the special leave petition) on 11th May, 1999 by the plaintiff-respondent submitting that the conduct of the defendant-appellant did not entitle him to any relief in the discretionary jurisdiction of this Court under Article 136 of the Constitution.

An additional affidavit by way of rejoinder was filed by the appellant on 8th June, 1999 wherein it has been stated that after the filing of SLP in this Court the appellant had received a notice dated 7.4.1999 from the Estate Officer, <ORG> asking him to vacate the suit premises. On 19.5.1999 the appellant has submitted an application to <ORG> requesting them to allot the suit premises to the appellant on the same terms and conditions or any other terms and conditions as may be thought fit by <ORG>. It was submitted that in these circumstances, as the plaintiff-respondent has ceased to be owner of the suit premises, he was not entitled to execute the decree for eviction and the same was liable to be set aside.

At the time of hearing the learned counsel for the plaintiff-respondent brought to the notice of this court an order dated 22.6.2000 passed by Chief Administrator, <ORG>, an Appellate Authority over the Estate Officer, <ORG> whereby an appeal filed by the respondent has been allowed and the respondent has been allowed an extension of time for payment of the arrears of instalments to <ORG>.

The relevant facts emerging from a perusal of the documents placed on record by the parties insofar as they relate to the proceedings before <ORG> may briefly be noticed.

On 12.2.1999 the Estate Officer, <ORG> passed an order recalling the allotment of the suit premises for failure of the respondent to pay the amount of instalments in arrears and the interest accrued thereon, forfeiting the amount already paid. On 7.4.1999 the appellant was served with a notice by the Estate Officer to remove his unauthorized occupation of the premises. On 19.5.1999 the appellant proposed to <ORG> that he was ready and willing to pay the <ORG> the entire amount which was to be paid by the respondent to it along with interest and to have the suit premises allotted to himself. In between, the plaintiff respondent had preferred an appeal under Section 18 of the Act, putting in issue the order of Estate Officer, which appeal came to be allowed and the order of resumption has been set aside. It appears that there was a dispute as to the rate at which the interest was levied by <ORG> on the amount of instalments in arrears, as to which <ORG> had issued some directions which the <ORG> was required to comply. The Appellate <ORG> directed the Estate Officer to calculate interest consistently with the decision of <ORG> and to allow 30 days' time to the respondent to make payment failing which the resumption may follow. On 3.11.2000 the respondent has written to the Estate Officer inviting his attention to the appellate order, his failure to act thereon and expressing the willingness of the respondent to pay the amount subject to its being calculated by the Estate Officer as per the appellate order of the Administrator. What has happened thereafter is not known.

It is common case of the parties that the rights and obligations of the parties as landlord and tenant are not to be worked out as statutorily enacted by Transfer of Property Act as the same is not applicable to the State of Haryana. However, still, the learned counsel for the parties have not disputed that the principles flowing from the provisions of the Transfer of Property Act may safely be taken as a guide to work out the mutual rights and obligations of the parties under the general law. A tenant inducted into possession of the tenancy premises is ordinarily bound to restore possession over the tenancy premises to the landlord on the tenancy coming to an end. Such obligation comes to an end either by actually fulfilling the obligation or by proving that the landlord's title stands extinguished by the landlord's eviction by title paramount. The burden of proving eviction by title paramount lies on the party who sets up such defence. In a recent decision by us in <NAME> Vs. <NAME> (C.A. Nos.5467-5468 of 1998 decided on January 11, 2002) we have held :

"To constitute eviction by title paramount so as to discharge the obligation of the tenant to put his lessor into possession of the leased premises, three conditions must be satisfied: (i) the party evicting must have a good and present title to the property; (ii) the tenant must have quitted or directly attorned to the paramount title holder against his will; (iii) either the landlord must be willing or be a consenting party to such direct attornment by his tenant to the paramount title holder or there must be an event, such as a change in law or passing of decree by a competent court, which would dispense with the need of consent or willingness on the part of the landlord and so bind him as would enable the tenant handing over possession or attorning in favour of the paramount title holder directly; or, in other words, the paramount title holder must be armed with such legal process for eviction as cannot be lawfully resisted. The burden of raising such a plea and substantiating the same, so as to make out a clear case of eviction by paramount title holder, lies on the party relying on such defence."

