IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6864 OF 2009 (Arising out of S.L.P.(C) NO.14302 of 2008) <NAME> & Anr. ... Appellants Vs. State of Haryana & Anr. ... Respondents J U D G M E N T

<NAME>, J.

1. Leave granted.

2. The appellants herein are residents of Narwana, District <NAME>, in the State of Haryana and claim to be the owners of land measuring 34 Kanals 2 Marlas situated at <NAME> Patiala Road near the Railway Crossing, Narwana, adjoining the New Grain Market at Narwana. Subsequent to the acquisition of certain lands in the said area in 1995, the State of Haryana issued another Notification dated 23rd November, 2005, bearing No.12/8/05-PH 1, under Section 4 read with Section 17(2)(c) of the Land Acquisition Act, 1894 (hereinafter referred to as the " L.A. Act "), for construction of a Sewage Treatment Plant. In the said Notification, it was indicated that the land was required on an urgent basis within the meaning of Sub-Section (4) of Section 17 of the L.A. Act, thereby excluding the application of Section 5-A of the said Act. According to appellants while invoking the emergent provisions under Section 17 of the aforesaid Act, no reason was indicated to exclude the operation of Section 5-A of the Act. The said Notification under Section 4 was followed by another Notification dated 2nd January, 2006 under Section 6 of the L.A. Act. In the said Notification it also was made clear that the Land Acquisition Collector-cum- District Revenue Officer, <NAME>, Haryana proposed to take possession of the land in question as the land was to be acquired urgently.

3. Aggrieved by the decision of <ORG> to acquire the land for construction of the Sewage Treatment Plant, <ORG>, filed a suit against the State of Haryana to restrain the defendant therein, including the State of Haryana from constructing the Sewage Treatment Plant in front of the school and on 15th February, 2006, an interim order was passed in the suit restraining the defendants from constructing the said Plant as the same was likely to be a health-hazard for the inhabitants of the locality. In yet another civil suit filed by one Jagroop against the State of Haryana, the Additional Civil Judge, <ORG>, Narwana, restrained the defendants by its order dated 12th April, 2006 from constructing the Sewage Treatment Plant.

4. Having been denied the opportunity of filing an objection under Section 5-A of the L.A. Act, the appellants also filed a writ petition in <ORG> challenging the two Notifications under Sections 4 and 6 of the L.A. Act on several grounds. One of the grounds taken was that the lands in question could not be used for the installation of a Sewage Treatment Plant owing to its close proximity to the residential colony, the New Grain Market and a school in the adjoining plots. Furthermore, an earlier Notification issued under Sections 4 and 6 of the L.A. Act in the year 1995 had also been challenged in Civil Writ Petition No.1222 of 1997 before <ORG>, wherein an order of status quo was passed on 28th January, 1997. It has been submitted that the said writ petition is still pending disposal in the said <ORG>. In the subsequent writ petition out of which this appeal arises, the appellants herein, inter alia, prayed for quashing of the two Notifications dated 23rd November, 2005 and 2nd January, 2006 issued under Section 4 read with Clause (c) of Sub-Section (2) of Section 17 and Section 6 of the L.A. Act, 1894 on the ground that the same were arbitrary and contrary to the provisions of the Act. A prayer was also made for a writ in the nature of Mandamus to direct the respondents in the writ petition not to dispossess the appellants herein from the land in question.

5. The writ petition was taken up for hearing on 14th February, 2008. Negating the contention of the appellants/writ petitioners that they had been wrongly deprived of their right to file an objection to the proposed acquisition of their lands under Section 5-A of the L.A. Act, <ORG> came to the conclusion that the provisions of Section 4 read with Section 17 had been religiously observed and followed by the Notification under  Section 6 , pursuant to which Award was announced on 23rd May, 2006.

6. While dismissing the writ petition, <ORG> sought to distinguish the decision of this Court in <CITATION> [], which had been cited on behalf of the writ petitioners/appellants herein in support of their contention that the right given to a land owner or person interested in the land was not an empty formality but a substantive right which could not be taken away, except for good and valid reason within the limitations prescribed under Section 17(4) of the L.A. Act, 1894. In the said decision, this Court had pointed out that mere existence of an urgency or unforeseen emergency was not sufficient in itself to dispense with the provisions of Section 5-A of the aforesaid Act. The said right could be dispensed with only after the appropriate Government forms an opinion that along with the existence of urgency under Section 17(1) or unforeseen emergency under Section 17(2) , there was also a need to dispense with the provisions of Section 5-A .

7. The Special Leave Petition (now Civil Appeal) has been filed by the appellants questioning the dismissal of their writ petition.

8. Appearing in support of the appeal, learned Senior Advocate Mr. <NAME>, submitted that the present acquisition proceeding was the second phase of acquisition of land purportedly for the purpose of setting up a Sewage Treatment Plant (STP). He submitted that similar Notifications under Sections 4 and 6 of the L.A. Act, 1894 had been published in 1995-96 for acquisition of land, measuring 42 acres, 2 kanals, 8.75 marlas, belonging to the appellants and adjoining the lands now sought to be acquired under the Notification dated 23rd November, 2005 issued under Section 4  read with Sections 17(2)(c) and 17(4) of the aforesaid Act, for the selfsame purpose.

9. As will be evident from the aforesaid Notification, the provisions of Section 5-A were dispensed with. Thereafter, on 2nd January, 2006, a Notification under Section 6 of the Act was issued indicating the intention of the Respondent No.2 to take possession of the land immediately. The said Notification was followed by a Notification under Section 9 dated 5th May, 2006 mentioning that the Award of the acquisition would be pronounced on 23rd May, 2006. Mr. <NAME> submitted that in view of the said Notification under Section 9 of the above Act, the appellants were advised to file a suit before the Civil Judge (<ORG>), <NAME>, to restrain the respondents from constructing a STP as the same would be a health hazard for the inhabitants of the locality. Such suit was filed on 15th February, 2006. Subsequently, another suit for the same reliefs was filed by one Jagroop on 12th April, 2006, before the learned Additional District Judge (<ORG>), <NAME>, who was pleased to restrain the respondents from constructing the STP. In addition to the above, the appellants filed Writ Petition CWP No.8332 of 2006 before <ORG>, praying for quashing of the Notification dated 23rd November, 2005 and for restraining the respondents from dispossessing the writ petitioners. It is out of the final disposal of the said writ petition that the present appeal has arisen.

10. Initially, <ORG> directed the parties to maintain status quo with regard to the writ petitioners' lands. Subsequently, as indicated hereinabove, the writ petition was dismissed on 14th April, 2008.

11. Mr. <NAME> submitted that no urgency of such compelling nature had been disclosed by the respondents that warranted the invoking of Section 17(4) of the L.A. Act, 1894. On the other hand, by denying the appellants the opportunity of filing objections under Section 5-A of the L.A. Act, 1894, the respondents had tried to play down the fact that the STP was being constructed next to a school and grain market which would prove to be a health- hazard, not only for the students of the school, but for the inhabitants of the area in general.

12. In addition, Mr. <NAME> also submitted that in the plan which had been prepared by <ORG>, it had been shown that the lands to be acquired were to be used for residential and commercial purposes and another plot had been earmarked for the Sewage Treatment Plant. The change of user and the setting up of a STP would severely prejudice the local inhabitants.

