CASE NO.: Appeal (civil) 976-978 of 1999 PETITIONER: Govt. of A.P. & <ORG>. RESPONDENT: J.B. Educational Society & <ORG>., etc. DATE OF JUDGMENT: 23/02/2005 BENCH: <NAME> & <NAME> JUDGMENT:

JUDGMENT With CIVIL APPEAL No. 3026 OF 1999 <NAME>, J.

These appeals are filed by the <ORG> of Andhra Pradesh challenging the decision of <ORG> of <ORG> in Writ Appeal Nos. 1571 of 1997; 84 of 1998; and 85 of 1998. By the impugned Judgment, <ORG> partly confirmed the judgment of the learned Single Judge and held that Section 20(3)(a)(i) of the Andhra Pradesh Education Act, 1982 (in short "the A.P. Act ") is void and inoperative and the <ORG> Government had no legislative competence to pass such a legislation as the <ORG> provision was in the field already occupied by the enactment made by the <ORG>, namely, All India Council of Technical Education Act , 1987 (hereinafter being referred to "AICTE Act"). It was held that in view of Section 10 of the AICTE Act with regard to establishment of technical institutions in general, the said special enactment legislated by the <ORG> would prevail over the A.P. Act to the extent of its repugnancy.

The Writ Petitioners are the private educational institutions. They wanted to establish engineering colleges in the State of Andhra Pradesh. They applied to the authorities under the AICTE Act and approval was granted to them for the academic year 1997-98 by <ORG>. These Writ Petitioners made applications under Section 20 of the Act for permission to establish the institution. The permission was rejected on the ground that the Writ Petitioners had been seeking permission to establish colleges in the places where already there were number of colleges and that <ORG> was not satisfied about the educational needs of that locality. In that view of the matter, permission was declined. Aggrieved by the same, the Writ Petitions were filed.

A.P. Act is a consolidating and amending Act made by <ORG> with the object of reforming, organising and developing educational system in the <ORG> and to provide for matters connected therewith or incidental thereto. This legislation had received the assent of the President. Under Section 19 of the A.P. Act, educational institutions are classified into three categories, namely, <ORG> institutions, local <ORG> institutions and Private institutions and granting of permission for the establishment of educational institutions is governed by Section 20 . This Section was amended by Act No. 27 of 1987 wherein it was provided that no educational institutions shall be established except in accordance with the provisions of the Act. The <ORG> Government is authorised to appoint by notification a competent authority for such area as may be specified in the notification. Sub- Section (1) of Section 20 provides that the competent authority appointed by the <ORG> Government shall from time to time, conduct a survey for the purpose of identifying the educational needs of the locality under its jurisdiction and thereafter it shall issue notification through the local newspapers calling for applications from the educational agencies desirous of establishing educational institutions. Educational agency means any body of persons including that of religious or linguistic minority entrusted with the establishment and maintenance of a private educational institution of a minority educational institution, as the case may be. Any educational agency applying for such permission shall satisfy the concerned authority that there is need for providing educational facilities to the people in the locality. There are some other requirements mentioned in sub-Section (3) of Section 20 and those conditions have to be fulfilled by the educational agency for applying of permission for establishing an educational institution. Section 20 of the A.P. Act reads as follows:-

"PERMISSION FOR ESTABLISHMENT OF EDUCATIONAL INSTITUTIONS:

(1) The competent authority shall, from time to time, conduct a survey as to identify the educational needs of the locality under its jurisdiction, and notify in the prescribed manner through local news papers calling for applications from the educational agencies desirous of establishing educational institutions.

(2) (a) In pursuance of the notification under sub-section (1) any educational agency including local authority or registered body or persons intending to

(a) establish an institution imparting education;

(b) xxxxxxxxxxxxxxxx

(c) xxxxxxxxxxxxxxxx

(d) xxxxxxxxxxxxxxxx (3) Any educational agency applying for permission under sub-section (2) shall

(a) before the permission is granted, satisfy the authority concerned, -

(i) that there is need for providing educational facilities to the people in the locality;

(ii) & (iii) (b) & (c) xxxxxxxxxxxxxxxxxxxxx (4) On and from the commencement of the Andhra Pradesh Education (Amendment) Act, 1987 no educational institution shall be established except in accordance with the provisions of the Act."

The source of legislation of the A.P. Act is traced to Entry 25 of the Concurrent List which is to the following effect:-

"Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour."

AICTE Act was enacted by the <ORG> by virtue of the powers under Entry 66 of the Union List wherein exclusive power is vested with <ORG> with regard to technical education. AICTE Act was enacted with the object of regulating and coordinating the development of technical education throughout the country and also for establishment of proper and uniform norms and standard of technical education in India. Under Section 3 , <ORG> shall appoint a Council called <ORG> and under Section 10 of the Act, the Council has the following powers and functions:-

"10 (1) it shall be the duty of the <ORG> to take all such steps as it may think fit ensuring coordinated and integrated development of technical education and maintenance of standards and for the purpose of performing its functions under this Act, the council may

(a) undertake survey in the various fields of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education;

(b) coordinate the development of technical education, collect data on all related matters and make forecast of the needed growth and development in technical education;

(c) allocate and disburse out of <ORG> such grants on such terms and conditions as it may think fit to i. technical institutions and ii. universities imparting technical education in coordination with the commission;

(d) promote innovations research and development in established and new technologies, generation, adoption and adaptation of new technologies to meet developmental requirements and for overall improvement of educational processes.

(e) create schemes for promoting technical education for women, handicapped and weaker sections of the society.

(f) promote an effective link between technical education system and other relevant systems including research and development organizations industry and the community;

(g) evolve suitable performance appraisal systems for technical institutions and universities imparting technical education, incorporating norms and mechanisms for enforcing accountability;

(h) formulate schemes for the initial and in service training of teachers and identify institutions or centres and set up new centres for offering staff development programmes including continuing education of teachers;

(i) lay down norms and standards for courses, curricula, physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations;

(j) fix norms and guidelines for charging tuitions and other fees;

(k) grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned;

(l) advice the central government in respect of grant of character to any professional body or institution in the field of technical education conferring powers, rights and privileges on it for the promotion of such profession in its field including conduct of examination and awarding of membership certificates;

(m) lay down norms for granting autonomy to technical institutions;

(n) take all necessary steps to prevent commercialisation of technical education;

(o) provide guidelines for admission of students to technical institutions and universities imparting education;

(p) inspect or cause to inspect any technical institutions;

(q) withhold or discontinue grants in respect of courses, programmes to such technical institutions which fails to comply with the directions given by the council within the stipulated period of time and take such other steps as may be necessary for ensuring compliance of the directions of the council;

(r) take steps to strengthen the existing organizations, and to set up new organizations to ensure effective discharge of the council's responsibilities and to create positions of professional, technical and supporting staff based on requirements;

(s) declare technical institutions at various levels and types offering course in technical education fit to receive grants;

(t) advise the commission for declaring any institution imparting technical education as a deemed university;

(u) set up <ORG> to periodically conduct evaluation of technical institutions or programmes on the basis of guidelines, norms and standards specified by it and to make recommendation to it, or to the council or to the commission or to other bodies regarding recognition or de-recognition of the institution or the programme;

(v) perform such other functions as may be prescribed.

From the provisions of the Act, it is clear that the purpose of the enactment was proper planning and coordinated development of technical education system throughout the country and promotion of qualitative improvement of such education and other allied matters. In <NAME> Vs. State of AP 1993(1) SCC 645, this Court emphasized the importance of such a central <ORG> for the promotion of qualitative improvement of technical education. By virtue of Section 23 of the AICTE Act, the <ORG> is competent to frame regulations and the regulations are called "All India <ORG> for Technical Education (Grant of Approval) for starting new technical institutions, introduction of courses or programmes, approval of intake capacity of seats for the courses or programme Regulations, 1994." Under Regulation 9, several committees are formed, namely, <ORG>, <ORG>, <ORG>, etc. While the <ORG> is constituted by the <ORG> in consultation with the Chairman of <ORG> and consists of other representatives of the <ORG>, the <ORG> constituted under sub- regulation 4 of Regulation 9 considers the recommendations of <ORG> and others mentioned in Sub-Regulation 4 and submits its recommendations to <ORG>, constituted under sub-regulation 5 of Regulation 9. If there is any disagreement between the recommendations made by <ORG>, <ORG> or <ORG>, the <ORG> shall invite representatives of the respective agencies for further consultations before making final recommendations.

The petitioners in the Writ Petitions contended that in view of Section 10 of the AICTE Act, no permission of <ORG> under Section 20 of the Act was required as the field is completely covered by the AICTE Act. It was argued that once the approval was granted by the <ORG>, <ORG> cannot refuse permission on the ground that the proposed educational institution may not subserve the educational needs of the locality. The learned Counsel for the <ORG>, on the other hand, contended that Section 20 of the AP Act and Section 10 of the AICTE Act operate in different fields, there is no conflict between these provisions and that they are not repugnant to each other and the decision of <ORG> is erroneous. It was also contended by the appellant's Counsel that the <ORG> Legislature has legislative competence to pass the enactment and that, in view of Entry 25 of the Concurrent List, the <ORG> alone would be competent to say whether an institution should be established in an area to serve the educational needs of that locality.