In <NAME> case (supra) the landlord-owner of the tenancy premises was a <ORG>. The <ORG> had let out the premises to a tenant and the tenant had inducted a sub-tenant in the premises. The <ORG> had instituted a suit for eviction against the tenant subsequent to the institution of the suit by tenant against sub-tenant claiming arrears of rent and eviction of the latter. Immediately on institution of suit by the principal owner, i.e. the <ORG>, the sub-tenant had voluntarily attorned in favour of the principal owner and without the consent of the tenant. Suit by the principal owner against the tenant was still pending. This Court noticed the provisions of local rent control law whereunder entitlement of the tenant to hold the suit premises as tenant would not come to an end unless a decree for eviction against him was passed by a court of law in a suit for eviction instituted by the principal owner against the tenant and then held - 'till then he would remain a tenant of the <ORG>. Mere institution of a suit for eviction by the <ORG>, the owner of the property, against the respondent does not bring the tenancy of the respondent to an end. The respondent cannot be said to have been evicted by title paramount. It cannot be said that the respondent-tenant does not have any defence nor can he lawfully resist the suit filed by the owner <ORG>. The plain and simple legal position which flows is that the appellant must discharge his statutory obligation to put his landlord, that is, the respondent, in possession of the premises in view of the latter's entitlement to hold the tenancy premises until his own right comes to an end and the respondent must discharge his statutory obligation to put his own landlord, that is, the <ORG>, in possession of the tenancy premises on his entitlement to hold the tenancy premises coming to an end. The plea of eviction by paramount title is not available to the appellant for three reasons: firstly, it cannot be said that the <ORG> is armed with a legal process for eviction which cannot be lawfully resisted by the tenant-respondent or to which he has no defence; secondly, the attornment by the appellant in favour of the <ORG> is voluntary and not under any compulsion; and thirdly, it cannot be said that the <ORG> has such good and present title against the tenant-respondent so as to hold the appellant liable to be evicted against his will'.

For two reasons we do not think that the defendant-appellant is entitled to any relief and for setting aside of the decree for eviction. Firstly, there is neither any order of resumption and forfeiture within the meaning of Section 17 of the Act passed by <ORG> against the respondent nor is there an allotment by <ORG> directly in favour of the appellant. In view of the order of the Estate Officer having been set aside by <ORG> under the Act the allotment made by <ORG> in favour of the respondent continues to subsist. His title, under which he had inducted the appellant in possession of the suit premises, has not come to an end. The triple test, laid down by this court in <NAME> case is not satisfied. Secondly, the appellant is placing reliance on an event happening after the institution of suit, i.e. a subsequent event and a case for taking notice of such subsequent event by court so as to impair the judgment under appeal is not made out.

The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the <ORG> has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied : (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the <ORG> promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In <NAME> Vs. <ORG> - AIR 1975 SC 1409 this <ORG> held that a fact arising after the lis, coming to the notice of the <ORG> and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the <ORG> cannot be blinked at. The <ORG> may in such cases bend the rules of procedure if no specific provision of law or rule of fairplay is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The court speaking through <ORG> affirmed the proposition that court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fairplay is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautions, and (iv) the rules of fairness to both sides should be scrupulously obeyed.

Such subsequent event may be one purely of law or founded on facts. In the former case, the <ORG> may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the <ORG>. Such subsequent event the <ORG> may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. In Messrs. <NAME> & Co. Vs. RM. N.N. Nagappa Chettiar - AIR 1953 SC 235 this <ORG> has held that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found; without the amendment of the pleadings the <ORG> would not be entitled to modify or alter the relief. In <NAME> Vs. <NAME> & Ors. - (1898) 25 <ORG> (PC), their Lordships observed that, as a rule, relief not founded on the pleadings should not be granted.