13. In support of his submissions that certain parameters have to be followed by the acquiring authorities for the purpose of invoking the provisions of Section 17(4) of the L.A. Act, Mr. <NAME> firstly referred to the decision of this <ORG> in <CITATION> [), wherein while dealing with a similar situation, this <ORG> observed as follows :-

"16. Section 17 confers extraordinary powers on the authorities under which it can dispense with the normal procedure laid down under Section 5-A of the Act in exceptional case of urgency. Such powers cannot be lightly resorted to except in case of real urgency enabling the <ORG> to take immediate possession of the land proposed to be acquired for public purpose. A public purpose, however laudable it may be, by itself is not sufficient to take aid of Section 17 to use this extraordinary power as use of such power deprives a landowner of his right in relation to immovable property to file objections for the proposed acquisition and it also dispenses with the inquiry under Section 5-A of the Act. The authority must have subjective satisfaction of the need for invoking urgency clause under Section 17 keeping in mind the nature of the public purpose, real urgency that the situation demands and the time factor i.e. whether taking possession of the property can wait for a minimum period within which the objections could be received from the landowners and the inquiry under Section 5-A of the Act could be completed. In other words, if power under Section 17 is not exercised, the very purpose for which the land is being acquired urgently would be frustrated or defeated. Normally urgency to acquire a land for public purpose does not arise suddenly or overnight but sometimes such urgency may arise unexpectedly, exceptionally or extraordinarily depending on situations such as due to earthquake, flood or some specific time-bound project where the delay is likely to render the purpose nugatory or infructuous. A citizen's property can be acquired in accordance with law but in the absence of real and genuine urgency, it may not be appropriate to deprive an aggrieved party of a fair and just opportunity of putting forth its objections for due consideration of the acquiring authority. While applying the urgency clause, the <ORG> should indeed act with due care and responsibility.

Invoking urgency clause cannot be a substitute or support for the laxity, lethargy or lack of care on the part of the <ORG> administration."

Referring to two other decisions of this Court in (1) <CITATION> []; and (2) <CITATION> . [], this Court also observed that it was fundamental that compulsory taking of a man's property is a serious matter and the smaller the man the more serious the matter. In fact, in <NAME> case (supra), this Court went one step further in observing that according to the decision in <NAME> case (supra), enquiry under Section 5-A is not merely statutory, but also has a flavour of fundamental rights under Articles 14 and 19 of the Constitution.

14. Various other decisions in the same vein were cited by Mr. <NAME> which only go to reiterate the propositions laid down in the above-mentioned cases.

15. It was lastly submitted by Mr. <NAME> that in the Written Statement filed on behalf of the respondents herein before <ORG> in the Writ Petition filed by the appellants, nothing has been disclosed with regard to urgency which prompted the said respondents to take recourse to the provisions of Section 17(4) of the L.A. Act, 1894. On the other hand, in paragraph 6 of the said Written Statement it has been sought to be mentioned that if the appellants herein had any grievance with regard to the impugned Notification under Section 4 , it was the duty of the appellants to have filed objections. It was further stated that having failed to file objections, the appellants had waived their right since the respondents had never denied the appellants their right to file objections. Mr. <NAME> submitted that such a stand clearly reveals the non-application of mind by the concerned authorities since invocation of Section 17(4) of the L.A. Act prevented the appellants from filing objections. Mr. <NAME> submitted that the respondents ought not to have dealt with the matter in such a perfunctory manner since the appellants had no other forum to vindicate their grievances relating to the compulsory acquisition of their lands.

16. Appearing for the State of Haryana, Mr. <NAME>, learned Advocate, denied the allegations of malafides made on behalf of the appellants and contended that it was, in fact, the appellants who were guilty of having suppressed the extremely relevant fact that they had filed a Civil Suit in respect of the self-same cause of action in <ORG> (<ORG>), Narwana, in which they had prayed for a decree of permanent injunction to restrain the respondents herein from constructing the STP in any direction near the school run by the appellants in the name and style of `Chaudhary Devi Lal Memorial Public School, Uklana Road, Narwana. Mr. <NAME> submitted that although the Written Statement filed on behalf of the Respondent Nos.1 and 2 had been amended, the same was not placed on the record and only the unamended Written Statement was filed. Mr. <NAME> then contented that, in fact, the Written Statement had never been amended, but an Additional Written Statement had been filed on account of amendment effected to the writ petition. From paragraph 6 of the Additional Written Statement, Mr. <NAME> pointed out that not one but three STPs were planned at different locations at Narwana for which three different sites had been acquired. The STP forming the subject matter of the present appeal is, in effect, only one of them. The decision to set up such a STP was the result of accumulation of sewage water which had the ultimate effect of polluting the ground water. It was submitted that the site in question for the construction of the STP had been selected after a thorough survey of the area in which the land in question was found to be most suitable. Mr. <NAME> urged that the decision to set up STPs in Narwana was in response to a public demand for the laying down of a Sewage Treatment Plant since the local inhabitants were facing great difficulty in dealing with the accumulation of sewage water. It was submitted that the interests of a few as represented by the appellants, would have to give way to the larger public interest to benefit the entire population of the area.

17. It was also submitted by Mr. <NAME> that the suit in question had been withdrawn after objections had been taken by the respondents, but no liberty had been asked for or taken for commencing a fresh proceeding on the same cause of action. Mr. <NAME> also questioned the locus standi of the school to file a suit in respect of the land belonging to the appellants.

18. In conclusion, Mr. <NAME> referred to the decision of this Court in <ORG>, SCC 48], which dealt with the question of delay in challenging the notice issued under the Land Acquisition Act , 1894. In the said decision, this Court held that long after the Award had been passed in the <ORG> proceedings and compensation had been made over to <ORG>, a writ petition challenging the notices issued under Sections 4 and 6 of the <ORG> Act was not maintainable. Mr. <NAME> urged that in the facts and circumstances of the case, no interference was called for with the decision of <ORG>.

19. From the submissions advanced on behalf of the parties and the materials on record, two points emerge for decision in the instant appeal. The first point to be considered is whether the provisions of Section 17(4) of the L.A. Act, 1894, had been validly invoked by the respondents for the purpose of acquiring the lands in question for the Sewage Treatment Plant. The other point which is linked with the first point is whether the choice of site for setting up the STP would prove to be hazardous for the inhabitants of Narwana.

20. If an opportunity had been given to file objections to the proposed acquisition, the second question would have been resolved while deciding the objections under Section 5-A of the L.A. Act, 1894. Unfortunately, the provisions of Section 17(4) were invoked in relation to a project which could have serious consequences to the health of the general public of the area. Although, it has been urged on behalf of the respondents that the decision to set up the three Sewage Treatment Plants at Narwana was in response to a public demand to install sewage drains and the present site had been chosen to be the most suitable for a STP, it has not been denied that the proposed STP is to be situated in the vicinity of a school and grain market which are both hubs of community activities.

21. In the present case, we are not concerned with technicalities but the likelihood of a health- hazard to the inhabitants of the area if the STP was set up in the acquired site. The stand taken by the respondent that the appellants could have filed objections to the proposed acquisition is difficult to appreciate since the right to file such objections had, in fact, been taken away by invoking the provisions of Section 17(4) of the L.A. Act. Such a stand taken on behalf of the respondent authorities only serve to strengthen the case of the appellants that an opportunity should have been given to them to file objections to the proposed acquisition. As indicated hereinabove in the various cases cited by Mr. <NAME> and, in particular, the decision in <NAME> case (supra), in which reference has been made to the observations made by this <ORG> in <NAME> case (supra), it has been emphasized that a right under Section 5-A is not merely statutory but also has the flavour of fundamental rights under Articles 14 and 19 of the Constitution. Such observations had been made in reference to an observation made in the earlier decision in <NAME> case (supra) and keeping in mind the fact that right to property was no longer a fundamental right, an observation was made that even if the right to property was no longer a fundamental right, the observations relating to Article 14 would continue to apply in full force with regard to Section 5-A of the L.A. Act.

22. The observations made both in <NAME> case (supra) and in <NAME> case (supra) assign a great deal of importance to the right of a citizen to file objections under Section 5-A of the L.A. Act when his lands are being taken over under the provisions of the said Act. That in the said decisions, such right was elevated to the status of a fundamental right, is in itself sufficient to indicate that great care had to be taken by the authorities before resorting to Section 17(4) of the L.A. Act . and that they had to satisfy themselves that there was an urgency of such nature as indicated in Section 17(2) of the Act, which could brook no delay whatsoever.