The legislative powers of the <ORG> and <ORG> are governed by Article 246 to 255 of Part II of the Constitution. Article 246 reads as follows:-

"Subject-matter of laws made by <ORG> and by <ORG>.  (1) Notwithstanding anything in clauses (2) and (3), <ORG> has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(2) Notwithstanding anything in clause (3), <ORG>, and, subject to clause (1), the <ORG> of any state also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this <ORG> referred to as the "Concurrent List"). (3) Subject to clauses (1) and (2), the <ORG> of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this <ORG> referred to as the "State List").

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List. "

The <ORG> has exclusive power to legislate with respect to any of the matters enumerated in List I, notwithstanding anything contained in clauses (2) and (3) of Article 246. The non-obstante clause under Article 246(1) indicates the predominance or supremacy of the law made by the <ORG> legislature in the event of an overlap of the law made by <ORG> with respect to a matter enumerated in List I and a law made by the <ORG> legislature with respect to a matter enumerated in List II of the Seventh Schedule.

There is no doubt that both <ORG> and the <ORG> legislature are supreme in their respective assigned fields. It is the duty of the <ORG> to interpret the legislations made by the <ORG> and the <ORG> legislature in such a manner as to avoid any conflict. However, if the conflict is unavoidable, and the two enactments are irreconcilable, then by the force of the non-onbstante clause in Clause (1) of Article 246 , the <ORG>ary legislation would prevail notwithstanding the exclusive power of the <ORG> legislature to make a law with respect to a matter enumerated in the <ORG> List.

With respect to matters enumerated in the List III (Concurrent List), both the <ORG> and the <ORG> legislature have equal competence to legislate. Here again, the courts are charged with the duty of interpreting the enactments of <ORG> and the <ORG> legislature in such manner as to avoid a conflict. If the conflict becomes unavoidable, then Article 245 indicates the manner of resolution of such a conflict.

Thus, the question of repugnancy between the <ORG> legislation and the <ORG> legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in Concurrent List and there is a conflict. In both the situations, <ORG> legislation will predominate, in the first, by virtue of the non-obstante clause in Article 246(1 ), in the second, by reason of Article 245(1). Clause (2) of Article 245 deals with a situation where the <ORG> legislation having been reserved and having obtained President's ascent prevails in that <ORG>; this again is subject to the proviso that the <ORG> can again bring a legislation to override even such <ORG> legislation.

It is in this background that the provisions contained in the two legislative enactments have to be scrutnised. The provisions of the AICTE Act are intended to improve the technical education and the various authorities under the Act have been given exclusive responsibility to coordinate and determine the standards of higher education. It is a general power given to evaluate, harmonise and secure proper relationship to any project of national importance. Such a coordinate action in higher education with proper standard is of paramount importance to national progress. Section 20 of the AP Act does not in any way encroach upon the powers of the authorities under the Central Act . Section 20 says that the competent authority shall, from time to time, conduct a survey to identify the educational needs of the locality under its jurisdiction notified through the local newspapers calling for applications from the educational agencies. Section 20(3)(a)(i) says that before permission is granted, the authority concerned must be satisfied that there is need for providing educational facilities to the people in the locality. The <ORG> authorities alone can decide about the educational facilities and needs of the locality. If there are more colleges in a particular area, the <ORG> would not be justified in granting permission to one more college in that locality. Entry 25 of the Concurrent List gives power to <ORG> to make laws regarding education, including technical education. Of course, this is subject to the provisions of Entry 63, 64, 65 and 66 of List I. Entry 66 of List I to which the legislative source is traced for the AICTE Act deals with the general power of the <ORG> for coordination, determination of standards in institutions for higher education or research and scientific and technical educational institutions and Entry 65 deals with the union agencies and institutions for professional, vocational and technical training, including the training of police officers, etc. The <ORG> has certainly the legislative competence to pass the legislation in respect of education including technical education and Section 20 of the Act is intended for general welfare of the citizens of the <ORG> and also in discharge of the constitutional duty enumerated under Article 41 of the Constitution.

The general survey in various fields of technical education contemplated under Section 10(1)(a) of the AICTE Act is not pertaining to the educational needs of any particular area in a State. It is a general supervisory survey to be conducted by <ORG>, for example, if any <ORG> is to be established in a particular region, a general survey could be conducted and the <ORG> can very much conduct a survey regarding the location of that institution and collect data of all related matters. But as regards whether a particular educational institution is to be established in a particular area in a State, the State alone would be competent to say as to where that institution should be established. Section 20 of the AP Act and Section 10 of the Central Act operate in different fields and we do not see any repugnancy between the two provisions.

This Court in <CITATION> ,  at page 499 held thus:

"It is well settled that the presumption is always in favour of the constitutionality of a Statute and the onus lies on the person assailing the Act to prove that it is unconstitutional Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Act s. Before any repugnancy can arise, the following conditions must be satisfied:

1. That there is a clear and direct inconsistency between the Central Act and the State Act .

2. That such and inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other."

This Court also referred to the earlier decisions including <NAME> Vs. State of U.P. (1959 Supp (2) SCR 8, at p. 43), wherein various tests to ascertain the question of repugnancy between the two statutes were indicated and, inter alia, it was held that repugnancy between two statutes may be ascertained by considering, whether <ORG> intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature. Reference was made to <NAME> Vs. Allah Rakhia AIR 1942 FC 27, wherein it was observed that if the paramount legislation does not purport to be exhaustive or unqualified, there is no inconsistency and it cannot be said that any qualification or restriction introduced by another law is repugnant to the provision in the main or paramount law. This court also referred to <NAME> Vs. T.S. <NAME> (1969) 3 SCR 65 wherein it was, inter alia, observed that before coming to the conclusion that there is a repeal by implication, the court must be satisfied that the two enactments are so inconsistent that it becomes impossible for them to stand together.

In Kanaka Gruha Nirmana Sahakar Sangha Vs. <NAME>, (2003) 1 SCC 228, this court after quoting Article 254 held:

"The language of the aforesaid article is crystal clear and it inter alia provides [subject to the provisions of clause (2)] that

9. (a)if any provisions of law made by the legislature of a State is repugnant to any provision of a law made by <ORG>, which <ORG> is competent to enact, then the law made by <ORG> whether passed before or after the law made by the legislature of the State shall, to the extent of repugnancy, be void;or

(b)if any provision of a law made by the legislature of a state is repugnant to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then the existing law shall prevail and the law made by the legislature of the State shall, to the extent of repugnancy, be void."

10. "There cannot be any doubt that the article gives supremacy to the law made by the <ORG>, which <ORG> is competent to enact, but for application of this article, firstly, there must be repugnancy between the <ORG> law and the law made by <ORG>. Secondly, if there is repugnancy, the <ORG> legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254 (1) and both Acts would prevail."

In <ORG> Vs. State of Karnataka (2002) 8 SCC 481, Justice <NAME>, as he than was, on the question of transposition of subject "Education" from List II to List III and its effects, held :

"It may be remembered that various entries in three lists of the Seventh Schedule are not powers of legislation but field of legislation. These entries are mere legislative heads and demarcate the area over which the appropriate legislatures are empowered to enact law. The power to legislate is given to the appropriate legislatures by Article 246 and other articles. .Thus the function of entries in three lists of the Seventh Schedule is to demarcate the area over which the appropriate legislatures can enact laws but does not confer power either on <ORG> or <ORG> to enact laws. It may be remembered, by transfer of the entries, the character of the entries is not lost or destroyed."

Justice <NAME>, the then Chief Justice of India, on the question of admissions in private unaided professional colleges held that:

". It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the <ORG> at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counseling by State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage of this purpose has to be done by the <ORG> according to the local needs and different percentages can be fixed for minority unaided and non-minority aided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and postgraduation non-professional colleges or institutions."

In <ORG> Vs. State of Karnataka (2003) 6 SCC 697 at 770 , it was held as under:

"Local Needs would vary from <ORG> to <ORG>. Even development of a backward area may be a local need. The absence of a good educational institution in a particular area may be a local need. <ORG> may, in pursuit of its policy for the development of the people, consider it expedient to encourage entrepreneurs for establishing educational institutions in remote and backward areas for the benefit of the local people. Local needs, therefore, cannot be defined only with reference to the <ORG> as a unit. For good reasons the <ORG> may not like to establish professional colleges or institutions only in their capitals."

<CITATION> , and in Government of A.P. & Anr. Vs. Medwin Educational Society & Ors. , similar views were expressed by this Court.