Power of the <ORG> to take note of subsequent events, specially at the appellate stage, came up for the consideration of a Full Bench of Nagpur High <ORG> presided over by Justice <NAME> (as His Lordship then was) in <NAME> Vs. <NAME>, AIR 1953 Nag 361. <NAME>, J. (as His Lordship then was) held, on a review of judicial opinion, that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action. No doubt, <ORG>s 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter partes' to shorten litigation but not to give to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal. His Lordship quoted the statement of law made by Sir <NAME>, J. in a series of cases that merely because the plaintiff loses his title 'pendente lite' is no reason for allowing his adversary to win if the corresponding right has not vested in the adversary but in a third party. In the case at hand, the defendant-appellant has simply stated the factum of proceedings initiated by <ORG> against the plaintiff-respondent in an affidavit very casually filed by him. He has not even made a prayer to the <ORG> to take notice of such subsequent event and mould the relief accordingly, or to deny the relief to the plaintiff-respondent as allowed to him by the judgment under appeal, much less sought for an amendment of the pleadings. The subsequent event urged by the defendant-appellant is basically a factual event and cannot be taken cognizance of unless brought to the notice of the <ORG> in accordance with established rules of procedure which if done would have afforded the plaintiff-respondent an opportunity of meeting the case now sought to be set up by the appellant. We do not think this <ORG> would be justified in taking notice of a fact sought to be projected by the appellant in a very cavalier manner. The fact remains that the present one is a landlord-tenant dispute and we cannot upset the relief granted by the courts below and the High <ORG> to the plaintiff-respondent by relying on the doctrine of eviction by title paramount as it cannot be said that the proceedings initiated by <ORG> against the plaintiff-respondent have achieved a finality or are such proceedings wherein the plaintiff-respondent cannot possibly have any sustainable defence.

For the foregoing reasons the appeal is held liable to be dismissed and is dismissed accordingly with costs throughout. The appellant is allowed three months time to deliver vacant and peaceful possession to the plaintiff respondent subject to his filing usual undertaking and clearing all the arrears under the decree within 3 weeks.

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

( <NAME> ) ............................J.

( <NAME>) January 18, 2002


PETITIONER: STATE OF PUNJAB Vs. RESPONDENT: <NAME> & <NAME> Connected Appeal) DATE OF JUDGMENT21/09/1973 BENCH: <NAME>, D.G. BENCH: <NAME>, D.G. SHELAT, J.M. MATHEW, KUTTYIL KURIEN DWIVEDI, S.N. CHANDRACHUD, Y.V. CITATION: 1973 AIR 834 1973 SCR (2) 405 1973 SCC (1) 120 CITATOR INFO : R 1974 SC 87 (11) F 1976 SC 667 (3,4,5) RF 1976 SC 676 (12) R 1978 SC 803 (30) R 1987 SC 943 (8) ACT: Punjab Pension Rules-R. 6.4-Natural justice-Government imposing cut in pension-Allegation of it-regularities while in Service-Requirement of reasonable opportunity of being heard. HEADNOTE: Rule 6.4 of the Punjab Pension Rules provides "6.4 (a) The full pension admissible under the rule is not to be given as a matter of course, or unless the service rendered has been really approved. (b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make reduction in the amount as it thinks proper. The respondents were employed in the service of the appellant State. On their retirement the State government imposed a cut in their pension and in the gratuity amount. It was alleged by the State government that the officers had committed major irregularities and that the records of the officers showed that their career were not altogether satisfactory. Thereupon the respondents filed writ petitions in <ORG> contending that pensionary benefit with the right to superannuation pension were property to which the officers by reason of their service were entitled as a matter of right and therefore they could not be deprived of any part of that property without notices to show cause why the cut should not be imposed. <ORG> quashed the orders imposing the cut. It held that the right to superannuation pension was a right vested in the government servant and before that right is prejudicially affected he is entitled to a notice to show cause against the proposed cut, In the appeal to this Court it was conceded on behalf of <ORG> that in view of the decisions of this Court in <CITATION>  2 S.C.C. 330 it was no longer open to contend that a pension was a bounty. But it was contended that the order of the State government in applying the cut was an administrative order under rule 6.4 of the Pension Roles and therefore, the State government was not liable to issue a notice to show cause against the proposed cut. It was pointed out that <ORG> had in its possession the confidential records of the officers and on consideration of the same it was open to it reduce the pens-ion in its discretion. Dismissing the appeals, HELD: The State government could not have applied a cut in the pensions of the officers without giving them a reasonable opportunity to make their defence. Where a body or authority is judicial or where it has. to determine a matter involving rights judicially because of express or implied provisions of principles of natural justice audi alteram partem applies. Where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects individual rights or interests, and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. [413C] 406 Advani & Ors.  S.C.R. 621 (725); Board of High School JUDGMENT:

Gupta and Ors. [1962] Supp. 3 S.C.R. 36; <CITATION> .,  2 S.C.R. 625; In re. R.K. (An Infant)  2 Q.B.D. 617; <CITATION> .  1 S.C.R. 457 and Cooper v. Wandsworth Board of Works  14 C.D.N.S. 180, referred to.

