JUDGMENT

1. In this case the plaintiff's suit is for the recovery of certain lands in the possession of the defendants. Both the Lower Courts have found the plaintiff's title and possession within twelve years prior to the suit proved.

2. The only question in second appeal is, whether the plaintiff's claim is unsustainable in consequence of a compromise entered into between the parties in a prior suit--Original Suit No. 363 of 1904. That suit was instituted by the plaintiff against the present defendants and others for the recovery of another plot of land. The parties entered into a compromise in that suit. By the terms of that compromise it was settled inter alia that both the land sued for then and the lands which form the subject-matter of this suit should be divided into two moieties and that the plaintiff should take one moiety and the defendants the other moiety. The agreement of compromise was not registered under Act III of 1877. The plaintiff being then a minor, the compromise was submitted to the court under the provisions of Section 462 of the then Civil Procedure Code, and the court gave leave to the plaintiff's next friend to enter into the compromise, holding it to be beneficial to the minor. A decree was afterwards passed in terms of the compromise in so far as it related to the property which was then sued for. The court, of course, could not pass a decree then in respect of the properties now in suit, as they were not included in the claim then made. The plaintiff, it may be noted, attempted to get a share of the properties now sued for in execution of the decree in that suit. His attempt naturally failed as the decree did not cover these properties. Both the Lower Courts have held that the defendants could not rely on the compromise as a defence to this suit as it was compulsorily registrable under the provisions of Section 17 of the Registration Act.

3. It is contended before us on behalf of the appellants that this J. view is wrong and reliance is placed on the decisions of <ORG> in <NAME> v. <NAME> (1898) I.L.R., 20 All.171.,(P.C.) and <CITATION> (1899) I.L.R., 22 Mad., 508 (P.C.) and on the case of <CITATION> (1910) I.L.R., 33 Mad., 102. Several other cases were cited at the argument on both sides. As there is some conflict of judicial opinion on the point, it is desirable to refer at some length to the rulings of <ORG> mentioned above. In <NAME> v. <NAME> (1898) I.L.R., 20 All.171.,(P.C.) the suit was to enforce the payment of money due on a mortgage bond by sale of the mortgaged property. The dispute between the parties was whether the plaintiff was entitled to recover as against the property the interest due to him on the mortgage-amount after the date fixed for payment--originally in the instrument of mortgage. <ORG> held, on the construction of the mortgage document, that he was so entitled. The plaintiff had based his claim to post diem interest, also on joint petitions presented by him and by his debtors the defendants in the suit in the course of certain proceedings instituted by the plaintiff for foreclosure. In these petitions the parties stated the total amount of principal and interest which was then due on mortgage. The sums thus stated included post diem interest up to the date of the petitions. The court was asked to sanction the arrangement between the parties under Section 257-A , Civil Procedure Code, and to grant an extension of time in accordance therewith for the payment of the mortgage debt. The required sanction was granted by the court. The defendants contended that the consent petitions could not be relied on by the plaintiff as they were not registered in accordance with the provisions of the Registration Act . <ORG> observed: "Although, in the view) which their Lordships take the question, whether those proceedings can be founded on, without their having been registered in terms of the Act of 1877, does not necessarily arise in this appeal, they think it right to add that, having heard counsel fully upon the point, they are satisfied that the provisions of Section 17 of the Act do not apply to proper judicial proceedings, whether consisting of pleadings filed by the parties or of orders made by the court." <CITATION> (1899) I.L.R., 22 Mad., 508 at p. 513 (P.C.), a suit which had been instituted for possession of certain lands was amicably settled by a compromise between the parties, which related both to those lands and to other lands which were the subject-matter of the case before <ORG>, The <NAME> which was presented to the court in the first suit stated that the parties had agreed to take each a certain share of the land sued for. One of the four schedules incorporated with it, namely, Schedule D, related to and described the lands which were the subject of the second suit, but the body of the compromise contained no reference to it. It set forth as "remarks" that the lands in Schedule D were also to be taken in equal shares by the parties. The decree of the court awarded to the plaintiff, in terms of the <NAME>, a share of the lands then actually sued for. The question in the second suit was whether the <NAME> in the previous suit which was not registered could nevertheless be relied upon by the defendants in bar of the [plaintiff's right to recover the whole of the lands. <ORG> held that it could not. Their Lordships observed, "the objection founded upon its non-registration does not, in their Lordships' opinion, apply to its stipulations and provisions in so far as they were incorporated with, and given effect to by, the order made upon it by the Subordinate Judge in the suit of 1885. The <NAME>, in so far as it was submitted to and was acted upon judicially by the learned Judge, was in itself a step of judicial procedure not requiring registration; and any order pronounced in terms of it constituted res judicata, binding upon both the parties to this appeal who gave their consent to it. If the parties, after agreeing to settle the suit of 1885 on the footing that they were each to take a half share of the lands involved in that suit, and also a half share of the lands now in dispute, had informed the learned Judge that these were the terms of the compromise, and had invited him, by reason of such compromise, to dispose of the conclusions of the suit of 1885, their Lordships see no reason to doubt that the order of the learned Judge, if it had referred to or narrated these terms of compromise, would have been judicial evidence, available to the appellant, that the respondents had agreed to transfer to her the moiety of land now in dispute. But their Lordships are unable to find that any such course was taken either in the <NAME> or in the judicial order which gave effect to it. The <NAME> merely referred, by way of remark, to the lands now in dispute; and the Judge was only asked to give effect to a compromise which related to the lands then in dispute before him. This order, accordingly, merely concerns the latter, and has no reference whatever to the lands described in Schedule D of the <NAME>. So far as regarded these lands, the compromise was not submitted to the learned Judge, but was deliberately left by the parties to stand upon their unregistered agreement of union."