The educational needs of the locality are to be ascertained and determined by the <ORG>. Having regard to the regulations framed under the AICTE Act, the representatives of the <ORG> have to be included in the ultimate decision making process and having regard to the provisions of the Act, the Writ Petitioners would not in any way be prejudiced by such provisions in the A.P. Act . Moreover, the decision, if any, taken by the <ORG> authorities under Section 20(3)(a)(i) would be subject to judicial review and we do not think that the <ORG> could make any irrational decision about granting permission. Hence, we hold that Section 20(3)(a)(i) is not in any way repugnant to Section 10 of AICTE Act and it is constitutionally valid.

In the result, we set aside the judgment of <ORG> and the appeals are allowed accordingly. There will be no order as to costs.


<NAME>, J.

1. Six persons stood their trial before the Sessions Judge, Sangli, the appellant on the charge of murder of one <NAME>bai and the rest under Section 201 read with Section 34, Penal Code , for causing the evidence of the said murder to disappear by burning her dead body in survey No. 178 of village arandi. Of these persons, the appellant, hereinafter referred to as accused 1 and accused 2 and 4 are the sons of accused 5, and accused 6 is his wife. The victim was the widow of one <NAME>, the nephew of accused 5, who after the death of her husband was living with accused 5. The relations between the deceased and the accused were, it was said, normal on the whole, but during the past year before the alleged murder, accused 5 was insisting upon the deceased either transferring a piece of land standing in her name in favour of the accused, or adopting one of his sons. The motive for the crime alleged by the prosecution was the refusal of the accused to follow either of the two courses and the consequent fear of the accused that <NAME> would at any time convey it to one of her other relations

2. On December 9, 1965 at about 9 a.m., <NAME> started for her field to pluck ground-nut creepers. On her way, she passed through the field of <NAME> and took along with her his daughter <NAME>, aged about 12 years, to help her in her work. While <NAME> and <NAME> were pulling out the groundnut creepers from the ground, accused 1 came there armed with an axe. He asked <NAME> what her plan was for that day and at once struck her on her neck with the axe he had with him. <NAME> collapsed under that blow and <NAME> frightened at what she had seen, ran to her father in the neighbouring field and told him of what she had seen. At that very juncture, <NAME> also heard the screams of Sundarabai, the wife of accused 2, who also had seen the incident from a field nearby, where she was working at that time. On <NAME> going to the place where Sundarabai was, the two of them went to the place where <NAME> was lying dead. <NAME> then went to the field of one <NAME> nearby & told <NAME> that accused 1 had killed <NAME>. After a little while, the two of them saw accused 2 and 4 carrying away the dead body of <NAME> in a blanket to survey No. 178 belonging to the accused. Seeing this, they went to <NAME>, the brother of <NAME>, who also was working in his field After telling <NAME> of what had happened, <NAME> and <NAME> went towards the village to inform the <NAME> and to find out where the village Police <NAME> was <NAME> went towards the accused's field and saw the dead body of <NAME> having been set on fire and all the accused standing nearby, accused I being still with the axe. When <NAME> went near the place, accused I threatened him with evil consequences if he proceeded to where the body was being burnt. In the meantime, some relations of <NAME> came there and seeing them the accused went away. Those relations then dragged out the body of <NAME> from the burning pyre. <NAME> thereafter contacted the Police <NAME>. Both of them went to Tasgaon Police Station about 22 miles away from the village reaching there at about sunset. The delay in reaching the police station was due to the fact that they had to wait for some conveyance to travel that distance, such a conveyance becoming available to them only in the afternoon. At the police station <NAME> gave the first information report. Thereafter the police investigation commenced, during the course of which the police took charge of the charred body of the deceased and sent it for post-mortem. Dr. <NAME> who performed the post-mortem, found, apart from the burn injuries, two external injuries on the body :

(1) a wound 2" x 1/2" upto the vertebral column upon the right of the neck just below the right ear, and (2) a wound 21/2" x 1/2" with the fracture of the vertebral column. An internal examination by him revealed that part of the occipital bone under injury No. 1 had been fractured and the : seventh cervical vertebra had been completely fractured. The brain as also several other parts of the body were either completely or partially burnt. According to the post-mortem notes made by Dr. <NAME>, death was probably caused by the aforesaid two injuries on the neck resulting in the failure of the heart and respiration. On the dead body were found a silver waste band and a silver necklace chain. The police noticed signs of trampling and blood over the groundnut creepers where <NAME> and <NAME> had been working at the time of the assault.

3. At the trial, the prosecution examined <NAME> claiming her to be an eye-witness of the assault by accused 1, her father <NAME> to whom she had narrated the assault almost immediately and <NAME> and <NAME>. <NAME>, the wife of accused 2, was also examined, but was declared a hostile witness since her evidence was contrary to her statement before the police. There were other witnesses also to prove their having dragged out the dead body of <NAME> from the burning pyre. Besides Dr. <NAME>, the prosecution examined Dr. <NAME>, the Civil Surgeon at Sangli.

4. The accused denied any knowledge of the incident. The defence of accused I was that he was at the time working in his field where his wife's sister came and told him that <NAME> had a snake bite. When he came near his house he found several persons there, who had already placed her dead body on a pyre and set fire to it. After some time <NAME>, the relations of the deceased, came there armed with axe and sticks and dragged the burnt body of <NAME> out of the pyre. His case was that <NAME>'s evidence was false and that she was made to give such evidence on account of enmity between <NAME> and the accused. That enmity arose because <NAME> had often resorted to stealing the crops from the accused's lands. The other witnesses also had given false evidence against them owing to similar hostility existing between them for one reason or the other.

5. The Trial Judge accepted the fact that <NAME> had given the first information report but refused to rely on it as <NAME> had not specifically stated therein the fact of his having been told by <NAME> that accused I had struck the deceased with an axe. He declined to accept the prosecution story of motive on the ground that accused 5 had earlier executed <NAME>, which belied the allegation that he had insisted upon <NAME> conveying her land to him or his sons or adopting one of his sons. He also declined to accept the prosecution case that the death of <NAME> was homicidal as Dr. <NAME> was not able to say in the condition in which the dead body was brought to him whether the two external injuries he had seen were ante-mortem or post-mortem. He doubted the claim of <NAME> as an eye-witness on the ground that it was improbable that she had gone with <NAME> to her field to assist her. He also found the version of <NAME> unacceptable that <NAME> had come running to him or that she had told him of the assault on <NAME> by accused 1 with an axe or his having then gone to <NAME> and telling him of what he had been told by <NAME>, or the two of them having gone to <NAME> and then to the Kotwal and the Police Patil and telling them that accused I had killed <NAME> with an axe and accused 2 and 4 had brought the body to their field for burning it. On these findings the Trial Judge acquitted all the accused.

6. The approach of the Trial Judge was that because, according to him, the prosecution had failed to establish an adequate motive, the evidence of <NAME> and her claim of being an eye-witness could not be accepted as true or even probable. His reasoning for such a conclusion was that it was unlikely that she had accompanied <NAME> to her field to assist her in plucking out the ground-nut creepers when her father himself was busy doing similar work in his own field. He refused to accept <NAME>'s evidence on the ground that being the village Ramoshi and bound as such to help the police whenever a crime took place in the village, he was likely to be under the police influence and that it was result of such influence and at the instance of the police that he and <NAME> gave their evidence. Having come to the conclusion that the prosecution had not been able to prove that <NAME>'s death was homicidal, the learned Judge even felt inclined to accept the defence story of snakebite and of the belief amongst village people that in such cases the victim's body should be cremated immediately and that too in the vicinity of the residence of such victim. That was how the learned Judge explained away the two circumstances : (1) the body having been sought to be done away with without informing the deceased's relations living in the village, and (2) cremating it right in front of the accused's residence. On these premises, the Trial Judge held the prosecution case not proved and acquitted all the six accused. The Trial Judge ended his judgment in the following words :

To summarise, therefore, that is a case where there does not seem to be any plausible motive for criminal behavior on the part of any of the accused, and if the evidence of phuba is excluded, as I have done, there is no direct evidence. The expert medical opinion is of no assistance for coming to the conclusion that the death in this case is homicidal. The report of <ORG> shows that the origin of the blood which was detected at the spot shown by accused No. 1 and on his dhoti and on the axe could not be determined. Then, what we are left with are the suspicious circumstances that the dead body appears to have been hurriedly burnt at an unusual place with ornaments on its person and the accused are falsely denying their connection with the cremation. But then in view of the medical opinion and the opinion of <ORG> and the absence of motive, all that could be said is that these circumstances would create a suspicion; but suspicion, is no evidence. That being the position, all the accused are entitled to an acquittal, and I order accordingly.