<CITATION> ,  1 S.C.R. 981, distinguished.

& CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1893- 1894 of 1967.

Appeals by certificate from the judgment and order dated October 25, 1966 of <ORG> at Chandigarh in Civil Writs Nos. 504 of 1964- and 723 of 1965 and Civil Appeal No. 735 of 1968.

Appeal by certificate from the order dated March 8. 1967 of <ORG> at Chandigarh in L.P.A. No. 66 of 1967.

<NAME> and <NAME>, for the appellant (in all the appeals).

<NAME> and <NAME>, for the respondent (in C. A. No. 735/68).

<NAME>, for the respondent (in C. A. No. 1893/67). Respondent appeared in person (in C. A. No. 1894,/67). The Judgment of the Court was delivered by- <NAME>, J.-These appeals raise, a common question of law as to whether <ORG> is entitled to reduce the amount of pension and gratuity legally payable to its officers on their superannuation without giving a reasonable opportunity to the officers to show cause against the proposed reduction.

In the first case the officer concerned is <NAME>. He joined <ORG> as an Assistant Engineer in 1926. In due course he was posted as a Central Designs Officer and remained attached to <ORG> first in the capacity of Deputy Director from 6-11-1951 to 30-4-1952 and then as an Executive Engineer (Designs) from 1-5-1952 to 1-11-1955. He was promoted from P.S.E. Class II to P.S.E. Class I with effect from 22-9-1954 and was confirmed as an Executive Engineer with effect from 12-8-1956. Early in 1958, he was promoted to the rank of an officiating Superintending Engineer and was posted as Director of Central Designs. In November, 1958 he retired from service on reaching the age of superannuation. Shortly, thereafter he was reappointed by the <ORG> as a Professor and Head of <ORG> in <ORG>, Chandigarh, which post he held for about 16 months. The question of his pension was taken up by the <ORG> in the normal routine and on 29-7-1963, <ORG> informed him that though he was entitled to a superannuation pension of Rs. 423.05 n.p. per month and death-cum-retirement gratuity of Rs. 16,320/- the <ORG> was pleased to impose a cut of 20% in the pension and Rs. 2,000/- in the gratuity amount under Rule 6.4 of the Punjab, Civil Services Pension Rules, since, in the opinion of the <ORG>, the service record of <NAME> was not satisfactory. It is an admitted fact that before this cut was applied <NAME> had not been furnished the grounds nor had he been given an opportunity to show cause against the-proposed cut.

The second case also runs on parallel lines. The officer concerned is <NAME>. He joined <ORG> as a temporary Engineer in 1939 and was confirmed as Assistant Engineer in P.S.E. Class II in 1946. He was promoted to P.S.E. Class I and as an officiating Executive Engineer in 1949. After a few months he was reverted as S.DO. as he was declared unsuitable for the promotion by <ORG>. Two years thereafter i.e. in 1951 he was again promoted as Officiating Executive Engineer and confirmed as an Executive Engineer with effect from 1-9-1956. Thereafter he was promoted as an Officiating Superintending Engineer with effect from 12-3-1959 and earned a year's increment. On 12- 12-1960 he attained the age of superannuation. As his pension papers were not finalized soon thereafter he was allowed to draw anticipatory pension in the sum of Rs. 190/- per month and Rs. 6,158/- as death-cum-retirement gratuity pending final disposal of his case. On 4-7-1964 Government decided that whereas the pension admissible to him under the rules was Rs. 211.35 n.p. per month along with death-cum- retirement gratuity of Rs. 8,211/- it was necessary to impose a cut of 15% in his pension under rule 64 of the Punjab Civil Service Rules, as in the opinion of the Government the service record of Shri <NAME> was not satisfactory. His pension was thus reduced from Rs. 211.35 n.p. to Rs. 179.60 per month. It is admitted that while applying the cut to the pension, no opportunity was given to Shri <NAME> to show cause against the proposed cut. In the third case the officer concerned was <NAME>. He was appointed as an Agriculture Assistant in <ORG> in 1926. Thereafter, he worked in <ORG> in various capacities and finally in 1955 he was promoted to the post of District Agriculture Officer which was P.A.S. Class 11 post. He was confirmed in the post of the District Agriculture Officer with effect from 13-1-1958. <NAME> also acted for sometime as the Deputy Director of Agriculture before retirement on 10th November, 1960 on reaching the age of superannuation. After his retirement the Accountant General, Punjab calculated and declared that he was entilled under the rules to be paid pension of Rs. 175.50 np. per month and death-cum-retirement gratuity amounting to Rs. 5,589/-. But on 7-10-1963 he was informed that his pension had been reduced from Rs. 175.50 to Rs. 160/- per month and the amount of death-cum-gratuity of Rs. 5,589/- had been forfeited by <ORG>. In this case also it is admitted that <NAME> had not been given any notice to show cause 'why his pension should not be reduced or death-cum-retirment gratuity forfeited.