4. The contention for the appellants is that in these two cases their Lordships of <ORG> have laid down that an unregistered document requiring registration under Section 17 of Act III of 1877, if referred to or narrated in a decree or order of a court or set out in pleadings filed by parties to the instrument in a court, would have the same effect as if it had been registered although it forms no part of the decree or order of the court. Now Section 17 enacts that documents coming within the classes referred to in Clauses (a) to (d) thereof shall be registered. Clause (i) exempts from the rule of compulsory registration "decrees and orders" of courts as an exception to Clauses (b) and (c). There is no provision in the section that pleadings before a court which are mere statements of parties should be registered. Section 49 of the Act lays down "No document required by Section 17 to be registered, shall affect any immoveable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered in accordance with the provisions of this Act." It will be observed that non-registration of a compulsorily registrable document leads to two consequences: one is that it cannot be received as evidence of any transaction affecting immoveable property and the other that it shall not affect any immoveable property comprised therein. If a razinama has been passed into a decree or order by a court then under Clause (i) of Section 17 it is exempted from compulsory registration; and the decree or order would constitute the matters comprised therein res judicata between the parties to the litigation. But if any portion of the razinama has not passed into a decree or order of court, it is prima facie difficult to see how a recital of it in the proceedings of the court or its inclusion in pleadings put before the court will coma within the terms of Clause (i). And it is difficult to suppose that their Lordships of <ORG> could have intended to extend the provisions of Clause (i) in the manner urged by the appellants. On examination of the language employed by their Lordships, it is clear that they did not do so intend. The observation in the earlier case is that the provisions of Section 17 do not apply to pleadings. This is no doubt obvious. In the latter case, the dictum is that the order of the Judge if it had referred to or narrated the terms of the compromise not embodied in the decree of the court, would have been judicial evidence available to the appellant that the respondents had agreed to transfer the moiety of the lands to which the reference or narration might relate. All that their Lordships meant, apparently, was that the entry of an agreement in a decree or order of court would be relevant to prove the agreement, This is laid down in Section 35 of the Evidence Act. It has been held that such an entry would be primary and not secondary evidence of the facts contained in it. <CITATION> (1892) I.L.R. 15 Mad., 19 at p. 23, <CITATION> (1892), I.L.R., 15 Mad., 378, <CITATION> (1883) I.L.R., 9 Calc., 586. But taking it that an agreement could be proved by means of the entry of it in an order of court this circumstance would only get rid of one of the two consequences of non-registration laid down in Section 49 of the Registration Act, viz., the inadmissibility of the document in evidence. It does not, however, remove the other consequence, namely, that the document cannot affect the immoveable property comprised therein. The observations of <ORG> do not lend any countenance to the suggestion that the reference or narration in a decree or order could have any such effect. The immoveable property comprised in a compromise can be affected only in so far as it has passed into a decree or order of the court. If a particular transaction is not required by law to be effected by a registered instrument and if the consequence of non-registration were declared to be merely its inadmissibility in evidence then it might be possible to hold that such consequence might be avoided when the contents of the instrument are entered in judicial proceedings.

5. It has to be remembered that, in one sense, the whole of a compromise by which a suit is terminated is put before the court for being recorded though the court will pass a decree in terms thereof only in so far as it relates to the subject-matter of the suit. When it is placed before the court with a request to record it, it becomes part of the pleadings and when the court records it, it by implication refers to the whole of the compromise. How much of the compromise would be evidence under Section 35 of the Evidence Act would depend upon how much thereof could be regarded as having been entered in the record of the court. But, as already pointed out, an entry in the court's record will not enable anything not actually part of the decree or order of the court, to affect the immoveable property compromised in that order.

6. For these reasons, it appears to be clear that the appellants' claim to the properties now in question on account of its inclusion in the compromise is unsustainable. As for <CITATION> (1910) I.L.R., 33 Mad., 102 at p. 108 there is a dictum there in appellants' favour. The learned judges who decided the case--<NAME> and <NAME>, JJ.--observe referring to the passage in <CITATION> (1899) I.L.R., 22 Mad., 508 (P.C.) already set out in these records: "In our opinion this passage clearly means that the compromise could have been enforced, although not registered, even about the lands not included in the suit. The learned judges who decided <CITATION> (1906) I.L.R., 28 All., 78, understood their Lordships' judgment in the same way." With all deference to the learned judges this dictum cannot be accepted as correct. It is opposed to the decisions of the court in <CITATION> (1902) I.L.R., 25 Mad., 553 and <CITATION> (1906) I.L.R., 29 Mad., 365, The decision of <ORG> in <CITATION> (1906) I.L.R., 28 All., 78 relied on by the learned judges, has not been followed in that court itself in the later cases of <CITATION> (1910) I.L.R., 32 All., 206 and <CITATION> (1909) I.L.R., 31 All., 13. Our view is in accordance with the decisions of <ORG>; in <NAME> v. <NAME> (1905) 1 C.L.J., 338, <NAME> v. <NAME> Mandal (1903) I.L.R., 30 Cal., 788, and <CITATION> (1909) I.L.R., 36 Calc., 193 and <CITATION> (1907) I.L.R., 34 Calc., 456 was relied on in favour of the appellants. But that case is distinguishable. There, a decree was passed against the defendant for the amount agreed upon as the proper rent by an unregistered compromise. The defendant was bound to execute a solenama according to the terms of the compromise, agreeing to pay that rent. He remained in occupation of the plaintiffs' land, but failed to execute the solenama. It was held that the plaintiff was entitled to the rent fixed by the compromise. The plaintiff would be entitled to recover the amount from the defendant as for use and occupation though that 'was not the exact ground on which the decision was based.

7. The defendants in their written statement did not put forward any title to the land except under the compromise referred to above. That is therefore the only root of their title and as it is unregistered they cannot rely on it as affecting the immoveable property comprised therein.

8. The Second Appeal must be dismissed with costs.


JUDGMENT <NAME>, J.

1. The question we are asked to answer is:

When an Income-tax Officer takes action under Section 34 of the Income-tax Act for the purpose of raising the rate of tax on the ground that the rate originally fixed was too low, is not the Income-tax. Officer bound to re-assess the income-that is, to determine afresh the correct taxable income of the assessee?