7. On appeal by the State, <ORG> reversed the order of acquittal and convicted accused 1 under Section 302 and sentenced him to life imprisonment. <ORG> also convicted accused 4, 5 and 6 under Section 201 of the Penal Code, but confirmed the order of acquittal so far as accused 2 and 3 were concerned. In doing so <ORG> accepted <NAME> as the eye-witness and found her evidence corroborated by the evidence of <NAME>, the wife of accused 2, of her having drawn <NAME>'s attention by her screams to the place where <NAME> was attacked and was lying and <NAME>, thereupon, having gone to that place and found <NAME> having been already dead with axe injuries. <ORG> next accepted <NAME>'s version of having been informed of the assault by <NAME> and <NAME>, his having then gone near the accused's house, his having seen all the accused near the burning pyre and accused 1 having threatened him with the axe, which he still had in his hand, if he proceeded any further to the place where the body was being burnt. <ORG> declined to accept the defence theory of the snake-bite or the alleged belief that in such cases the dead body had to be cremated immediately and at the residence of the victim or any of the two external injuries deposed by Dr. <NAME> having been caused as a result of the dead body having subsequently been rolled out of the burning pyre. <ORG> reached these conclusions after elaborately reappraising the entire evidence on record, which on an appeal against acquittal, it is well settled, it could, and recording correctly the principles laid down in the decisions of this Court guiding its approach in appeals against acquittal, and also examined the reasons given by the Trial Judge for non-acceptance of the prosecution evidence.

8. These principles are that under the CrPC <ORG> has full power to review at large the evidence upon which an order of acquittal has been passed by <ORG> and to reach the conclusion that upon that evidence the order of acquittal should be reversed. However, in exercising that power and before reaching its conclusion upon facts, <ORG> should give proper weight and consideration to such matters, as the views of the trial judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, the right of the accused to the benefit of any doubt and the slowness of the appellate court in disturbing a finding of fact arrived at by the judge who had the advantage of seeing the witnesses. ( <CITATION> 61 I.A. 398). These principles were approved of and repeated in <CITATION> . Counsel for the appellant was not able to point out to us anything in <ORG>'s judgment which would suggest that it had not followed these principles while reappraising the evidence and disagreeing with the findings of fact given by the Trial Judge.

9. A perusal of the judgment of the Trial Judge shows that his reluctance to accept the evidence of <NAME> and her father <NAME> principally stemmed from (1) his disbelief of the evidence on motive and its adequacy, (2) his view as to the improbability of <NAME> having gone to the deceased's field to help the deceased, and (3) the omission by <NAME> in the first information report of the fact that accused I had struck the deceased with an axe.

10. It is true that the deceased had been living with accused 5 and his family. It is also true that until the incident in question there had been no open rupture between the deceased and accused 5 and his family members. That fact, however, does not preclude the possibility of accused 5 having asked the deceased to settle the land held by her upon his sons, or in the alternative to adopt any one of them. Either of these two courses would have ensured the land coming to his family and not being disposed of in favour of any outsider. The evidence of <NAME> in this regard showed that the deceased had refused to comply with such requests by accused 5, which were so persistant that deceased had complained to him about them. That the deceased would so complain to <NAME> would not in any manner be improbable as <NAME> was her brother and residing in this very village. It is difficult also to conceive that <NAME>, in collusion with any of the witnesses in this case, could have invented such a story so as to afford to the prosecution evidence of motive. There is no indication in the evidence of any previous hostility between <NAME> and the accused which could impel <NAME> either to invest such evidence himself or to permit himself to be manoeuvered by any other person into investing such a story for a motive. The refusal by the deceased to comply with the request persistently made and the possibility of the land going out of the reach of the accused could not also be regarded as an inadequate motive. Numerous crimes have been perpetrated for reasons less adequate than the possible loss of land.

11. Assuming that the prosecution evidence was not sufficient or cogent enough for a motive to be spelt out of it, the fact that the prosecution was not able to discover such an impelling motive would not reflect upon the credibility of a witness, proved to be a reliable eye-witness. Was <NAME> such an eye-witness ? The answer to that question must depend upon the intrinsic value of her evidence, the absence of any possibility of her having been put up as an eye-witness or tutored by any interested person or persons and the circumstances in which the incident in question had occurred, and not upon whether the prosecution was able or not to prove an adequate motive. What the Trial Judge, however, did was precisely the opposite, that is to say, he looked at her evidence not from the point of view of whether it was intrinsically genuine, but with distrust because the evidence with respect to motive was, according to him, not satisfactory. As regards the evidence relating to motive, one of the facts which weighed with him for discarding that evidence was the fact that accused 5 had earlier executed <NAME> in respect of the deceased's land. We do not know what its terms were, for, it was not produced during the trial. But the very title of the document would seem to suggest that accused 5 by that document acknowledged the title of the deceased to the land for her life time. The document did not acknowledge her absolute title and her right to alienate the land during her life time or to make a bequest of it by a testamentary instrument in favour of any one. The accused must, therefore, know that <ORG> would not have ensured the land to them so or prevented its alienation or transfer by <NAME>. Its execution by accused 5, therefore, could not render <NAME>'s evidence as to motive untrue.

12. As stated earlier, the fact that the prosecution in a given case has been able to discover a sufficient motive or not cannot weigh against the testimony of any eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such case if a motive is properly proved such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of any eye-witness is rendered untrustworthy.

13. It is true that there was only a solitary eye-witness in the present case and that too a girl of twelve years of age, to whom the Trial Judge did not consider it expedient to give the oath, since according to him, she was not mature enough to understand the significance of the oath. At the same time there was, in the circumstances of the case, scarcely any possibility of there only because she had gone to the field with the deceased at the latter's request to her father <NAME> for assistance. But there was nothing improbable in <NAME> having done so, for, that was expected of her by the deceased was to pluck out from the ground groundnut creepers and collect them into heaps. The Trial Judge, however, thought this to be unlikely for he said that she had gone with her father to his field precisely for this kind of work, and therefore was not likely to leave him alone to do the entire work. There the Trial Judge was in error, for, <NAME>'s evidence showed that the ground-nut creepers had already been taken out from the ground and collected in small heaps at various places and the work for which he had gone to the field that morning was to collect all these heaps at one place so as to enable him to pluck out the ground-nuts from the creepers so collected. Being teenager, <NAME> perhaps would not have been of much assistance to him for that kind of work, and therefore, it was not unlikely that <NAME> would, when requested by the deceased, allow <NAME> to go with her for assisting in taking out the creepers from the ground. Such assistance to neighbours by children of cultivators is not uncommon in villages. There was, therefore, nothing improbable in <NAME> being in the deceased's field when the incident in question occurred.

14. Once it was shown that <NAME> was present in that field, the only question for consideration would be whether her evidence was acceptable or not Her evidence in that connection had to be scrutinised with care and caution as she was not only a teenager but the only witness claimed to be an eye-witness. The Trial Judge conceded that her evidence was not marred by any material discrepancy or contradiction. But the absence of any such infirmity according to him, was not enough, and brought in the omission of <NAME> to specifically mention the fact of accused 1 having struck the deceased with an axe in the first information report as a reason for discarding <NAME>'s evidence. That omission by <NAME>, however, could not land any infirmity no <NAME>'s testimoney, for, it was not as if <NAME> had narrated the incident to <NAME> and <NAME> relying on such narration had lodged the first information report so that an omission by him may be said to raise a possibility that <NAME> might not have told him that she had seen accused 1 striking the deceased The evidence was that she first fled to <NAME> in the neighbouring field and told him of what had happened, whereupon <NAME> first went to <NAME> and both of them then found out <NAME> and told him about the incident. The omission by <NAME>, even if it can be regarded as an omission, cannot thus have any bearing on the question of <NAME>'s credibility as an eye-witness.

15. A perusal of the FIR lodged by <NAME> would seem to show that the omission was not such as would justify the claim of <NAME> being an eye-witness being discarded. Before it can be held as an omission, it has to be borne in mind that according to the FIR, <NAME> had been informed by <NAME> and <NAME> that his sister <NAME> "was killed by her cousin father-in-law and husband's brother" and that they were about to set fire to her dead body near their residence in their field. According to <NAME>'s evidence, when he went to that field on getting that information, he found that the dead body of <NAME> was already set on fire. The pyre was surrounded by all the accused and accused 1 at that time was having an axe with which he threatened <NAME> against corning near the dead body. It was only when the Pawars, according to the evidence, came there armed with axes and other weapons that the accused retired from the place and the body could be dragged out from the burning pyre. In this background, <NAME> must have felt that all the accused were concerned in the killing of his sister and that was why they were anxious to dispose of the dead body so that it may not indicate the manner and the cause of her death. The FIR, however, did assert that "the cousin father-in-law and husband's brother" were responsible for killing, though it is true it did not mention specifically that accused I had struck <NAME> with an axe. <NAME> might not have made specific mention of it probably because he must have thought all the accused responsible for the death of <NAME> from the manner in which they had surrounded the body for disposing it off quickly. If viewed from this point of view, the omission to mention expressly that accused 1 had struck the deceased with an axe cannot be said to have much importance.