23. Since Section 5-A of the L.A. Act had been dispensed with, the stage under Section 9 was arrived at within six months from the date of the notice issued under Section 4 and 17(2)(c) of the L.A. Act. While such notice was issued on 23rd November, 2005, the Award under Section 11 was made on 23rd May, 2006. During this period, the appellants filed a suit, and, thereafter, withdrew the same and filed a writ petition in an attempt to protect their constitutional right to the property. It cannot, therefore, be said that there was either any negligence or lapse or delay on the part of the appellants.

24. The only other aspect of the matter which requires consideration is whether the lands in question have already been utilized for the Sewage Treatment Plant. From the averments made and photographs which were brought to our notice, it appears that the site is still lying unutilized. In such circumstances, we consider it only proper that the appellants should get an opportunity to file their objections to the proposed acquisition under Section 5-A of the L.A. Act and the respondents would be at liberty to take consequential steps after disposal of the same.

25. We, accordingly, dispose of the appeal by directing that notwithstanding the invocation of Section 17(2)(c) of the L.A. Act in its application to the States of Punjab and Haryana, the appellants will be at liberty to file objections under Section 5-A of the L.A. Act within a month from the date before the concerned authority, who will, thereafter, dispose of the same upon giving the objectors, if any, an opportunity of hearing and placing their respective cases.

26. The learned Advocate for the appellants is directed to communicate this order to the L.A.

Collector-cum-District Revenue Officer, <NAME>, Haryana, within a week from date.

27. There will be no order as to costs.

(ALTAMAS KABIR) ...................................................J.

(CYRIAC JOSEPH) New Delhi Dated : 07.10.2009


PETITIONER: <NAME> Vs. RESPONDENT: STATE OF BIHAR & ORS. DATE OF JUDGMENT01/10/1974 BENCH: <NAME>, P.N. BENCH: <NAME>, P.N. SARKARIA, RANJIT SINGH CITATION: 1974 AIR 2125 1975 SCR (2) 215 1975 SCC (3) 328 CITATOR INFO : R 1987 SC1192 (11) ACT: Maintenance of Internal Security Act, 1971, Section 3(1)(a)(ii)-Petitioner furnished with order of detention and the grounds of detention in Hindi as well as in English- English version of grounds containing the expression "or the security of the <ORG> in addition to "the maintennance of the public order" in the Hindi version-Order of detention, if vitiated. HEADNOTE: The petitioner was arrested at Dhanbad on 6th March, 1974 and after being produced before the Sub-Divisional Magistrate, he was taken to Bhagalpur Central Jail from Dhanbad. On an application made by the petitioner, the Sessions Judge granted bail to the petitioner, and an order dated 18th ,March, 1974, was passed for release of the petitioner. On the same day that is 18th March, 1974, the District Magistrate, Dhanbad passed an order detaining the petitioner under section 3 of the Maintenance of Internal Security Act, 1971, on the ground that it, was necessary to do so with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order. Pursuant to the order of detention, the petitioner was arrested on 21st March, 1974 as soon as he was released on bail. At the time of his arrest the Hindi as well as English versions of the order of detention were served on him together with the grounds of detention which were also in Hindi and English versions. After enumerating the grounds, the Hindi version proceeded to recite the satisfaction of the District Magistrate that in the circumstances he was satisfied that if the petitioner "is allowed to remain at large he will indulge in activities prejudicial to the maintenance of public order" and for prevention of such activities he considered the detention of the petitioner necessary. The words "or security of the <ORG>" were added in the recital of the satisfaction in the English version though they were absent in the Hindi version. The petitioner's representation to the <ORG> Government was rejected by the <ORG>. on 24th April, 1974. <ORG> before which the case of the petitioner had been placed by the <ORG> <ORG>. gave ,in opportunity to the petitioner to be personally heard and after considering all the facts and circumstances of the case, it gave its opinion on 2nd May, 1974 that there was sufficient cause for the detention of the petitioner. After the rejection of the petition under Art. 226 of the Constitution by <ORG>, the petitioner filed the present petition under Art. 32 of the Constitution challenging the validity of his detention. It was contended that (i) the recital "or security of the <ORG>" in the English version of the grounds of detention showed that the District Magistrate did not apply his mind with any seriousness either to the acts alleged in the grounds of detention against the petitioner or to the question whether they fell within the purview of the expression "the maintenance of public order" or "the security of the <ORG>" or both and that was sufficient to vitiate the order of detention; (ii) the first ground in so far as it alleged that the petitioner was propagating communal hatred between Adivasis and others (Biharis) and also between Adivasis and non-Advasis was vague and unintelligible and (iii) the District Magistrate had taken into account many more instances than those set out in grounds (2) and (6). Dismissing the petition under Article 32 of the Constitution, HELD : If the order of detention purports to be based on the satisfaction of the detaining authority that it is necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public; order or security of the <ORG>, it would clearly be an invalid order. [220 E-F] 216 <CITATION> , A.I.R. 1972 S.C. 1749 and <CITATION> , A.I.R. 1973 S.C. 300, relied on. If it appears in the present case that the order of detention made by the District Magistrate was based on the satisfaction that it was necessary to detain the petitioner with a view preventing him from carrying on activities prejudicial to the maintenance of public order or the security of the <ORG>, it would have to be struck down as invalid. But there is no such infirmity in the order of detention. It is only in the English version of the grounds of detention that the words "or security of the <ORG>" has been added. This is obviously the result of inadvertence and no argument can be founded upon it. In the first place, Hindi being the official language of the <ORG>, it is the Hindi version of the grounds of detention which must be regarded as authentic and the validity of the detention must be judged with reference to the Hindi version of the grounds and not the English version. Secondly, even on the English version of the grounds of detention, it is clear that at the end of each of the grounds it is stated in so many words that the acts of the petitioner were prejudicial to the maintenance of public order and there is no reference to prejudice to the security of the <ORG>. It is only in the con, elusion based on these facts that there is a recital of the satisfaction that if the petitioner is allowed to remain at large, he would indulge in activities prejudicial to the maintenance of public order or the security of the <ORG>. The words "or the security of the <ORG>" are obviously incongruous in the context. There can be no doubt that these words have crept in the English, version of the grounds of detention through some mistake. The order of detention cannot be invalidated on the basis of such an obvious error, ignoring the order of detention in both its Hindi and English versions, the Hindi vision of the grounds and the totality of the context so far as the English version is concerned. [220 E-F; 221 E-H] (ii)The petitioner was, according to the allegation contained in the first ground stirring hatred between Adivasis and outsiders. The was also propagating hatred between two other groups of people', namely, Adivasis on the one hand and non-Adivasis on the other. This allegation can hardly be regarded as vague or unintelligible. In fact the District Magistrate gave not less than five instances containing detailed and elaborate particulars and they are sufficiently informative so as to provide more than adequate opportunity to the petitioner to make an effective representation. [222 B-C] (iii) What the District Magistrate meant to say by using the expression "It would not be possible to give details of such instances" was that instances of this nature were so many that one could not possibly have details of all of them, but there were a few before him by way of illustration and since he had relied on them for arriving at the requisite satisfaction, he proceeded to reproduce them in grounds (2) to (6). [222E-F] The instance involving removal of paddy crops from two plots of land asset out in ground (4) does not stand in isolation. It is part of a se 'es of instances set out in grounds (2), (3), (5) and (6) and if it is viewed in the context of these other instances. it is clear that it is not a localised instance affecting merely maintenance of law and order but a part of public order.[223 B] The various statements in regard to the activities of the petitioner in paragraphs 5 and 7 of the counter-affidavit of the respondent were obviously intended to repel the allegations of the petitioner that he was a dedicated social and public worker devoted to the uplift of the backward and down trodden classes. These facts were not taken into account by the District Magistrate for the purpose of arriving at his subjective satisfaction. [223D] JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition No. 278 of 1974. Petition under Article 32 of the Constitution of India. <NAME> and <NAME>, for the petitioner.