2. Section 34 refers to income escaping assessment and it provides that in such cases--it may either be that the income has escaped assessment or has been assessed at too low a rate--the Income-tax Officer may serve on the person liable to pay tax on such income, profits or gains, or, in the case of a company, on the principal officer thereof, a notice containing all or any of the requirements which may be included under Sub-section (2) of Section 22 and may proceed to assess or re-assess such income, profits or gains, and that the provisions of this Act shall, as far as possible, apply accordingly as if the notice were a notice issued under that sub-section. Then there" is a proviso that the tax shall be charged at the rate at which it would have been charged had the income, profits or gains not escaped assessment or full assessment as the case may be. It is argued for the petitioner that under Section 34 , where the rate at which the tax is levied is sought to be raised, the Income-tax Officer is bound to begin proceedings again as regards assessment and in fact proceed as if there is an inquiry in respect not only of the portion which has escaped assessment but of all the other items also, and reference is made to Sections 14 and 16 . It is argued that, when there are various heads under which a person returns his income, if in respect of one of those heads, owing to an omission or underestimation, he has been taxed at a certain rate which is subsequently found to be incorrect and notice is given to him under Section 34 , the Income-tax Officer is not to confine himself to that portion which has escaped assessment, but he is to begin again as if the notice sent was a first notice sent to the assessee to return his income. We do not think that Section 34 requires any such thing to be done. Section 34 refers to a specific case, namely, the case where an income chargeable to income-tax has escaped assessment or has been assessed at too low a rate. It may escape assessment leaving the rate unchanged, in which case it is only the amount of the assessment that will have to be raised owing to the rise in the taxable income or it may escape assessment in such a way that, if rectified, it would take the income beyond a certain rate; for example, it may give the figure to be over Rs. 40,000 in which case it will be assessed at 0-1-6 instead of 0-1-0 and the rate will therefore be higher. Where the rate is in question, the enquiry need not, under Section 34 , go beyond the facts on which the raising of the rate depends. When the assessee is given notice to show cause why the tax should not be raised because of an item having escaped assessment, he is entitled to show that, as a matter of fact, there has been no omission and that the original rate is correct. We do not think that Section 34 requires the whole thing to be re-opened and every item under which income-tax is charged to be considered afresh and a fresh assessment levied. In one sense, of course, he must fix the taxable income to enable him to fix the rate, but he is not bound to re-open the items which are not in question or which have become final, and start proceedings again. We think he is only bound to confine himself to the particular item which has been omitted.

3. Our answer will therefore be that, in a case where the rate is sought to be raised under Section 34 of the Income-tax Act, an Income-tax Officer is not bound to determine afresh the correct taxable income of the assessee. The petitioner will pay Rs. 250 the costs allowable.


PETITIONER: <NAME> Vs. RESPONDENT: <NAME> & ANR. DATE OF JUDGMENT: 22/01/1963 BENCH: <NAME>, J.R. BENCH: <NAME>, J.R. IMAM, <NAME>, K. DAYAL, <NAME> CITATION: 1963 AIR 1430 1964 SCR (1) 639 CITATOR INFO : F 1971 SC1389 (11) R 1972 SC2639 (22) R 1976 SC1947 (3) R 1977 SC2018 (5) RF 1978 SC1568 (6) R 1983 SC 595 (8) RF 1986 SC2045 (45) ACT: Criminal Law-Proceeding under s. 202 Criminal Procedure Code-Revision petition by respondent No. 1 and the other persons-Whether respondent No. 1 has locus standi to contest criminal case before issue of process-Procedural defect- Powers of Magistrate in committal proceedings and in considering evidence-Recording of reasons-Code of Criminal Procedure, 1898 (Act 5 of 1898), ss. 202 , 203 . HEADNOTE: A first information report was filed stating that the respondent No.1 and some others committed murder. There- after a person claiming to be a relative of the deceased filed a complaint alleging that the first information report was false and that certain persons other than those stated in the first information report had committed the murder. It was prayed that process be issued against these persons. The Sub-Divisional Magistrate before whom this complaint was filed directed the First Class Magistrate to inquire into the allegation and to make a report. Subsequently the nephew of the deceased filed a complaint alleging that respondent No.1 had committed the murder. The Sub- Divisional Magistrate directed the First Class Magistrate to enquire into this complaint also and to report. During the enquiry apart from the witness produced 640 by the complainant, respondent No.1 was allowed to be represented by a counsel and two persons who had been named in the first information report along with respondent No. 1 were examined as court witnesses. The First Class Magistrate after conducting inquiry under s. 203 Criminal Procedure Code, 1898, made a report stating that a prima facie case had been made out against the persons mentioned in the first complaint. He made another report on the second complaint stating that no prima facie case had been made against respondent No. 1. Sub-Divisional Magistrate directed the initiation of committal proceedings against the persons mentioned in the first complaint. On a revision application filed by the complainant in the second complaint the Sessions judge directed the Sub-Divisional Magistrate to conduct further inquiry against respondent No. 1 who took the matter in revision to <ORG>. The three-. persons against whom committal proceedings were ordered also filed revision application before <ORG>. Both the petitions were heard together. The revision applications by respondent No. 1 and one of the three others were allowed. The present appeal is under a certificate granted under Art. 134 (1) (c) of the Constitution of India. The main contentions of the appellant before this Court were (1) the respondent No. 1 had no locus standi to appear and contest a criminal case before the issue of process (2) the test applied by <ORG> for determining the question of issue of process was erroneous (3) the Magistrate making an inquiry under s. 202 Criminal Procedure Code had no jurisdiction to weigh the evidence as if it were a trial (4) the Sub. Divisional Magistrate ought to have given his reasons under s. 203 Criminal Procedure Code for dismissing the complaint. Held, that an accused person does not come into the picture at all till process is issued. Even though he may be allowed to be represented by counsel he has no right to take part in the proceedings nor has the Magistrate jurisdiction to permit him to do so. The Magistrate cannot put questions at the instance of a, person named as accused but against whom no process has been issued nor can he examine any witnesses at the instance of that person. The inquiry made by the Magistrate was therefore vitiated. <CITATION> ,  1 S. C. R. 1, referred to. For determining the question whether process is to be issued or not the test to be applied is whether there is "sufficient 641 ground for proceedings" and not whether there is sufficient ground for conviction. <NAME> v. Emperor, A. I. R. 1930 Pat. 30 <NAME> v. <NAME>, A. I. R. 1949 Pat. 36, <CITATION> , A. I. R. 1952 Pat. 125, <CITATION> . 1. R. 1931 Bom. 524 and <CITATION> , (1886) 1. L. R. 14 Cal. 141 discussed. While acting under s. 202 Criminal Procedure Code it is not open to the Magistrate to consider the statements recorded by the police during investigation or to consider the evidence adduced before him in another complaint. What the Magistrate could not do <ORG> also was incompetent to do. Where there is a prima facie case even though much can be said on both sides, a committing Magistrate is bound to commit the accused for trial. <CITATION> ,  S. C. R. 618, referred to. When a Magistrate dismisses a complaint because there are no sufficient grounds for proceeding with the trial he shall record his reasons for doing so. <CITATION> ,  2 S. C. R. 1140, considered. There is nothing which prevents the undertaking of an inquiry against one person when an inquiry is pending against different persons with reference to the same offence. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 155 of 1960.

Appeal from the judgment and order dated January 27, 1960, of <ORG> in Criminal Revision No. 620 of

59. <NAME>, for the appellant.

<NAME>, <NAME> and <NAME>, for respondent No. 1.