16. <NAME>'s evidence, if accepted, would corroborate <NAME>'s claim of being an eye-witness in two respects, (a) her having gone to the field with <NAME> and being with her when the incident occured, and (b) her having fled to <NAME> in a frightened state immediately after the incident and telling him of the assault by accused 1 with an axe. The accused challenged <NAME>'s veracity on the ground that he had been stealing their crops and on being scolded therefore by them being hostile to them. But barring their bare allegation, no proof whatsoever was adduced to show any such hostility between <NAME> and the accused. But the Trial Judge disbelieved <NAME> on the ground that being the village Ramoshi, he would be under the police influence. That could hardly be a justifiable ground for discarding his testimony. <ORG> accepted his evidence and also that of Tatoba and no reason had been made out to warrant any disagreement on our part with that conclusion.

17. Once, therefore, <NAME> was found to be an acceptable witness, his evidence corroborated in a large measure <NAME>'s evidence, for, it was only on her going to him and telling him as to what had happened that the entire chain of subsequent events took place, his going first to <NAME>, then the two of them going to <NAME>, <NAME> going to the accused's field and <NAME> and <NAME> contacting other villagers, the Kotwal and <ORG>, and finally, rescuing the body from the pyre by the other relations of the deceased. As regards <NAME>'s testimony, it has to be observed that <ORG> quoted it almost verbatim in its judgment to demonstrate that it was natural and free from any material blemish in spite of a long, and what <ORG> called, a gruelling cross-examination.

18. Counsel took us through the medical evidence, including the post-mortem notes by Dr. <NAME> to show that his opinion on the two external injuries was not indefinite, but was on the contrary equivocal and shaky on the question whether the injuries were ante-mortem or post-mortem. But that was because the body was at many places charred and several internal organs were burnt or roasted. But the absence of a definite medical opinion on that question could not be very material once Phuba's evidence was found acceptable. There would, therefore, be no difficulty in coming to the conclusion that the deceased had died as a result of her having been struck with a weapon such as an axe. The defence story that she died as a result of a snake-bite and that her body had to be immediately burnt because of a belief or practice to that effect in the village has only to be stated for its rejection. No such evidence, was available. There could be no doubt, as <ORG> has said, that it was set on fire so that the body would not show how the deceased had died. The two circumstances, viz., that it was sought to be disposed off without informing her parents and her brother <NAME> all of them were in the village and without carrying it to the village cremation ground were tell-tale circumstances showing the desperate anxiety on the part of the accused to dispose it off as quickly as possible.

19. The principle upon which this <ORG> in appeals of this type would act is that once it is found that the High <ORG> has applied the correct principles in setting aside an order of acquittal, this <ORG> would not ordinarily interfere with the High <ORG>'s order of conviction in an appeal against acquittal or enter into the evidence to ascertain for itself whether the High <ORG> was right in its view of the evidence. Only such examination of the evidence would ordinarily be necessary as needed to see that the High <ORG> approached the question properly and applied the principles correctly. ( <CITATION> 1962 Supp. 1 S.C.R. 104. Counsel, nonetheless, was at pains to take us through the major part of the evidence. After having gone through that evidence, we find no reason to come to the conclusion that the High <ORG> made any error in applying the principles which should guide it in an appeal against acquittal, nor has any reason been established which would make us disagree with its findings on the appreciation of evidence.

20. That being the position, the appeal must fail and has in the result to be dismissed.


<NAME>, J.

1. The sole appellant in this appeal has been convicted by the Special Judge of Bhagalpur Under Section 5 (2) of the Prevention of Corruption Act , 1947, hereinafter called Act 2 of 1947, and has been sentenced to undergo rigorous imprisonment for three years.

2. The appellant was the Karmchari of Halka No. 2 in Pipra Anchal and was in charge of village Dinapatti also. There is a Gram Panchayat in that village named as Dinapatti Gram Panchayat in the sub-division of Supaul, district Saharsa. In June and July 1959, working as a Karmchari in village Dinapatti, he is said to have taken by way of illegal gratification various sums of money from various persons of village Dinapatti, <NAME>, for showing them favour in his duty connected with the mutation of their names or the work of table survey. In or about that time one <NAME> (P.W. 19) had filed an application for mutation of his name in respect of certain land on the 25th July, 1959, in the office of the Circle Officer, who at the relevant time was <NAME> (P.W. 30), at Pipra Anchal. The application was sent for enquiry to the appellant. He is said to have demanded a sum of Rs. 30/- from <NAME> who refused to pay any sum to the appellant. It seems that the appellant had submitted a report against P.W. 19 in connection with his application for mutation filed in the circle office.

On the 30th of November, 1959, the Circle Officer (P.W. 30) was camping at Village Bisaha and there on that date an application (Exhibit 8) scribed by <NAME> (P. W. 18) was filed making a complaint against the appellant and this application was signed by <NAME> (P. W 19), <NAME> (P. W. 20), <NAME> (P. W. 21), and <NAME> (P. W. 23) all of Tola Litiahi. In this application the complaint made against the appellant was that he had demanded a sum of Rs. 30/- from P.W. 19 but he had refused to pay and that the appellant had taken a sum of Rs. 14/- from P.W. 20; a sum of Rs. 36/- against his demand of Rs. 40/- from P.W. 21; a sum of Rs. 30/- from P. W. 23 and a sum of Rs. 30/- from one <NAME> since deceased. The Circle Officer on the filing of this application took down the statements of P.Ws. 19, 20 and 21 which are respectively Exhibits 7/2, 7 and 7/1. He asked <NAME> (P.W. 14), the then Circle Inspector of <ORG>, who was also present at Village Basaha on the 30th November, 1959, to enquire into the matter.

Shortly thereafter on that very date three more petitions were filed before the Circle Officer and they are Exhibits 8/5, 8/4 and 8/8. The petitioners in Exhibit 8/5 are <NAME> (P W. 4), <NAME> (P.W. 16 tendered) and <NAME> (P.W. 29). Their complaint was that the appellant had taken from them respectively Rs. 35/-, Rs. 12/- and Rs. 2/- in connection with the mutation of their respective names over certain lands. There was also a mention of the fact that the appellant had accepted a sum of Rs. 3/- from <NAME>, since deceased, whose son <NAME> (P.W. 15) is a tendered witness in the case. The two other applications, Exhibits 8/4 and 8/6 were in connection with the table survey matter. In the former the sole petitioner was <NAME> (P.W. 24), who complained that the appellant had taken a sum of Rs. 10/- from him against his demand of Rs. 30/- for doing the table survey work in respect of his land.

The petitioners in Exhibit 8/6 making a similar grievance were <NAME> (P.W. 25), <NAME> (P.W. 26), <NAME> (P.W. 27) and <NAME> (P.W. 28). They stated that they had respectively paid Rs. 6/-, Rs. 10/-, Rs. 5/- and Rs. 7/- to the appellant in connection with their work of table survey. The Circle Officer asked the Circle Inspector to make enquiries in connection with the said three applications also. When the Circle Inspector had proceeded with the matter of enquiry, another application (Exhibit 1) was filed before him on the 2nd December, 1959, by <NAME> (P.W. 1), <NAME> (P.W. 2), <NAME> (P.W. 3) and <NAME> (P.W. 22). Their complaint was that the appellant for the mutation of their names in respect of their respective lands had accepted from them Rs. 9/-, Rs. 10/- and Rs. 40/- respectively. The Circle Inspector made enquiries in regard to the four petitions filed before the Circle Officer and one filed before him.

On the 5th or 6th December, 1959, it appears that the Circle Officer was camping at Village Thumba, head-quarters of another Gram Panchayat within Pipra Anchal. The Circle Inspector also happened to be there. By that time, it appears, enquiries had been made by the Circle Inspector from the persons concerned and a verbal report made to the Circle Officer. It further appears that the appellant was also present there at village Thumba and he undertook in presence of the Circle Officer to refund all the amounts taken by him, the total of which was Rs. 262/-, to the persons concerned, who had made their complaints before the Circle Officer and the Circle Inspector. Upon this the Circle Officer directed the Circle Inspector to get the amounts refunded, which, as is the prosecution case, were actually refunded on the 7th December, 1959, at village Dinapatti at the darwaza of Sri Girjanand Mandal (P.W. 6), Mukhiya of Dinapatti Gram Panchayat. A list (Exhibit 3) bearing the signature or the thumb impression of the persons concerned was prepared on that date by <NAME>, Gram Sevak of Thumba Gram Panchayat, (P.W. 17). Thereafter the Circle Inspector made a report (Exhibit 5) on the 10th December, 1959, to the Circle Officer, who received it on the 12th December, 1959, and which bears his endorsement (Exhibit 5/1).