<NAME>, Solicitor General of India, <NAME> and <NAME>, for the respondents. The Judgment of the Court was delivered by <NAME>, J. The petitioner, who is an advocate practising in the courts in Dhanbad in the State of Bihar, has filed the present petition challenging the validity of an order of detention dated 18th March, 1974 made by the District Magistrate, Dhanbad under section 3 of the Maintenance of Internal Security Act, 1971. The case of the petitioner is that he is a prominent public figure in the District of Dhanbad and he has been Pramukh of Baliapur Anchal since the last about ten years and Vice-Chairman of <ORG> Dhanbad since about four years. He has been associated with numerous social, educational and political institutions in the District of Dhanbad and he is engaged in diverse activ ities calculated to bring about social and economic uplift of down-trodden people of Dhanbad District. The 16th Annual Convention of Bihar Rajya Panchayat Parishad was scheduled to be held at Gosaidih in Dhanbad District on 16th March, 1974 and the petitioner was the Chairman of <ORG>. The ruling party was very much concerned about the growing popularity of the petitioner with the backward classes, and therefore, with a view to undermining his position, the ruling party chose this particular time when the 16th Annual Convention of <ORG> was shortly due to be held and got a false case instituted against the petitioner at P. S. Tundi. The petitioner was arrested at Dhanbad on 6th March, 1974 and after being produced before the Sub-Divisional Magistrate, he was taken to Bhagalpur Central Jail from Dhanbad. On March 1 1, 1974 the petitioner made an application to the Sub-Divisional Magistrate for being released on bail but no immediate order was passed on that application and the petitioner was, therefore, constrained to move the Sessions Judge for bail on 14th March, 1974. The Sessions Judge granted bail to the petitioner and on the bail bonds being verified and accepted by the Sub-Divisional Magistrate, an order dated 18th March, 1974 was passed for release of the petitioner. On the same day, that is 18th March, 1974, the District Magistrate, Dbanbad passed an order detaining the petitioner under section 3 of the Act on the ground that it was necessary to do so with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of public order. The order of detention was in Hindi, which is the official language of the State of Bihar but there was also an English version of the order of detention. There was no material difference between the Hindi and English versions of the order of detention. Pursuant to the order of detention, the petitioner was arrested on 21st March, 1974 as soon as he was released on bail in compliance with the order of release passed by the Sub-Divisional Magistrate and at the time of his arrest the Hindi as well as English versions of the order of detention were served on him together with the grounds of detention which were also in Hindi and English versions. The Hindi version, as translated in English, set out the following grounds of detention :

"1. He has been propagating communal hatred between Adibasis and outsiders (Biharis) and also between Adibasis and non-Adibasis for quite some time. He has been instigating the Adibasis to take up arms and laws in their own hands in several speeches and otherwise. As a result of these instigations and incitements, public order has been disturbed several times at several places. It would not be possible to give details of such instances, but as illustration, a few of them are given below :

2. On 25-2-1973, at Katras Ceramic Factory, Tilatanr, P. S. Katras, District Dhanbad, he instigated the employees of the said ceramic factory to remove the outsiders (Biharis) by force from the employment of the said factory and in consequence of the said abetment, 200 persons, armed with deadly weapons like lathi, grass etc., took out a procession and attacked the shop of one <NAME> and assaulted him and his father by means of lathi and grasa, and also damaged the factory and immediately thereafter the violent processions attacked the residential quarters situated in the factory premises and assaulted the inmates and thereby committed acts prejudicial to the maintenance of public order;

3. On 29-8-73, in the Railway Football Maidan, Gomob,P. S. Topchanchi, District Dhanbad, in course of public speech, he asked the people to take law in their own hands by speaking 'Apna Faisla Ap Karo', 'Pahle Gherao Karo, Fir Mukka Lath Se Maro, Fir Lathi Chhalao, Uspar Vi Nahin Sunta Hai To Sar Kat Lo'. Similarly, on 3-11-73, at the said place, he, in a public meeting orga nised by "Chotanagpur-Santbal Pargana Alag Raj Nirman Samity", instigated to local advasis and harijans to capture the lands purchased by the non-Adibasis by means of force and to harvest the standing paddy crops therefrom. Again on 4-2-74, in Golf Ground, Dhanbad, P.S. and district Dhunbad, in a meeting of Adibasis organised by <ORG>, be instigated the people to take the law in their hands and to disturb the public peace by uttering "Agar Aaaz Hame Koi Hat Dikhaega To Uska Hat Kat Lange, Aur Angali Dhikaega To Angali Kat Lange' and thereby committed acts prejudicial to the maintenance of public order;

4. On 1-1 1-73, at village Maachkocha and Mahatotund,P. S. Topabanchi, District Dhanbad, in consequence of instigation given by him and his co-associates, namely, <NAME>, <NAME>. <NAME>, <NAME> and others in village Maichokocha in the preceding night, <NAME>, <NAME>, and others, belonging to 'Shivaji Samaj' forcibly took away the standing paddy crops from plot No. 383 in village Maichakocha and plot No. 340 in village Mahatotanr, belonging to one <NAME>, and grown by him, and thus committed acts prejudicial to the maintenance of public order;

5. On 3-3-74, at village Singhdih, P.S.

<NAME>, district Dhanbad, he instigated the local Adivasis and Harijans in a Public meeting convened by "Jharkhand Alag Raj Nirman Samiti" to capture the lands of non-Adibasis by means of force and violence and so in consequence of the said instigation immediately thereafter the Adibasis and Harijans, numbering about 4,000, took out a procession being armed with deadly weapons, under his leadership and on way, in between Singdih and Amalkhori damaged a motor car bearing No. BRW 9981 and thus committed acts prejudicial to the maintenance of public order;

6. On 4-3-74, at village Dumanda, P.S.

Tundi, District Dhanbad, he organised a meeting of the Manjhis (Adibasis) and instigated them to loot the properties of 'Dikus' (non-Adivasis) namely, <NAME> of village Durgadih, <NAME>, <NAME> and others and in consequence of the said abetment on 5-3-74, at about 1.30 p.m. 500 persons, armed with deadly weapons like bows and arrows, bhalla, farsha, lathi etc., formed an unlawful assembly with the common object of looting the properties of 'Dikus' and forcibly removing them from there, and in prosecution of the said common object they surrounded the house of the said <NAME> in village Durgadih, P.S. Tundi, District Dhanbad, and started petting brickbats and shooting arrows as a result of which <NAME> and <NAME> sustained injuries and thereafter set fire to the house of said <NAME> and thus committed acts prejudicial to the maintenance of public order."

Then the Hindi version proceeded to recite the satisfaction of the District Magistrate that in the circumstances he was satisfied that if the petitioner "is allowed to remain at large, he will indulge in activities prejudicial to the maintenance of public order" and for prevention of such activities he considered the detention of the petitioner necessary. The English version also gave the same grounds of detention but the satisfaction of the District Magistrate recited in the English version was a little different. It stated that the District Magistrate was satisfied that if the petitioner "is allowed to remain at large he will indulge in activities prejudicial to the maintenance of public order or security of the State" and for prevention of such activities he considered the detention of the petitioner necessary. The words "or security of the State" were added in the recital of the satisfaction in the English version though they were absent in the Hindi version. The petitioner, made an elaborate and exhaustive representation to <ORG> against the order of detention in an attempt to answer the grounds on which the order of detention was based, but this representation was rejected by <ORG> on 24th April, 1974. In the mean time the case of the petitioner was placed by <ORG> before <ORG> and the representation of the petitioner was also forwarded to <ORG> for its consideration. <ORG> gave an opportunity to the petitioner to be person- ally heard and after considering all the facts and circumstances of the case :gave its opinion on 2nd May, 1974 that there was sufficient cause for the detention of the petitioner. The State Government thereafter confirmed the order of detention on 11th May, 1974. This detention order was challenged by the petitioner by filling a petition under Art. 226 of the Constitution in <ORG> at Patna. But <ORG> of <ORG> did not find any infirmity in the detention and by an order dated 14th May, 1974 rejected the petition. 'The petitioner thereupon filed the present petition in this Court under Art. 32 of the Constitution challenging the validity of his detention on various grounds.