1963.January 22. The judgment of the Court was delivered by <NAME>, I.-This is an appeal by certificate granted by <ORG> under Art. 134 (1) (c) of the Constitution of India. The facts which are relevant for the purpose of this appeal are briefly these :

On December 25, 1957, one <NAME> lodged a first information report at I 1.00 p. in. at the police station, Bhangor in the. district of 24 Parganas alleging that respondent No. 1 (<NAME>) who is the proprietor of a fishery had killed a man named <NAME> who was a darwan posted at the informant's master's fishery by shooting him with a gun. After the occurrence, the assailants's party was chased.. but the principal cul- prit namely respondent No. 1 made good his escape in his own car. Two of his associates, <NAME> and <NAME>, were arrested by the local people and produced in the police station. On the basis of the first information report, the police undertook investigation, but ultimately they submitted a final report as late as on September 17, 1958. On November 3, 1958, one <NAME> who claimed to be a distant relative of the deceased darwan, but which fact is denied by the widow of the deceased - filed a complaint before Mr. <NAME>, the Sub-Divisional Magistrate of 24 Parganas Alipore, against the final report of the police and asked for processes to be issued against certain other persons on the allegation that those persons had murdered <NAME>. The complaint further contained a statement to the effect that the first information report lodged by <NAME> with the police on December 25, 1957, was false and that he had done so at the instance of his Master <NAME> who was an enemy of respondent No. 1. After examining <NAME> on oath and looking into the police papers, the learned Sub- Divisional Magistrate asked Mr. <NAME>, Magistrate, First Class, to hold a judicial enquiry into the allegations made by <NAME> and to submit a report to him by a certain date.

During the pendency of the enquiry into the complaint of <NAME>, <NAME>, the nephew of the deceased filed a complaint before Mr. <NAME> on December 30, 1958 stating therein that respondent No. 1 had fired a shot at <NAME> at point blank range and thereby murdered him. After examining him on oath, the Sub- Divisional Magistrate referred the matter again to Mr. <NAME> Magistrate, First Class, for enquiry and report to him by a certain date. During this enquiry, respondent No. 1 was permitted by the learned Magistrate to appear through counsel. -Seven witnesses were produced by the complainant <NAME> and examined by the learned Magistrate. In addition, <NAME> and <NAME> who, it might be remembered, are alleged to have been the associates of respondent No. 1, were examined as court witnesses and the suggestion is that the learned Magistrate did this at the instance of the counsel for respondent No. 1. On February 9, 1959, Mr. <NAME> made a report to the Sub-Divisional Magistrate to the effect that a prima facie case has been made out against three persons, <NAME>, <NAME> and <NAME> under s. 302 / 34 of the Indian Penal Code. On the same day, he made another report to the Sub-Divisional Magistrate saying that no prima facie case was made out against respondent No. 1. On the basis of the first report, the SubDivisional Magistrate directed summonses to be issued against the three persons named in that report and commenced committal proceedings against them.

The Sub-Divisional Magistrate on seeing the second report dismissed the complaint of <NAME> without assigning any reason. <NAME> preferred an application for revision before the <ORG> judge, <NAME>, who, after issuing notice to respondent No. 1 and hearing his counsel, directed the Sub-Divisional Magistrate to make further enquiry against him. Thereupon respondent No. 1 preferred a revision application before <ORG>, which came up for hearing before a single judge of that court. It would appear that the three persons against whom summonses were ordered to issue by the Sub-Divisional Magistrate also preferred a revision application before <ORG>. Both the revision applications were heard together. The learned judge granted the application of respondent No.1 as well as that of <NAME>. 'We are informed by learned counsel for respondent No.1 that eventually two of the three persons against whom summonses were ordered to be issued by the Sub-Divisional Magistrate were committed for trial before the Court of <ORG>. But he was unable to say definitely whether they were actually tried and if so, what the result of the trial was. Aggrieved by the order of the learned single judge, the appellant <NAME> made an application under Art. 134 of the Constitution for the grant of a certificate of fitness for appeal to this court which as already stated, was granted by <ORG>. The certificate was sought by the appellant on four grounds. The first ground was that respondent No. 1 had no locus standi to appear and contest a criminal case before the issue of process. The second ground was that the test propounded by the learned single judge for determining the question whether any process should be issued by the court was erroneous. The third ground was that a Magistrate making an enquiry under s. 202 of the Code of Criminal Procedure had no jurisdiction "to weigh the evidence in golden scales" as was done in the present case. The fourth and last ground was that the learned Sub-Divisional Magistrate acted in contravention of the provisions of s. 203 Cr. P. C. in dismissing the complaint without recording any reason for doing so. <ORG> granted the certificate on all the grounds except the first. It has been held by this court that <ORG> cannot limit its certificate in this manner and, therefore, we propose to examine all the four grounds taken by the appellant.

Taking the first ground, it seems to us clear from the entire scheme of Ch. XVI of the Code of Criminal Procedure that an accused person does not come into the picture at all till process is issued. This does not mean that he is precluded from being present when an enquiry is held by a Magistrate. He may remain present either in person or through a counsel or agent with a view to be informed of what is going on But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor has the Magistrate any jurisdiction to permit him to do so. It would follow from this, therefore, that it would not be open to the Magistrate to put any question to witnesses at the instance of the person named as accused but against whom process has not been issued ; nor can he examine any witnesses at the instance of such a person. of course, the Magistrate himself is free to put such questions to the witnesses produced before him by the complainant as he may think proper in the interests of justice. But beyond that, he cannot go. It was, however, contended by Mr. <NAME> for respondent No. 1 that the very object of the provisions of Ch. XVI of the' Code of Criminal Procedure is to prevent an accused person from being harassed by a frivolous complaint and, therefore, power is given to a Magistrate before whom complaint is made to postpone the issue of summons to the accused person pending the result of an enquiry made either by himself or by a Magistrate subordinate to him. A privilege conferred by these provisions can, according to Mr. <NAME>, be waived by the accused person and he can take part in the proceedings. No doubt, one of the objects, behind the provisions of s. 202 , Cr.P.C . is to enable the Magistrate to scrutinise carefully the allegations made in the complaint with a view to prevent a person named therein as accused from being called upon to face an obviously frivolous complaint. But there is also another object behind this provision and it is to find out what material there is to support the allegations made in the complaint. It is the bounden duty of the Magistrate while making an enquiry to elicit all facts not merely with a view to protect the interests of an absent accused person, but also with a view to bring to book a person or persons against whom grave allegations are made. Whether the complaint is frivolous or not has, at that stage, necessarily to be determined on the basis of the material placed before him by the complainant. Whatever defence the accused may have can only be enquired into at the trial. An enquiry under s. 202 can in no sense be characterised as a trial for the simple reason that in law there can be but one trial for an offence. Permitting an accused person to intervene during the enquiry would frustrate its very object and that is why the legislature has made no specific provision permitting an accused person to take part in an enquiry. It is true that there is no direct evidence in the case before us that the two persons who were examined as court witnesses were so examined at the instance of respondent No. 1 but from the fact that they were persons who were alleged to have been the -associates of respondent No. 1 in the first information report lodged by <NAME> and who were alleged to have been arrested on the spot by some of the local people, they would not have been summoned by the Magistrate unless suggestion to that effect had been made by counsel appearing for respondent No. 1. This inference is irresistible and we hold that on this ground, the enquiry made by the enquiring Magistrate is vitiated. In this connection; the' observations of this court in <CITATION> (1), may usefully be quoted "The enquiry is for the purpose of ascertain- ing the truth or falsehood of the complaint that is, for ascertaining whether there is evidence in support of the complaint so as to justify the issue of process and commencement of proceedings against the person concerned. The section does not say that a regular trial for adjudging the guilt or otherwise of the person complained against should take place at that stage for the person complained against can be legally called upon to answer the 'accusation made against him only when a process has issued and he is put on trial."