3. The evidence of the Circle Officer (P.W. SO) is that the appellant was asked to submit an explanation in connection with the report (Exhibit 5) submitted by the Circle Inspector. But on his failure to do so, after consultation with the Additional Collector, he directed the Circle Inspector to file the complaint against the appellant. The complaint petition (Exhibit 6) was filed in <ORG>, <NAME>, on the 25th of January, 1980, along with a copy of the sanction of the Collector as was stated in Exhibit 6. It was found that the case was exclusively triable by the Special Judge at Bhagalpur and, therefore, the complaint was forwarded to and received by him on the 3rd February, 1960. He, however, did not take cognizance of the case immediately on receipt of the complaint as it appears that probably the sanction of the Collector which was stated to have been filed along with the complaint petition was not received by him. He directed the filing of the sanction order. The Collector accorded his sanction on the 8th August, 1960, which order is Exhibit 10 in the case. This was filed in the court of the Special Judge on the 9th August 1960, whereupon he took cognizance of the case under Section 8 of Criminal Law (Amendment) Act, 1952, hereinafter called Act XLVI of 1952. The defence of the appellant has been that he has committed no offence and a false case has been filed against him at the instance of the Circle Inspector (P. W. 14) in collusion with the <NAME> (P. W. 6) and on the machination of <NAME> (P. W. 19). The learned Special Judge, however, has believed the prosecution case to be true and has convicted and sentenced the appellant as stated above.

4. In support of the appeal, Mr. <NAME>, learned counsel for the appellant, has urged three points :

(1) That in absence of any investigation by the police in accordance with Section 5A of Act II of 1947 no cognizance of the offence could be taken by the Special Judge on the mere complaint of the Circle Inspector.

(2) That the sanction of the Collector (Ext. 10) is invalid inasmuch as there is no material in the case to indicate that the facts constituting the offence with which the appellant has been charged with were placed before the sanction authority, namely, the Collector.

(3) That the evidence adduced by the prosecution in support of the charge is not reliable and the guilt has not been brought home to the appellant.

5. I shall deal with the point of sanction in the last. In my opinion, there is no substance in the first point urged on behalf of the appellant. Section 5A of Act II of 1947, broadly speaking, merely modifies the provisions of Section 156 of the Code of Criminal Procedure and provides that notwithstanding anything contained in the said Code, no police officer below the rank of the officers specified in Clauses (a) to (c) of Section 5A "shall investigate any offence punishable under Section 161 , Section 185 or Section 165 A of the 1. P. C. (Act XLV of 1860) or under Sub-section (2) of Section 5 of this Act, without the order of a Presidency Magistrate or a Magistrate of the first class, as the case may be, or make any arrest therefor without a warrant."

The prohibitory command of the <ORG> contained in Section 6 of Act II of 1947 does not say that the Court shall not take cognizance of an offence except upon a police report submitted after investigation in accordance with the provisions of Section 5A . Sub-section (1) of Section 8 of Act XLVI of 1952 states:

"8(1) A special Judge may take cognizance of offences without the accused being committed to him for trial and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (Act V of 1898) for the trial of warrant cases by Magistrates."

Section 8(1) does not provide as to in what manner and on what material the Special Judge may take cognizance of the offences referred to therein. For this one has to go to the provisions of Sub-section (1) of Section 190 of the Code of Criminal Procedure. I find no sufficient reason to import the provisions of Clause (b) of Sub-section (1) of Section 190 and to hold that the Special Judge may take cognizance of the offence only upon a report in writing of the facts of the offence made by any police officer and not otherwise. It, therefore, follows that he can take cognizance upon receiving a complaint of the facts which constitute the offence or even upon information received from any person other than a police officer or upon his own knowledge of suspicion that the offence has been committed. That being so, the taking of the cognizance by the Special Judge upon the complaint filed by the Circle Inspector cannot be held to be illegal or without jurisdiction. Learned counsel when confronted with the various aspects of the matter fairly conceded that no other reasonable view of the law was possible to be taken except the one I have expressed above. Some support may be lent to this view from the judgment of <NAME>, in <CITATION> , AIR 1955 Pat 317, wherein cognizance seems to have been taken by the Special Judge in accordance with the provisions of law contained in Clause (c) of Sub-section (1) of Section 190 of the Code of Criminal Procedure.

6-13. I shall now take up the point as to whether the prosecution has been able to prove the guilt of the appellant. In this connection I may refer to the evidence of the persons who had filed the petition (Ext. 8) before the Circle Officer.

[His Lordship then discussed the oral evidence and continued as follows:--]

14. If the case of the appellant and the evidence of a large number of prosecution witnesses, who claimed to have made payments to the appellant, is judged in the background of his paying back the money to the persons concerned, I have no doubt in my mind that their evidence in reliable and truthful, although the criticisms levelled against their evidence in regard to the payments of money to the appellant may not be without substance. Some of them may have force and if the evidence of paying back the money voluntarily by the appellant would not have been reliable, some of the criticisms would have at least cast a doubt in regard to the prosecution story of payment of money to the appellant by way of illegal gratification.

15. It is no doubt true that the Circle Inspector was not quite careful and vigilant in making the departmental enquiry against the appellant which was entrusted to him by the Circle Officer nor the Circle Officer himself carefully looked into the papers to find out as to whether the enquiry made by the Circle Inspector was thorough as he had directed it to be. None the less, I am not impressed by the argument advanced on behalf of the appellant that if the enquiry would have been by a police officer of the rank mentioned in Section 5A of Act II of 1947, perhaps there would have been no prosecution in this case and since the departmental enquiry was perfunctory, the appellant was prejudiced in his defence. Assuming that the departmental enquiry was perfunctory, the evidence adduced in Court seems to me truthful and reliable and that being so, in my opinion, the fact has been proved that the appellant had accepted money from as many as eighteen persons in June and/or July 1959, and, therefore, he had committed the offence of criminal misconduct in the discharge of his duty within the meaning of Clause (a) of Sub-section (1) of Section 5 of Act II of 1947 punishable under Sub-section (2) of that section.

16. On the point of sanction, however, the appeal has got to succeed and it has got to he held that the sanction is invalid. The sanction (Ext. 10) reads as follows :

"Having perused the note and recommendation of the Additional Collector, Saharsa dated 27-12-1959, and being fully satisfied after due consideration of the facts of the case and gist of evidence against the Karamchari that there exist a prima facie case for the grant of sanction, <NAME>, 1. A. S., District Magistrate and Collector, Saharsa, in exercise of the powers conferred upon me under Section 6(1)(c) of the Prevention of Corruption Act, 1947 (Act II of 1947) as amended by the Prevention of Corruption (Second Amendment) Act, 1952 (Act LIX of 1952) to hereby accord sanction for prosecution under Section 161 , Penal Code read with Section 5 (2) of the Prevention of Corruption Act , 1947 (Act II of 1947) of Sri Jagdish Prasad Verma, Karamchari, Halka No. 2 of Pipra Anchal District Saharsa.

Given under my hand and seal the 8th August, 1960.

Sd./- P. S. Kohli, District Magistrate & Collector, Saharsa."

The note and recommendation of the Additional Collector dated 27th December, 1959, spoken of in the order of sanction of the District Magistrate and Collector has not been produced by the prosecution. The evidence of the Circle Officer is that after the 12th December, "1959, when the appellant failed to file his explanation, he had discussed the matter with the Additional Collector but he has not deposed to the fact as to what papers were prepared by him and what facts were stated in the note which was placed before the Collector. The "gist of evidence against the Karamchari," referred to in the sanction order, has also not been connected with the evidence of three witnesses recorded by the Circle Officer which has been produced in the case as Exhibits 7 series. Nobody on behalf of the prosecution has deposed to the fact that the "gist of evidence" contained in Exhibits 7 series was placed before the Collector at the time when he made the order of sanction for the prosecution of the appellant. It is no doubt true that in the order the Collector has said that he was "fully satisfied after due consideration of the facts of the case" that there existed a prima facie case for the grant of sanction, and, therefore, he was according sanction but the prosecution has failed to adduce any evidence in Court to show as to what were the facts which were placed before the Collector.

17. <CITATION> , AIR 1948 P C 82, Sir John Beaumont, delivering the judgment of the Board, has pointed out, with reference to the provisions of Clause 23 of the Cotton Cloth and Yarn (Control) Order which are in pari materia with the provisions of Section 6 of Act II of 1947, that:

"It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove the extraneous evidence that those facts were placed before the sanctioning authority."

It has further been pointed out:

"The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as <ORG> seems to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient."

<CITATION> AIR 1954 SC 637 following the <NAME>'s case, AIR 1948 PC 82 decided by <ORG>, it has been pointed out:

"The burden of proving that the requisite sanction has been obtained rests on the prosecution, and such burden includes proof that the sanctioning authority had given the sanction in reference to the facts on which the proposed prosecution was to be based; and these facts might appear on the face of the sanction or might be proved by extraneous evidence."