The first ground on which the validity of his detention was challenged on behalf of the petitioner was that the English version of the grounds of detention recited that the District Magistrate was satisfied 'that if the petitioner was allowed to remain at large he would indulge 'in activities prejudicial to the maintenance of public order or security of the <ORG>. This recital showed that the District Magistrate did not apply his mind with any seriousness either to the acts alleged in the ,grounds of detention against the petitioner or to the question whether they fell within the purview of the expression "the maintenance of public order" or "the security of the <ORG>" or both and that was sufficient to vitiate the order of detention. Now, there can be no doubt, in view of the decisions of this Court in <CITATION> (1) and <CITATION> (2) that if the order of detention purports to be based on the satisfaction of the detaining authority that it is necessary to detain the petitioner with a view to preventing him from acting in a manner prejudicial to the maintenance of public order or security of the <ORG>, it would clearly be an invalid order. The satisfaction of the detaining authority in such a case would be on the disjunctive and not conjunctive grounds and that would me-an that the detaining authority was not certain whether it had reached its subjective satisfaction as to the necessity of exercising the power of detention on the ground of danger to public order or danger to the security of the <ORG>. If the detaining authority felt that it was necessary to detain the petitioner on the ground that his activities affected or were likely to affect both public order and the security of the <ORG>, it would use the conjunctive 'and not the dis- junctive 'or' in reciting its satisfaction. Where, however, the distinctive ,or' is used instead of the conjunctive 'and', it would mean that the detaining authority was either not certain whether the alleged activities of the petitioner endangered public order or the security of the <ORG>, or it did not seriously apply its mind to the question whether such activities fell under one, head or the other and merely reproduced mechanically the language of section 3 (1) (a) (ii). When such equi-

(1) A. T. R. 1972 S. C. 1749.

(2) A. 1. R. 1973 S. C. 300.

vocal language is used and the detenu is not told whether his alleged activities set out in the grounds of detention fell under one head or the other or both, it would be difficult for him to make an adequate representation against the order of detention. If, therefore, it appears in the present case that the order of detention made by the District Magistrate was based on the satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying on activities prejudicial to the maintenance of public order or the security of the St- ate, it would have to be struck down as invalid. But we do not find that there is any such infirmity in the order of detention. Whether we look at the Hindi version or the English version, the satisfaction which is recited in the order of detention and on which the order of detention is manifestly and avowedly based, is that it is necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. There is no reference to the security of the <ORG> in the recital of the satisfaction contained in the order of detention. The District Magistrate was satisfied that it was necessary to detain the petitioner only on the ground that his activities were prejudicial to the maintenance of public order and it was on the basis of this satisfaction that he made the order of detention. The, Hindi version of the grounds of detention also reiterated the satisfaction of the District Magistrate based on the same ground, namely, that the petitioner, if allowed to remain at large, would indulge in activities prejudicial to the maintenance of public order. The recital of the satis- faction in the Hindi version of the grounds of detention did not make any reference to danger to the security of the <ORG> by reason of the activities of the petitioner. It is only in the English version of the grounds of detention that we find the words "security of the <ORG>"' added in the recital of the satisfaction of the District Magistrate. That is obviously the result of inadvertence and no argument can be founded upon it. In the first place, Hindi being the official language of the <ORG>, it is the Hindi version of the grounds of detention which must be regarded as authentic and the validity of the detention must be judged with reference to the Hindi version of the grounds of detention and not the English version. Secondly, even if we confine ourselves to the English version of the grounds of detention, it is clear that at the end of each of the grounds it is stated in so many words that the acts of the petitioner were prejudicial to the maintenance of public order and there is no reference there to prejudice to the security of the <ORG> and it is only in the conclusion based on these acts that we find a recital of the satisfaction that if the petitioner is allowed to remain at large,he would indulge in activities prejudicial to the maintenance of public order or the security of the <ORG>. The words "or the security of the, <ORG>" are obviously incongruous in the context. They do not fit in with the conclusion drawn at the end of each of the grounds which is confined only to the maintenance of public order and nothing more. There can be no doubt that these words have crept in the English version of the grounds of detention through some mistake. We cannot invalidate the order of detention on the basis of such an obvious error, ignoring the order of detention in both its Hindi and English versions, the Hindi version of the grounds of detention and the totality of the context so far as the English version is concerned.

The petitioner then contended that the first ground insofar as it alleged that the petitioner was propagating communal hatred, between Adivasis and other (Biharis) and also between Adivasis and non-Adivasis was vague and unintelligible and the order of detention was on that account invalid. We do not see any force in this contention. Adivasis are the original inhabitants of the area while outsiders are those Biharis who have come from outside and who are, therefore, regarded as outsiders by the original inhabitants. The petitioner was, according to this allegation contained in the first ground, stirring hatred

-between these two groups of people. He was also propagating hatred between two other groups of people, namely, <ORG> on the one hand and non-<ORG> on the other. This allegation can hardly be regarded as vague and unintelligible. In fact the District Magistrate gave not less than five instances containing detailed and elaborate particulars and they were sufficiently informative so as to provide more than adequate opportunity to the petitioner to made an effective representation. This ground must, therefore, be regarded as wholly unjustified and must be rejected.

The next ground urged on behalf of the petitioner was that the District Magistrate had taken into account many more instances than those set out in grounds (2) to (6) and that was apparent from the use of the expression "It would not be possible to give details of such instances" in ground (1). This ground is also, in our opinion, unsustainable. It is true that the District Magistrate stated in ground (1) that it would not be possible to give details of instances where by reason of instigation and abetment of the petitioner disturbances of public order had taken place, but that does not mean that the District Magistrate bad various instances in mind which he took into account in arriving at his subjective satisfaction without disclosing them to the petitioner. What the- District Magistrate meant to say by using tills expression was that instances of this nature were so many that one could not possibly have details of all of them, but there were a few before him by way of illustration and since he bad relied on them for arriving at the requisite satisfaction, he proceeded to reproduce them in grounds (2) to (6). The only instances on which the District Magistrate relied for arriving at the requisite satisfaction were those set out in rounds (2) to (6) and no others. This ground also, therefore, cannot avail the petitioner.

It was then contended on behalf of the petitioner that the instance set out in ground (2) could not be regarded as one where communal hatred was propagated by the petitioner either between Adivasis and outsiders or between Adivasis and non-Adivasis and it did not, therefore, justify the inference set out in ground (1). But this contention is also futile, because it is clear from the instance as narrated in ground (2) that the petitioner instigated the employees of Katras Ceramic Factory to remove the outsiders (Biharis) by force from the employment of that factory, and in consequence of this instigation, violence was committed by 200 persons armed with deadly weapons like lathis, bhalas etc. and if this could not be regarded as Propagation of communal hatred between Advasis and outsiders (Biharis), we fail to see what other instance can be so branded. This incident also had direct nexus with maintenance of public order. The petitioner also contended that the instance set out in ground (4) was an instance involving removal of paddy crops from two plots of land in villages Marchacocha and Mahatotund and that could have no relation to maintenance of public order. But is must be remembered that this instance does riot stand in isolation. It is a part of a series of instances set out in grounds (2), (3), (5) and (6) and if it is viewed in the context of these other instances, it is clear that it is not a localised instance affecting merely maintenance of law and order but a part of a series of acts affecting maintenance of public order.