Coming to the second ground, we have no hesitation in holding that the test propounded by the learned single judge of <ORG> is wholly wrong. For determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is "sufficient ground for proceeding" and not whether there is sufficient ground for the conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. A number of decisions were cited at the bar in which the question of the scope of the enquiry under s. 202 has been considered. Amongst those decisions are : <CITATION> (2); <NAME> v. <NAME> (3); <CITATION> (4) ; <CITATION> (5) and <CITATION> (6). In all these cases, it has been held that the object (1)  1 S.C.R. 1, 9.

(3) A.I.R. (1949) Pat. 36.

(5) A.I.R. (1931) Bom. 524.

(2) A.I.R. (1930) Pat. 30.

(4) A I.R. (1952) Pat. 125.

(6) (1886) I.L.R. 14 Cal. 141.

of the provisions of s. 202 is to enable the Magistrate to form an opinion as to whether process should be issued or not and to remove from his mind any hesitation that be may have felt upon the mere perusal of the complaint and the consideration of the complainant's evidence on oath. The courts have also pointed out in these cases that what the Magistrate has to see is whether +,here is evidence in support of the allegations, of the complainant and not whether the evidence is sufficient to warrant a conviction. The learned judges in some of these cases have been at pains to observe that an enquiry under s. 202 is not to be likened to a trial which can only take place after process is issued, and that there can be only one trial. No doubt, as stated in sub-s. (1) of s. 202 itself, the object of the enquiry is to ascertain the truth or falsehood of the complaint, but the Magistrate making the enquiry has to do this only with reference to the intrinsic quality, of the statements made before him at the enquiry which would naturally mean the complaint itself, the statement on oath made by the complainant and the statements made before him by persons examined at the instance of the complainant. This brings us to the third ground. Section 203 of the Code of Criminal Procedure which empowers a, Magistrate to dismiss a complaint reads thus :

" The Magistrate before whom a complaint is made or to whom it has been transferred, may dismiss the complaint, if, after considering the statement on oath (if any) of the complainant and the witnesses and, the result of the investigation or inquiry, if any, under s. 202 , there is in his judgment no sufficient ground for proceeding. In such case he shall briefly record his reasons for so doing."

The power to dismiss a complaint rest% only with a Magistrate who has taken cognisance of it.

<NAME>

If before issue of process, he had sent down the complaint to a Magistrate subordinate to him for making the enquiry, he has the power to dismiss the complaint, if in his judgment, there is no sufficient ground for proceeding. One of the conditions, however, requisite for doing so is the consideration of the statements on oath if any made by the complainant and the witnesses and of the result of the investigation of the enquiry which he had ordered to be made under s. 202, Cr.P.C . In the case before us, an investigation by a police officer was not ordered by the learned Sub-Divisional Magistrate, but an enquiry by a Magistrate, First Class. He had, therefore, to consider the result of this enquiry. It was not open to him to consider in this connection the statements recorded during investigation by the police on the basis of the first information report lodged by <NAME> or on the basis of any evidence adduced before him during the enquiry arising out of the complaint made by <NAME>. All these were matters extraneous to the proceedings before him. of course, as we have already stated, the learned Magistrate has not given any reasons for dismissing the complaint and, therefore, we do not know what exactly weighed with him when he dismissed the complaint, but the learned single judge of <ORG> who has dealt with the case elaborately has not kept the evidence adduced in the two complaints separate but appears to have been influenced in deciding one case on the basis of what was stated by the witnesses in the other case. <ORG> has relied upon the evidence of <NAME> and <NAME> who ought never to have been examined by the enquiring Magistrate. <ORG> has further relied upon the investigation made by the police in the complaint of <NAME>. All this Will be clear from the following passage in its judgment :

"The version of these two witnesses (<NAME> and <NAME>) is supported by the fact that the police when they went to the locality found a dead bird and a pair of shoes and a pair of black half pants in wet condition. This find of the dead bird and the pair of shoes etc. has not explained on the version given by <NAME>, <NAME> and <NAME>. Mr. <NAME> stated that the inquiring Magistrate was not right in examining <NAME> and <NAME> at the suggestion of an advocate for the accused <NAME> and that the latter should not have been allowed at the inquiry. When however there had already been 'a full investigation into the case by the officers under the supervision of the' Superintendent of Police, it was desirable and proper for the inquiring magistrate to make a careful inquiry and not merely an one sided inquiry by examining such witnesses as might be produced by an interested party. Moreover, in this case, the learned magistrate was inquiring into both the complaints simultaneously and necessarily be could look at the evidence as a whole. In fact, two separate cases ought not to have been started at all, even though there were two separate complaints giving two different versions. These complaints were more or less <ORG> petitions against the final report submitted by the police. There was only one incident in the course of which <NAME> has lost his life. Therefore on the basis of the two <ORG> petitions it would have been proper to hold one inquiry rather than two separate though simultaneous inquiries."

What the Magistrate could not do, <ORG> was incompetent to do, and, therefore, its order reversing that of the <NAME> judge cannot be sustained.