The case in hand is slightly distinguishable from the two cases referred to above in that in the sanction orders of those cases it was not stated that the sanctioning authority had considered the facts of those cases. None the less, I am of the view that in absence of the statement of any fact in the order of sanction it was incumbent upon the prosecution to satisfy the court that the facts upon which the sanction order was obtained by the sanctioning authority were those in respect of which the delinquent public servant has been charged with in court. In absence of any evidence to that effect it is difficult to hold that the sanction order was made by the Collector after all the facts concerning this case had been placed before him. From a layman's point of view, one is tempted to think that the facts considered by the Collector must have been the facts in relation to this case. But a court of law has got to take the strict legal view of the matter specially in regard to the order of sanction which is a condition precedent, as pointed out by <ORG> in <NAME>'s case, AIR 1948 P C 82 for launching prosecution against the delinquent public servant. In absence of any evidence as to the missing links either in the form of the note and recommendation of the Additional Collector or the gist of evidence or any other paper showing that the facts concerning this particular case were placed before the Collector before his order of sanction was obtained, I find it difficult to hold that the order of sanction was validly obtained after placing all the facts of the case.

18. Reliance was placed on behalf of the <ORG> on an unreported decision of this Court, to which I was a party, in <NAME> v. <ORG>, Criminal Appeal No. 262 of 1958 D/-9-7-1958 (Pat), and to another Bench decision of this Court, to which also I was a party, in <CITATION> , 1961 (1) Cri L J 544 (Pat). With reference to the facts of both those cases, it would be noticed that the documents on the basis of which sanction orders had been obtained in those cases were produced and got exhibited by the prosecution in c6urt and those documents did contain the facts of the case. The test, therefore, laid down by <ORG> and <ORG> in the two cases, referred to above, was satisfied in both those cases, but in my opinion it is not satisfied in the case in hand. I would, therefore, hold that the sanction (Exhibit 10) was invalid and taking cognizance by the learned Special Judge on the basis of such a sanction was without jurisdiction. The trial was, therefore, vitiated. Upon this ground alone the conviction of the appellant has got to be set aside.

19. In the result, I allow the appeal and set aside the conviction of and the sentence imposed upon the appellant.

<NAME>, J.

20. I agree.


JUDGMENT <NAME>, J.

1. This is a petition under Article 226 of the Constitution of India. The petitioner is a co-operative society registered under the Cooperative Societies Act . It carries on banking business and has various co-operative credit societies as its members. During the assessment year 1963-64, it derived income from various sources, viz., banking business, property, interest on securities and dividends. By his order dated January 13, 1964, the Income-tax Officer computed the petitioner's total income under various heads as follows :

Rs.

Property income 2,488 Business income 2,02,477 Interest on securities 5,537 Other sources Dividend income From cheque supplied back Total 2,10,519

2. The Income-tax Officer directed that the amount of Rs. 2,02,477, which represented the petitioner's income from banking business, was to be included in its total income for rate purposes only. Subsequently, he issued a notice under Section 154 / 155 of the Income-tax Act, 1961, stating that the order dated January 30, 1964, was to be rectified as the petitioner was liable to pay additional surcharge, amounting to Rs. 11,260.13, which ought to have been charged but was not so charged. The petitioner appeared before <ORG> and denied his liability for the additional surcharge. The Income-tax Officer, thereafter, issued a notice of demand for a sum of Rs. 8,010.09 as additional surcharge computed under Section 3 of the Indian Finance Act, 1963. The petitioner complains that the notice of demand was not accompanied by the order of <ORG>, rectifying the earlier assessment order. By means of a letter dated March 21, 1967, the petitioner requested <ORG> to supply to it a copy of the order in pursuance of which the demand in question had been raised, but the same was not supplied. As the period of limitation for filing an appeal was about to expire, the petitioner filed an appeal before the Appellate Assistant Commissioner, annexing a copy of the notice of demand dated March 15, 1964. Even after filing the appeal, the petitioner continued its efforts for obtaining a copy of the order by which the original assessment order dated January 13, 1964, was rectified. Ultimately, on June 21, 1968, <ORG> informed the petitioner that there was no order passed under Section 154 of the Income-tax Act, 1961, copy of which could be supplied to it. The Appellate Assistant Commissioner, thereafter, dismissed the appeal filed by the petitioner on October 9, 1968, holding that so long as no order under Section 154 of the Act was passed on the application of the assessee, no appeal lay. The petitioner then went up in revision before the Commissioner of Income-tax. The Commissioner of Income-tax by his order dated August 13, 1970, dismissed the revision application. He found that, as a matter of fact, <ORG> did make an order under Section 154 of the Act on January 30, 1967, to the following effect:

" Certain mistakes in calculation of tax have come to notice which are rectified as per this form by charging additional surcharge."

3. It was under some misapprehension and confusion that the copy of the orders was not supplied to the petitioner. The Commissioner further held that the petitioner was liable to pay additional surcharge which had been levied with reference to residual income. In its opinion the levy of additional surcharge was quite distinct and different from the levy of income-tax, and exemption conferred on the business income of co-operative societies from payment of income-tax was not available in respect of additional surcharge.

4. The petitioner then filed an application dated August 28, 1970, before the Appellate Assistant Commissioner for rectifying" its appellate order dated October 9, 1968, on the ground that it suffered from a manifest error inasmuch as it proceeded to decide the appeal on a wrong assumption that no order rectifying the assessment order dated January 13, 1964, had been passed. Another application dated September 1, 1970, for rectifying the revisional order of the Commissioner of Income-tax dated August 13, 1970, was also filed. It was claimed that the Commissioner of Income-tax had not decided the real issue involved in the case. In this writ petition no averments about the fact of these two applications has been made.

5. By this petition, the petitioner prays for the quashing of the order made by the Income-tax Officer, dated January 30, 1969, and notice of demand issued in pursuance of it, as also of the appellate and revisional orders passed by the Appellate Assistant Commissioner and the Commissioner of Income-tax dated October 9, 1968, and August 13f 1970,

6. One of the grounds urged by the petitioner in support of its prayer lor quashing the orders passed by the Appellate Assistant Commissioner and the Commissioner of Income-tax is that the Appellate Assistant Commissioner misconceived the proceedings and passed an order dismissing the appeal under a wrong impression that an application for rectifying the original assessment order dated January 13, 1964, had been moved on behalf of the petitioner and that no orders on that application had been passed. It was contended that the proceedings for rectification were initiated by the Income-tax Officer suo motu and an order for rectification had been made. Learned counsel for the petitioner contended that the Income-tax Officer did not supply copy of the order rectifying the original assessment and thereby he deprived the petitioner of an effective right of appeal. It is true that an irregularity was committed by the Income-tax Officer when he did not supply a copy of the order rectifying the original assessment order. The Appellate Assistant Commissioner decided the appeal on an erroneous assumption that an application for rectifying the assessment order dated January 13, 3964, had been moved on behalf of the petitioner and that no orders on the same had been passed. The order dated January 13, 1964, rectifying the assessment, however, was brought to the notice of the petitioner during the hearing of the revision by the Commissioner of Income-tax. The Commissioner of Income-tax went into the merits of the objection, raised by the petitioner, to the demand of additional surcharge and rejected the same. In the circumstances, it will not be desirable to interfere with orders passed by income-tax authorities unless it is found that the contention that the Income-tax Officer has no jurisdiction to demand additional surcharge has substance.

7. Section 4 of the Income-tax Act, 1961, provides that where any Central Act enacts that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or those rates shall be charged for that year in accordance with and subject to the provisions of the Income-tax Act , 1961, in respect of the total income of the previous year or previous years, as the case may be, of every person. The rates and conditions for computation of income-tax are provided in the various Finance Act s which are passed by <ORG> from time to time.

8. Relevant portion of Section 81 of the Income-tax Act, 1961, runs as follows:

" Income-tax shall not be payable by a co-operative society-

(i) in respect of the profits and gains of business carried on by it, if it is-

(a) a society engaged in carrying on the business of banking or providing credit facilities to its members ;....:

Provided that in the case of a co-operative society which is also engaged in activities other than those mentioned in this clause, nothing contained therein shall apply to that part of its profits and gains as is attributable to such activities and as exceeds Rs. 15,000."

9. It is not disputed that the petitioner before us is a co-operative society engaged in carrying on banking business and that during the assessment year in question its income from sources other than banking did not exceed Rs. 15,000. The petitioner is, therefore, clearly entitled to claim exemption from payment of income-tax as provided in Section 81 of the Act in respect of its total income for the assessment year 1963-64.

10. Learned counsel for the petitioner argued that the additional surcharge payable under the Finance Act , 1963, is nothing but income-tax. According to Section 81 of the Income-tax Act, 1961, the petitioner-society is exempt from payment of income-tax and as such the respondents have no jurisdiction to demand any additional surcharge from the petitioner.