The last ground urged on behalf of the petitioner was that paragraphs 5 and 7 of the affidavit filed by Miss <NAME>, Deputy Secretary to <ORG>, <ORG>, in reply to the petition showed that there were various other materials in regard to the petitioner which were taken into account by the District Magistrate in arriving at his subjective satisfaction and since no opportunity was given to the petitioner to make an affective representation in regard lo such materials, the order of detention was bad. This ground is also untenable. It is true that various statements in regard to the activities of the petitioner were made in paragraphs 5 and 7 of the counter affidavit of Miss <NAME> but these were obviously intended to repel the allegations of the petitioner that he was a dedicated social and public worker devoted to the uplift of the backward and down-trodden classes. They were not set out a facts taken into account by the District Magistrate for the purpose of arriving at his subjective satisfaction in regard to the necessity of the detention of the petitioner. Miss <NAME> did not state anywhere in her counter affidavit that these facts weighed with the District Magistrate in reaching the requisite satisfaction. In fact, the District Magistrate himself had made an affidavit in reply to the petition filed by the petitioner in <ORG> and in that affidavit, he did not refer to any of these facts as having been taken into account by him in passing the order of detention. This ground must also, therefore, fail. These were the only grounds urged in support of the petition and since there is no substance in them, the petition fails and the rule is discharged.

<NAME>

Petition dismissed.


PETITIONER: DALIP SINGH AND OTHERS Vs. RESPONDENT: STATE OF PUNJAB. DATE OF JUDGMENT: 15/05/1953 BENCH: <NAME>, VIVIAN BENCH: <NAME>, VIVIAN MAHAJAN, MEHR CHAND JAGANNADHADAS, B. CITATION: 1953 AIR 364 1954 SCR 145 CITATOR INFO : R 1954 SC 204 (7) D 1954 SC 648 (8) D 1955 SC 762 (7) R 1955 SC 778 (15) RF 1956 SC 460 (9) R 1956 SC 469 (14) F 1958 SC 993 (11) F 1960 SC 289 (18) D 1960 SC 673 (6) RF 1961 SC1787 (11) R 1963 SC 174 (10) R 1965 SC 202 (20) RF 1968 SC1464 (3) R 1972 SC 254 (4) F 1974 SC 276 (11) F 1974 SC 323 (5,9) RF 1975 SC1917 (14) R 1976 SC1084 (12) R 1976 SC2207 (51) F 1977 SC 472 (13) F 1991 SC 318 (13) ACT: Indian Penal Code (XLV of 1860), ss. 149 , 302-Conviction under s. 149-Conviction of less than five persons-When proper-Sentence for transportation-Enhancement to sentence of death, on appeal-Interference with discretion of trial judge-Propriety-Evidence-Relationship of witness to deceased. HEADNOTE: Before s. 149 of the Indian Penal Code can be applied, the court must find with certainty that there were at least live persons sharing the common object. This does not, however, mean that five persons must always be convicted before s. 149 can be applied. If the judge concludes that five persons were unquestionably present and shared the common object, though the identity of some of them is in doubt, the conviction of the rest would be good; but if this is his conclusion, it behoves him, particularly in a murder case where heavy sentences have been imposed, to say so with certainty. <CITATION> ( S.C.R. 377) referred to. The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest reasons. It is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial judge, and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised, as for instance where no reasons have been given and none can be inferred from the circumstances of the case or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 22 of 1953.

Appeal by special leave from the Judgment and Order dated the 19th November, 1952, of <ORG> at Simla in Criminal Appeal No. 102 of 1952 and  and 499 of 1952 of <ORG>, <NAME>, in Sessions Case No. 30 of 1951 and Sessions Trial No. 5 of 1951.

<NAME> (<NAME> and <NAME>, with him) for the appellants.

<NAME> for the respondent.

1953. May 15. The Judgment of the Court was delivered by <NAME> persons appeal against sentences of death passed upon them in convictions for a double murder, the victims being two brothers, <NAME> and <NAME>. The learned Sessions Judge convicted three others also but sentenced all, including the four appellants, to transportation for life. <ORG> acquitted three of the seven but sustained the convictions of the four appellants and enhanced their sentences in each case to death.

The prosecution story is simple. All seven accused belong to the same village and belong to the same faction or "party", as Mst. <NAME> (P.W. 2) calls it. Of the seven, the appellants <NAME> and <NAME> are brothers. <NAME> who was acquitted is a son of <NAME>. The remaining four, including the appellants <NAME> and <NAME>, are not related to the other three and, except for the evidence that they belong to the same party, are not shown to have any common interest with the other three. The appellants <NAME> and <NAME> are said to have assaulted the two dead men <NAME> and <NAME> about twenty years before the occurrence. They were prosecuted and convicted and served short terms of imprisonment. <NAME> and <NAME> are also said to be dacoits and it is said that they believed that the two dead men used to furnish information against them to the police. This is said to be the motive for the murders. Why the others should have joined in, except on the basis that they belong to the same "<ORG>", is not disclosed.

The prosecution case is as follows:-On 16th June, 1951, <NAME> was taking some food out to a well a short distance from his house for himself and his son. This was about 2 p.m. Just as he left the house, his wife <NAME> (P.W. 2) heard cries of alarm and on rushing out with her daughter Mst. <NAME> (P.W. 11) saw all seven accused assaulting her husband. They beat him up till he fell to the ground.

As soon as <NAME> fell down, they left him and rushed to his (<NAME>'s) Haveli where the other brother <NAME> was lying on a cot, shouting that they would also make short work of him. All seven belaboured him on the cot, then they dragged him out and beat him up some more. After this they returned to where <NAME> was still lying on the ground and gave him some more blows. Then they ran away.

<NAME> died very shortly after the assault. The other brother survived a little longer but he also died not long after.

According to Mst. <NAME> (P.W. 2) the accused were armed as follows: The appellants <NAME> and <NAME> with barchhas; the appellant <NAME> and two of the accused who have been acquitted with lathis; the appellant <NAME> had a takwa -a hatchet with along handle, and the accused <NAME>, who has been acquitted, had a khunda-a hefty stick with a curved iron end.

The medical evidence discloses that <NAME> had nineteen injuries on his person. Of these, only two, on the head, would have been fatal in themselves. The rest were on non-vital parts like the foot, ankle, leg, knee, thigh, buttock, forearm and wrist, but of these six were grievous. The doctor says death was caused by shook produced by the multiple injuries aided by haemorrhage in the brain due to injury No. 14.

The other brother <NAME> had sixteen injuries but except for two the rest were on non-vital parts. One of the two was on the head and the other ruptured the spleen. The rest were on the ankle, leg, knee, thigh, elbow, thumb and wrist, but eleven of them were grievous. In his case the doctor put the death down to rupture of the spleen.

In <NAME> case, only one of the injuries was inflicted by a sharp-edged pointed weapon and all the rest by blunt weapons. The two on the head were inflicted by blunt weapons.

In <NAME> case, four wounds were caused by a sharp- edged or pointed sharp-edged weapon. The others were all inflicted by blunt weapons. Here again, the fatal injury which ruptured the spleen was caused by a blunt weapon. This analysis would appear to indicate that neither of the appellants <NAME> and <NAME>, who carried spears, nor the appellant <NAME>, who carried a hatchet, aimed at any vital part; and of those who had blunt weapons, the appellant <NAME> who had a lathi has alone been convicted while <NAME> and <NAME>, who also had lathis, and <NAME>, who had a khunda, have all been acquitted; and yet <NAME> alone could hardly have been responsible for eighteen injuries on <NAME> and nine on <NAME>.

The appellant <NAME> was arrested on the 17th June and the other three on the 18th. Each was wearing blood-stained clothes.

The learned Sessions Judge did not attach much importance to the bloodstained clothes, nor did he regard the recovery of certain weapons, some of which were blood-stained, as of much consequence. But he was impressed with the evidence of the two eyewitnesses Mst. <NAME> (P.W. 2) and Mst. <NAME> (P. W. 11) and believing them convicted each of the seven accused under section 302 read with section 149 , Indian Penal Code . He said that as the fatal injuries could not be attributed to any one of the accused he refrained from passing the sentence of death. All the assessors considered all seven accused guilty.