In all these three cases the aggrieved officer filed writ petitions in <ORG> at Chandigarh. The principal contention was that pensionary benefits, with the right to superannuation pension, which, it is admitted, included death-cum-retirement gratuity under the rules, were property to which the officers by reason of their service were entitled as a matter of right. They could not be deprived of any part of that property without notice to show cause why the cut should not be imposed.

The contention on behalf of the State was that pensionary benefits were in the nature of a bounty and under rule 6.4 clauses (a) & (b) of the Punjab Civil Services Rules (Pension Rules) it was open to the <ORG> to impose a cut, if in the opinion of the <ORG>, the service record of the officers was not thoroughly satisfactory. It was also contended that the order imposing the cut was an administrative order and the <ORG> was not, therefore, bound to give notice to the officers about the proposed cut. The writ petitions of <NAME> and <NAME> were heard together by a full bench of <ORG> and were disposed of by a common judgment on October 25, 1966. <ORG> held by majority that the right to superannuation pension was a right vested in the <ORG> servant and before that right is prejudicially affected he is entitled to a notice to show cause against the proposed cut. In view of that finding the orders imposing the cut were quashed. The Writ Petition filed by <NAME> came on for hearing before a single Judge of <ORG> on December 22, 1966. The learned Judge held that the case was covered by the decision of the full bench in the, above two cases and the only order he could pass was to quash the order by which the State <ORG> had imposed the cut in his pension. The State of Punjab went in appeal to the Division Bench of that court but, as was to be expected, that appeal was dismissed in limini on 8-3-1967.

The present three appeals are filed by <ORG> challenging the view taken by the full bench. Much of the argument which would have been otherwise addressed to us has been cut short by a decision of this Court in <CITATION> (1). It was a petition under Article 32 of the Constitution by which the petitioner maintained that denial of pension was an infringement of his fundamental rights under Article 31(1) and Article 19(1) (f) of the Constitution. This Court held that the right of a Govern- ment servant to receive pension is property under Article 31(1) and by a mere executive order the <ORG> did not have the power to withhold the same. It was also held that the claim to pension was property under Article 19(1)(f) and was not saved by sub- Article 5 of Article 19. In coming to this decision a number of cases of <ORG> were referred to and the view taken by that court in <NAME> case, which is now in appeal before us' was affirmed. Mr. <NAME> who appeared before us on behalf of the <ORG> conceded that in view of the decision in <NAME>'s case it was no longer open to him to contend that pension was a bounty.

Mr. <NAME>, however, contended that the order of <ORG> in applying the cut was an administrative order under rule 6.4 of the Pension Rules and, therefore, the, <ORG> was not liable to issue a notice to show cause against the proposed cut. It was pointed out that <ORG> had in, its possession the Confidential records of the officers, and on a consideration of the same it was open to it to reduce the pension in its discretion. It was alleged in the written statements filed in the, petitions that their official careers were not without blemish, that there were ups and downs in their service and all these matters were considered by <ORG> before applying the cut. It was conceded that these officers earned promotions and increments in due course of their service but it was submitted that did not prevent <ORG> from applying the cut to the pension if, on a consideration of the official career as a whole, the officers were not entitled to unqualified approbation. Rule 6.4 of the Punjab Pension Rules is as follows :

"6. 4(a) The full pension admissible under the (1) [1971] (2) S.C.C. 330.