11. Learned counsel appearing for the revenue, however, urged that a perusal of the various provisions of the Finance Act shows that the legislature treated the imposition of " additional surcharge " as a levy distinct and separate from " income-tax ". He urged that income-tax is chargeable on the total income of an assessee whereas the additional surcharge is chargeable with respect to the residual income of the assessee. Residual income, as defined in the Finance Act , is something different from " total income " as defined in the Income-tax Act . He further invited the attention of the court to the heading " surcharge on income-tax ", as contained in the First Schedule to the Finance Act of 1963, under which the additional surcharge was being computed. He contended that the heading shows that the surcharge was being levied on income-tax and that it was not a tax on total income, i.e., income-tax. Additional surcharge levied under the Finance Act of 1963, not being income-tax as contemplated by Section 81 of the Income-tax Act, 1961, the petitioner is not exempt from paying it.

12. In order to resolve this controversy it becomes necessary to examine the relevant provisions of the Constitution of India which authorizes levying of surcharge and the relevant provisions of the Finance Act , 1963, and the Income-tax Act , 1961.

13. Article 269 of the Constitution provides that certain taxes and duties mentioned therein are to be levied and collected by the Government of India, but they are to be assigned to the States in the manner provided in that article.

14. So far as income-tax is concerned, Article 270 of the Constitution provides that it is to be levied and collected by the Government of India and distributed between the Union and the States in the manner provided in its Sub-clause (2).

15. Article 271 of the Constitution however, provides that, notwithstanding anything in Articles 269 and 270, <ORG> may at any time increase any of the duties or taxes referred to in those articles by a surcharge for purposes of the <ORG> and the whole proceeds of such surcharge shall form part of the consolidated fund of India.

16. The language of Article 271 makes it quite clear that whenever a duty or tax is increased by a surcharge, the total increased amount retains the character of the duty or tax so increased. The amount of surcharge by which the tax is increased instead of being distributed between the <ORG> and the States, goes to the consolidated fund of India, to be utilised only by the <ORG>. According to Section 4 of the Income-tax Act, 1961, <ORG> has to pass a separate Act providing for charge of income-tax for any assessment year at the rate or rates mentioned therein. It is in pursuance of this provision that <ORG> enacts Finance Act s from time to time. Section 2 of the Finance Act of 1963, which is the relevant Finance Act for our purposes, provides for the charge of income-tax at the rates specified in Part 1 of the First Schedule. It further provides that in certain cases the income-tax is to be increased by a surcharge for the purposes of the <ORG> calculated in the manner provided therein. The language used in Section 2 is that the income-tax is to be increased by the aggregate of the surcharges. In other words, the section provides that the total income-tax payable by an assessee would be that calculated at rates specified in Part I plus the surcharges calculated in the manner provided in that part. This section does not provide for the levy of a tax other than income-tax. Section 2 of the Finance Act, 1963, clearly indicates that the total amount computed in the manner provided therein after adding the surcharge and the additional surcharge, is the total amount of income-tax that is payable by an assessee. This section provides for the mode of calculating total income-tax payable by an assessee. The fact that under the First Schedule the additional surcharge is calculated and worked out on the basis of residual income does not mean that additional surcharge is a tax on residual income and not a tax on total income. Section 2 of the Finance Act purports to charge only income-tax and provides how the income-tax is to bo computed. The basic method of computing income-tax provided in Section 2 is to work out the tax at the rate specified in Part I of the First Schedule and thereafter increase it by the addition of surcharges calculated in the manner specified in the Schedule. Particular method provided for calculating additional surcharge does not mean that what is being charged is not a part of income-tax but is something else.

17. Moreover, under the Income-tax Act , 1961, provision has been made for raising of demands an4 recovering only income-tax and no other tax. If the contention on behalf of the revenue is accepted and it is held that the additional surcharge mentioned in the Finance Act of 1963 does not partake of the nature of income-tax, it will not be possible to demand and realise it under the provisions of the Income-tax Act , and the notice of demand and recovery proceedings would be vitiated on that account. It is clear that while providing for the charge of additional surcharge in the Finance Act , 1963, the legislature did not contemplate that the charge would be a tax distinct from income-tax and would not be recoverable under the provisions of the Income-tax Act .

18. We are, therefore, of opinion that the additional surcharge calculated in the manner provided in the First Schedule to the Finance Act of 1963 is nothing but an amount which goes to constitute the entire income-tax which is payable by an assessee. Such income-tax is not payable to the extent it is exempted by Section 81 of the Income-tax Act, 1961.

19. Next question that arises for consideration is as to how the exemption granted under Section 81 of the Act is to be worked out. Section 81 of the Act falls in Chapter VII. The heading of this Chapter is " Incomes forming part of the total income on which no tax is payable ", as distinguished from the heading in Chapter III of the Act, which provides for incomes which do not form part of total income of a person. Under Chapter III while computing the total income of the previous years of any person the incomes of the types mentioned in Section 10 of the Act are not to be included No such provision has been made in Section 81 of the Act. The heading of the Chapter in which Section 81 falls, on the other hand, shows that the types of income mentioned therein are to be included in the assessee's total income, but the assessee will not be required to pay the tax in respect of it. How the exemption of the nature contemplated by Section 81 of the Act is to be worked out has been laid down in Section 110 of the Income-tax Act, which runs as follows :

"Where there is included in the total income of an assessee any income on which no income-tax or, as the case may be, no super-tax is payable under the provisions of this Act, the assessee shall be entitled to a deduction-

(a) from the amount of income-tax with which he is chargeable on his total income of an amount equal to the income-tax calculated at the average rate of income-tax on the amount on which no income-tax is payable, and

(b) from the amount of super-tax with which he is chargeable on his total income, of an amount equal to the super-tax, calculated at the average rate of super-tax, on the amount on which no super-tax is payable,"

20. It will thus be seen that the only effect of making a provision like that of Section 81 of the Act is that the income-tax authorities will have to compute the income-tax in respect of the total income of the petitioner (including surcharge and the additional surcharge calculated in the manner provided in the Finance Act of 1963) and from that an amount equal to the income-tax calculated at the average rate of income-tax on the amount of which no income-tax is payable will have to be deducted. The petitioner would be required to pay only the balance which is arrived at under Section 110 of the Act as income-tax. As, in this case, the income of the petitioner from activities other than banking business did not exceed Rs. 15,000 the whole of its income amounting to Rs. 2,10,519 was exempt from payment of income-tax under Section 81 of the Act. In the circumstances, when calculation of tax, which includes surcharge and additional surcharge, is made under the provisions of Section 110 of the Income-tax Act, it will be found that nothing is due from the petitioner as income-tax. If the income, profits and gains of the petitioner from activities other than the banking business had exceeded Rs. 15,000, the petitioner would have been liable to pay some amount of tax calculated in the manner provided in Section 110 .

21. In the circumstances, we are of opinion that the notice of demand issued by the Income-tax Officer in pursuance of his order dated January 30, 1969, is clearly erroneous and without authority, In the result, we allow this petition with costs and quash the order of the Income-tax Officer dated January 30, 1969, the appellate order of the Assistant Commissioner dated 9th October, 1969, and the revisional order of the Commissioner of Income-tax dated 13th August, 1970.


JUDGMENT <NAME> and <NAME>, JJ.

1. The only question which arises in this case is whether an application for leave to bid is an application to the <ORG> to take a step in aid of execution within the meaning of Article 179 of the Limitation Act . This question has before been considered by other <NAME> of this <ORG>. In the case cited to us, <NAME> v. <NAME> 9 Cal. 730, which has been acted upon by the lower <ORG> in this case, the learned Judges, Mr. Justice <NAME> and Mr. Justice <NAME>, distinctly say at the top of page 732 that an application of this kind "would not give a fresh starting point." It is perfectly true that it may not have been necessary for them to have gone so far as to express an opinion upon that question in that particular case, still it was a question which seems to have been argued before them, and their decision on this point might well arise from the circumstances of the case. This decision has been cited with approval in another case, <NAME> v. Hara Sundari I.L.R. 23 Cal. 196. With reference to the other cases we find no expression of disapproval of this decision. As against it, there is a decision of Mr. Justice <NAME>, sitting alone in a case <NAME> v. <NAME> 13 All. 211 reported in the Allahabad High <ORG> Reports. The learned Judge has not given his reasons why he differs from the view taken by the Calcutta High <ORG>, but merely says that he takes a different view. As matters stand, the decisions of this <ORG>, so far as we can see, are uniform. We are not prepared to say in any way that, if the matter came to us afresh, we should arrive at a conclusion different from that expressed by the learned Judges, who decided the case of <NAME> v. <NAME> 9 Cal. 730. We do not think an application of this kind is an application seeking the action of the <ORG> in execution of a decree. It may be in one sense a step in aid of execution of the decree, but it is not a step by the <ORG>. Before a judgment-creditor can get any benefit, he must show that he asks the <ORG> to take some step in aid of execution. A step taken by the judgment-creditor himself is not, as is pointed out in one of the cases to which we have referred, sufficient.

2. An application for leave to bid is not, as far as we can see, in any way a step in aid of execution, It is merely an order made to remove the restriction which <ORG> has placed upon the action of the judgment-creditor. The sole object of it is to remove that restriction and not to enforce the decree. For these reasons we dismiss the appeal with costs.