The learned <ORG> Judges did not attach any importance to the recovery of the weapons because for one thing they were not recovered till the 30th, that is to say, not until fourteen days after the murders, and when found, one set pointed out by <NAME>, who has been acquitted, was found in <NAME> field and another set, pointed out by <NAME>, was found in <NAME> field. But they considered the blood-stained clothes an important factor. They were not prepared to believe the two eye-witnesses all the way, partly because they were of opinion that a part of their story was doubtful and seemed to have been introduced at the instance of the police and partly because they considered that when the fate of seven men hangs on the testimony of two women "ordinary prudence" requires corroboration. They found corroboration in the case of the four appellants because of the blood-stained clothes and none in the case of the others. Accordingly, they convicted the four appellants and acquitted the others. Now this has led the learned Judges into an inconsistency and it is that which led to the granting of special leave to appeal. The learned Judges say that their conclusion is that (1) "generally the story related by Mst. <NAME> and Mst. <NAME> is true;

(2) that certainly not less than five persons took part in the beating of the two deceased; and (3) that the corroboration required by prudence is afforded by the presence of the blood stained clothes found on the persons of the four appellants who have been convicted. " As regards the three accused whom they acquitted the learned Judges say-

The other three accused may or may not have taken part in the affair."

Now it is clear from the above that it is impossible to ascribe any particular injury to any particular person. Therefore' it is impossible to convict any one of the accused of murder simpliciter under section 302 , 21  150 nor do the learned Judges attempt to do that. They convict under section 302 read with section 149 . But section 149 requires the presence of five persons who share the common object. It is true that in one place the learned Judges say that there were certainly not less than five present but in the very next breath they say that the three whom they acquit "may or may not have taken part in the affair". If those three -are eliminated, then we are left with only four and that militates against their previous finding that they were at least five.

Before section 149 can be called in aid, the court must find with certainty that there were at least five persons sharing the common object. A finding that three of them "may or may not have been there" betrays uncertainty on this vital point and it consequently becomes impossible to allow the conviction to rest on this uncertain foundation. This is not to say that five persons must always be convicted before section 149 can be applied. There are cases and cases. It is possible in some eases for Judges to conclude that though five were unquestionably there the identity of one or more is in doubt. In that case, a conviction of the rest with the aid of section 149 would be good. But if that is the conclusion it behoves a court, particularly in a murder case where sentences of transportation in no less than four cases have been enhanced to death, to say so with unerring certainty. Men cannot be hanged on vacillating and vaguely uncertain conclusions. In fairness to the learned Judges we have examined the evidence with care to see whether, if that was in their minds, such a conclusion could be reached in this particular case on the evidence here. That it might be reached in other cases on other facts is undoubted, but we are concerned here with the evidence in this case. Now mistaken identity has never been suggested. The accused are all men of the same village and the eye-witnesses know them by name. The murder took place in daylight and within a few feet of the two eye- witnesses. If the witnesses had said, "I know there were five assailants and I am certain of A, P and C. I am not certain of the other two but think they were D and E", a conviction of A, B and C, provided the witnesses are believed, would be proper, But when the witnesses are in no doubt either about the number or the identity and there is no suggestion about mistaken identity and when further, the circumstances shut out any reasonable possibility of that, then hesitation on the part of the Judge can only be ascribed, not to any doubt about identity but to doubt about the number taking part. The doubt is not whether D and E have been mistaken for somebody else but whether D and E have been wrongly included to swell the number to five. Again, it is possible for a witness to say that "A, B, C, D, E and others, some ten or fifteen in number, were the assailants". In that event, assuming always that the evidence is otherwise accepted, it is possible to drop out D and E and still convict A, B and C with the aid of section

149. But that again is not the case here. No one suggests that there were more than seven; no one suggests that the seven, or any of them, were, or could be, other than the seven named.

Nor is it possible in this case to have recourse to section 34 because the appellants have not been charged with that even in the alternative, and the common intention required by section 34 and the common object required by section 149 are far from being the same thing. In the circumstances, we find ourselves unable to allow the conviction to rest on the insecure foundations laid by <ORG>. We have accordingly reviewed the evidence for ourselves. Mr. <NAME> took us elaborately through it. In our opinion, the learned Sessions Judge's conclusions are right.

We are unable to agree with the learned Judges of <ORG> that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this court endeavoured to dispel in <CITATION> (1). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause' for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

This is not to say that in a given case a Judge for reasons special to that case and to that witness cannot say that he is not prepared to believe the witness because of his general unreliability, or for other reasons, unless he is corroborated. Of course, that can be done. But the basis for such a conclusion must rest on facts special to the particular instance and cannot be grounded on a supposedly general rule of prudence enjoined by law as in the case of accomplices.

(1) [1952] S.C.R. 377 at 390.

Now what is the ground for suspecting the testimony of these two witnesses? The only other reason given by the learned <ORG> Judges is that they have introduced a false element into their story at the instigation of the police in order to save the "face" of the lambardars. But if that is so, it throws a cloak of, unreliability over the whole of their testimony and, therefore, though it may be safe to accept their story where the corroborative element of the blood-stained clothes is to be found, it would be as unsafe to believe, on the strength of their testimony, that at least five persons were present as it would be to accept that the ones who have been acquitted were present; and once we reach that conclusion section 149 drops out of the case. We have carefully weighed the evidence of these women in the light of the criticisms advanced against them by Mr. <NAME>, most of which are to be found in the judgments of the lower courts, and we are impressed by the fact that the learned Sessions Judge who saw them in the witness box was impressed with their demeanour and by the way they stood up to the crossexamination, and also by the fact that the learned <ORG> Judges appear to believe them to the extent that at least five persons were concerned.

Some of the accused have made general and sweeping statements to the effect that the prosecution witnesses are inimical to them but no one has suggested why. In the long cross-examination of these witnesses not a single question has been addressed to them to indicate any cause of enmity against any of the accused other than the appellants <NAME> and <NAME>. A general question was asked, and it was suggested that there was some boundary dispute between Mst. <NAME>'s husband and the accused <NAME> and <NAME> but that was not followed up by other evidence and neither <NAME> nor <NAME> suggests that there was any such dispute in their examinations under section 342 , Criminal Procedure Code . <NAME> says vaguely that he has inherited land which will pass to the line of <NAME> and <NAME> if he dies without heirs but lie has made no effort to substantiate this. The questions put in cross- examination therefore remain just shots in the dark and leave the testimony of the two women unimpaired. The first information report was made by Mst. <NAME> (P.W.

2) herself. It was made very promptly though this was attacked by Mr. <NAME>. It was made at 8-30 p.m. within 6- 1/2 hours of the occurrence at a place 12 miles from the police station. The victims did not die at once and it was only natural that Mst. <NAME>'s first thoughts should have been to tend them Next, she had to walk part of the distance and the rest she covered in a lorry, and above all she has not been cross-examined regarding delay. We consider that a report made within 61 hours in such circumstances is prompt. Now the important thing about this report is that it names the seven accused, no less and no more, and from start to finish Mst. <NAME> has adhered to that story without breaking down in cross-examination and without any attempt to embellish it by adding more names; and in this she is

-supported by Mst. <NAME> (P.W. 11).

Next, the bloodstained clothes found on the persons of the four appellants afford strong corroboration as against them, and as two courts have believed the witnesses to that extent all we need do is to concentrate on the other three accused who have been acquitted in order to see whether there were seven persons as Mst. <NAME> says and to see whether the conclusion of <ORG> that there were at least five present is sound.