(b) If the service has not been thoroughly satisfactory, the authority sanctioning the pension should make such reduction in the amount as it thinks proper."

There are five notes appended to this rule. But we are not concerned with the same in dealing with the general principle.

Some indication was given in the written statements field on behalf of the State suggesting that the careers of the three officers were not thoroughly satisfactory. In the case of <NAME> it was alleged that he had prepared the design of the Ghaggar Syphon and when the same was constructed in accordance with the design, a defect was discovered to remedy which the Government had to spend an extra amount of rupees seven lakhs. The State Government was of the opinion that the defect was in the design and not the construction. So far as this allegation is concerned <NAME> has given an, answer. According to him the design for the Syphon was prepared by him under the able supervision and guidance of his superiors viz. <NAME> who was the Chief Engineer, <ORG> and <NAME>, Chief Engineer, who held charge of the post of Director, <ORG>. Both these officers had signed the design in token of its correctness and approval. <NAME> himself was not concerned with the later construction in accordance with the design. The construction was entrusted to <NAME>, Superintending Engineer, Bhakra Main Line and his allegation was that it was a constructional defect which caused loss to the Government and not the design. The matter was actually investigated by a 'Committee of Enquiry' which consisted of three Chief Engineers presided over by <NAME>, I.S.E. General Manager, Bhakra Dam, and in the view of that Committee the defect was not in the design but in the construction. That finding was questioned by <NAME> and thereupon the Government set up a high-powered Commission presided over by Mr. Justice <NAME>. Mr. Justice <NAME> held, contrary to the finding of <ORG>, that the damage to the Ghaggar Syphon was due to faulty design and not due to faulty construction. The complaint of <NAME> is that in the enquiry before the high-powered Commission of Mr. Justice <NAME> he was not. even called to explain how his design was right and the construction was wrong. Moreover, he contended it was wrong on the face of it to hold him responsible for the design when, in fact the design was not the sole creation of <NAME> but also of the two high officers <NAME> and <NAME> who had specifically examined and approved the design. It is the grievance of <NAME> that while these two officers had retired and had been given their full pension it was wrong to blame <NAME> for the defect, if any. Indeed, <ORG> could not possibly have undertaken an investigation into the blameworthiness of <NAME> in the Writ Petition. But it is obvious that the finding of Mr. Justice <NAME> that there was a fault in the design and not in the construction was a finding arrived at without giving an opportunity to the petitioner to explain. In other words. if the defect in the design of the Syphon was the sole reason for making a cut in the pension, <NAME> would be justified in his contention that Such a finding would have been appropriate only if his explanation had been obtained by Mr. Justice <NAME> in the Course of the enquiry or by <ORG> before the cut was imposed. So far as <NAME> is concerned <ORG> also gave an indication indication in para 5 of its written statement that <NAME> was involved involved ill Some official irregularities and these had attracted the comments of <ORG>. We do not know what were the findings and whether those findings were arrived at after notice to <NAME>.

So far the third officer namely <NAME> is concerned Government stated in para 4 of its written statement that <ORG> had Suffered a loss of Rs. 11,399.50 p. on account of irrecoverable fertilizer loss issued by Shri <NAME> to bogus persons and also a further loss of Rs. 12,770,/- on account of irregularities committed by the petitioner in the purchase of seed in the year 1959. It does not appear that <ORG> had instituted any enquiry into these losses with a view to bring home the guilt to Shri <NAME>.

The above allegations in respect of all the three officers concerned are undoubtedly serious. But they have remained mere allegations. The officers could have been properly charged for their delinquency. This was not done either when they were in service or after they retired. Were these matters taken into account, as <ORG> claims to have done before the imposition of the cut, it would have beer) fair to have given an opportunity to the officers to put forward their defence before depriving them of a large share in their pensionable benefits which. as we have already seen, are not mere bounty but property to which they were entitled.