Reliance is however, placed by Mr. <NAME> on the decision of this court in <NAME>'s case (1), at p. 10 of the report. What was considered there by this court was whether as a matter of law, it was not open to a Magistrate to accept the plea of the right of private defence at a state when all that he had to determine was whether process is to issue or not. The learned judges held that it is competent to a Magistrate to consider such a plea and observed "If the Magistrate has not misdirected himself as to the scope of an enquiry tinder s. 202 and has applied his mind judicially to the materials before him, we think that it would be erroneous in law to hold that a plea based on an exception can never be accepted by him in arriving at his judgment. What bearing such a plea has on the case of the complainant and his witnesses, to what extent they are falsified by the evidence of other witnesses,- all these are questions which must be answered with reference to the facts of each case. No universal rule can be laid in respect of such questions."

On the basis of these observations it was urged that this court has held that a Magistrate has the power to weight the evidence adduced at the enquiry. As we read the decision, it does not lay down an inflexible rule but seems to hold that while considering the evidence tendered at the enquiry it is open to the Magistrate to consider whether the accused could have acted in self-defence. Fortunately, no such question arises for consideration in this case but we may point out that since the object of an enquiry under s. 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under s. 203 has to satisfy himself that there is sufficient ground for proceeding. In order -to come to this conclusion, he is entitled to (1) (1961) 1 S.C.R. 1, 9.

consider the evidence taken by him or recorded in an enquiry under s. 202 , or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this. By "evidence of other witnesses" the learned judges had apparently in mind the statements of persons examined by the police during investigation under s. 202 . It is permissible under s. 203 of the Code to consider such evidence along with the state- ments of the complainant recorded by the Magistrate and decide whether to issue process or dismiss the complaint. The investigation in that case was made by the police under s. 202, Cr. P.C. at the instance of the Presidency Magistrate. Apparently, the statement of the various witnesses questioned by the police were self-contradictory. That being the case, it was open to the Presidency Magistrate to consider which of them to accept and which to reject. The enquiring Magistrate has not stated nor has <ORG> found in the case before us that the evidence adduced on behalf of the complainant and his own evidence were self-contradictory and, therefore, it could not be said that there was anything intrinsically false in the allegations made in the complaint, Learned counsel for the appellant referred us to the decision of this court in <CITATION> (1). In that case, after quoting a passage from Halsbury's Laws of England, Vol. 10, 3rd Edn. in art. 666 at p. 365 where the law regarding commitment for trial has been stated, this court has observed :

"In each case; therefore the magistrate holding the preliminary inquiry has to be satisfied that a prima facie case is made out against the accused by the evidence of witnesses entitled to a reasonable degree of credit, and unless he is so satisfied, he is not to commit, Applying the aforesaid test to the present case, can it be said that there is no evidence to make out (1) [1958] S.C.R. 618,638, prima facie case, or that the voluminous evi- dence adduced in this case is so incredibly that no reasonable body of persons could rely upon it ? As already indicated, in this, case, there is a large volume of documentary evidence-the latter being wholly books and registers and other documents kept or is used by the <NAME> themselves, which may lend themselves to the inference that the accused are guilty or to the contrary conclusion. <ORG> has taken pains to point out that this is one of those cases where much can be said on both sides. It will be for the jury to decide which of the two conflicting versions will find acceptance at their hands. This was pre-eminently a case which should have been committed to <ORG> for trial, and it is a little surprising that the learned Presidency Magistrate allowed himself to be convinced to the contrary.

Thus, Where there is a prima facie case, even though much can be said on both sides, a committing Magistrate is bound to commit an accused for trial. All the greater reason, therefore, that where there is prima facie evidence, even though an accused may have a defence like that in the present case that the offence is committed by some other person, or persons the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. Incidentally, we may point out that the offence with which respondent No. 1 has been charged with is one triable by jury. <ORG>, by dealing with the evidence in the way in which it has done, has in effect sanctioned the usurpation by the Magistrate of the functions of a jury which the Magistrate was wholly incompetent to do.

In view of what we have stated above, it is not necessary to say very much about the last ground.

Section 203 of the Code of Criminal Procedure provides that where the Magistrate dismisses a complaint because in his judgment there 'is no sufficient ground for proceeding with the trial, he shall record his reasons for doing so. Here, as already stated, the Magistrate perused the report of the enquiring Magistrate and then proceeded to dismiss the com- plaint. It is stated on behalf of respondent No. 1 that this is at best an error in his order and, therefore, it is curable under s. 537(a) of the Code of Criminal Procedure. In support of this view, reliance is placed upon the decision of this court in <CITATION> (1). Here, the error is of a kind which goes to the root of the matter. It is possible to say that giving of reasons is a pre-requisite for making an order of dismissal of a complaint and absence of the reasons would make the order a nullity. Even assuming, however, that the rule laid down in <NAME>'s case (1), applies to such a case, prejudice is writ large on the' 'face of the corder'. The complainant is entitled to know why his complaint has been dismissed with a view to consider an approach to a revisional court. Being kept in ignorance of the reasons clearly prejudices his right to move the revisiona1 court and where he, takes a matter to the revisional court renders his task before that court difficult, particularly in view of the limited scope of the provisions of s. 438 and 439 , Code of Criminal Procedure. For all these reasons, we hold that <ORG> was in error in setting aside the order of <ORG> and direct that further enquiry be made into the complaint of the appellant against respondent No. 1.

Mr. <NAME>, however, contends that since there is only one offence i. e., the murder of <NAME>, there can be only one trial and since other persons are being tried for that offence, there could be no further enquiry. As there was no material on record we could not know what happened to the, (1) [1955] 2 S.C.R. 1140, enquiry against <NAME> and <NAME> after the dismissal of their application for revision by <ORG>. We, therefore, called for a report from the Sub- Divisional Magistrate, 24 Parganas. That report has been received. It would appear from that report that on March 22, 1961, <ORG> directed that the commitment proceedings against these two persons be stayed pending the disposal of the present appeal by this court. We cannot appreciate the argument that an enquiry against a different person with reference to the same offence cannot be undertaken. It will be open to the court before which commitment proceedings against <NAME> and <NAME> are pending to consider whether they should be stayed pending the result of the enquiry with reference to the respondent before us, but there can be no legal impediment to the enquiry against the respondent.

Appeal allowed.