We do not think the discovery of tile weapons can be, lightly excluded. One set was pointed out by <NAME>. In itself that might not mean much but it is unquestionable corroboration as against <NAME> unless the fact of discovery is disbelieved or is considered to be a fraud. But that is not the finding of either court. The first court, believes the evidence and <ORG> does not disbelieve it but considers the incident as of small probative value. It may be in itself, but it is a corroborative element in the case of two witnesses who do not require corroboration and that makes it all the more safe to accept their testimony. Next comes the discovery of another set of weapons by <NAME>. He was already implicated by reason of some blood- stained clothes but the importance of the discovery in his case lies in the fact that the weapons were found in the field of <NAME>. It is certainly a circumstance to be taken into consideration that these weapons should be found in the field of a man who was named from the start. Then comes the fact that Mst. <NAME> (P.W. 2) not only named the various assailants in her first information report but stated exactly what sort of weapon each was carrying. Here again she is consistent from start to finish except for an unessential difference in the case of <NAME>. In the first information report she said he had a dang while in her evidence she says he had a lathi, but as a dang is a big lathi that is not a real discrepancy. This, in our opinion, is impressive consistency, especially as it tallies in general with the postmortem findings. Now the fact that weapons of this description, four stained with human blood, are discovered at the instance of two persons she has named from the beginning in the fields of others whom she has also named from the start certainly does not tend to weaken her testimony.

The only accused who is not in some way independently linked up with the testimony of these two women is <NAME>. But when their stories find corroboration on so many important particulars we see no reason why they should be disbelieved as regards <NAME>, always remembering that these are not witnesses who require corroboration under the law. In our opinion, <ORG> was unnecessarily cautious in acquitting the other three accused when the learned Judges were convinced that at least five persons were, concerned, We have taken into consideration the fact that <ORG> considers that the portion of Mst. <NAME>'s story regarding the lambardars has been falsely introduced by the police, also that both courts have rejected the evidence about the dying declaration. Despite that, we agree with the learned Sessions Judge that Mst. <NAME> and Mst. <NAME> are to be believed regarding the main facts and that they correctly named all seven accused as the assailants. On that finding the conviction under section 302 read with section 149 can be sustained. We accordingly uphold these convictions. The acquittals in the other the cases will of course stand but the mere fact that these persons have, in our opinion, been wrongly acquitted cannot affect the conviction in the other cases.

On the question of sentence, it would have been necessary for us to interfere in any event because a question of principle is involved. In a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty. But the discretion is his and if he gives reasons on which a judicial mind could properly found, an appellate court should not interfere. The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. It is not enough for an appellate court to say, or think, that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge and the only ground on which an appellate court can interfere is that the discretion has been improperly exercised, as for example where no reasons are given and none can be inferred from the circumstances of the case, or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty.

None of these elements is present here. This is a case in which no one has been convicted for his own act but is being held vicariously responsible for the act of another or others. In cases where the facts are more fully known and it is possible to determine who inflicted blows which were fatal and who took a lesser part, it is a sound exercise of judicial discretion to discriminate in the matter of punishment. It is an equally sound exercise of judicial discretion to refrain from sentencing all to death when it is evident that some would not have been if the facts had been more fully known and it had been possible to determine, for example, who hit on the head or who only on a thumb or an ankle; and when there are no means of deter- mining who dealt the fatal blow, a judicial mind can legitimately decide to award the lesser penalty in all the cases. We make it plain that a Judge is not bound to do so, for he has as much right to exercise his discretion one way as the other. It is impossible to lay down a hard and fast rule for each case must depend on its own facts. But if a Judge does do so for reasons such as those indicated above, then it is impossible to hold that there has not been a proper exercise of judicial discretion.

Now <ORG> do not consider these facts at all. They give no reasons and dispose of the matter in one sentence as follows:

"I would dismiss the appeals of the other four and accepting the revision petitions change their sentences from transportation to death."

That, in our opinion, is not a proper way to interfere with a judicial discretion when a question of enhancement is concerned. We are unable to hold that the discretion was improperly exercised by the learned <NAME> Judge. Whether we ourselves would have acted differently had we been the trial court is not the proper criterion. We accordingly accept the appeals on the question of sentence and reduce the sentence in each case to that of transportation for life. Except for that, the appeal is dismissed. Sentence reduced.

Appeal dismissed.

Agent for the appellants: <NAME>.

Agent for the respondents: <NAME>.


<NAME>, J.

1. The circumstances of this case need not be referred to further than as follows: The object of the suit was to set aside a certain deed executed by the deceased plaintiff on June 26, 1919. By that deed certain property was transferred to the appellant. The deed was attacked as having been granted and delivered while the grantor was in ill-health and under undue influence; elements of fraud were also introduced. It may be said at once that the whole of these allegations were tested before the Subordinate Judge and, on appeal from the Subordinate Judge, by <ORG>, and all the allegations were disproved. Therefore that element of attack disappears from the case.

2. There remains, however, this further point which until a few years ago was one of much contention in India. The point is, that the deed, which was a deed of gift of immoveable property, was granted and delivered upon a certain day, but was not registered until certain event happened. Those events included the principal one, namely, that the grantor himself seems to have changed his mind. He not only did so, but he brought a suit which contained an application for an injunction against the registration by the donee of the deed of gift.

3. Upon this question of possible stoppage of effect to be given to the deed, the facts in this case are clear: the deed itself was, as stated, delivered to the donee. The donee, therefore, in pursuance of that deed delivered to him, proceeded to register the deed and it was registered pending the litigation which had been raised, of which the present appeal is the outcome. The point at issue is thus expressed by the Judges of <ORG> :-

Can a donor of immovable property, when the gift can only be effected by a registered document, resile from his action before the document had been registered, and if the donee refused to give back the document can the donor obtain an injunction from the Court restraining the donee from proceeding to register the document?

4. In granting leave to appeal in this case <ORG> delivered in admirably brief form the reasons why the decision, if allowed to stand, would upset the law in India as now settled, and put it in conflict with the latest decisions :

The point of law involved in the case is whether a donor can revoke a gift before the gift deed has been registered on the ground that the gift is not completed until the deed is registered. In the present case this Court decided, that the gift was not completed until the deed had been registered. Therefore the donor could revoke it before the deed was registered. <NAME> decision has been overruled by a decision of the Full Bench in <CITATION> , 27 Bom. L.E., p. 290, in which judgment was delivered in October, 1924.

5. That was the position in which the appeal was allowed to this Board. But since this happened, the case of <CITATION> h<:s been approved in a subsequent case before this Board. A judgment has been pronounced by their Lordships which appears to be completely apt, and entirely in favour of the appellant in the present case. It is the case of <NAME> v. <NAME>. (1926) L.R. 54 I.A. 89, s.c. 29 Bom. L.R. 833. The headnote is as follows :-

A Hindu executed a deed of gift of part of his immovable property and delivered it to the donee. On the following day he adopted a son. Three days later he registered the deed :-

Held, that the gift was valid against the adopted son. On delivery of deed to the donee there was an acceptance of the transfer within Section 1'2'2 of the Transfer of Property Act , 1882, and thereupon the gift became effectual, subject to its registration as required by Section 123 .

6. Then it records that the case of <CITATION> , which was referred to by <ORG>. Judges, was approved. It is not necessary to go over the facts of this case further than is stated, but the following passage is directly in point. With regard to the proposal to prohibit the registrar from registering the deed, as is made in this case, Lord <NAME>, on behalf of the <ORG>, says (p. 95);-

Registration does not depend upon his (the donor's) consent, but is the act of an officer appointed by law for the purpose, who, if the deed is executed by or on behalf of the donor and is attested by at least two witnesses, must register it if it is presented by a person having the necessary interest within the prescribed period, Neither death, nor the express revocation by the donor, is a ground for refusing registration, if the other conditions are complied with.

7. It would be a waste of words and time to go further than that judgment, and it is sufficient to say that it appears to rule the present case.

8. Their Lordships will accordingly humbly advise His Majesty that the appeal should be allowed and the decree of the Subordinate Judge restored, with costs in the Courts below and before their Lordships.