It was also alleged by <ORG> in the written statements that apart from the major defaults referred to above. the records of all the three officers showed that their careers were nor altogether satisfactory and here and there were draw 9--L498Sup.Cl/73 that he was not allowed to cross the efficiency bar for a year in 1953 and in the case of <NAME> he had been superseded by his juniors on a number of occasions. At the same time it cannot be ignored that in spite of some small set backs here and there in their long official career these officers earned promotions and were selected on merit to fill high offices. <NAME> started as an Assistant Engineer in Class It service and in due course was promoted as Executive Engineer in Class I service. At the end of his career lie was appointed as a Superintending Engineer, the post being a selection post. Similar is the case with <NAME>. The latter has pointed out that as early as 6-4-1951 Government had framed rules for the preparation of a ranking list in respect of the selection posts and under the rules no person could get a selection post unless he was fit and his record of service was satisfactory. He contended that the very fact that he got the selection post of Superintending Engineer on 11-3-1959 showed that he was fit and his record of service was satisfactory. <NAME> started his career as an Agriculture Assistant in 1927 in class III Service and in 1955 was promoted to a class 11 post and appointed the District Agriculture Officer. He was confirmed in that post and also officiated for sometime as the Deputy Director of Agriculture. When the career of an officer is assessed as a whole the fact that an officer, though with some impediments in his long career, has obtained Successive promotions to higher and yet higher posts may well raise the question whether <ORG>, at the time of granting him pension which is normally determined by the years of service and the last pay he receives at the end of his career, would be entitled to forfeit rights acquired by length of service on the ground that faults, which, at the time, were either overlooked or condoned had now become so rave as to justify punishing him by inflicting a severe cut in the pension. It is not necessary for us to deal with this point here except to suggest that this aspect of the case could well have been urged by the officers before the Government if notice had been issued to them to show cause against the proposed cut and <ORG> would have had necessarily to apply its mind to that question.

In short it must be conceded that though the State Govern- ment may have had some material before it for imposing a penalty by way of a cut in the pension it had failed to give a reasonable opportunity to the officers to put forward their defence or facts in extenuation before the cut was imposed. The case of <NAME> v. <NAME>(1) comes to mind in this connection. <NAME> who was the Chief Constable of the borough police force was prose-

(1) [1964] A.C. 40.

cuted on grave charges. <NAME>, the trial Judge made, while acquitting him, some observations about his moral incompetence to afford leadership to the police force. Acting on this severe criticism by a Judge of <ORG> <ORG>. entitled under Section 191. of the Municipal Corporations Act 1882 to dismiss him on a charge of unfitness, dismissed him from service. This dismissal practically at the end of his official career had the consequence of depriving him of his pension. <ORG> held that the order had to be set aside because <NAME> was not afforded an opportunity to defend himself, though the statute itself did not require any such opportunity being given.

The question for our consideration now is whether the orders imposing a cut in the pension should be set aside for the reason that the officers were not given reasonable opportunity to show cause. The law on the point is not in doubt. Where a body or authority is judicial or where it has to determine a matter involving rights judicially because of express or implied provision, the principle of natural justice audi ailteram partem applies. <CITATION> (1) and <CITATION> (2). With the proliferation of administrative decisions in the welfare State it is now further recognised by courts both in En-land and in this country, (especially after the decision of <ORG> in <NAME> v. <NAME> that where a body or authority is characteristically administrative the principle of natural justice is also liable to be invoked if the decision of that body or authority affects individual rights of interests. and having regard to the particular situation it would be unfair for the body or authority not to have allowed a reasonable opportunity to be heard. See : <CITATION> .(3) and In re H. K. [An Infant(4)]. In the former case it was observed it page 628 as follows "An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fair play. The deciding authority. it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is however under a duty to give the person against whom 'in enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority (1)  S.C.R. 621 (725) (2)  Sup. (3) S.C.R. 3.

(3) [1967] (2) S.C.R. 625.

(4) [1967] 2 Q.B.D. 617.

which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil conse- quences. It is one of the fundamental rules of Our Constitutional set up that ever), citizen is protected against exercise of arbitrary authority by the <ORG> or its officers. Duty to act judicially would therefore arise from the very nature of the function intended to be performed; it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made the order is nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."

These observations were made with reference to an authority which could be described as characteristically administrative. page 630 it was observed :

"It is true that the order is administrative in character, but even an administrative order which involves civil consequences as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the <ORG>, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting Or explaining the evidence."