Further enquiry directed.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF BIHAR & OTHERS DATE OF JUDGMENT28/11/1972 BENCH: <NAME>, I.D. BENCH: <NAME>, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A. CITATION: 1973 AIR 239 1973 SCR (2)1043 1973 SCC (3) 333 ACT: Principle of Natural Justice-Appellant dismissed on a charge of mis--appropriation-<ORG> directed reinstatement with full salary-Later on revision, <ORG> ordered subsistence salary without giving of opportunity to the appellant of being heard-Whether principle of natural justice violated. HEADNOTE: The appellant, a teacher in a school in Bihar, was dismissed from service by <ORG> of the school on a charge of misappropriation of school fund. On appeal by him, the President of the <ORG>, set aside the order of dismissal and directed his reinstatement. <ORG> reinstated the appellant, but requested the President of the <ORG> to review the whole matter especially with regard to the payment for the period of suspension. The President, after reviewing the matter, modified his earlier order. The appellant, however, was not given any hearing before the review order. The appellant thereupon filed an application under Art. 226 and 227 of the Constitution in <ORG> where it was contended that the President of the <ORG>, could not modify the earlier order without giving the petitioner an adequate opportunity of being heard. <ORG> following an earlier Bench decision, in <NAME> v. <ORG>, Patna, (1963) B.L.R. 880, held the order of the President of the <ORG> directing payment of full salary etc., to be invalid. Having so held, <ORG> proceeded to observe that the petitioner would gain nothing if it was further held that the subsequent review by the President was equally invalid on the ground that no opportunity was given to the appellant. On appeal to this Court, HELD : (i) On the facts and circumstances of this case, it was incumbent on <ORG> to declare as invalid the review order of the President of the <ORG> without affording to the appellant any opportunity of being heard and also his order dated January 18, 1964. The impugned order of <ORG> as also the order made by the President of the <ORG> dated February 25, 1961, along with his subsequent order dated January 18, 1964, should be set aside. [ 1047 F] (ii) -After setting aside these orders, the parties are relegated to the stage immediately prior to the order dated February 25, 1961, with the result that the President of the <ORG>, would now dispose of, in accordance with law, the request of <ORG>, to reconsider the order of April 22, 1960. If the <ORG> deems it proper to reconsider that order, then, the appellant must be afforded a reasonable opportunity of hearing and of adequately representing big case. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1222 of 1967.

15-L521Sup.CI/73 Appeal by special leave from the judgment and order dated September 3, 1965 of <ORG> in M. J. Case No. 1257 of 1964.

<NAME> for the appellant.

<NAME>, <NAME> and <NAME> for the respondents No. 1-6, 8 & 9.

The Judgment of the Court was delivered by <ORG> This appeal is by special leave and is directed against the order of <ORG> at Patna dated September 3, 1965 dismissing the appellant's writ petition.

The appellant, a teacher of <ORG> was dismissed from service by the Managing Committee of the said school at a meeting held on February 27, 1958 on a charge of misappropriation of school money. On appeal by him the President of <ORG>, set aside the order of dismissal by order dated April 22, 1960 and directed his reinstatement in service. By the same order of reinstatement a further direction was given that the appellant should be paid full salary, &men allowance and increment from the date of his suspension till the date of reinstatement after adjusting the amount already paid. When this order was received by the Managing Committee it was obeyed so far as the reinstatement of the appellant is con- cerned but the Managing Committee requested the President of <ORG> "to review the whole matter especially with regard to the payments for the period of suspension". The President by his order dated February 25, 1961, reviewed the matter and modified his earlier order made on appeal by providing that the appellant would be entitled only to subsistence allowance for the period of his suspension. That decision was conveyed by the Secretary, <ORG> to the District Education Officer in letter no. 2799-100-1 dated February 25, 1961 which reads :-

"With reference to your letter No. 957, dated 29th July, 1960, I have, under orders of the President to say that you direct the Managing Committee of <ORG>, to treat the period during which <NAME> remained off duty, as period of suspension and pay him subsistence allowance according to the rules."

It is not disputed before us that this order was made without affording the appellant any hearing. After the said order the appellant is said to have made several representations to the President the <ORG> but reconsideration of the order dated February 25 1961, was declined and it was reiterated that the appellant was entitled only to subsistence allowance during the period of suspension. That order was conveyed by the Secretary, <ORG> of Secondary Education to the appellant as per communication no. 233/4A-97-58 dated January 18, 1964 which reads :

"With reference to your representation dated 27th December, 1963, 1 have to state that <ORG>, Bihar had been pleased to order that <NAME> should be paid subsistence allowance only during his suspension period. The order cannot be revised now."

It is not disputed that this order was also made without affording any hearing to the appellant. The appellant thereupon filed an application under Arts. 226 and 227 of the Constitution in <ORG> at Patna in which it was contended on his behalf that the President of <ORG> could not modify the earlier order dated April 22, 1960 without giving to the petitioner an adequate opportunity of being heard. <ORG> considered this argument to be without merit, because according to an earlier Bench decision of <ORG> in <NAME> v. <ORG>, Patna(1), the President of <ORG>, as appellate authority, was empowered only to direct reinstatement of a dismissed teacher and had no jurisdiction to make any order with regard to the payment of any arrears due to him. Though the correctness of this decision was questioned before <ORG> by the counsel representing the appellant in that Court the Bench hearing the writ petition did not consider it to be a fit case for reference to a larger bench to re-examine the view taken in the case of <NAME> (supra). On this view <ORG> held the order of the President of <ORG> dated April 22, 1960 directing payment of full salary, dearness allowance and increment to the petitioner from the date of his suspension till the date of reinstatement to be invalid. Having so hold <ORG> proceeded to observe that the petitioner would gain nothing if it was further held that the subsequent order of the President dated January 18, 1964 modifying the earlier order of April 22, 1960 was held invalid on the ground that no opportunity of hearing was given to the appellant. This question, in the opinion of <ORG>, had become some- what academic because the appellant could not get any relief in that writ petition.

Before us on behalf of the appellant it was strenuously con- tended that the appellant had approached <ORG> with his.

(1) [1963] B.L.J.R. 880.

grievance only against the order made by the President of the Board reviewing his earlier order dated April 22, 1960 without hearing the appellant and that being the only relief claimed by him, if the said order of review was unconstitutional having been made to the appellant's prejudice without affording him an adequate opportunity of being heard then <ORG> could not decline him the relief of declaring it to be invalid, on the sole ground that the earlier order (which was not challenged by the petitioner in those proceedings and had not been got quashed by the Managing Committee in any appropriate proceedings) being 'contrary to law on the basis of <NAME> (supra), it would be somewhat academic to declare as invalid the review order impugned by the appellant before that Court. According to the appellant so long as the order of <ORG> reviewing the earlier order of April 22, 1960 was not expressly declared to be invalid, the Managing Committee or <ORG> was not likely to pay to him the arrears of salary due to him as a result of the order of his reinstatement in service. In this connection the appellant's learned counsel drew our attention to r. 18 of the rules governing the service conditions of teachers in <ORG> framed as per Government resolution dated September 7, 1955. This rule reads :

"18. In case the Managing Committee violates these rules or fails to carry out the orders and instructions of <ORG>, or give effect to the decisions of the <ORG>, the <ORG> shall have the right to withdraw recognition of the school or suspend the grant or take such other action or actions as it may think fit."

According to the submission, <ORG> is bound to carry out the orders and instructions of the Board and if the orders dated February 25, 1961 and January 18, 1964 are not quashed <ORG> may feel reluctant to ignore them. Our attention was also drawn to r, 12(2). Rule 12 provides "12. <ORG> may impose the following punishment on any member of the staff including those on probation after having finally considered his explanation and the charges levelled against him in writing

(i) Warning, (ii) Censure, (iii) Withholding of normal increments, (iv) Discharge, (V) Dismissal.

Note.-(1) Proceedings are to be started against teachers concerned by the Secretary on the report of the Headmaster or by the President, on the report of the Secretary, or by the President himself, or by the Manag-

ing Committee as a whole. Ordinarily <ORG> as a whole has the power to suspend the teacher but in cases of urgency, the Secretary in consultation with the President may suspend a teacher but this bust be approved by <ORG> within a fortnight. Charges must be handed to the teacher in writing within two days of the suspension order. The teacher concerned must submit his explanation within seven days of the receipt of the charges. A meeting of <ORG> shall be convened within a fortnight from the date of suspension order, for which a clear seven days' notice shall be given to every member. Such meetings should have a quorum of two-third of the total number of members (that is, eight members). If the teacher member or the Headmaster himself is involved, he shall not attend the meeting. Orders of discharge or dismissal shall be valid only if they have been passed by <ORG>. In no case, however, shall a teacher be kept, under suspension for a period exceeding 30 days or in case he, has filed an appeal up to two months or till the disposal of his appeal.

(2) During the period of suspension the teacher shall be allowed to draw half his salary plus dearness allowance and upon exoneration, the balance shall be paid to him."

On behalf of the respondents <NAME> appearing for the State of Bihar and <ORG>, did not challenge the view taken by <ORG> in the case of <NAME> (supra). He tried to justify the impugned order only on the reasons stated by <ORG>. In our opinion on the facts and circumstances of this case it was incumbent on <ORG> to declare as invalid, the order of the President of <ORG> dated February 25, 1961 reviewing the earlier order dated April 22, 1960, without affording to the appellant any opportunity of being heard, ,and also his order dated January 18, 1964. The appellant had approached <ORG> with a grievance against that order and the order dated April 22, 1960, which was in his favour, was advisedly not challenged by him. To decline to the appellant the relief claimed by him to which, according to <ORG>'s own reasoning, he was without doubt entitled, on the mere ground that it would be academic to do so, seems to us to be highly unfair and unjust to the appellant, because. as represented before us <ORG> might well take a different view and feel that the orders passed by the President of <ORG>, reviewing the earlier order dated April 22, 1960 having not been specifically quashed and set aside by <ORG>, are still operative, demanding compliance. Under r. 18 and S. 5 of the Bihar High Schools (Control and Regulation of Administration) Act (Bihar Act XIII), 1960 <ORG> is expected to obey the directions of the <ORG>. It may also be pointed out that under S. 6 of the above Act orders of the <ORG> are final. It is not stated before us that the order dated April 22, 1960 was ever got set aside by <ORG> or even assailed by it in appropriate proceedings, but we express no considered opinion on that question, the same having not been can- vassed before us.

In our view, the only just and fair order to be made in these proceedings is to allow this appeal, set aside the impugned order of the the <ORG> as also the order made by the President of <ORG> dated February 25, 1961 (reviewing his earlier order dated April 22, 1960) along with the subsequent order of the President of the <ORG> dated January 18, 1964 rejecting the appellant's representation and reiterating the order that he should be paid subsistence allowance only during his sus- pension period. After setting aside these orders the position is that the parties are relegated to the stage immediately prior to the order dated February 25, 1961, with the result that the President of <ORG> would now have to deal with and dispose of in accordance with law, the request of <ORG> of <ORG> for re-considering the order of April 22, 1960. If the <ORG> deems it proper to reconsider that order then the appellant must be afforded a reasonable opportunity of hearing and of adequately representing his case. Rule 16 provides for appeal from the orders made under r. 15, and r. 17 provides for hearing the appellant and the Secretary of <ORG>. Rule 17 reads "17. The appeal of the person concerned shall be heard by the President of <ORG> or any member of <ORG> duly nominated by the President or any officer ordinarily not below the rank of Inspector of Schools. The appellant the Secretary of <ORG> may be heard in person by the President, <ORG> of Secondary Education or his nominee who may even authorise them to be represented by a representative."

This rule embodies the principle of natural justice requiring the appellate authority to hear the parties. The order dated April 22, 1960 must have, therefore, beer. made after hearing both sides as provided by this rule. There is no express provision for review in the rules to which our attention was drawn. But we are not asked and, therefore, not required to express any considered opinion on the competence of review and we express none. We are, however, clear that if the order dated April 22, 1960 is to be reconsidered then the appellant must be afforded adequate opportunity of hearing and presenting his case. This unwritten right of hearing is fundamental to a just decision by any authority which decides a controversial issue affecting the rights of the rival contestants. This right has its roots in the notion of fair procedure. It draws the attention of the party concerned to the imperative necessity of not overlooking the other side of the case before coming to its decision, for nothing is more likely to conduce to just and right decision than the practice of giving hearing to the affected parties. The President of <ORG> would be deciding a controversy affecting the rights of the parties before him if and when he chooses to reconsider the order dated April 22, 1960, whatever be the source of his power to do so-a point left open by us. He is required to decide in the spirit and with a sense of responsibility of a tribunal with a duty to meet out even-handed justice. The appellant would thus be entitled to a fair chance of presenting his version of facts and his submissions on law as his rights would be directly affected by such proceeding. The omission of express requirement of fair hearing in the rules or other source of power claimed for reconsidering the order dated April 22, 1960 is supplied by the rule of justice which is considered as an integral part of our judicial process which also governs quasijudicial authorities when deciding controversial points affecting fights of parties. We also express no opinion on the question of the correctness or otherwise of the view taken by <ORG> in the case of <NAME> (supra) nor do we express any opinion about the the and effect of r. 12(2) referred to above or of any other rule or rules which may be attracted to the appellant's case. Indeed, this order is not to be construed as containing any opinion on the merits of the controversy except that the aforesaid orders of the President made in 1961 and 1964 have been quashed. The appellant is entitled to his costs from the contesting respondents. On facts of C.M.P. No. 4775 of 1968 no orders are called for.

S.C. Appeal allowed.