This case And the English case in re H. K. (An Infant) were specifically referred to with approval in a decision of the constitution bench of this Court in <NAME> & Ors.. etc. v. <ORG> & Ors(1).

It is, therefore, clear that the <ORG> in the case of these three officers could not have applied a cut in the pension of the officers without giving them a reasonable opportunity to make their defense. The rule which declares that even an administrative authority has to act fairly after giving an opportunity to the person rights and interests are affected by its decision is no more than an extension of the well- known rule which courts in England had recognised in the 19th century. In <NAME> v. <NAME> (1) [1970] 1 S.C.R. 457.

<ORG>) the <ORG>, which had, under the Act of 1855, the authority to demolish any building constructed if the owner thereof had failed to give proper notice, was held bound to give the owner an opportunity of being heard before the demolition, It was contended in that case by the <ORG> that their discretion to order demolition was not a judicial discretion. But the court decided unanimously in favour of the owner. <NAME> held that the power was subject to a qualification repeatedly recognised that no mean is to be deprived of his property without his having an opportunity of being heard. and that this had been applied "to many exercises of power which in common understanding would not be at all a more judicial proceeding than would be the act of the district board in ordering a house to be pulled down." <NAME> observed: "that the rule was of universal application, and founded upon the plainest principles of justice." In the case before us the officers are being deprived of part of their property by applying a cut to the pension. Therefore, it was quite essential in all fairness and elementary justice that they should have been given reasonable opportunity to show cause against the proposed action.

Reference was made on behalf of the <ORG> to M. <NAME> v. The <ORG> of Mysore(2) and particularly the following observations at page 889. "Next the appellant contends that as his pension has been reduced to two-thirds, he was entitled to notice in view of the provisions of Art. 311(2) of the Constitution, before the Government decided to inflict that punishment on him and that this was not done in the notice dated December 30, 1954. It is enough to say that this contention is also baseless. Article 311 (2) does not deal with the question of pension at all; it deals with three situations, namely (i) dismissal, (ii) removal, and (iii) reduction in rank. The appellant says that the reduction in pension is equivalent to reduction in rank. All that we need say is that reduction in rank applies to a case of a public servant who is expected to serve after the reduction. It has 'nothing to do with reduction of pension, which is specifically provided for in Art. 302 of the Regulations. That article says that if the service has not been thoroughly satisfactory the authority sanctioning the pension should make such reduction in the amount as it thinks proper. There is a Note under this article, which says that ',he full pension admissible under the Regulations is not to be given as a matter of course but rather to be treated as a matter of distinction. It was under this article that the Government acted when it reduced the pension to two-thirds. Reduction in person being a matter of discretion with the Government, it carrier therefore be said that it committed any breach of the Result (1)  14 C,13,N.S,. 180.

(2) [1960] 1 S.C.R.

<NAME>

in reducing the pension of the appellant." Particular reference was made to the last two or three sentences in the above observations for the contention that payment of pension was a matter of discretion with the <ORG>. It is enough to say that the question did not arise in the case as to whether pension is bounty or property. In that case the appellant <NAME> had been charged in respect of seven irregularities committed by him when he held the post. An enquiry was held and six of the irregularities were found proved. A final notice was served on him to show cause why he should not be compulsorily retired and 50 % of his pension should not be adjusted towards the amount clue from him on account of the shortage caused by the irregula- rities. He did not show cause. In the meantime he reached the age of superannuation and the <ORG> passed an order directing that he be retired from service from the date on which had reached superannuation and given a reduced pinion of two-thirds to which he would be ordinarily entitled in view of the irregularities committed by him. One of his contentions was that Article 311(2) app<NAME>d to his case and, therefore, <NAME> was entitled to a notice before his pension was reduced to two-thirds. To that the answer was that Article 311(2) did not apply to him and. under Article 302 of the Regulations his pension was liable to be reduced Lit <ORG>'s discretion. He had known what the charges there against him and what punishment was proposed to be inflicted upon him. Therefore, <NAME> was not in a position to come that his pension was reduced without notice to him. In the result we hold that the three writ petitions were correctly decided by <ORG> and the appeals must fail. They are dismissed with costs.

<ORG> dismissed.